Government Information (Unauthorised Release)

Business of the House – in the House of Commons at 11:21 am on 4th December 2008.

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Photo of Jacqui Smith Jacqui Smith Home Secretary 11:21 am, 4th December 2008

With permission, Mr. Speaker, I should like to make a statement on the current police investigation into the unauthorised release of government information. As has been widely recognised across the House, some very important principles are at stake in this matter: that nobody should be above the law; that the police should have the operational independence to conduct their investigations without fear or favour; that Members of this House should be able to do their work and be able to hold the Government to account; and that the impartiality of the civil service should be protected. Members of this House will, of course, understand our obligation not to prejudice an ongoing police investigation, but I shall be as helpful as I can in my statement.

On 8 October 2008, following consultations with the Home Office, the Cabinet Office requested the assistance of the Metropolitan Police Service in investigating a series of leaks. That request was made by the Cabinet Office, as it has ultimate responsibility for the security and integrity of the working of government. No Cabinet Office Minister was involved in the decision. The request followed a number of internal Home Office leak inquiries, which had not identified the source of the leaks. There was concern that an individual—or individuals—in the Home Office who had access to sensitive material was prepared to leak that information.

Faced with what appeared to be the systematic leaking of classified information over a sustained period, given the damage that that was doing to the effective conduct of Government business and because of the sensitive issues, including national security, that the Home Office deals with, I agreed with the view of Sir David Normington, my Department's permanent secretary, that it was essential to request police assistance in identifying the source of those leaks. The sustained level of leaking that had already taken place clearly suggested that this could go on, would escalate, and that more information of greater sensitivity could potentially leak. [Interruption.]

Since the request for police assistance was made— [ Interruption. ]

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How can the Government, which is so totally obsessed with watching everyone all the time be so unwilling to listen to the people it spies on?

If anyone spies on my email they are very welcome. Perhaps then they will do something about the fact that in 2005 this government allowed a consultation document on children's law to be influenced by a pedophile!

Please come and spy on me - I'll tell you everything you want to know - and maybe a few things you would prefer to pretend not to know!

Submitted by barbara richards Read 2 more annotations

Photo of Jacqui Smith Jacqui Smith Home Secretary

Since the request for police assistance was made, the Home Office has co-operated fully with the police investigation. A full list of relevant leaks, including those involving highly classified material, was passed to the police for their consideration.

As acting commissioner Sir Paul Stephenson set out in his statement yesterday, after initial inquiries the Crown Prosecution Service was consulted. The police officers involved were satisfied that they had reasonable grounds to make an arrest of a junior Home Office civil servant. On 17 November, I was informed by Sir David Normington that an arrest of a Home Office civil servant was likely in the next few days. On 19 November, the Home Office civil servant was arrested on suspicion of misconduct in public office. On 27 November, the police arrested Damian Green on suspicion of conspiring to commit misconduct in a public office and aiding and abetting, counselling or procuring misconduct in a public office.

As the statement issued by Sir David Normington on 28 November made clear, he was informed by the police at about 1.45 pm on 27 November that a search was about to be conducted of the home and offices of a member of the Opposition Front Bench. Sir David was subsequently told that an arrest had been made. This was the first time that anybody in the Home Office was informed that a Member of this House was the subject of the police investigation. I have made it clear that neither I nor any other Government Minister knew until after the arrest of the hon. Member that he—or any other hon. Member—was the subject of a police investigation or was to be arrested. I hope that those who have asserted the contrary will now withdraw their claims.

Let me be clear that even if I had been informed, I believe it would have been wholly inappropriate for me to seek to intervene in the operational decisions being taken by the police. I will not do that and I should not do that. On 1 December, I spoke to the acting commissioner to reassure myself that the investigation was being pursued diligently, sensitively and in a proportionate manner—[Hon. Members: "Sensitively?"] Sir Paul informed me— [ Interruption. ]

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But surely it is appropriate for the Home Office Minister to intervene in the operational decisions of the police where she feels that the police are acting outside the law. You cannot let the police simply do whatever they want, that is a police state, despite the Home Secretary's narrower definition. In a politically sensitive case such as this the Home Secretary should satisfy herself the police are acting in accordance with legislation laid down by Parliament. In this case they may have been and Ms Smith should base her defence on that. Perhaps she should also have asked the police to confine their investigations to leaks involving the Official Secrets Act only.

Submitted by David Clark

Photo of Jacqui Smith Jacqui Smith Home Secretary

Sir Paul informed me of his intention to set up a review of the handling of the case to date, which I welcomed. The following day he announced that Chief Constable Ian Johnston would conduct that review. In that telephone call with Sir Paul I expressed my support for the operational independence of the police from political intervention—as I have done previously, as I have done since, and as I will continue to do.

Nobody in the House should doubt the sensitivity of the investigation or the importance of the issues involved. I welcome your statement yesterday, Mr. Speaker, and your decision to set up a Committee of seven Members of this House. Your statement also set out the circumstances in which the police asked for and gained consent to search the parliamentary office of the hon. Member for Ashford. I spoke to Sir Paul Stephenson yesterday evening to seek his clarification of those events. Assistant Commissioner Bob Quick has subsequently written to me to set out his understanding of the obligations the Met were under and his account of the steps they took. I am placing a copy of that letter in the Library. Sir Paul also assured me that Ian Johnston's review will cover those issues.

