Uncorrected Evidence 83

CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 83-ii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

PUBLIC ADMINISTRATION COMMITTEE

LEAKS AND WHISTLEBLOWING IN WHITEHALL

Thursday 22 January 2009

MR GUY DEHN, MR MAURICE FRANKEL, MR DAVID HENCKE,

PROFESSOR PETER HENNESSY and SIR DAVID OMAND

Evidence heard in Public Questions 116-174

USE OF THE TRANSCRIPT

This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the Public Administration Committee

on Thursday 22 January 2009

Members present

Dr Tony Wright, in the Chair

Paul Flynn

David Heyes

Kelvin Hopkins

Mr Ian Liddell-Grainger

Julie Morgan

Mr Gordon Prentice

Paul Rowen

Mr Charles Walker

________________

Witnesses: Mr Guy Dehn, Mr Maurice Frankel, Campaign for Freedom of Information, Mr David Hencke, Professor Peter Hennessy and Sir David Omand GCB, gave evidence.

Q116 Chairman: I am delighted to welcome Guy Dehn, Maurice Frankel, David Hencke, Peter Hennessy and Sir David Omand. I will not recite your assorted qualifications for being here, that is taken as read, but you together make a glittering panel in front of us to help us with our thinking about these issues to do with leaking and whistleblowing. You are a glittering panel, and because there are a number of you and there are a number of us and this topic is potentially very diffused, we have to be disciplined and we ask you to be disciplined otherwise chaos will ensure. In that spirit I will try and kick off. I will not ask you to say anything by way of introduction so if you have your perorations prepared perhaps you could insert them as we go along. When we had the recent hoo-hah about leaking, you, David, in The Guardian managed to get a piece in quoting one of your sources, an anonymous civil servant, which was quite a nice thing to do. In that piece you have this anonymous civil servant saying "Sometimes something appears on your desk and you think God this is absolutely blatant and wrong. Someone should know about this. It is worth doing when you see something that is out of order or when you know the minister and the civil servants are being hypocritical or just lying to the public." Let us stay with that image of our civil servant who thinks like that, the sort of person who talks to you sometimes. I then go to David Omand. You inside government thought a lot about all these matters and have given us a lot paper. It is interesting because you start off by making a caveat of trying to distinguish between different kinds of information where the rubric is: civil servants keep secrets. Your paper is rather more subtle than that because it seeks to identify those secrets which civil servants should keep. It does not say, in a blanket sense, they should do it. You say "I can envisage no circumstances in which a civil servant in post would be justified in disclosing official information as qualified above", that is your own qualification you have given, "without authority." What I want to try and explore with all of you is here we have our civil servant speaking through David here and here we have you, a senior intelligence person, saying it is not reasonable, as I read your paper, to get complete blanket coverage of this doctrine and is only covered by certain areas. Am I misreading you?

Sir David Omand: No, you are not. What I am trying to bring out is the muddled thinking there has been around this subject. You really need to think about what is meant by official information, what is meant by information deserving of protection, and what is meant by authority and who has that authority to allow the release of information. Every day, every week, there are civil servants out and about talking to the public, talking at conferences and talking to journalists. They are not operating on precisely defined briefs approved by ministers; they are exercising their discretion. They are ensuring there is an informed public both on the nature of government and the issues of government. You cannot, if you ever could, take the line that all information, such as the colour of the office carpet, somehow is information which civil servants have a duty to keep secret. If there was any doubt on the matter, the Freedom of Information Act dispels that. From that it does not follow that all information can safely be released and, therefore, there are categories of protected information, including personal information about the citizen, information about commercial matters, information about national security, and so on. This is where there may be a disagreement amongst those of us in front of you over matters which bear on the confidences which there need to be in the inner most circles of government when it comes to discussion of policy. That is the line I take. Just to pick up the reference to the anonymous civil servant, in my note to you I quoted Warren Fisher that civil servants of the day will have to have the courage to say to their political chiefs "That is a damn swindle, Sir, and we will not put up with it." That has to be the case but that will not be the case if every such conversation is immediately leaked. If I am allowed to make one further point, and I apologise for going on, and that is the ethical dimension of what I would call a genuine leak, that is where an individual wishes to benefit, and continue to benefit, from paid employment, from taking the taxpayers' money and serving the State whilst simultaneously undermining the Civil Service Code and undermining confidence in it by slipping information unauthorised into the hands of a Member of Parliament or journalists. Those who have moral convictions and wish to defend them and stand up for them have to do so publicly starting inside their department by standing up to ministers or senior officials whom they believe are acting improperly.

Q117 Chairman: I do not want to misrepresent you but if you, Sir David Omand, are saying you have to be more subtle about this doctrine than we used to be, and you have to be clear about what kinds of information is genuinely to be protected, that makes the kind of civil servant quoted by David in a far more troublesome position than they thought they were. They are now living in a world where even Sir David Omand says things are not as straight forward as they used to be, a world in which we have Freedom of Information legislation, we have Public Interest Disclosure legislation, and they are thinking these things and they think possibly we can do something about it now, can they not?

Sir David Omand: No, they cannot. It will be very clear to a civil servant working closely with ministers, for example in a private office, or someone who has access to security classified information or intelligence information. It is patently clear that this is information they have a duty to keep confidential. If there is any doubt, and this is why we have these procedures, you take advice. You do not rush off, get a brown envelope and pass it over anonymously whilst trying to hang on to your job.

Q118 Chairman: A civil servant who sees that information which he can see would be disclosable under Freedom of Information is not being disclosed by his department and by the minister and steps are being taken not to disclose it, he knows the public interest would say this is disclosable information, what practically does that civil servant do?

Sir David Omand: This happens all the time. Civil servants take advice and that is why they have managers. Senior civil servants take advice. If you are not satisfied, or you suspect there is wrongdoing or a cover-up, you take advice from outside your line management. Each department has nominated senior officers to whom an individual can go if they are in doubt, and now additionally they can go to the Civil Service Commissioners. If after all of that they still believe there is a cover-up, and they have been assured by the head of their department and by the Civil Service Commissioners but they are not satisfied, at that point you either shut up and salute and get on with the job or you have to say this is unconscionable in which case you have to go public. This is the point I was making: a civil servant in post may not leak. You are not then leaking if you have the courage of your convictions and you are standing up and you are resigning your office.

Mr Hencke: With the procedure you have just outlined, if you wanted to be effective in getting something into the public domain, timing really is of the essence. It is not a long inquiry. Can I give you an example? It is not necessarily connected, because of protecting my sources, to the person who is quoted but I will give you an example of something that happened to me in a story that appeared in the paper last year. Defra was proposing a whole series of cuts, which had not been made public, to its budget. There was widespread anger among people in Defra and its agencies that this was happening without the public knowing. It was going to be presented in a way that what they were doing was re-aligning money. They were basically taking money off very sensitive areas which were supposed to be government priorities, like green issues to do with recycling and also energy and areas like this. What happened there, and it is rather unusual, was I did not have just one mole but I ended up with six; it was a series of molehills in a field. The reason was because they thought that the public should know about it. It was extremely unusual because the Permanent Secretary's internal memo was actually leaked, which was very succinct and well written by Helen Ghosh, explaining all the different cuts and where they were going to be. Basically it was multiple source so there was no one mole responsible for the whole thing because there were series at this time. The exposure of this led a Parliamentary Committee, the Defra one, to call in Helen Ghosh and she had to go public and explain what she was doing. As far as the sources were concerned, although they were normally about the cuts across all this area, and in fact most of the cuts went through, they were satisfied that something that was being hidden, something that frankly the Prime Minister had said was a priority such as green issues, became public and was scrutinised by Parliament. They had to justify what they were doing and everyone could see what they were doing. In my mind that was, in a sense, doing a public service. Can I also add, and it is quite important to say, I find among a number of moles that I have known for a long time in journalism that you will not hear anything for years and suddenly something comes up. It is rather like David going back to the anonymous quote. You will be told about something and it is normally really a last resort.

Q119 Chairman: I saw Sir David shaking his head. By your example in your argument there can some public good that can come from leaking. Presumably your argument, Sir David, is that the process nevertheless is not to be defended.

