"I have often been called a Nazi, and, although it is unfair, I don't let it bother me. I don't let it bother me for one simple reason. No one has ever had a sexual fantasy about being tied to a bed and ravished by a liberal." PJ O'Rourke, Give War a Chance
I obviously agree with the sentiments of Simon Heffer’s festive greeting to Telegraph colleagues (random snippet: “Senses of humour about this sloppiness are starting to wear thin”). However, dare I suggest a touch of self-awareness might be displayed? At one point Heffer says “If you don't know what a word means it is generally a good idea not to use it until you have found out.” Is it really too much to expect Mr Heffer to follow his own advice?
Incidentally, as Gordon Brown retreats into the bunker and attempts to don the mantel of a ‘war leader’, do you think he’s read his history? Because war-time Prime Ministers tend not to survive the wars they start.
H.H. Asquith was gone by 1916, Neville Chamberlain by 1940, Pitt literally failed to survive the Napoleonic wars, Eden was felled by Suez and Atlee went before the end of the Korean war. Aberdeen was finished by the Crimean War, Palmerston by the after-effects of the Indian Mutiny, Balfour by the Boer War.
They aren't exactly promising precedents for the Gord are they? In fact there’s only really one precedent that looks at all cheerful, and I’m not sure he’d like it…
One of the legacies of this Government, stretching back to 1997, has been the appalling standard of legislative drafting. This is one of those subjects that can best be filed under ‘tedious but important’ as knee-jerk reactions to political problems result in contradictory and astonishingly authoritarian consequences. This is not merely about the fact that one can be prosecuted under about five different Acts for carrying a knife – that is the result of this Government using legislation primarily as a message, which is bad enough in itself.
The problem here is that legislation is so often so widely and vaguely drafted that quite perverse outcomes emerge. Look at George Monbiot here. He refers to the fact that the Protection Against Harassment Act 1997, ostensibly designed to protect women from stalkers (which was the contemporary tabloid stalwart), is being used as a means of criminalising peaceful civil disobedience. Part of the problem is that legislation is so opaquely drafted that it is far from obvious what its implications are. Tolley’s Tax Code, to take one example, has damn nearly doubled in size under Labour. New tax legislation is poorly drafted and often ambiguous. Accountants and lawyers genuinely have no idea what the true interpretation of some clauses might be until it is determined in court.
Any new administration should have, as a priority, the radical simplification of the British legislative code.
The West, and Britain in particular, is in an absolute bind in Zimbabwe. Calls by us for Mugabe to go will strengthen his internal position, at least within ZANU PF. Hostile acts, such as economic sanctions, are effectively both impossible to achieve thanks to the opposition of Russia and China in the Security Council, and in any event worthless thanks to the total and utter collapse of the Zimbabwean state.
(On that point, listening to Today this morning, how can anyone still hold to the belief that the UN is the ultimate global moral arbiter? John Humphries’s point was that since there was no UN backing for the invasion of Iraq, it was therefore immoral. How the hell can he pimp out his conscience to Russia and China and still claim to be moral? Baffling.)
The only move that would remove Mugabe and ZANU PF from power is a military invasion. There’s a precedent for this in African politics too – the invasion of Uganda by Tanzania to remove Idi Amin. That this led to the re-instatement of Milton Obote, who was scarcely any better is a further lesson that there are no knights in shining armour in Africa. But the chance of any Western power leading a military invasion of Zimbabwe are nil. It’s fantasy politics to suggest otherwise. The only state with the capability of invading is South Africa, and even though Jacob Zuma will probably be less cosmically useless than Thabo Mbeki, it is still the remotest of possibilities.
So what will happen? The mysterious wounding of Perence Shiri is instructive here. With reports ranging from assassination to suicide attempt, that Shiri, the man in charge of the Fifth Brigade during Gukurahundi, is involved brings it very close to Mugabe. If the very inner circle (Shiri is a member of the JOC) is under suspicion, because Mugabe’s fingerprints are all over this, then surely the end of the regime is near. But what on earth will follow?
There is only one hopeful scenario. The fall of Mugabe, whether through his death, or a revolt of senior army officers, or a popular uprising involving everyone from ZANU officials to the police to the army to the people, will lead to a vacuum at the top. This will be the moment for regional powers, perhaps driven by Ian Khama, President of Botswana, to send peace-keeping forces to restore order. With them in place, steps could be taken for a provisional government to restore the constitution and take steps towards a peaceful election. Until the installation of that provisional government, however, the West, and Britain in particular, can do absolutely nothing. It’s frustrating, and it seems almost immoral not to act, but there is nothing we can do that would be of any help.