I wholeheartedly support the right of every hon. Member to do their job, to hold the Government to account, and to make available information that is in the public interest, but the systematic leaking of government information raises issues that strike at the heart of our system of governance. Such activity is not about merely creating political embarrassment, for me or for any other Minister. Such activity threatens the respected role of the civil service in supporting our democracy in a politically impartial, honest and professional manner, and it drives a coach and horses through the civil service code, which states that civil servants should act

"in a way which deserves and retains the confidence of Ministers, while at the same time ensuring that you will be able to establish the same relationship with those whom you may be required to serve in some future government."

All of us, on both sides of the House, have a right to expect that our vital role should be protected, and we have a responsibility, too, to respect the law and uphold the proper workings of the civil service. I would be surprised—and indeed dismayed—if any hon. Member thought that that was not the case.

I commend my statement to the House.

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The Civil Service Code is just that, a code not the law. Any civil servant who breaks it can expect disciplinary action against them, even dismissal. But you cannot have the law of the land covering every aspect of the relationship between the Civil Service and the Government. We all know that a few of these employees leak non-classified information, often because they see the Government doing wrong and hiding the evidence from Parliament and the people. Any civil servant who is willing to accept the disciplinary consequences of his actions but still devides to do it should be encouraged to do so.

Submitted by David Clark

Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Home Office), Shadow Attorney General

I thank the Home Secretary for previous sight of her statement. The issues at stake are indeed very serious. They involve basic ministerial oversight over counter-terrorism police operations against a Member of this House which were heavy-handed and incompetent at best, and at worst an unwarranted assault on our democracy— [ Interruption. ] Let us be equally clear what is not at stake. We can all agree that MPs are not above the law, and that the police have no place in politics. Nor does this have anything to do with national security. There is not the slightest evidence of that, and Her Majesty's Opposition [ Interruption. ]

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Home Office), Shadow Attorney General

There is not the slightest evidence of that and Her Majesty's Opposition take the integrity of official secrets as seriously as the Government, despite attempts by Government spokesmen to smear and spin to the contrary.

The Home Secretary has regularly briefed me and my predecessor on matters of national security. Can she name one occasion when she has raised any concern that her confidence has not been kept? Can she now confirm that no known leaks from her Department relating to national security involve my hon. Friend Damian Green?

This episode has nothing to do with national security and everything to do with political embarrassment. Nor is it about confidentiality in the workplace, matters for which employment law provides a perfectly adequate remedy. If there have been 20 leaks or more, as the Government are briefing, the problem extends well beyond any facts relevant to my hon. Friend. It heralds a systematic breakdown in trust between officials and Ministers, arising from the Home Secretary's willingness to conceal failings in her own Department on matters of manifest public interest.

The Home Office initiated the leak inquiry and knew that Opposition Members had commented on four disclosures reported in the media. Is it the case that for eight days after the arrest of Mr. Galley, the police were investigating my hon. Friend, but the Home Secretary had not the faintest idea about it? If she was cut out of the loop, was the Minister for the Cabinet Office or any other Minister or official there informed by the police that a Member of Parliament was the target of their investigation? If the Cabinet Office was kept updated, why was not the Home Secretary? Why was the Cabinet Office not kept updated if it had initiated the investigation? Were counter-terrorism police operating without any Home Office ministerial notification, oversight or accountability from start to finish?

The Home Secretary has stated— [ Interruption. ]

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Home Office), Shadow Attorney General

The Home Secretary has stated that she was unaware at any point before the arrest that any Member of this House was part of the police investigation. Can she clarify some details? What was the exact remit of the investigation requested by the Cabinet Office of the police? Was it strictly confined to a request to investigate the commission of a criminal offence, and will she now put a copy of the written referrals from the Cabinet Office to the police in the Library so that we can study them? When did she or her officials receive updates on the police investigation? Who provided them and what did they cover? Did she at no point ask who the subjects of the investigation were, because it is clear that in the early stages of the investigation she was kept informed? Did she ask any questions at all?

Does the Home Secretary still cling to her utterly flawed defence that there is nothing she could have said or done in advance of the arrest even if she had been aware? She undermined that implausible excuse on Tuesday by seeking assurances from the acting Metropolitan Police Commissioner that the investigation was being pursued diligently, sensitively and proportionately. If she can ask those basic questions after the arrest of my hon. Friend, why did she not ask questions before? She could have asked whether police had asked to interview my hon. Friend on a voluntary basis. She could have asked whether the deployment of more than 20 counter-terrorism officers to arrest a Member, search his offices, search Parliament and seize documents, phones and computers was proportionate and necessary. She could have asked whether the Director of Public Prosecutions had been consulted.