Sir David Omand: The sort of situation that was described has a down side and, in my view, it would have been possible to resolve that position without compromising the moral integrity of a civil servant so that civil servant should not have been passing that information. A very good investigative journalist such as David Hencke has plenty of ways of looking into stories and writing them up: putting pressure on through putting in FOI requests and all the rest of it. Parliamentary Committees have a certain amount of ability to do that too and it should not be necessary to compromise the integrity of a civil servant. That has a significant down side.

Q120 Chairman: You have been watching all this for years and years and you know all about leaks and spillages. Do you think the Whitehall world lives in a different environment now, because of the things we have described, from how it once was?

Professor Hennessy: Yes. When David joined the Civil Service, which I think was 1970, there was only one whistleblowing, in a wider sense, instrument available to Whitehall and it was a very specific one and indeed it was legalised: it was the Permanent Secretary's note as accounting officer under the Exchequer and Audit Act 1866. If there was wrongdoing in terms of Parliament voting money for particular purposes, and those purposes being set aside for another purpose, they had the legal duty as accounting officer to bring it to the attention of the Public Accounts Committee, albeit inside a private loop although the Public Accounts Committee could make the note public. I remember shortly after David was in Whitehall and I was young journalist we used to talk about whether Watergate could happen here. The argument from some of my friends in the secret world in Whitehall was that it could not because the keeper of the secret vote, as it was then called, the Cabinet Secretary, had a co-ordinator of security and intelligence, a job David later filled, beneath him to watch the proper use of money in the secret world. If a Prime Minister of the day had decided to ask the secret services - this is before they were legal and one of them was not even acknowledged in public at that point in peace time - to use the resources of the State to burgle a political opponent's office, for example, the keeper of the secret vote would have to say "This does not go with the rubric of the public accounts system and the Exchequer and Audit Act and I will have to tell the Public Accounts Committee" and it would have stopped. I was never sure if that would hold because it depends at what level operations take place, and David can tell you about the degree of surveillance on this. This is long before oversight of the Parliamentary Committee, and so on, so we are in a different world. We now have the Public Interest Disclosure Act 1998, which admittedly is very precise in those areas where you can blow the whistle: illegality, criminality, health and safety and so on. We also have the Freedom of Information Act. We had the 1989 Official Secrets Act which brought to an end the blanket ban of the 1911 Act, in a very specific way, so that criminality, as applied to Crown servants who disclose in an unauthorised fashion, was limited to those very tight areas, which I think it should have been and I think David and I would agree about that. The jagged area which I think David has drawn us into, and this David has too, is where that network of legitimate recourse through the Civil Service Code to your line manager, to the nominated officer in the department, to the Permanent Secretary and, if necessary, to the First Civil Service Commissioner. In the secret world it is a nominated officer to the Counsellor in the Cabinet Office but they can go no further. It is a completely transformed world in the last twenty years but the jagged edge comes over the question of candour and the duty of candour of a Crown servant in very difficult circumstances. Candour is very necessary for policy making and trust, not just between ministers and civil servants but between officials and officials. In certain circumstances, very serious circumstances, very grave circumstances, what do you do? For example, how would you regard the single most important delayed whistleblowing of our recent lifetime, which is the leaking of the executive summary of the Attorney General's full opinion on the legality of the Iraq War to Channel 4 News within a few days of the general election of 2005? I think it made a difference to the number of seats your party won in that election. Is it wrong to denounce the official who did that? Remember Freedom of Information had come into effect in January 2005 and, if I remember, instantly the Government had refused to release the full Attorney General's opinion as opposed to the little shrivelled one that the Attorney General gave in the House of Lords on the 17 March 2003. The Freedom of Information route had been tried. The Government was fobbing us off on Iraq, to be honest, in the general election: no inquiry. We have had two inquiries, they said. You know the mantra as well as I do. The first time the electorate had had a chance to hold a government to account which had taken us into what many people regarded, on the inside as well as outside, as an illegal war without due process. The Butler Report was stinging at the lack of due process and that was in the public domain. Do you think that the official - and I do not know who it was; who I suspect had never contemplated leaking in his or her life before - was wrong to bring that executive summary into the public domain? David presumably would argue that that person should have gone up the hierarchical route to the First Civil Service Commissioner or, if it was someone in the intelligence world, to the Counsellor.

Sir David Omand: If you recall, the Deputy Legal Adviser to the Foreign Office resigned over the issue of legal advice and that was the proper course.

Professor Hennessy: She is a heroine and one of the most admirable people in the Kingdom. She has played it by the rules: she has not blabbed. She was the only person who resigned. I have to spare her blushes although I am sure she is not here but she would have been number one legal adviser in the Foreign Office by now if she had not done the honourable thing and played it properly, and we both esteem her for that. She was the only one who went and that was a signal to the rest of us that it reeked. That is why the press was alerted to the fact there was something very, very dodgy about the shrivelled opinion as opposed to the fuller one and, as a result, pressure built for it to be released. The Prime Minister resisted it. Do you remember the Prime Minister was unwilling even to the give it to the Butler Privy Councillors until Robin Butler threatened to go public if he did not? Getting that opinion out I think was absolutely necessary for Parliament, and not just the electorate, in the spring of 2005. I cannot bring myself to condemn the official who did that. David knows very well there were a large number of officials, not just retired but still serving, who thought that the processes by which the decision had been taken to go to war were very inadequate as the Butler Inquiry demonstrated in technicolour. They also thought it was illegal but only one resigned. In those circumstances this House and the public needed to know what that Attorney General's fuller opinion said.

Q121 Chairman: That is interesting but you have taken us further than David Hencke. David Hencke has told us about the public benefits that come from leaking but you are actually justifying leaking on occasion in its own right.

Professor Hennessy: That was whistleblowing albeit with a delayed fuse.

Q122 Chairman: Obviously David Omand does not follow you on this.

Sir David Omand: You cannot base your ethical code on counter-factuals. Suppose a street robbery goes wrong and an innocent man is murdered by a mugger. That victim might in fact have been a terrorist on his way to conduct an attack and many lives are saved by that murder, but it is still murder. Just because there may be cases in which history shows that benefit occurred, does not justify legitimising that kind of activity. I would not recommend that to the Committee as a route to go down. In the particular case that Peter Hennessy describes, it was your job in Parliament to hold the Government to account.

Q123 Chairman: Can I bring Guy and Maurice in because you two between you are responsible for many of our difficulties in this area now because you have together changed the landscape in which civil servants have to operate. What is your take on where we are now?

Mr Frankel: I think the case about Defra is quite interesting. First of all, I want to distinguish that from the one you raise where an interesting piece of paper flowed across somebody's desk and he said "That would make a good story. I think I will give that to David Hencke." There is a difference between that and something being done which has effects which are deliberate. This was factual information about the numbers of job cuts, by the sound of it, being deliberately concealed and an alternative view was being given out. I find David Omand's comment about the moral integrity of the civil servant being compromised is overstating it in a case like that. I think the possibility of that happening is an important part of keeping government honest. I am sure that when the announcements are drawn up and the way in which these things are presented the fact that if the Government attempts to go too far in misdescribing what is taking place and somebody may correct them is quite a useful factor in helping to keep government honest, and perhaps as effective as the prospect of the Freedom of Information Act request coming out. It is very hard to quantify. It is very hard to say people should leak in those circumstances; one would be very reluctant to say that, but the fact it does happen sometimes is actually sometimes a healthy part of the checks and balances without answering the moral dilemma that actually faces anybody presented with that situation.

Q124 Chairman: Can I pick up the Parliament point. Listening to the Defra case it relates to what the Public Interest Disclosure Act says about the role of external regulators that people can go to in certain circumstances and Peter talked about Parliament. I wondered if it was more legitimate for a civil servant troubled by an issue, possibly the Defra case or another one, to go to a Member of Parliament, to go to the Chairman of the Defra Select Committee and say "I am not going to go public on it but there are issues that you need to know about or that Parliament needs to get stuck into." Would that make a difference?