The Com Res survey in the Independent is fascinating for two reasons. The first is that it confirms that the bounce in Labour support is now over. I would direct you to Anthony Wells’s masterly summary here as to the reasons for this. Put briefly, Labour’s support has tracked very closely the levels of economic optimism in the country. The recapitalisation of the banks was spun by Labour, and reported more or less uncritically by the media, as the answer to the economic crisis. It wasn’t, and this is now becoming ever more apparent. Labour’s fortunes will slide with the economy.
And if you think that’s bad news for Brown, take a look at this from the Com Res:
But asked how they would vote if the Tories committed themselves to a lower level of public spending than Labour and to try not to raise taxes – Mr Cameron's current policy – 49 per cent said Tory, 32 per cent Labour and 11 per cent the Liberal Democrats.
There was a similar result when people were asked how they would vote if Labour committed itself to higher public spending than the Tories and admitted it was likely to mean an increase in some personal taxes – Mr Brown's current position. The figures were: Tory 48 per cent, Labour 30 per cent, Liberal Democrats 13 per cent.
This is, explicitly, the policy difference between the parties at present – and it is a divide that is currently planned to form the basis of Labour’s message. You can bet your life too that this is a message that Cameron and the Tories will force home at every opportunity. Gordon Brown has planned every electoral campaign as a dichotomy between increased spending with Labour, or Tory cuts. What’s he going to do now?
People have woken up to the belief that the international banking sector seems to have spent the last decade working on false assumptions. The staggering growth in innovative financial products that I tried to explain the other day was based, essentially, on the idea that by getting rid of the concept of default through the CDS market, and of the concept of capital adequacy through re-packaged CDOs, the capital markets could hyper-utilise every last penny in the system.
Unfortunately, this system has been demolished by the first real wave of defaults that it faced – the US housing foreclosures. In a sense, banks’ assets were made up of semi-imaginary financial instruments, while their obligations had price tags on them.
But the question is where we go from here. From all over the political spectrum has come the demand that we return to old-fashioned, responsible banking. As Hamish McRae says in today’s Independent:
It [the financial sector] will become more conservative, more transparent, less innovative. On the one hand, people will not buy financial products they do not understand. On the other, financial institutions will not take risks with their clients' money.
The result of this will be a severe curtailment of credit. McRae even refers to a return of Victorian values. We should be under no illusion as to what this mean – a return of the tradition of the banks lending only to people who don’t really need it. Brush up your golf skills chaps, and look out your old school ties, because they’re only going to lend money to the right sort of person. If it transpires, as looks increasingly likely, that the financial sector of the 1990s and 2000s was built on sand, it’s important to remember that the people who will lose most will be the poor, the self-employed and the small businesses – because they are the ones who were too risky for the old-fashioned banks, and will be too risky for the new-old-fashioned banks.
If you want to pick an industry that’s going to do well out of this, look for pawnbrokers and loan sharks.
A welcome re-appearance today to a phenomenon that has seemed to be in abeyance for a while – the Fundamental Heffer Error. Danny Finkelstein defined it first as a confusion between believing a policy to be right and believing it popular but summed it up even better as confusing what he wishes were the case with what is actually the case.
This post isn’t actually about Simon Heffer at all, but showcases what I believe to be a perfect example of this latter characterisation. It is reported today that Gordon Brown has decided that David Cameron is the weak link in the Conservative Party, and that a relentless attack on him is the best tactic for Labour to win the next election.
Mr Brown will also relentlessly attack Mr Cameron as a "do nothing" leader who has failed to outline a credible response to the downturn. Labour's research suggests voters like Mr Cameron but remain less than convinced, with many suspecting he is a "phoney." The Prime Minister and his allies will therefore launch sustained attacks on Mr Cameron, trying to suggest his charm is a front for an uncaring and incompetent Tory party.
Now, it is reasonably well-documented that Cameron and Brown detest each other. Brown believes that Cameron is light-weight, opportunistic and shallow. Cameron believes that Brown is obnoxious, misguided and petty. But what each thinks of the other is not really what is at stake here. Cameron is the most popular party leader. More importantly, whenever Cameron receives more press coverage, support for the Tories rises – even if the coverage is negative as happened with the grammar school business. Brown is confusing what he believes – that Cameron is a negative for the Tories – with what the evidence suggests – that Cameron is more popular than his own party. Fundamental Heffer Error.