Did the police try to obtain a warrant to search the House of Commons office from a magistrate before they came to see the Serjeant at Arms, and if so, were they refused? Were the police acting in compliance with the Police and Criminal Evidence Act 1984 and its codes? I have to say that the letter from Mr. Quick on the subject is a masterpiece of obfuscation. Does the Home Secretary agree with him, or with you, Mr. Speaker, in your statement, that no proper statement of rights to refuse entry was given to the Serjeant at Arms beforehand? I am afraid that I have to say that Mr. Quick's letter and your statement, Mr. Speaker, are incompatible.

Of course Home Secretaries make statements about police operations. Mr. Clarke did so immediately after the 7/7 attacks, as did the Home Secretary herself after the Glasgow and Haymarket attacks. Based on her own practice, does she now accept that this can be done without prejudicing an investigation, and should be done in serious cases to maintain public confidence?

Finally, seeing what is now emerging, does the Home Secretary regret her wilful ignorance in this whole affair and the decision to wash her hands of the basic responsibilities that come with her office? Who is in charge of the police, if she is not?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

May I first draw the hon. and learned Gentleman's attention to the public statement of Sir Paul Stephenson on the subject of whether counter-terrorism police officers—as he described them—were involved in the operation? As Sir Paul Stephenson makes clear, following the reorganisation in New Scotland Yard of the previous special branch and the previous counter-terror branch they are now working together under the heading of the counter-terrorism command. As he pointed out, it is not accurate to claim that they were counter-terror police officers; nor, as he has made quite clear, was this a counter-terror investigation.

The hon. and learned Gentleman asserted several times that "there is not the slightest evidence". He does not know what evidence the police have. I do not know what evidence the police have—but I do know that it is wholly appropriate that the police should use their professional judgment to follow the evidence during the course of a police investigation without fear or favour. That comes to the heart of what appears to be a misunderstanding by the hon. and learned Gentleman and other Opposition Members about the difference between the operational independence of the police during an investigation and appropriate and important methods of accountability that, whether through the criminal justice system, the procedures set up by the House or the review that Sir Ian Johnston is carrying out, will appropriately report but will not interfere with the operational independence of the police. I made it completely clear in my statement that even if I had been informed about the investigation of a Member of this House I would have considered it wrong to intervene in that investigation. I am interested that the hon. and learned Gentleman does not seem to take the same view.

On the point about the subjects of the investigation and when I was informed, it seems sensible and obvious to me that I would have been informed about an investigation taking place within the Home Office and the potential arrest of a Home Office official, and I was. I was not informed about the investigation and potential arrest of a Member, and I hope that the hon. and learned Gentleman—although he has not taken this opportunity—will remove his continued assertion that I am not telling the truth.

On the point about whether any other Minister asked for or received specific assurances, I believe that I have made it clear that no other Minister did.

Finally, I think that the hon. and learned Gentleman would have more ably demonstrated that he believes that all the principles that I outlined are important if he had expressed any concern whatsoever about the nature of leaking from Departments. The Home Office deals with some of the most sensitive issues across Government. I believe that for a potential future Home Secretary to be so unconcerned—cavalier—about the leaking of information from the Home Office is a serious issue for the security of that information, for the impartiality of the civil service and for the good governance of this country.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

I am concerned at the new principle that the Home Secretary appears to be setting out that the leaking of information from the Government is in all circumstances something to be deplored. The reality is that the House's formal procedures for holding the Executive to account are so weak that Mr. Mitchell has described them from the Government Benches as like "heckling the steamroller". In the circumstances where this Parliament is a constitutional poodle by comparison with other Parliaments in the western democratic world, it is essential that other means of having checks and balances are there.

The leaking of information has a long and honourable precedent. Let me, for example, cite the official in the Secret Intelligence Service, called Desmond Morton, who briefed the then Back Bencher, Sir Winston Churchill, about the gathering threat of German rearmament. That was an essential part of the pressure put on the appeasement Governments of the day to take account of the threat to national security. So even matters of national security may, it seems to me, be justified as leaks to hold the Government to account.

In this case, will the Home Secretary confirm that she was merely concerned about a potential breach of national security and that there were no actual breaches of national security? The elision in her answer was very clear to any Opposition Member, and she needs to clarify her position. She is also unclear in her statement whether Sir David Normington told her, after she was informed by the police, that there would be a search of the premises of an hon. Member and whether she was then concerned. If not, why not? Again, in her answer, she elides between the arrest and the search. Surely, if the police were informing her most senior official—I assume that her most senior official informed her—that, in fact, a search was impending, that should have been enough to ring alarm bells with the Home Secretary.

Does the Home Secretary agree at the very least that the police action in this matter should cause us, as a House, as a Parliament and as a legislature, to reopen the issue of taking away responsibility for the security of the House from the Serjeant at Arms, since a clear principle is at stake? Does she now agree that the muddle in which she has landed herself in this case should be clarified, not least with a parliamentary privileges Bill—as recommended by a cross-party Committee nearly 10 years ago—a civil service Bill to ensure that our civil service is as impartial as it should be, and is always protected from undue political pressure, and a Bill to restore protection for whistleblowers who act in the public interest? We need to bring back the protections for whistleblowers that the Government and their predecessor abolished.

