Examination of Witnesses (Question Numbers
880-899)
SIR GUS
O'DONNELL KCB AND
MR ROBERT
HANNIGAN
14 DECEMBER 2009
Q880 Mr Howard: He did indeed, but
that was the term that he originally used.
Sir Gus O'Donnell: And withdrew.
Q881 Mr Howard: It would be most
improper, would it not, for there to be any negotiation between
the Government and the police about the scope of a criminal investigation?
Sir Gus O'Donnell: It is entirely
for the police to decide on the scope of the investigation, but
they wanted us to agree the terms of reference of their inquiry.
Q882 Mr Howard: If it is entirely
for the police to decide the scope of the investigation, why did
Mr Wright write his second letter in which he said, "I confirm
the scope of the investigation"?
Sir Gus O'Donnell: Because they
had said to us, "This is the scope that we have decided upon,
we would like you to write to us—it was at their request
that we wrote that letter—to say that you agree with that
scope". It is a slightly odd way of doing things, but that
is what they asked us to do.
Q883 Mr Howard: At whose request?
Sir Gus O'Donnell: The police's
request.
Q884 Mr Howard: Whose request?
Sir Gus O'Donnell: I do not know
exactly, but it came from the police, I could find out exactly
who it was.
Q885 Mr Howard: I suppose Mr Wright
could tell us.
Sir Gus O'Donnell: It will be
recorded, we can give you the exact name.
Q886 Mr Howard: It would be recorded?
Sir Gus O'Donnell: I would have
thought so.
Q887 Mr Howard: That second letter
of Mr Wright was described, if my recollection is correct, by
Mr Johnston who gave evidence from the police as a letter which
was unwise and which made him uneasy.
Sir Gus O'Donnell: Well, this
was a letter that was requested by the police. We talked to them
about it. They wanted to be clear that they had set out a scope
and terms of reference, and were we happy with that?
Q888 Mr Howard: Was Mr Quick present
at that meeting?
Sir Gus O'Donnell: I think he
is giving evidence after me, is he not?
Q889 Mr Howard: Yes, I am asking
you so that I might know in advance of his giving evidence.
Sir Gus O'Donnell: I honestly
do not know who was at that meeting—oh, it was with Cressida
Dick.
Mr Hannigan: To whom the letter
was sent.
Sir Gus O'Donnell: So I would
expect he would not have been, if Cressida Dick was there, but
obviously he can answer.[1]
Q890 Mr Henderson: Looking to the
future, Sir Gus, we have heard that there are some circumstances
where once the department or the Cabinet Office have looked at
a particular issue, they would decide it is an internal matter
and should be dealt with in disciplinary proceedings. We know
at the other extreme that when a preliminary investigation takes
place, that it could be a breach of the Official Secrets Act.
We know in this case the suggestion was that there might be an
offence of misconduct in public office, I think it is described
as—
Sir Gus O'Donnell: That is what
the police decided—
Q891 Mr Henderson: The police decided,
but these are options. Looking to the future, do you think that
there is a need for some lesser offence which would protect public
information which was somewhere between an internal investigation
with internal disciplinary consequences and this more serious
offence of misconduct in public office? Would that protect the
integrity of the department in a more effective way, and at the
same time protect the rights of individuals to whistle blow where
it was appropriate in accordance with the regulations; do you
think that is necessary, is the current law adequate or not?
Sir Gus O'Donnell: I think the
current law certainly has its issues for us, in terms of that
misconduct in public affairs is, as you say—
Mr Henderson: A 20-year sentence, possibly.
Q892 Chairman: Technically life.
Sir Gus O'Donnell: Life, exactly.
I think the key for us will be to make sure our internal procedures
are good and improve the use of internal investigators. Then when
it comes to it, as you say, there will be a clear case where there
is an Official Secrets Act violation, there will be clear cases
which come nowhere near that, where it is a Civil Service internal
matter. When it comes to the others, I would say those are difficult
cases for us, and I do not know what the answer is. I am loath
to say that you could solve those problems by another piece of
legislation. There are probably members of this Committee who
will be better able to judge, looking at the former Home Secretaries
around the place, as to whether a legislative answer is the best
answer. I am just not sure, is the honest truth.
Q893 Chairman: Sir Gus, could I take
you back to Mr Wright's letter, which—
Sir Gus O'Donnell: The first one?
Q894 Chairman: Yes, the one that
bears the date 8 September but we know is 8 October. As I understand
your earlier evidence, there had been a series of leaks which
had raised questions of national security, and some of these had
been investigated, and then there came the leaks which one might
loosely describe as the Galley/Green leaks. If one looks at the
opening sentence of that letter, he says: "I am writing to
ask you whether you will consider agreeing to an investigation
into a series of leaks, probably originating in the Home Office,
which is causing considerable concern to the Cabinet Secretary."
That sentence implies that this is the first time the police have
been invited to consider these matters, rather than that there
have been previous leaks which have also been the subject of investigation.
Sir Gus O'Donnell: This is an
investigation into a series of leaks. This is the first time,
if you like, putting them all together, because we are starting
to think that it is possible that these leaks that we are getting
of embarrassing material might actually be related to the previous
national security leaks, so we might have a new way in. The point
is our previous investigations into those national security leaks
did not get anywhere. So I was thinking, was there something new
here? Was this going to give us some evidence, taking the whole
pattern of these leaks together, that might lead us to person
or persons previously unknown?
Q895 Chairman: But the police had
been involved in some of the previous—
Sir Gus O'Donnell: From the individual
ones.
Q896 Ann Coffey: As I understand
it, when the police were investigating this offence of misconduct
in public office, it was already clear that they were not investigating
a breach of the Official Secrets Act. That was not what they were
investigating, was it? I am not clear.
Sir Gus O'Donnell: I have no idea.
We put to the police everything that had gone out, then they go
off. I had no idea—
Q897 Ann Coffey: So they decided
that they were going to prosecute under—
Sir Gus O'Donnell: No, the reason
I find that slightly surprising is if you talk to the DPP about
the kind of standards of evidence you would need to get a judgment
in such a case, that is—so it seems to me very odd, so I
think it very unlikely that that offence will be one that is used
very much for this sort of subject.
Q898 Ann Coffey: But it can be used
for accumulating evidence clearly. I mean, given that there is
this offence, a lot of civil servants could be prosecuted or investigated
for misconduct in public life, and indeed Members of Parliament,
enabling their offices to be searched, and in the process of that,
something might be found, which might be interesting to a leak
inquiry or something.
Sir Gus O'Donnell: It is possible,
but like I say, I would think that you would need a pretty high
threshold to want to get the police involved in an investigation.
Q899 Ann Coffey: But they were involved
in this investigation.
Sir Gus O'Donnell: Yes, because
there were a number of national security issues involved.
1 Note by witness: The Cabinet Secretary inadvertently
gave an answer at Q889 to an earlier question (Q884). DAC Dick
requested the letter. The Metropolitan Police's appointed Senior
Investigating Officer attended the meeting. Back
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