Mr Dehn: Yes, in my view, it would. Whether the Civil Service Code was developed or whether under the Public Interest Disclosure Act you provided a mechanism, an oversight, by the Chairman of the relevant Select Committee or the collective of Select Committees which I think meets annually, that would, in my view, be a good development. Some of the leaking that goes on to MPs can be party political, in other words you select your MP. You either have your own constituency MP, that may be legitimate, and that was a point that was accepted by Parliament and the Government in the context of the NHS back in 1993, or you could give a role to Select Committees. Can I say there are two bits, picking up the discussion earlier, and the first one is in the context of authority. What the Civil Service Code and what some of the discussions and perhaps, although I have not seen them so I am not clear, Sir David Omand's papers are talking about is managerial authority. Certainly what I and Public Concern were more interested in was what was lawful authority. In other words, part of the problem was, not just within the context of the Civil Service but generally, if the authority was that of the management line then the management line would often have its own self-interest in the way it handled the substantive issue. Also the individual who had the concern would very often have legitimate fears that the management line would not welcome them raising that point. There is a distinction in terms of authority when you say managerial or legal. I do think there is common ground because the example in David Hencke's article to which he referred, and in the example which Sir David Omand quoted of a situation where there is serious wrongdoing, the serious wrongdoing may be by ministers, by a special adviser or by an official what do you want done? From my point of view, and I hope the point of view of many taxpayers and voters, is they would like a mechanism that deters people engaging in serious wrongdoing. I am with Maurice that what you want is there to be mechanisms which induce a sense of self-discipline on the part of people who may be tempted to engage in wrongdoing. This would be good for the Civil Service and for government because it would strengthen, what David Omand talks about, the moral integrity of the Civil Service. The fact is the mechanisms at the moment do not seem to work as well as they might. I think it is common ground that there are examples of malpractice or wrongdoing that ministers and officials, with the benefit of hindsight, also wish had come out. What you want is a culture where people are more likely to pick up these things and raise them in advance rather than after the event with hindsight.

Sir David Omand: There is one aspect we may be losing sight of which is that part of the Civil Service Code that says that civil servants may not deceive or knowingly mislead ministers, Parliament or others. If a piece of paper comes across the desk and you say "This is suppressing something Parliament is entitled to know about", that is when you take it up either to line management or, if you do not trust your line management, through the other routes and eventually the argument ends up between the head of department and the Secretary of State.

Q125 Chairman: In Civil Service culture does that person become a hero or a troublemaker?

Sir David Omand: That person would be a hero although it may be you put the head of the department in a very difficult position. To give you an example, the Hutton Inquiry into the death of the late Dr David Kelly revealed that I was obliged to say to the then Prime Minister that I was about to appear before a Parliamentary Committee and I was not prepared to fudge questioning on the fact that an individual had been identified. The Prime Minister accepted that advice instantly and accepted that I would, when I went before the Committee, have to explain exactly what had happened.

Q126 Mr Walker: Is leaking good for democracy?

Mr Hencke: Yes.

Q127 Mr Walker: I do not think it is good for democracy because many members think the Executive of the Government is pretty sneaky and tries to hide things and that we need people like you to bring it to our attention so we can bring them before Select Committees and grill ministers.

Professor Hennessy: You wait until you are a minister. I will remember you said that.

Q128 Mr Walker: I never will be but all is fair in love and war. Sir David, you do a lot of shaking your head but I am sure you are an honest guy and will give an honest answer to a straight question. Will David Hencke be monitored by UK Security Services in this country? Are his activities, in your best estimate, monitored by security services in this country?

Sir David Omand: No.

Professor Hennessy: They are slipping up, are they not!

Q129 Mr Walker: Why would they not be because you seem to think he is a danger to democracy?

Sir David Omand: I am not speaking from personal knowledge; I have been retired for a number of years now. The monitoring of individuals by the Security Service takes place of those who are judged to pose a danger to the State. With the greatest of respect, I do not think he does.

Professor Hennessy: They used to tap my phone occasionally but I did not mind. You could cause havoc on a Bank Holiday Monday putting into the test match score or dial a recipe or the weather and leaving it on for several hours and they would think there is fault on the line. There are games to be played.

Q130 Mr Walker: Who would tap your phone?

Professor Hennessy: Some of my helpers, if I can put it like that, would tell me that when a leak inquiry was on, there would be a Home Office Warrant and they could do this. Some of them were really quite skillful at letting me know. It was a minor inconvenience because I would have to go out on winter Sundays in Walthamstow to find the occasional non-vandalised BT phone to ring up my office. As long as I knew I did not mind at all. I never complained.

Sir David Omand: That was before Parliament legislated, and under the Regulation of Investigatory Powers Act 2000 I have to assure you that such a warrant would not get signed.

Chairman: We will not go along the table and ask if it is true.

Mr Walker: I am very disappointed for David Hencke!

Q131 Kelvin Hopkins: I think in the papers the importance of politicians being able to trust civil servants is emphasised, and that is fine and obviously the case. Is it not also absolutely vital that politicians must know that if they tell lies they are likely to be found out because somebody will leak and tell on them? That is important for democracy surely.

Sir David Omand: I do not accept the second part. It is very important that politicians know that deception does not pay but there are many ways in which in a democracy, particularly with an active Parliament, ministers can be held to account. Setting up a system where you are justifying the breaching of a code of conduct because it has these wider benefits is a very dangerous road to go down. If, as I hope, we have a Civil Service Act and if, as I hope, the Civil Service Code is incorporated in that Act then leaking would be wholly inconsistent with Parliament's intention.

Q132 Kelvin Hopkins: It is vital that we have civil servants who are dedicated to the public interest, have a strong sense of values and ethics. From time to time however they feel they have to do things, good example being the civil servant in the Foreign Office who in the 1930s leaked information to Churchill about what was happening in Germany. He gave Churchill information which led to a major shift in British policy and changed the course of history because if it had not been for Churchill we might not have gone to war. According to a television docudrama that man's career was ruined and he committed suicide, but he felt he was doing absolutely the right thing on behalf of the country. That was a leak which was surely, in retrospect, the right thing to do.

Sir David Omand: You always find in retrospect that even criminal acts sometimes have unexpected benefits but that is not a justification for doing it. That is the counter-factual argument. As for the Churchill case, just to bust myths can I recommend the retired Foreign Office Chief Historian Gill Bennett's book on Desmond Morton. The story in the docudrama was, I am afraid, slightly romanticised. Interestingly, and this bears out my point, the Head of the Foreign Office at the time, Robert Vansittart, and the Head of the Treasury, Warren Fisher, were both strong supporters of the line Churchill was taking. There was a committee under Desmond Morton, who had been in operational charge of the Secret Service during of the interwar period, looking at precisely that, German industrial capability. I am quite sure if that individual civil servant had gone to Vansittart he would have been reassured "Leave this one to us", in other words to the heads of the relevant departments. There was no need for that individual to take the responsibility on themselves. That is another issue we have not really brought out in this evidence. If you are not careful you are encouraging individuals to make decisions on issues on which frankly they are not in a position to judge. They may not have the full facts and that is why they need to take advice.

Q133 Chairman: There are different categories here. Is there not a category which you might call principled leaking which are these cases, and Peter pointed to one, where people are tortured by conscience and they try and do what they think is in the public interest in very, very difficult circumstances?

Sir David Omand: These are very rare circumstances.

Q134 Chairman: But they are important examples.

Sir David Omand: Those are exactly the circumstances in which the individual must stand up inside their department and be counted.

Q135 Chairman: I wonder if that argument is being contaminated by what you might call the routine mischief-making kind of leaking.

Professor Hennessy: It is the clutter of low level leaking that gets in the way. It is rare but it is usually on crucial occasions. For example, on his last appearance in the Chamber of the House of Commons on December 20, 1956, in reply to a question from Denis Healey, Sir Anthony Eden said there was no foreknowledge of Israel's intention to attack Egypt which was a straight lie. In the box were officials who knew that was a lie. Very few officials knew about the collusion. There was no mechanism for going to the Head of the Civil Service or the Civil Service Commissioners; it was a different world. Two of them had resigned on the road to war in Egypt and a few ministers did too, Anthony Nutting and Edward Boyle, but not one official, when that was a straight lie to the House of Commons, felt the need to in any way. There was no mechanism in place to expose it. They found it immensely difficult. I know it is only once in a career that this happens, but the whole point of having Crown servants is that they do speak truth under power. We have always talked about this when I have come to see you. There is no point in having a career Civil Service that is politically neutral and recruited on the basis merit, with all those values to which we sign up, as you were saying Mr Hopkins, if on these extremely rare occasions you do not actually put the wider public interest, Parliament's interest and your conscience's interest first if all other courses of action have been exhausted.