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I agree, the power is now to firmly with the Executive which should be controlled by the legislature. Parliament has next to no control what the PM does. He and Ms Harman have reduced the number of days Parliament sits to its lowest number since World War II. We are slipping into a dictatorship (albeit one we can change every 5 years). Even then Mr Brown refuses to honour his election manifesto promises.

Submitted by David Clark

Photo of Jacqui Smith Jacqui Smith Home Secretary

The hon. Gentleman started off with an impassioned defence of leaking. I have argued—and I think that I have made it clear in my statement today—that I believe that the role of Members of this Parliament in using information that they gain access to, certainly in some of the circumstances to which the hon. Gentleman has referred, has happened, should happen and will continue to happen. That is an important element in the accountability of Government in this country. But it is also absolutely right that, if civil servants believe that the activity of their Government Department is unethical or improper, they should have a route through which they are able to take that issue up. That is why the Home Office has a clearly communicated whistleblower policy through which civil servants are able to raise issues of concern, including externally with the Civil Service Commissioner, and why this Government have put in place the Act covering the disclosure of public information referred to by my right hon. and learned Friend the Leader of the House, to give further protection to individuals in those circumstances.

In this case, however, we were concerned about a potential systematic series of leaks. The original leak inquiries—which took place when it was not clear who was responsible, or whether it was one person or more than one—did involve, in the reference from the Cabinet Office, issues that related to national security, as of course does the work of the Home Office. For the hon. Gentleman to phrase his question as to whether we were "merely" concerned about a possible leak of national security, represents an underestimation of the significance of our role in safeguarding the information that we deal with.

In relation to the hon. Gentleman's specific questions about action between search and arrest, I was not informed about the search of the hon. Member's office until after both the search and the arrest had taken place.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I thank the Home Secretary for her very full statement. Of course I accept that she was not informed of this circumstance until after it had occurred. The first telephone call appears to have been made to the Mayor of London, and the second to Sir David Normington. The Home Secretary was then informed. This is the second occasion on which she and the Mayor have taken a different view on the issue of policing in London and, in my view, this does not bode well for the imminent appointment of the next Metropolitan Police Commissioner. In respect of the two inquiries that have been set up so far—the Johnston inquiry and the inquiry that Mr. Speaker is setting up—and any other inquiries that Select Committees might want to set up, will my right hon. Friend give the House an undertaking that she, other Ministers and civil servants will be prepared to come and give evidence to those inquiries, and that there will be full co-operation so that all the facts of this matter can be brought before the House?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I can certainly give my right hon. Friend an assurance that I will be perfectly willing, as I have been today, to give the fullest possible information—in a way, of course, that does not prejudice any investigation. I—and, I am sure, other Ministers—will be willing to give the fullest possible information. With respect to my right hon. Friend's concerns about the appointment of the Metropolitan Police Commissioner, may I put on record—I believe that the Mayor shares this view—that we understand that this is an appointment of vital importance both for London and for the national interest, and that we will work closely to make sure that we get the best candidate for that extremely important job.

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Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

The Home Secretary has confirmed that she was the only Minister who authorised the involvement of what is usually called the special branch in the investigation of incidents of which she was the only victim and from which she had already suffered only political embarrassment. Can she tell the House whether she challenged or discussed that recommendation, and in particular what legal advice she sought about the matter being moved into the sphere of a criminal investigation? At what stage were the Law Officers asked for their opinion? At what stage was the Director of Public Prosecutions asked for his opinion? Did she obtain the advice of even Home Office lawyers?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

The right hon. and learned Gentleman is wrong. I did not authorise the investigation into the leaks and I did not say that I had. Completely appropriately, the Cabinet Office, which has responsibility—and, I suspect, probably did in his day as well—for the integrity of Government information, asked the police for assistance in the investigation, following a series of leak inquiries which had been inconclusive. I think that that was wholly appropriate. As I said in my statement, I agreed with the view of Sir David Normington that it was appropriate that the matter be referred to the Cabinet Office and that that then involved the police in the investigation. When there has been a process of internal leak inquiries and the use of external inquirers, and there is the serious issue of the systematic leaking of matters that could be extremely sensitive, it seems to me appropriate for Government to ask the police to help with those investigations. The only basis on which the police will carry out those investigations is if they suspect that a criminal investigation may be necessary.

