In today's reporting of the arrest and bailing of opposition immigration spokesman Damian, Green the alleged principal offender seems to have been forgotten.
The unnamed civil servant was arrested last week for leaking information from the Home Office and, presumably, bailed on charges of Misconduct in Public Office. He seems to have been leaking information to Green which was clearly intended to embarrass the government.
Such activity discloses a breach of both the civil servant's obligation to his employer under his contract of employment and, almost certainly, of the Official Secrets Act (OSA). If Green recieved such leaks then there is, at least, a prima facie case that he conspired with the civil servant to break the law. And surely it is a difficult constitutional argument to make that an opposition spokesman, however eminent, should be above the law! And the idea suggested by David Cameron that he should have been invited to go down to the police station for a chat is preposterous. I'm pretty sure that the civil servant involved was arrested. Why should an MP be treated differently?
Presumably the prosecuting authorities were advised, before any arrests were made, that the likelihood of securing a jury conviction under the OSA was below zero. I suspect the cases of Clive Ponting and Derek Pasquill still haunt the DDP's office. Perhaps some clever lawyer has dug up the Misconduct charge to avoid the Ponting problem. Though looking at the CPS advice to prosecutors, I'm not sure
The issue here is not by any means as black and white as some of the more lurid comments in today's media suggest. There is real friction between two issues-the requirement for ministers to be able to rely on their civil servants not to leak information and the need for open government.
At the extremes the issues are easy to decide.
Clearly secrets that imperil the security of the state ought not be disclosed. But the public should not be denied knowledge of the number of paper clips used by in the Home Office. Two statutory provisions were meant to help in this sort of case. Freedom of Information Act- which appears not to have been used here- and the Public Interest Disclosure Act 1998 but the disclosure in this case in not covered.
What makes me a little uneasy about the disclosure in the present case is that the civil servant leaked to the opposition rather than to the media. It looks just too partisan.
Striking a balance between both interests is a difficult exercise and making daft comments about "stalinesque" behaviour and "police states" are neither thoughtful or helpful.
Today's reporting throws much more heat than light on a difficult subject.
Addition 29th November
Here Brian Barder comments on the same subject.
His myth number 7 refers to whistle blowing. I suspect few of us would agree the extent that employees should " grass" on their fellow employees or employers, but we are assisted by the 1998 Act that gives a limited protection for such acts, which otherwise may be unlawful.
The appropriately named Public Interest Disclosure Act 1998 gives us a definition. Difficult to fit our leaking civil servant into this?