Sir David Omand: It is for the heads of the departments, the senior officials, to make those judgments and, in my experience, they will.

Professor Hennessy: Many of the heads of departments had no idea about the collusion in 1956; it was a very small group. What would you have done if you were the Private Secretary to the Foreign Secretary of the day? What would you have done if you were in full knowledge of the Attorney General's fuller opinion as well as the shrivelled one in 2003? You are a man of conscience and it would have been very difficult for you.

Sir David Omand: It would, but that is where you do not suffer in silence; you expose your problem to your superiors. We now have the First Civil Service Commissioner as well as the heads of department and other nominated officials to whom you can expose this. You can discuss it and in the end the problem drops right back in the lap of the heads of department and their relationship with the Secretary of State and the Prime Minister. As Peter Hennessy has pointed out, there are some nuclear weapons in the armoury of heads of department. Were one of those heads of department at the time of Suez to have said "This is unconscionable and, what is more, I am going to ensure that Parliament is informed" through the chair of the Foreign Affairs Committee of the day or whatever, you may be sure that ministers would have been forced to change their policy.

Professor Hennessy: The Attorney General, Eliza Manningham-Buller's dad Reggie, wrote to Eden saying "We have not been consulted on the legality of the invasion of Egypt. It is illegal. You cannot pretend otherwise in what you say in public. I am not going to resign. If somebody asks me a parliamentary question or the Solicitor General 'Is the war legal?' we will have to say no." Not one Member of Parliament thought to ask. It was a different world.

Q136 Chairman: If in some of these cases someone was to go to a Member of Parliament and say "You might like to ask this question", you are into far more complicated territory than just going through your line manager.

Sir David Omand: What the civil servants are trying to do is to follow their Code, and their Code says they must not knowingly deceive or mislead Parliament. Having taken that issue all the way up the line, if the conspiracy of silence continues then indeed on any matters involving impropriety, the Public Accounts Committee Chair would be the person to be informed. On the Suez case, then in confidence, the chairman of the relevant Parliamentary Committee conceivably could be the person. I would prefer to see the civil servant at that point resign and go public.

Q137 Paul Flynn: This was a decision that was taken to go to war. 139 labour MPs voted against the three-line whip. At least 50 expressed doubts about the war and signed EDMs, and so on, against it, and were bullied and bamboozled into voting or abstaining. Leaking that or getting across to an MP to ask the right question could have saved nearly 200 British lives as the vote might have gone against the war. There is a huge difference between a civil servant dropping a hint to an MP or leaking at that particular time when he could have avoided our involvement in that war rather than someone coming along and leaking it a couple of weeks before an election to influence the result there for their own political reasons. Is that not the situation?

Professor Hennessy: I think it was done for more than political reasons in 2005. I do not know but I suspect it was somebody who had been finding it increasingly difficult to live with their conscience ever since seeing that opinion in the first place. I do not know, it is for you judge because you are Members of Parliament, but if you had had the full Attorney General's opinion with all the caveats of March 7, 2003 when you had that vote in your chamber on the eve of war, do you think it might have gone the other way? It is for you to judge. I rather think it would have done.

Q138 Paul Flynn: I am certain it would have gone the other way knowing the colleagues who wrestled with their conscience at the time and bitterly regret that they took the decision by not opposing the war at the time because of the belief in what was being said.

Professor Hennessy: You did not have the wherewithal to make a fully informed decision, did you?

Q139 Paul Flynn: Should the civil servant not be worried about the fact that they did not give some hint or did not suggest that an MP ask that question at the time. Certainly we are all guilty of that, that we did not ask that question. There was strong opposition at the time.

Professor Hennessy: I think the Cabinet is the real culprit, as I have said before. They did not test it out. This is why I hope the Information Commissioner's ruling that the minutes of March 17, 2003 are released is upheld by the tribunal. There is a ruling very shortly on that. We need to know the degree to which they did or did not test out the little shrivelled opinion. Did anybody ask for the fuller one? Under the Ministerial Code they are meant to have the full Attorney General's legal opinion but they did not get it, did they. I have a suspicion not one of them spoke up. An injection of water would have stiffened those bastards' backbones.

Mr Frankel: On the leaking point, there is another option now available which is for an official to say to somebody outside government "Why do you not ask for the following document under the Freedom of Information Act" and say nothing more about the contents or the significance of the document. It seems to me that is an invitation for somebody to use the authorised proper mechanism for obtaining the information. I hope that would not be regarded as a leak. There is one more thing. The further refinement of that is for the official to make the request him or herself knowing what the document is and in full knowledge of the contents of the document. There is then not even a technical question of "I am entitled to go to journalists and suggest they ask for that document." The official could make the request him or herself so there is absolutely no communication to anybody else. If the information is disclosed, then it is a public document and the official can freely pass it to anyone else or put it on a website.

Q140 Chairman: Is that how things might be in the new dispensation?

Sir David Omand: It is an ingenious argument. I still would rather the individual civil servant took advice, partly to ensure that they really had all the picture explained to them, which they may very well not have if they are only seeing part of the correspondence. I would rather they took advice. In the end the decision as to whether a Select Committee should be alerted to an issue is then one that the head of department should discuss with the Secretary of State. Can you imagine a Secretary of State faced with that actually saying "No, we will continue with our cover-up." They are not going to do that.

Chairman: A straight answer is we probably can imagine a situation like that.

Q141 Paul Flynn: It happened in 1956 with Andrew Nutting's resignation. The whole proposition that there was not collusion between Israel and France that it was not a plausible story made people actually believe it but it was completely obvious it was. The Government persisted with the lie.

Professor Hennessy: He was persuaded not to make a resignation statement to the House of Commons.

Q142 Chairman: There might be sentences uttered which go something like "I do not think it would be helpful to have this made available at this moment" and things of that kind.

Mr Hencke: I was going to say the very example you have mentioned happened to me recently when I was researching a book this year on the miners' strike. A very, very senior civil servant suggested I applied for a specific Freedom of Information Act request for a meeting between Lady Thatcher and Ian MacGregor at the beginning of the strike on a particular date. When it came back it was released under the Freedom of Information Act and it basically enabled me to be able to put in the book that actually the first meeting they had was not to discuss the miners, not to start with, but was a huge row over the channel tunnel and whether it should be a bridge or a road. MacGregor was carrying on at great length that the trade unions were so terrible in this world that if you just left it with a rail link, the French and British trade unions would combine together and stop the trains every five minutes. That is a specific example of the sort of thing that has happened. The other thing I have quite a lot in my job is I get advice from senior people on what to look for, i.e. always read a Public Accounts Committee Report backwards because it contains new information that has been released between MPs, and you get a story. The other great one was to look for what was known as the Whitehall dustbin, which is basically when various projects have gone completely wrong, the civil servants ditch the money at the end of the year and write it off in little sentences hidden under Accounts. As a result of that I got a story about Gyles Brandreth, who genuinely thought his colleagues had stabbed him in the back, because in this dustbin was some amazing �250,000 that had been wasted on the taxpayer on a Royal Britain Exhibition in the Barbican. When I rang up the Tourist Board to find out, they said that is Gyles Brandreth's company. Gyles Brandreth at the time was the adviser to Norman Lamont. He was most displeased about this. That is information coming out where you are directed where to look. The last case was just: keep an eye on this because you will be surprised what is done there.

Sir David Omand: Neither of those cases affect the substance of what we are talking about. I happen to know in the first example the person who tipped him off was a retired civil servant. What you are debating there is the interaction between the 30 Year Rule and Freedom of Information and that comes under my category of public information, creating a more informed public as to how Whitehall works and all the rest of it. There is nothing wrong with that. That is not brown envelope leaking.

Q143 Julie Morgan: I want to come in on Iraq. The Deputy Legal Officer resigned and you said she was the only person who did the honourable thing. Obviously the information did not come out until much later. I do not know what the timescale was between her resignation and the information coming out.

Professor Hennessy: Two years almost exactly.

Q144 Julie Morgan: In terms of effectiveness in trying to bring out this vital bit of information she did the honourable thing, but was that the best thing she could have done in the circumstances?