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Photo of John Reid John Reid Labour, Airdrie and Shotts

On the basis of the statement by the Home Secretary, I have no doubt at all about her integrity and truthfulness in this matter. It ill behoves Opposition Members to imply that there is a lack of either. I also accept the integrity and impartiality of the vast majority of civil servants who day in, day out serve Governments of all persuasions, despite their own personal opinions. That should be placed on the record. However, I would be wrong if I did not express some unease about two aspects of the matter. One is the fact that having been told—quite properly, in my view—that there was contact on this subject between one politician connected with the Metropolitan Police Service, the Mayor of London, and the person at the centre of the investigation, that must be looked at. Secondly, I am surprised, to say the least, that the Secretary of State for the Home Department was not informed that her opposite number, effectively, was about to be arrested. If I had been told after the event that that had been done, I cannot think that I would have remained as placid as she has in the circumstances. Notwithstanding the fact that she has said that even if she had been informed, she would not have acted differently, I do not think that we should take that as a ruling that someone in her position should never be informed. For my part, I would have wanted to be informed, and to express a view on the matter. I hope that she will look at those processes without prejudice.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

It is, of course, completely appropriate that the process of both the investigation and the information that was passed on should be part of questions and consideration after the police investigation. With respect to my right hon. Friend's first point, I believe the Metropolitan Police Authority and certain Members have already questioned what the Mayor knew, whom he chose to share that information with and whom he chose to communicate it to. It seems wholly appropriate for them to do that. On the second point, about whether and when I should have been informed, it is a matter for the Metropolitan police as to the point at which I was informed. I have made clear the questions that I asked after being informed. On the subject of placidity—I think that sometimes it behoves Home Secretaries to deal calmly with issues that are of significance, such as the present matter.

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Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

The Home Secretary may be interested to know that, following the Government's example of using the criminal law to persecute Opposition politicians for being too effective, the States of Jersey have initiated a criminal investigation into Senator Stuart Syvret, which should cause grave concern because of the situation in Jersey. Has the Home Secretary had any advice as to which elements of leaked information were covered by the Freedom of Information Act and the fact that the civil servant would have had a duty to reveal that information? Does she find it a little odd that one faces a criminal investigation for revealing certain information that one has a duty to reveal?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

Although the hon. Gentleman's point was very broad, covering a range of cases, I listened with interest. He made some important points, which I am sure people will want to return to, not least as part of the accounts that are being done here.

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Photo of David Winnick David Winnick Labour, Walsall North

I entirely accept the integrity of my right hon. Friend. I do not question that in any way, and it is quite likely that the political points that Damian Green was trying to make were matters with which I would hardly agree. Does my right hon. Friend accept that no one has suggested for one moment that MPs are above the law? Of course we are not above the law, but is there not a distinction between that and our role as Members of Parliament carrying out our parliamentary duties and being able to do so without fear or favour? If that is undermined, parliamentary democracy is undermined.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I agree with my hon. Friend that both the principle of the important and significant role of Members of Parliament and the principle that nobody is above the rule of law need to be upheld in the present situation.

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Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

Did the Home Secretary at any time give any indication to officials that she did not want to be kept informed of the progress of the investigation?

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Photo of Andrew MacKinlay Andrew MacKinlay Labour, Thurrock

A little while ago I had a hand in getting the Prime Minister to reaffirm the Wilson doctrine, and he extended it to modern electronic surveillance. On the face of it, it would appear that the Wilson doctrine has been abrogated by the police in this case. Clearly, the e-mails of Damian Green were looked at. I venture to suggest that he was listened in to, and that there has been access to all our e-mails. Can the Home Secretary tell us whether the Wilson doctrine has been abrogated? Will she place in the Library the reply that she sends to the letter that I sent her two days ago on that specific point?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I am sorry my hon. Friend has not received the reply to the letter, which I sent him yesterday and in which I made it clear that the Wilson doctrine as outlined by the Prime Minister has not been abrogated.

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Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

On two of the occasions when I have talked to the commissioner or other senior police officers about operational matters, one shortly after the death of Stephen Lawrence and the other after the police had put an anti-terrorist team to search the home of Sergeant Gurpal Virdi, one of their own members, I did not find any objection from the police, and I did not think I was doing anything wrong, so I hope the Home Secretary will not be too delicate about discussing issues. It is a perfectly proper thing to do. Will she have a chance to read column 52 of yesterday's Hansard, which shows the Minister of State, Department of Energy and Climate Change making a number of allegations and assertions about the civil servant involved, and tell the House whether she thinks that was proper, and whether it was prepared by someone on the Government Front Bench? Lastly, can she confirm that malfeasance in public office is not always a criminal offence?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I have not read the passage to which the hon. Gentleman refers. The point about misconduct in public office is that it is potentially a criminal offence— [Interruption.] Well, that depends whether it has happened. As a common law offence, it is also a legitimate part of the criminal process of this country.

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Photo of Gerald Kaufman Gerald Kaufman Labour, Manchester, Gorton

When my right hon. Friend was considering these issues, did she take into account such precedents as the prosecution and imprisonment by the Conservative Government of a woman civil servant for handing over details of Michael Heseltine's diary to The Guardian, and the prosecution of Clive Ponting, when the Conservatives wanted to imprison him but he was acquitted on a public interest defence—which they immediately abolished, so that nobody else could have a public interest defence? In considering these issues, will my right hon. Friend take into account the synthetic indignation of the Conservatives, who seek one law for a Tory Government's iron heel and another law for a Labour Government?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

My right hon. Friend is right, of course. When we talk about disclosure of information from Government, we are in areas of the utmost controversy that go to the heart of the nature of our democratic system and to the heart of the nature of the role of the civil service in this country.

