Police Searches on the Parliamentary Estate - Committee on the Issue of Privilege Contents

Examination of Witnesses (Question Numbers 840-859)


14 DECEMBER 2009

  Q840  Ann Coffey: But the problem was that there is this offence called misconduct in public office, which meant that they could carry on investigating under this particular offence.

  Sir Gus O'Donnell: But I am sure we will all learn now from the decision made by Keir Starmer as DPP, he was very clear, I think he said: "There was a potential risk that highly sensitive material relating to national security might be disclosed. This damage should not be underestimated and once the pattern of leaks was established in this case, it was inevitable that a police investigation would follow." But then to my mind, it is fairly clear, once you go down that route, if you do not go down the route of a national security issue which is covered by the Official Secrets Act, I think people will infer from the fact that the DPP decided no charges should be brought that other—he is very clear that this sort of material, and I agree with him, is stuff that should be covered by the Civil Service Code and internal disciplinary matters, not by that offence that you talked about.

  Q841  Chairman: But there was something which was known, and that was the nature of the revelations, if that be the right way to describe them, which Mr Green was making. None of these raised any issue of national security. They were about immigration, about statistics, about things of that kind.

  Sir Gus O'Donnell: Absolutely, which is why the whole point—let us be absolutely clear about this, there is absolutely no intention of investigating Damian Green. We asked for the source of the leaks to be investigated. That is what we were concerned about.

  Q842  Chairman: You thought you were fishing for a much larger catch.

  Sir Gus O'Donnell: Or catches, inside the Home Office, that was the issue for us.

  Q843  Sir Alan Beith: There was something else that you knew, you and Mr Hannigan's predecessor knew what the arrangements for the handling of secret material in the Home Office were, so can I take it you had a pretty good idea of what Mr Galley would have had access to?

  Sir Gus O'Donnell: Yes, he was cleared up to secret level, he was in a position close to ministers.

  Q844  Sir Alan Beith: Well, being in a position close to ministers does not give him access to material outside the category for which he is cleared, does it, or do you think that it does?

  Sir Gus O'Donnell: No, his security clearance would determine the access, and he was cleared up to secret.

  Q845  Ms Hewitt: But if I may, Chairman, you did not know it was Mr Galley at the point where you brought in the police.

  Sir Gus O'Donnell: Exactly.

  Q846  Ms Hewitt: So Mr Galley's security clearance was not relevant at that point surely.

  Sir Gus O'Donnell: Indeed. That was the reason why, when we heard about this, and you get the name and you know what the security classification is, then you think, ah, there might be something there, but actually you discover later there was not.

  Q847  Chairman: The other point I wanted to put to you is you yourself said, had you known then what you know now, and the lack of control that you had, once the police were involved, you might have taken a different course, but have you noticed the actual impact that the nature of the investigation had on proceedings in this place? The fact that Mr Speaker gave evidence to us that when the counter-terrorism command was mentioned as the source, he formed the view that this must be a very serious, possibly grave threat that was involved, and events following that were influenced by the fact that (a) it was the police you called in, and (b) within the police, the Metropolitan Police arrangement is it is the counter-terrorism command which deals with leak investigations.

  Sir Gus O'Donnell: Yes, it is SO15, and they are now part of that grouping. I can understand that that creates some confusion certainly.

  Q848  Mr Howard: Sir Gus, I am slightly puzzled by all this, I am sure you can enlighten me. Between 2005 and 2007, you are telling us, there were a series of leaks which endangered national security. Presumably you were able to tell that they endangered national security by the nature of the use which was made of those leaks. Did any of them involve breaches of the Official Secrets Act?

  Sir Gus O'Donnell: Yes, potentially.

  Q849  Mr Howard: Well, I do not understand potentially. Did the use which was made of those leaks involve documents which came within the scope of the Official Secrets Act?

  Sir Gus O'Donnell: Yes.

  Q850  Mr Howard: It did. So between 2005 and 2007, you have these damaging leaks involving breaches of the Official Secrets Act.

  Sir Gus O'Donnell: Which the police investigated.

  Mr Howard: They did investigate, did they?

  Q851  Chairman: In every case?

  Mr Hannigan: I think not in every case, but certainly in some of them. Of course, we do not know of every case.

  Q852  Mr Howard: But did they investigate—

  Sir Gus O'Donnell: They investigated a number of them.

  Q853  Mr Howard: At your request?

  Sir Gus O'Donnell: Yes.

  Q854  Mr Howard: At what level? I mean, in this case, we have the very highest levels of the Metropolitan Police involved.

  Sir Gus O'Donnell: Well, again, we do not say to the police exactly what level you have to handle these inquiries, but we put to them and asked them to investigate, because there was prima facie a case that the Official Secrets Act had been breached.

  Q855  Mr Howard: Who is we in that context exactly?

  Sir Gus O'Donnell: The Cabinet Office.

  Q856  Mr Howard: You see, this again is somewhat puzzling, because I have been looking at the guidance which was in force at the time. It says very clearly that it is the responsibility of individual departments, their permanent secretaries and departmental security officers to conduct investigations. Then it says, "The police investigate cases that breach the Official Secrets Act or involve criminal behaviour". What is meant by "or involve criminal behaviour", as opposed to a breach of the Official Secrets Act?

  Sir Gus O'Donnell: Well, the police might investigate cases, for example, where there was an issue about leaking of sensitive economic data, for example.

  Q857  Mr Howard: Why?

  Sir Gus O'Donnell: Insider trading.

  Mr Howard: How on earth could insider trading arise in the context of leaked information from a government department?

  Q858  Ms Hewitt: Quite easily.

  Sir Gus O'Donnell: Quite easily. I could give you examples, but it would be quite difficult to do so in open session.

  Q859  Mr Howard: Such as to give rise to a criminal offence?

  Sir Gus O'Donnell: Yes.

  Mr Hannigan: I think, Mr Chairman, this is covered in the footnote to the protocol from Dennis O'Connor, where he qualifies the threshold saying it is about the Official Secrets Act, but also other things, and he lists the sort of things that Sir Gus has just been talking about. The Chief Inspector's report noted: "In future leak investigations, there should be a presumption in favour of the police not being involved unless there are: (a) reasonable grounds for believing an offence under the Official Secrets Act 1989 ... ; (b) reasonable grounds for believing a serious criminal offence has been committed as an integral part of a leak(s), such as the example where an official is subject to bribery or corruption, or very exceptional cases which seriously threaten the UK in economic or integrity terms."

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