Professor Hennessy: I do not know how she could have done more because she is a very honourable person and believes in proper procedure. I have met her but I do not know her at all well but I suspect due process and proper procedure is what she profoundly believes in. She is a very remarkable person, a top flight lawyer, and does not come into the category of whistleblowing at all. I suspect she was like Martin Luther: she could do no other. She did keep to all the rubrics and has nothing but the esteem of the colleagues she left behind.

Q145 Julie Morgan: It was two years later before this information came out.

Professor Hennessy: Somebody else leaked it, yes.

Q146 Julie Morgan: Looking at that scenario makes you think that somehow something should have come out before then.

Professor Hennessy: I think so, yes, but it is not for me to tell people to take risks with their careers, their mortgages and their families.

Q147 Mr Prentice: I am interested in the civil servants who leak to you. What kind of percentage get on to you after saying they have been totally frustrated having raised the matter internally but it has not been taken seriously and in exasperation they contact you?

Mr Hencke: It is quite high, about 70 to 80 %. They have normally tried to do something about it.

Q148 Mr Prentice: Listening to Sir David, with all the changes that have been made to procedures over recent years, you would think there was a very real alternative for disaffected or disgruntled civil servants agonising over a particular issue to go through the line management and get satisfaction, but you are telling us that is not the case for 70 or 80 %.

Mr Hencke: It is normally a last resort. I have one thing at the moment, and I will not go into a lot of detail, where someone has actually been offered the whistleblower route and discovered that one of the key files which was supposed to be kept on this had been "inadvertently destroyed" by a junior civil servant. They know that if they followed the system right up to the Civil Service Commissioners there would be a big hole in the investigation. They have come to me because they have seen something else I have written about where I have raised behaviour in Whitehall. I did ask direct. I said you have been offered this and then I got this extraordinary explanation "I do not think it is going to work because I know some of the evidence by the people concerned has been destroyed." That is an example.

Q149 Mr Prentice: You have done the survey of the whistleblowing procedures department by department. Clearly they are not sufficient.

Mr Dehn: No. On paper there are a lot that leave a lot to be desired but a lot of it comes back to what the culture is. Can I develop something Sir David Omand said? If you take the Civil Service Code, and it is something that a good number of civil servants take seriously and will wish to comply with, in some respects one of the matters that came up with Galley on issues that came up with Matrix Churchill, on issues that came up the immigration visa, one would have expected at least one of the civil servants to formally raise that within the routes, yet what actually happens is nobody raises it within the route. One individual feels compelled to go outside and then the focus is on that individual.

Q150 Mr Prentice: There is a difference between department and department. Let us take the Department of Culture because in the evidence that you give us they tell the people in their department "If something is troubling you that you think we should know about please tell us straight away. We would rather you raised the matter when it was just a concern rather than wait for proof." Have there been many leaks from the Department of Culture? You studied these things in detail. Is the Department of Culture less leak-proof than other departments because they have a whistleblowing charter which is more reassuring, if I can put it that way, to the civil servants employed in that department?

Mr Dehn: I would have thought members of this Committee, or the Committee that oversees Culture or David Hencke, would be better informed whether it is better or not. The issue is it was an analysis of what happens on paper; it was not an analysis of the confidence that officials feel. One of the recommendations was that departments would survey their staff as to their confidence in the route and that is one of the key things. You can have something on paper but if people do not believe it they are not going to follow it.

Q151 Mr Prentice: How do you deal with that point? It is all about the culture of the Civil Service. You can have all the rules and regulations set down in writing but the culture prevents civil servants doing what they should do.

Sir David Omand: The first point I would make is it is very important that civil servants look at Parliament and at Committees such as yours and see strong support for the Civil Service Code. The second point is within departments there really must be a constructive attitude where mistakes can be admitted without penalty and, where there are suspicions of wrongdoing, they are raised within the department. There needs to be confidence that they will be looked at properly, that the auditors, if necessary, will be brought in or the senior management will intervene if middle or local management appears to be not doing their job. If you get that culture right then my experience is that when people raise issues they do get resolved. David Hencke's 70 % figure in one sense is reassuring. I would have been extremely alarmed if he had said that almost nobody who contacts him has used the procedures. At least perhaps there is evidence that people are trying to use the procedures. This is, in the end, about culture but it is very important that your Committee sends a powerful signal that leaking, in the sense in which I have used the term for anonymous passing of information whilst hoping to retain your position, is contrary to the Code and is not something that you approve of.

Professor Hennessy: May I respectively suggest that you also send a message to ministers and special advisers along the same lines. A high proportion of the cataract of leaks is from political sources. The motivations are not high minded. You know them; you have to live with these people. The motivation very often is schadenfreude, which is not a lost obscure opera by Wagner but the pleasure you take in other people's misfortunes. That is from where most of my leaks used to come of the low grade sort. It is pure Schadenfreude. If a particular department goes into the manure and another department on the periphery of the circulation list of relevant minutes notices this, they have acute pleasure in it because it is not central to their concerns. All sorts of people would leak against the Treasury. When the poor old Civil Service Department existed you could not stop people leaking against its inadequacies. Remember the great Jim Callaghan to the Franks Committee on official secrecy: "I brief, you leak". It is self-authorisation and that is where most of it comes from.

Mr Frankel: I want to go into something David said about the documents having been destroyed inadvertently. There is a process that has followed the Freedom of Information Act of records management which involves getting rid of documents when you no longer need them for your own purposes, subject to retaining things of historical interest and needed for accountability. Some of this involves a deliberate and accelerated process of destroying emails, and so on, after a very short time. It is always formally justified on the need to keep a clean self-explanatory record whereas in practice the motivation very often is to make sure the material is not there should anybody ask for it. I was on many platforms talking to officials during the run up to the implementation of the Freedom of Information Act and occasionally the people advocating records management would say explicitly if you destroy it you do not have to disclose it. That process is going on partly behind the scenes behind Freedom of Information. There was a leak to The Times Higher Education Supplement 12 or 18 months ago from the people carrying out the research assessment exercise on the quality of universities' research, in which a memo had gone out to everybody to ensure that all reviewers' notes were destroyed by such and such a date to ensure that if there was a request under either the Data Protection Act or the Freedom of Information Act, there was no material available to be disclosed.

Q152 Mr Prentice: You mentioned one department as an example but is this systemic across the Civil Service?

Mr Frankel: I think the close attention to not keeping emails longer than necessary, unless they are a central part of the decision-making process which has to be documented, is very widespread. I think it is recognised officially as the proper way to manage their records and emails.

Q153 Paul Flynn: There is an inquiry going on at the moment about the sweetener that was given to the American-led company that has taken over the clear-up of Sellafield. It went through Parliament without Parliament discussing it. I do not know the details of that but there has been 140 pages of emails and other documents being released on this which point out, and it is clear from what is in the those documents, that the Government has not been telling the entire truth on this. What shocked me about it was of the 140 pages, ten of them are completely black and on the other pages there are bits that have been censored out. It does seem extraordinary that even under Freedom of Information there is a still huge amount being withheld. Are you happy it is withheld for legitimate reasons? Perhaps you do not know this particular case.

Mr Frankel: The Department would say they consider it relates to the process of policy formulation and in the balance of public interest favours withholding it. The difficulty is the person seeking that information has to make a public interest case for disclosure and it is very difficult sometimes to do that when you do not know precisely what the information is. That is why I am attracted by my own earlier suggestion that the official make the Freedom of Information request. The unique difference is this: when it then comes to making submissions on the public interest, the official actually has full the story, in fact much more of the full story than the outsider would have, and that becomes a much more interesting set of public interest arguments put forward for the Department to consider, and perhaps later on for the Commissioner to consider, than if the outsider, like all of us now, had to make the request.

Q154 Paul Flynn: Sir David, you talked about us sending out a strong signal. We all agree about the trivial leaks, the leaks that are given for party political purposes and so on, but should we not also send out a signal that when someone has information they think might be of crucial importance, like the case quoted about the Iraq war, that it is a sin of omission by not contacting, not leaking, not telling an MP to put down the appropriate question? It is not enough to say silent in those circumstances. It is a duty of conscience, where you could have made the difference between our being involved in the war or not, which I believe it would have in that case, for that civil servant to make sure the information was put into the public domain.