Although I did not consider those precedents in detail, I certainly thought about them and also about previous, extremely sensitive investigations into senior political figures. In some of those cases, I do not remember hearing the sort of outrage that we are hearing around this issue.

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Photo of David Davis David Davis Conservative, Haltemprice and Howden

If the issue was really a serious matter of national security, why were the arrests not carried out under the Official Secrets Act?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

The right hon. Gentleman is right that there have been circumstances under which issues of national security have resulted in the use of the Official Secrets Act. There have also been occasions on which the offence of misconduct in public office has been appropriate. Of course, there have not yet been any charges in this area and that is, of course, the responsibility of the police in terms of the evidence that they have. I made the point earlier to Mr. Grieve that neither he nor I—nor the right hon. Gentleman—have seen the evidence to make the appropriate decisions on the investigation, and, with the involvement of the Crown Prosecution Service, on the nature of any charges, which may or may not emerge.

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Photo of Patricia Hewitt Patricia Hewitt Labour, Leicester West

I believe that my right hon. Friend the Home Secretary and her permanent secretary have behaved absolutely appropriately on this occasion. May I bring her back to the Freedom of Information Act 2000, which was raised by an Opposition Member? Does she agree that that Act—which was introduced by this Government, of course—has fundamentally changed the situation? It makes available to the House, the public and the media an immense amount of information that would never have been made available under any previous Government, whether Conservative or Labour. Furthermore, under that Act we have an independent Information Commissioner whose job it is to hold the balance between the public interest in disclosure and the public interest in good government, including confidential advice to Ministers. In those circumstances, is it not— [Interruption.]

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Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. The right hon. Lady has given me an opportunity to remind the House that there should be only one supplementary to the Home Secretary.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

My right hon. Friend makes a very important point about the willingness of the Government to put in place, quite rightly and legitimately, the appropriate ways for members of the public and Members of the House—and civil servants, when necessary—to make information publicly available. I am thinking of the Freedom of Information Act, the whistleblowing processes that I outlined and the legislation that we have put in place to support whistleblowers. Given that record, my right hon. Friend is right that as a Government we have proved ourselves to be more open than any previous Government—and, incidentally, more open than any proposals put forward by Opposition Members.

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Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

Does the Home Secretary not accept that there is a vast difference between threatening to sack someone for breach of confidentiality and setting the criminal law attack dogs on them? Is she saying that because the Home Office deals with some matters of national security, any leak from the Home Office is now a criminal matter—even though we know that in this case no real matters of national security were at stake?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

Once again, I have to say that a Member is claiming a greater knowledge of the evidence than he can possibly have. When there has been systematic leaking and internal leak inquiries have not been able to discover its source, at a certain point I believe it appropriate to ask the police for their assistance in that investigation.

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Photo of Adam Ingram Adam Ingram Labour, East Kilbride, Strathaven and Lesmahagow

I thank my right hon. Friend for her statement and how she has conducted herself so calmly throughout this affair. Why should Her Majesty's loyal Opposition have thought it necessary to take legal advice on this matter? Does she share with me the view that perhaps, in their wish to see great transparency and openness, they should publish the brief that they gave to counsel and the legal advice that they obtained?

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Surely the Home Secretary will be aware that leading members of the Labour Governments since 1997 were expert and very successful in using leaked material during the last Conservative Government. In respect of a point made by John Reid, a former Home Secretary, is she not aware that she should have been informed by the police in a case involving a Member of this House? It is an exceptional situation. How many of the 20 leaks that she has mentioned involved national security?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

On the first point, about the use of information, I should say that today I have made absolutely clear my view that it always has been the case—and will remain so in future—that hon. Members and others who receive information should be able to use it in the public interest and that hon. Members should be able to carry out their role as Members of the House. However, I do not accept that that implies that there is no responsibility on the Government to investigate when leaks become systematic, happen in Departments that deal with some of the most sensitive issues, including national security, across Government, and risk undermining the principles of the impartiality of the civil service code.

On the point about being informed, I think that I was clear in my response to my right hon. Friend John Reid that I was not, and that was a decision for the Metropolitan police.

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I note the Home Secretary did not answer the question of how many of the 20 leaks were official secrets.

Submitted by David Clark

Photo of Alan Keen Alan Keen Labour, Feltham and Heston

Perhaps I am a bit old-fashioned, but I have been made to feel nauseous on so many occasions since this event broke. The statements made by people have often demonstrated their self-importance rather than tried to solve the problem. To be constructive, may I ask the Home Secretary whether the advice to Back Benchers of any political party should be that one telephone call from a civil servant on an issue of national security should be reported immediately to the security people, and one telephone call on an issue not of national security should lead to a fatherly or motherly talk to the individual—"Look sonny, don't do this. Go and get another job if you don't like it"?

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Ia Alan Keen so out-of-touch with the current situation that he fails to realise that these leaks are essential for the people to know what the Government is trying to hide that they are entitled to know. I am sure he would welcome such leaks when he is in opposition.

