Examination of Witnesses (Question Numbers
O'DONNELL KCB AND
14 DECEMBER 2009
Q900 Ann Coffey: But that was because
of your concern about a series of leaks, not in this particular
Sir Gus O'Donnell: Remember, we
did not know at that point where this would go.
Q901 Sir Alan Beith: But that raises
an interesting question: Mr Galley was identified in the scoping
exercise on 31 October, and on 15 November, it was decided that
he could not remain at work, yet it was not until around 25 November
that the process which led to the search of Mr Green's office
was cranked into action, and at that stage, of course, the impression
was given to some in the House, including Mr Speaker, that a major
counter-terrorism investigation was going on. Surely between 31
October, probably before it, and that date, some assessment had
been made of Mr Galley's access, and of the particular materials
that were under discussion.
Sir Gus O'Donnell: Well, I was
not involved in that at all. That was a matter for the police.
Q902 Sir Alan Beith: Are you surprised
that the police did not come to you at some point within that
period, or to Mr Wright, and say, "Well, we are not getting
anywhere on the national security aspects, we are quite interested
in investigating whether there was an offence of misconduct in
public office about the procuring of leaks from the department",
which is actually what they said at one stage to the authorities
in the House they were doing, but a wholly different matter from
an Official Secrets Act leak. Is it not surprising that they did
not come to you at some point?
Sir Gus O'Donnell: I can be clear
that if they had come to me, and they made clear there was no
national security part, and they were talking about the offence
you have talked about, I would have said firstly go and talk to
the Crown Prosecution Service, because personally I would be very,
very surprised if there is anything there, and secondly, if it
is only these areas that do not involve national security, my
indication would be you are probably wise to consider halting
Q903 Sir Alan Beith: Really, the
ball would have been back in your court then for a Civil Service
Sir Gus O'Donnell: Absolutely,
which is where it ended up, which is exactly right, and the Civil
Service disciplinary procedure took place.
Mr Hannigan: I think the new protocol
does build in a process by which the police could do that in future
cases. It is very difficult, under the old system, for the police
to have any contact with civil servants during an investigation.
Q904 Sir Alan Beith: Just to clarify
a bit of language you used earlier, because it did worry me, in
response to an earlier question from Mr Howard, you seemed to
imply that damaging the conduct of Government business was a category
which embraced breaches of the Official Secrets Act. Although
you can use that as a use of language, there is a quite clear
distinction between the two concepts. The revision of the Official
Secrets Act itself is based on the principle that you draw a clear
distinction between the protection of information which must be
protected for national security and the various other kinds of
leaking and disclosing which may be damaging in various ways but
are not within that protective order.
Sir Gus O'Donnell: Absolutely,
and we very clearly understand that rewrite of the Official Secrets
Q905 Sir Alan Beith: So your earlier
response might have been more felicitously phrased to reflect
Sir Gus O'Donnell: If I gave the
wrong impression, I apologise.
Q906 Ms Hewitt: I just want to come
back to this earlier point: in your opening statement, I think,
Sir Gus, I remember you saying that you and Sir David Normington
discussed and then agreed that you would call in the police. You
did so because of the concern about the national security implications
of the earlier set of leaks, and you used a phrase, something
along the lines of "there might have been criminal offences
committed". You had the Official Secrets Act in mind at that
point, not misconduct in public office?
Sir Gus O'Donnell: No, certainly
not misconduct in public office, because to the best of my knowledge,
that had never been used before, for this sort of issue.
Q907 Ms Hewitt: Was it suggested
by the police to the Cabinet Office before the terms of reference
were agreed, or was it that at that point, there was still a lack
of clarity about what if any criminal offences might have been
committed, and that is why the first point of the terms of reference
was to assess whether any criminal offences had been committed?
Sir Gus O'Donnell: Exactly, it
was simply about assessing whether any had taken place, so it
was not a question of what charges might be brought at that point.
Q908 Ms Hewitt: So there was no reference
to misconduct in public office at that point?
Sir Gus O'Donnell: That is right.
Q909 Ann Coffey: Maybe it is something
we should ask Mr Quick when he comes: if there had not been this
offence of misconduct in public office, this catch-all thing which
the police had been investigating, what would they have been investigating?
Sir Gus O'Donnell: Well, they
were investigating possible Official Secrets Act.
Q910 Ann Coffey: At what point do
you think that would have then led them to arrest Damian Green
and search his offices?
Sir Gus O'Donnell: Well, I presume,
if they had had some serious evidence suggesting a breach of the
Official Secrets Act. Well, exactly. The person who would be guilty
of the breach of the Official Secrets Act would be the leaker.
Q911 Sir Alan Beith: The receiver
could be guilty, could he not?
Sir Gus O'Donnell: The receiver
could be, indeed, yes, but we did not know what evidence they
had. So I am afraid you will have to ask the police about that.
Ann Coffey: We will do.
Q912 Mr Howard: Just one more question,
Sir Gus, on the letter from Mr Wright, which specifically refers
to you. You have talked about the previous occasions in which
the police had been asked to investigate; was this the first time
that you yourself had got personally involved?
Sir Gus O'Donnell: Yes, in that
what we had was a situation where they wanted to look not just
at an individual matter but across the whole pattern of these
leaks, which might have gone across a number of departments, so
it was felt to be important enough to involve the Cabinet Secretary.
Q913 Mr Howard: So you have a series
of leaks which you say involved a breach of national security,
and then a series of leaks which do not involve a breach of national
security, and it is at that point that you get involved?
Sir Gus O'Donnell: Because they
thought that the latter group might have given us some real insight
into the source of the former group, the source or sources.
Q914 Chairman: For Mr Galley to have
access to material described as secret, what degree of vetting
would he have been required to undergo?
Mr Hannigan: SC, as it is commonly
called, which is security clearance vetting.
Q915 Chairman: Had he been promoted
into a position at which he had access to secret material?
Mr Hannigan: That I do not know,
I am afraid.
Q916 Chairman: As a civil servant
rises and becomes closer to more sensitive material, is there
a procedure for vetting at each of those stages of promotion?
Mr Hannigan: Yes, vetting is tied
to the post and the job, the requirements of the job, so particularly
as he had been involved in private offices, it is normal for people
in ministerial private offices to have SC at least.
Sir Gus O'Donnell: I would stress,
it is not related to grade. As I am sure all the Ministers in
this room would agree, you may well have relatively junior people
having access to
Q917 Chairman: Because they are in
the private office, where everything may be discussed?
Sir Gus O'Donnell: Absolutely.
They have access to it as well.
Q918 Chairman: Is there anything
you want to add, Sir Gus?
Sir Gus O'Donnell: No, thank you.
Q919 Chairman: Mr Hannigan?
Mr Hannigan: No, thank you.
Chairman: We are very grateful to both
of you, thank you very much.