Sir David Omand: Hard cases make bad law. Most leaks are not leaks of conscience; they are malicious. I think you will do a huge disservice if you were to couch the point exactly as you phrased it. I think there is a way around this: essentially the duty, at the end of the day, is on the relevant head of department not to remain silent.

Q155 Mr Prentice: Could I come back to what Peter said about what is sauce for the goose is not sauce for the gander and there two sets of rules: one for politicians and one for civil servants. Sir David, what should happen to David Davis, the former Shadow Home Secretary, who said that 50 % of the leaks that he gets have national security implications so he does not pass them on to the press? He has admitted the fact that he is in receipt of sensitive material. What should the official response be to an MP who admits that quite openly and quite publicly?

Sir David Omand: There are two points there. At the beginning of your question you referred to ministers and those around ministers. They authorise themselves to put information in the public domain and they are a frequent source of information to the media. As I have said in my paper, only the Prime Minister of the day can ensure the right standards of conduct in those relationships; it is not a matter the Civil Service can intervene in or we can regulate. The second part of your question takes in the duties of Members of Parliament. In my view, and this is a personal view, if a Member of Parliament comes into possession of information which is clearly information pertaining to national security and, therefore, is deserving of protection, then the duty of that Member of Parliament is to return it to the Government.

Q156 Mr Prentice: I raised with David Davis, as a matter of courtesy and as a convention, that I was going to mention him in the House. I wrote him a little note saying I was going to do this and I got a letter back from him and he said "Dear Gordon," and this is not telling tales out of school as this is a man who believes in publicity and courts it, "thanks for your letter. Why should I return information to the Department so they can arrest more whistleblowers. Anyway, how do you return information delivered orally or electronically? No, this is just a silly gambit by the Government to justify their heavy-handed and draconian tactics and re-write secrets legislation without going through Parliament." That is his justification.

Professor Hennessy: There is security and security. If it is strapline intelligence, it is very damaging if strapline intelligence is disclosed to anybody outside the loop. There is a hierarchy of security. The word is terribly loose. At the top end of it, it genuinely is security. One of the justifications of the 1989 Act, which without being balanced by the Freedom of Information Act I thought was inadequate I admit, was it did actually bring in the ring of secrecy into those areas where justifiable secrecy could be claimed. The previous Act had made it so absurd that our old mutual friend, Clive Ponting, the jury would not convict. A lot of what we are talking about now, in terms of both the legislation and the Codes and so on, stems from the Ponting affair.

Q157 Mr Prentice: This was about strapline security. What do you mean by that?

Sir David Omand: Information which relates to intelligence matters has its own classification system. Anyone receiving this information would be in no doubt that even if they did not understand the full intricacies of the system it would be very clearly marked that this is intelligence information.

Q158 Mr Prentice: Everyone understands top secret.

Sir David Omand: Higher than that, and it is very clear on these documents. If such a document comes into the hands of a Member of Parliament their moral duty, as well as their legal duty under of the 1989 Act, is to return it to the Government.

Q159 Chairman: Do you think there is a further duty to disclose the source if you know it?

Sir David Omand: Personally, and I am only giving a personal view here, I do not think that is a duty. It is something that the Member of Parliament should consider very carefully in the light of what the information is and for example whether it looks as if this is perhaps posing very serious potential damage to the counter-terrorist effort, in which case it would be common sense to say that whoever is responsible for letting this material out on the loose should be tracked down. Duty is putting it rather strongly.

Q160 Paul Flynn: You mentioned a particular case, which is an impressive one, about the Butler Inquiry. Most civil servants would be inhibited from going through the system, and going through the Commissioner as they can now, by the effect it is likely to have on their careers. Would they not be more tempted to take the same route and leaking them anonymously? Are there many cases of people following your example and going through the system and then their information changing policy or coming into the public domain without any detriment to their careers?

Sir David Omand: The system is set up specifically to give that confidence: whether everyone feels that is an empirical matter. Those designing the system, if I can talk for a moment about the Staff Counsellor for the intelligence agencies, set up that arrangement in 1987 after the Bettany affair so that the whole way it is operated is to give an individual member of one of the secret services who has qualms or doubts, for example about the legality or morality of whatever they have been asked to do, a route to talk it through in complete confidence. If we were talking about wrongdoing by ordinary civil servants then of course that is where the Public Interest Disclosure Act 1998 comes in. That individual, if they made a disclosure within their department, for example to their internal audit department, would be protected. The Act gives them protection through an Employment Tribunal if the department were to attempt, in any way, to either dismiss them or penalise them for having blown a whistle.

Q161 Mr Prentice: Is there any way of our knowing if the system is working? Are there dozens or hundreds of cases of this happening?

Sir David Omand: I have been out of the system for a few years so I do not know what the current rate is. In my day there was a regular trickle of cases where individuals did want to talk through some difficulties. Contrary to the experience of David Hencke, my experience was that once individuals had the full picture explained to them most of the legal and moral stance evaporated. "I did not know that was really what was behind this" or that actually there was an Act of Parliament that permitted us do this or that. In most cases people would be reassured when they see that, for example on the some contracts issue there is to be a proper investigation. We should bear in mind too that there are unfortunately cases where individuals become obsessed with a particular issue they are raising and nothing that is done is going to satisfy them. David Hencke will have experience of those obsessionals.

Q162 Chairman: We know such people; they write to us all the time.

Professor Hennessy: Some issues cannot be resolved that way, although I am sure David is right that most can, although I say this as a complete outsider. For example, if you were in one of the security agencies' secret services and you were in receipt of information that had been passed over under liaison arrangements from a country that uses torture on terrorist suspects, or you were involved as an official who had to go to Guantanamo to interview somebody who had been tortured - you would not be there when they were being tortured of course but you would be given access to them afterwards - and you brought that to the Counsellor there is nothing the British Government can do by way of a change of policy because it is out of our jurisdiction. Those are the sort of areas where the real problems might lie. I say "might" because I do not know. I am thinking if I was in the secret world that is probably the sort of thing I would regard as the hardest case.

Sir David Omand: Yes, and speaking hypothetically, that is exactly the sort of case where the Counsellor would be able to explain the policy that the Government and the agencies were following: the active programme of trying to persuade countries who engage in such forms of interrogation to desist and use more humane and more efficient methods, coupled with the view of the courts that if your duty is to protect the public then you have a duty to use information that may bear on the protection the public and not disregard it because you might suspect it comes from a tainted source. Such information would never be admissible in a British court, thank goodness, but if that information could be the difference between life and death in stopping some terrorist plot then the police and the intelligence agencies have a duty to have regard to it. The other point to make is it is a hypothetical case because this kind of information simply comes as a telephone number or an address and does not come with a little label saying where it came from.

Q163 Mr Liddell-Grainger: The Damian Green affair opened up an awful lot of things. Do you think there is any case that MPs, who are here as elected representatives, who receive leaks - and we all receive leaks, every MP, the whole time - they can be from local government, from national government, from journalists who want comment or do not want us to ask questions in the House, that police should be used to get to the bottom of a leak?

Mr Hencke: I must say I was rather surprised that they decided to use the police, particularly the fact that Parliament seemed to have allowed the police in on that scale. We have always assumed that MPs would have a lot of protection because people would have to have the confidence to come to them and tell them things knowing that the police were not going to be chasing them up. Frankly, it does seem a bit over the top. I was always amazed when Sir Gus O'Donnell gave evidence to you that they were thinking of using the police over a Treasury matter as well.

Professor Hennessy: I think the police should be used only in those cases - and this not just affecting MPs but generally - where serious criminality is suspected rather than low grade stuff. It is difficult to judge, without knowing more detail than we do have, about the Damian Green business and the official - and I do not know what the legal position of that official is so I am going to be careful - from the Home Office who is alleged to have been passing over stuff routinely. As an outsider the bit that did surprise me was the lack of due care and attention within this building by the authorities in letting them in that way. Parliament has to have a special position, and historically it has had a special position and it is vital that it retains one, but again, the law of the land is the law of the land. You have to be careful in all of these cases. I do not think there was enough care taken. It is very difficult and I still do not think I am in a position, not having sufficient information on that case, to come down hard and fast but I can understand why the reaction was as it was in your chamber, if I can put it like that.