Submitted by David Clark

Photo of Jacqui Smith Jacqui Smith Home Secretary

My hon. Friend offers me the opportunity to give advice. Hon. Members are very aware of their responsibilities, with respect both to their own roles and to the impartiality of the civil service. That is how Members of this House should and do act.

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Photo of Edward Leigh Edward Leigh Chair, Public Accounts Committee

Following the intervention from John Reid—the Home Secretary's distinguished predecessor who sits behind her and said that he would have liked to have been tipped off that his opposite number was about to be arrested—what lessons has the Home Secretary learned from this incident about the future? Does she think that in future it might be wise for the Home Secretary to be informed if an Opposition spokesman was about to be arrested for doing his job?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

What I have learned is that if we believe in the principle of the operational independence of policing, we should put that into practice, however difficult and tricky the circumstances.

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Photo of Tony Lloyd Tony Lloyd Chair, Parliamentary Labour Party

I want to comment on exactly that theme. Had my right hon. Friend been informed and attempted to interfere with that operational freedom, she would have faced legitimate demands for her resignation. Opposition Members—former Home Secretaries—have said that they would have interfered with police operational independence. My right hon. Friend has done exactly the right thing and will be supported by people throughout the country on that basis.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I thank my hon. Friend for that. I think that it would have been wholly inappropriate for any Home Secretary to intervene in a police investigation in the way that some have tried to imply they would have done.

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Photo of Roger Gale Roger Gale Conservative, North Thanet

The shadow Home Secretary asked the Home Secretary a number of questions that she failed to respond to. Let me try a couple of them again. First, did the police apply to a magistrate for a search warrant to enter the House of Commons? If not, why not? If they did, were they turned down? Secondly, is she personally satisfied that this operation was carried out under the terms of—

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Photo of Jacqui Smith Jacqui Smith Home Secretary

On the first point—the only point—I have made it clear that I asked some of those questions yesterday evening. Bob Quick, the Assistant Commissioner, responded to me today, and I have placed that letter in the Library. [Hon. Members: "Answer!"]

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Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. I usually let a statement run for an hour, but if there are such levels of shouting I will cease the statement now. That is the danger that right hon. and hon. Members run. Shouting like that is not something that I will tolerate.

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So the Speaker's answer to his inability to control MPs is to stop the debate on an important constitutional issue. No wonder Gordon Brown is such a...

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Photo of Nick Palmer Nick Palmer Labour, Broxtowe

I share the fairly widespread concern about the allegations of, or suspicion of, criminal activity by an hon. Member and about the tendency of the police in recent years to take a more dramatic role in political controversy than we would wish. However, we are not considering one aspect, which is non-criminal. Does the Home Secretary agree that if any hon. Member seeks systematically to encourage a breach of the civil service code, regardless of whether it is criminal, it is a reason for shame?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

My hon. Friend is right. It is important for all political parties and for anybody who believes that they may, at some point, form the Government of this country, that we uphold the political impartiality of the civil service as set down in the civil service code. That is one of the four important principles that are brought into sharp relief in this situation.

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Photo of Adam Price Adam Price Spokesperson (Communities and Local Government; Culture, Media and Sport; Defence; Transport; Ministry of Justice)

Where does the literally unwarranted—apparently—intrusion into the parliamentary office of a Member of this House leave the whole concept of parliamentary privilege and the Bill of Rights, which is surely a fundamental part of our constitution? Will the Home Secretary issue guidance to the police that when a Member of this House is to be arrested in relation to his political activities as such, the advice of the Law Officers should be requested in order to see whether it constitutes a breach of parliamentary privilege?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

Mr. Speaker made very clear yesterday the situation with regard to parliamentary privilege. The Police and Criminal Evidence Act 1984 lays down the requirements for search and for arrest.

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Photo of Clive Efford Clive Efford Labour, Eltham

Does my right hon. Friend agree that the position that she has been invited to adopt is that civil servants should be allowed to treat her Department as an Aladdin's cave of secrets that they should be free to leak, and that civil servants' judgment alone will determine what is in the public domain and what is not? Did the level at which these leaks came from her Department suggest to her that the person who leaked may have had access to information relating to national security? Can we be sure that all the leaks—

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The two faces of Labour

Labour can use leaks from an Aladins Cave BUT the Tories cannot!

Submitted by Arnold Tarling

Photo of Jacqui Smith Jacqui Smith Home Secretary

There were concerns at a point at which it was unclear as to how many people were involved in leaking, but it was clear that there had been systematic leaking. That was, of course, the reason for asking the police to investigate. Some of the other issues that my hon. Friend raises should be left to be the subject of a police investigation. However, he is absolutely right in his suggestion that everybody in this House should be in a position of upholding the civil service code.

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Photo of Andrew MacKay Andrew MacKay Senior Parliamentary & Political Advisor To David Cameron

Returning to the letter from Mr. Quick to the Home Secretary yesterday, relating to the lack of writ that was provided when the search took place of the office of my hon. Friend Damian Green, there is a clear difference of opinion, or a major difference of fact, between what the Speaker said yesterday and what Mr. Quick said. Who does the Home Secretary believe? I know who I believe, and it ain't Mr. Quick.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

Unlike the right hon. Gentleman, I am not so quick to jump to judgment. That is why I believe that Ian Johnston's review, set up by Sir Paul Stephenson, and the ability of this House to consider the issue through Mr. Speaker's Committee, are both important.

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Photo of Tom Levitt Tom Levitt Labour, High Peak

I am sure that the whole House agrees that it is absolutely right that civil servants should hold political views, that they should join political parties, and that they should take part in legitimate political activity in their own time. However, in light of the fact that they need to behave in a professional manner at all times and to uphold the civil service code, and in light of what my right hon. Friend has called the "systematic leaking" of information, are there grounds for an inquiry to see whether there are any leaking Tory moles placed in other Government Departments?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I do not think that that is an issue for me to comment on today.

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Photo of John Maples John Maples Deputy Chairman (Candidates), The Conservative Party, Deputy Chair, Conservative Party

Prior to 1989, the Government could have used the Official Secrets Act in this case. The Home Secretary is sitting next to one of the world experts on the Official Secrets Act, who will be able to remind her that in 1989, almost exactly 20 years ago to this day, the then Conservative Government amended the Official Secrets Act to restrict the application of the criminal law to a very narrow band of Government information. It may surprise the Home Secretary to know that the whole Labour party, including the current and former Prime Minister, voted against that legislation on the grounds that it did not go far enough in liberalising the situation and still applied the criminal law to far too much information. As a result, the Government have had to dredge up an old common law offence to put the frighteners on officials, MPs and, presumably, journalists. If they want to criminalise information like this, why do they not amend the legislation by repealing the 1989 Act?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

The idea that the Government have dredged up the several circumstances in recent years when the offence of misconduct in public office has been used against public servants is just wrong. The decision on what offence is charged is, of course, for the police, alongside the Crown Prosecution Service. I am sure that the hon. Gentleman agrees it would be wholly inappropriate in this situation for Ministers to offer an opinion about what any potential charges should be.

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Photo of Mike Hall Mike Hall PPS (Rt Hon Jack Straw, Lord Chancellor), Ministry of Justice

With regard to the cash for honours investigation, the Leader of the Opposition said that it was right that these matters should be investigated and that the police and the CPS should make decisions about how to proceed. If that principle was right in that case, surely it should apply in this case, and should not be influenced by the contrived outrage of the Conservatives.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I believe that that should be the principle in all cases.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Yesterday, Mr. Speaker, you told us two things in your statement: first, that there was not a warrant; and secondly, that the police failed to tell the Serjeant at Arms that she was entitled to refuse access. That was a breach of code B52 of the statutory codes. Furthermore, on any view, the Serjeant at Arms had no authority to allow access to the hon. Member's possessions. Consequently, the police were acting unlawfully in all three respects—no warrant, no statement that the Serjeant at Arms was entitled to refuse access, and, in any event, having access to material to which they were not entitled. When did the right hon. Lady first know that the police were guilty of such illegality?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I think, frankly, that the right hon. and learned Gentleman is confusing his role as a Member of this House with his presumably desired role as a member of the judiciary. [ Interruption. ]

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"I think, frankly, that the right hon. and learned Gentleman is confusing his role as a Member of this House with his presumably...

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Photo of David Kidney David Kidney PPS (Rt Hon Rosie Winterton, Minister of State), Department for Work and Pensions

The police must be free to follow the evidence. However, our constituents sometimes complain to us that when they have been the subject of an investigation, the question arises as to whether the police's methods were proportionate to the seriousness of the criminality that is suspected. Sometimes we get the answer to that years or months later as the result of a trial; sometimes we get it as the result of an investigation by the Independent Police Complaints Commission. At this early stage of this case, the only question to which I want to know the answer is whether the police had legal advice about the seriousness of the criminality that they suspected in order to make that judgment about proportionality before they made the decision to act. Does the Home Secretary know whether the police had legal advice?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

Sir Paul Stephenson has stated publicly the point at which the police consulted the CPS. Secondly, on the issue of proportionality, as I said, I welcome the fact that Sir Paul Stephenson is asking Ian Johnston to review the appropriateness and proportionality of the investigation.

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Photo of John Redwood John Redwood Conservative, Wokingham

Can the Home Secretary explain what was unique about this case that led them to want the police to be involved, when the police were not invited to investigate the systematic leaking of price-sensitive information about banks and bank capital, or to look into the extraordinary leaking of practically the whole pre-Budget statement, which was really a Budget? Surely that was systematic leaking on a grand scale. What was different about it?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

There have been other situations where the police have been asked by the Cabinet Office to help with investigations.

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Photo of Parmjit Dhanda Parmjit Dhanda Labour, Gloucester

The Home Secretary has been clear and unambiguous today. Will she go further on the point of my hon. Friend Andrew Mackinlay about the Wilson doctrine? Can she reassure all hon. Members that our home numbers, work mobiles and the phones that we use in this House are covered by the Wilson doctrine, as well as our e-mail accounts?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

As I have suggested, the Wilson doctrine applies, and it applies as outlined by the Prime Minister.

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