Q164 Mr Liddell-Grainger: You mentioned Gus O'Donnell and when he came before us, and in fact was coming in on another inquiry, he was invoking that there might be security implications, there might be this or that, but nowhere along the line, as far as I am aware, was there any suggestion that this man had any access to security detail whatsoever at the Home Office and the rest of it. I just wonder if Gus O'Donnell was doing what was his master's bidding, which was to try and nip this in the bud because in the Public Administration Committee we tend to go down these routes and we will always do so. Is it right that we should have this spectre of the Cabinet Secretary coming before us suggesting something for which there is no evidence? Nobody has come up with any evidence, even the inquiry has not so far and even this House has no evidence on that. Is that acceptable?

Sir David Omand: I have no evidence on that case whatsoever.

Mr Liddell-Grainger: Is it acceptable? You are our intelligence crew so tell us.

Q165 Mr Prentice: Before you reply, Sir David Normington, the Home Office Secretary, said he knew of at least one piece of leaked information which had implications of national security so of the stuff being passed from the Home Office there was at least one item that had implications.

Professor Hennessy: I do not think Sir Gus O'Donnell would have been deceiving you. I think he is a very straight and honourable man. The trouble is that in private offices there are relative levels of clearance between the number one Principal Private Secretary and others, I think from memory. At the same time, all sorts of stuff flies through sensitive private offices. I do not want to come out and say, because I cannot, that there was a security element but it does not seem to me that is a confection of an explanation that Gus O'Donnell brought. I am sure he believed it.

Sir David Omand: There is risk in ex post thinking just because it is thought that the identity of the leaker is now known. At the time an investigation is launched, and I have done this myself as Permanent Secretary of the Home Office and in other departments, you are not sure what you are going to find. It may be that there are several areas of concern: you might worry that you have a single large problem and it might turn out you have several different problems. You do not know that when you set off. The stress I placed on the Civil Service Code means that my approach to this was, and would still be, that this is essentially a disciplinary matter under the Code so that is your starting point. Unless, as Peter Hennessy says, you have some reason to believe that the case may end up involving potential prosecution under the Official Secrets Act, the normal route would be for you start off with an experienced investigator. There is a panel of these people maintained by the Cabinet Office, who are used to investigating espionage or other cases, and you bring them in and they do a mole hunt. It is very important though at the first sign that you may be getting into territory that could involve the Official Secrets Act that the department then consults the police. The police after hearing the case will either say: go ahead, continue with your investigation but here is some wise advice about the evidential chain so if you do uncover something you have not wrecked the evidential chain on which a court case might rely, or they might say there is prima facie evidence here of criminality and as the police we intend to investigate. That is their decision and it is not the department's call, it is not the Government's call and it is not the Cabinet Secretary's call. You would have to be very careful if you thought to keep the police out of this if you had some suspicion that OSA material might be involved.

Professor Hennessy: I was subject to a bit of this 34 years ago when I wrote a story in The Times, which was a wholly serious newspaper that took these things seriously, about the delay in the positive vetting system. It was the era of incomes policies which the more aged colleagues will remember. There was a shortage of positive vetting officers and they had fallen a year behind. A young Communist in the private office of a Permanent Secretary if he had not come clean on his form and said "I am an active member of the CPGB" would have been seeing Cabinet material for at least a year. I wrote all this up in The Times. I was very young then, not the benign old creature you see before you today - a bit pushy - and there was an inquiry into my security on the grounds, which somebody leaked to me, that if he is getting stuff like this about positive vetting, the Cold War was still on, what else is he getting and who is he talking to. Is he talking to Colonel Vladimir Knockabollockoff in the Russian Embassy, for example, which of course I was not. The conclusion of the leak inquiry was leaked to me but I did not mind the inquiry into my security and decency, as it were; I would have expected them to do that. One must not be too sensitive about these things.

Q166 Mr Liddell-Grainger: You must have been delighted about the Damian Green affair because it was blowing out of the water this secrecy thing. The police had stepped over the mark and gone into Parliament and taken computers. This is what you should dream about. This is great because this is going to blow the thing out. If people are going to come to Members of Parliament, they are going to leak to us. We might be getting the police but we are not going to allow this to happen again. You must have been delighted.

Mr Frankel: I was as mystified as most other people about what could possibly have been under the covers that provoked that extreme reaction and I am still mystified. I am mystified by the argument that if somebody has access to material going through the Home Office, and is leaking, he is quite likely to be leaking classified material as well as the next step. The moment you get anybody leaking anything you can always say this person is unreliable and the next step is he will release something damaging. All the distinctions laid down by the Official Secrets Act between damaging and non-damaging disclosures are thrown out because you then say we have an untrustworthy person and who knows what he is going to do next. The whole point of the reform of the Official Secrets Act was not to punish untrustworthiness but to punish damage, not failure to respect procedures, not failure to respect confidences and not the release of embarrassing information. If you are too quick to go to the argument, he showed a propensity to leak. The next thing he leaks from our department could well be classified material and then that whole system of restraint, or self-restraint on the part of the regulatory enforcement, has gone.

Q167 Mr Liddell-Grainger: There are 487,000 civil servants, according to Lord Digby, so we have 487,000 potential leakers have we? Should they be leaking, Maurice?

Mr Frankel: I do not commend leaking as such. I do not think it is something one inherently commends but I think the prospect of it is an important safeguard on the honesty of government. The fear of it is a restraint on what ministers will do and I think that effect is healthy. On the other hand, I do not say to people "I think you should leak that." I do not say "Have you got any good stories that you can pass me or David Hencke" or anything like that. The fact is that the willingness of ministers to blow the whistle sometimes, never mind civil servants, that whole process is a safeguard. Not very long ago I had a former MAFF civil servant phone me up telling me something about the failure to investigate BSE properly. He made it clear that he was only now telling it to me because he had left the Civil Service. I said why he did not do something about it at the time and he said "I was worried about the Official Secrets Act." The time in question was after the new Official Secrets Act, that is post-1989, and there was no remote possibility that he could have been committing an offence under the old Official Secrets Act yet he was so intimidated by the legal sanctions on top of the procedures that he kept quite about something he should have done something about. It is possible he might have been able to put it right going through internal procedures but whatever it was the public interest in that case, and it was a failure on the science side to do something which certainly should have been done, was damaging to the public.

Q168 David Heyes: The question really is about what ought to be in our report at the end of this. What would you recommend? Is there a need, for example, for a complete overall of the law in this area or for more law? I take comments from any of the panel but I will start with Maurice. You mentioned the destruction of information to avoided FOI requests. Does that require a change in the law or additional law or indeed any other area that we have been talking about? Is the present legal framework coherent or not?

Mr Frankel: There could be helpful work done on discouraging an over-emphasis on destruction of records the moment they are not strictly needed or required for long-term purposes. The greatest problem we have on the Freedom of Information side are the delays in the process and the delays in investigating complaints, which means the fact that information could be obtained by procedurally correct means, as opposed to leaking and so on, that channel which should diffuse the pressure that leads to leaks its the ability to do that is undermined by the length of time it may take if you have to take something right the way through the system. That is a serious problem. The Act itself is good in most respects but the slowness of the process is a real problem. You also have significant discrepancies now between the Freedom of Information Act and the Official Secrets Act over the corresponding categories. For example, you have information about defence and international relations whose disclosure might be harmful and would therefore be an offence under the Official Secrets Act. It would be exempt under the Freedom of Information Act but it might be disclosable legitimately on public interest grounds under the Freedom of Information Act. You do have the situation where somebody could be prosecuted, convicted and jailed for disclosing something to which they would have no public interest defence but which the Tribunal might require to be disclosed. There has, in fact, just been a very interesting case of that where the Tribunal has required the disclosure of some information about arms sales to Saudi Arabia where the Tribunal agreed that disclosure of the information was harmful to the relations between the UK and the Saudi Arabians. The exemption for international relations was triggered but it said that it should nevertheless be disclosed on public interest grounds because it threw light on the possible involvement of British officials in bribery. The disclosure of that information outside of Freedom of Information would be a criminal offence, but disclosure of it under Freedom of Information is not a criminal offence if it is justified on public interest grounds.

Q169 David Heyes: Do you have any sense we need more law?

Sir David Omand: I do not think we need more law other than the Civil Service Act and the enshrining of the Code in legislation and then it is 'physician heal thyself'. It is about Parliament and its Committees making sure that officials live up to what is in the Code, including that powerful statement in it about not knowingly allowing Parliament to be misled. Then within the Civil Service it is about making sure these arrangements do work, and they work speedily, to resolve the case and, in the end, making sure that heads of department are aware that they have a very significant responsibility, in Warren Fisher's words, to say when necessary "This is a damn swindle, Sir, and we will not stand for it."

Q170 Chairman: Thank you for coming, Sir David, and by all means slip away. We are grateful for your evidence.

Professor Hennessy: I would accept everything that David Omand said and endorse it but add a couple of things. The Civil Service Act. I am not sure we are going to get it inside a Constitutional Renewal Act because if you look at the Queen's Speech it says "develop proposals" but does not say a Bill will be brought forward. As Mr Attlee said of the H bomb, that needs watching, and I think your Committee is the real one to do that. Maybe I am misremembering the Freedom of Information Act 2000, because Maurice can recite it in several languages and when he is asleep, but I thought it was an offence already to destroy documents in anticipation.

Mr Frankel: It is only an offence if you do it after they have been requested and the purpose is to prevent the disclosure.

Professor Hennessy: I agree then that is not enough. The other thing I hope you will look at is on the 30 Year Rule, which people used to pretend in Whitehall had gone but it has not and still operates under the old Public Records legislation. It may well be coming down to 20 but they have not announced the result of the review yet. If it does, they will add an extra year on with each year's release until we get down to 20 years from 30. This is delayed accountability. This is delayed Freedom of Information if you like. I fear the Government will pretend, as they did with the Freedom of Information Act, that it will be resource neutral which of course it was not. A lot of people's time in the records divisions have been taken away from the 30 Year Rule. We still cannot get Cabinet minutes until after 30 years, as you know, because of fire fighting on FOI. The other thing you might want to keep an eye on, and this Committee spoke very eloquently about the need for it two years ago, is official histories. There is a review under Sir Joseph Pilling in the Cabinet Office of the official history programme. I think it would be very timely if you reminded people of the high value that this Committee placed, as indeed I do, and I think Richard Wilson was with me that day, on official history. I am with David: no more law, tightening up of various bits but it is the spirit of it. It is always in the end a human factor question. You can have all the codes and all the statutes in the world but if people will not speak truth under power and breathe life into those Codes it will not work. It is the human factor that bothers me more than the legal one.

Mr Hencke: I was to going strongly endorse what Maurice says about the Freedom of Information Act. The reason why the Defra leaks were important to us is they can take 28 days to reply. Civil servants are brilliant at finding little excuses: it is too expensive or the way you have phrased this means we have decided to have an internal appeal and there is not a time limit on that and they can take their time. In that case it would not have come out in time. It had to rely on a leak because by the time you had got it under those other channels it would have been past history and they would have done it. I think this is really important, legislation like the FOI, I would love to bring it down to 14 days to concentrate their mind because in some countries it is lower.

Mr Frankel: The problem is the time limits are not being observed and shortening the time limits is not going to answer this particular problem.

Mr Dehn: I think from the point of view of whistleblowing legislation and the Code, because the Code does talk about civil servants being obliged to disclose evidence of illegal conduct to a relevant authority, it is not actually that clear in the scheme who the relevant authority is. In other areas of the whistleblowing legislation there is what Public Concern might call stage two disclosure which is normally a regulatory body which has an oversight of the substantive wrongdoing: the health and safety, the financial misconduct, tax or whatever. The Civil Service Commissioners are sometimes portrayed as having that role, as being a port of call, but I do not think they are actually the correct port of call for the substantive wrongdoing. They may be the correct port of call to review how a department considered a matter. Whether it would be the Ombudsman, whether it would be what the Chairman was suggesting giving some more formal status to Select Committees as being bodies that people can properly pass serious concerns to, I think that would be a good step in restoring public confidence in the arrangements. Sir David Omand said it was very important that people redoubled efforts to make the arrangements work. There is enormous experience at Public Concern at Work. Former colleagues of mine are behind me and at no point really did the Cabinet Office engage with Public Concern at Work with this. When they consult the only people they appear to consult are the trade unions. I have no problem that the trade unions will not have useful things to say but there is an enormous amount of experience about what is being done in other areas in terms of how you can make arrangements work, how you can give people confidence, and if the Committee felt it appropriate to encourage the Cabinet Office to engage with Public Concern at Work there is no harm and I think some good would come from that.

Q171 Paul Flynn: Can I invite David, because of your long career in this area, to suggest something we might beneficially put in our report. One of the areas perhaps we might talk about reflects your career. You said that often the media is the only way of exposing certain wrongdoings that are going on but often the collaboration between the media and MPs who have privilege, who can use privilege that you really cannot do which can advance cases and use Parliamentary questions and so on, is it not a case for saying that ethical leaking is an important lubricant of modern democracies?

Mr Hencke: Yes, I would. Coming back to my point, I think there are very few people who actually do leak in Whitehall. Normally I find it is because they thought of trying to raise it, or have raised it one way or another, and it is just getting nowhere. They do not want to go into a long procedure with the whistleblower thing because that would take quite a long time. Timing is often of the essence because a decision is basically going to be made fairly quickly, within a week, two weeks, a month. There is a huge difference between civil servants, which I think is a small number and it is exasperation, and politicians and special advisers which is on a large scale. There are even lunching arrangements between individual journalists and ministers that go on every day where information passes hands. There is a lot of difference there and there is a case for the civil servants, for the ethical point you made.

Q172 Mr Prentice: I cannot let the moment pass given that we have The Guardian in front of us and Maurice Frankel. You told us a few moments ago that the FOI legislation is good but the problem is the length of time it takes to deal with FOI requests. I put in a request about Lord Ashcroft, and so did The Guardian, it must have been about 10 months or coming up for a year ago. I wanted two bits of information because Lord Ashcroft was elevated to the peerage in 2000 after promising to bring his tax affairs on shore. I want to know what form did this assurance take, was it oral or in writing, and to whom that assurance was given. That is just so simple but it has still not been dealt with. It has gone through all the internal reviews. I have asked the Cabinet Secretary about it and now it is lost in the system somewhere. How are these requests prioritised? This is not complicated. It is incredibly political; for some people it is radioactively political. How are these requests prioritised?

Mr Frankel: This is a request which has gone to the Information Commissioner?

Q173 Mr Prentice: Yes.

Mr Frankel: That is where the problem is at the moment. Quite a high proportion of cases are taking between two and three years before they come out of the Commissioner's office. The figures that show there is a high rate of cases dealt with in a short time largely refer to cases which are procedurally invalid and they are basically rejected as not requiring investigation. The cases that go through full investigation are taking an inordinate amount of time in the office. The Commissioner's office now say they have adopted a prioritisation system where they select for faster treatment cases which involve significant issues of wide public interest or where there is a wider implication. We just do not know. We have no figures and no way of knowing how effective that policy is. I suspect what it means is those cases do not go to the end of a queue and have to wait until all previous cases in the queue are dealt with before their turn is taken. The investigation process itself sometimes takes 18 months to two years even if an investigation begins straight away.

Q174 Chairman: I need to put it to an end. I am grateful for the session. As ever we grapple with two goods: one good is to maintain confidence on the part of the Civil Service because that is a good thing to do, and the other one is to make sure that information which needs to come out comes out. We wrestle with that in this area, as we do in others and it has been a very helpful discussion in helping us to form our views on that. Sir David Omand wanted to quote Sir Warren Fisher to us. What decade was Warren Fisher?

Professor Hennessy: He was head of the Home Civil Service from 1919 to 1939 and Permanent Secretary of the Treasury.

Chairman: So he gets it on the record, and it is a lovely quote if people have not read it in the submission he gave. This is Warren Fisher between the Wars saying "We shall need men who have the guts to stand up to their ministers. As English politics gets increasingly Americanised we will find ministers more and more inclined to do shady things and the civil servants of the day will have to have the courage to say to their political chiefs 'That is a damn swindle, Sir, and you cannot do it'."