I think it may have been Matthew Parris who said about Peter Mandelson that all quotes made about him by ‘friends’, ‘colleagues’ and ‘people close to him’ were actually made by Mandelson himself. Since reading that, I find all articles about Mandelson wonderfully funny. Have a look at Rachel Sylvester’s excellent article in the Times (and on a side-note, should anyone be surprised that the Barclays are now eviscerating Sark? After all, they’ve already eviscerated the Telegraph):
The man who was once described affectionately by his own aides as the “sinister minister” is said by some to be the “real Deputy Prime Minister” who is always hopping into No 10
Ministers describe him as a “dominant force” in any meeting he attends.
“Peter's been around with Gordon for a long time and there's a sense that they are equals,” a Cabinet minister says. “Peter didn't ask for this, he wants nothing.”
In the Lords, he has charmed the tea ladies and the doormen as well as the Members. “They all swoon when he comes in,” one peer says. “He could have been born to enter this place, he's a natural Lord.”
A bit obvious perhaps?
One member of the Cabinet tells colleagues only half in jest there is something “homoerotic” about how the British political class is obsessed by the Business Secretary.
This is getting too easy.
“People are in awe of him, the man has an aura,” says another minister. “Labour people think he can bring back the magic of the early years, that he has an ability to project a vision of change.”
OK, I’ll stop now. But the thing is that it’s only too easy to imagine Mandelson saying all these things about himself. The man is an object lesson in auto-fellatio – why get others to do what you can do yourself?
It is, of course, understandable that the Government should want to preface every statement about the economic climate with the words ‘which started in America’. Every Government tries to claim credit for the good times, and avoid blame for the bad. But in current circumstances, I’m not sure that it’s a very useful thing to say – except for buck-passing.
There have been two distinct phases of the current recession, related but distinct. The first was the rapid and dramatic contraction in financial liquidity. Everyone knows this happened because of sub-prime. Which is true, in the same way that the First World War happened because of Gavrilo Princip. What ‘sub-prime’ is used to mean is a short-hand for the popping of the US housing bubble. Every country has always had dodgy mortgage loans. So long as house prices are going up, these don’t matter. Or at least can be said not to matter. What was different this time was that the international financial sector had discovered a way to commodify financial products in a way that hadn’t been thought of before.
Almost nobody who has been writing about CDOs and CDSs has any idea of what they are talking about. I worked for six months drafting the damn things and I only have a hazy idea. But the simplest explanation of them is that they work on the basis that it is possible virtually to eliminate risk by spreading it extremely thin. This has turned out, shall we say, not to be the case. As Mark Steyn once said in another context, if you take a quart of ice cream and quart of dog shit, the result ends up tasting more like the latter than the former. Toxic assets, even in small quantities, can contaminate an entire portfolio. To make matters worse, the financial products had been so sliced and diced, repackaged so many times and in ever more elaborate synthetic products that no-one was entirely sure who owned what where.
This is one of the reasons the banks were so slow in announcing their losses – no-one knew what they were. And their natural reaction was to retrench – that is to call in loans and stop more lending while they worked out what the hell had happened to all their assets. And this is the point where we all noticed what was going on. And it’s why Northern Rock went bust.
So we have banks unable, or at least unwilling, to lend. And since all banks borrow short and lend long, this furring of the financial arteries resulted in a banking cardiac arrest. The banks were going bust because they had no money. They couldn’t borrow any more, because, well, no-one had any money. Sure as hell they weren’t going to buy any more of these damn CDOs that had caused all this mess, but since a hefty proportion of their total assets was in the form of, um, CDOs, and no-one was buying them any more their asset base value was wiped out. Meaning they needed to borrow money to meet their obligations. But they couldn’t borrow any money because – you get the idea.
So, we had the banking bail-outs. There were two ways of doing this – the American way, TARP, which involved the Government buying up all the shitty deals that the banks had done to get themselves into this mess; and the European way, which involved Governments giving the banks large amounts of cash in return for shares – on varying terms. There are problems with both methods. The US method doesn’t address the balance-sheet problem (the banks don’t have any damn money) and the European method (at least the British version of it) is going to restrict the banking sector’s private sector lending capability for years.
So the credit crunch was really just a belated realisation that old-fashioned rules on capital adequacy hadn’t stopped being important just because they were being ignored. And where was a lot of the financial innovation being done? Right here in the City. And if Gordon Brown was even a tiny bit intellectually honest he’d say that the credit crunch happened because even though the bankers (and lawyers, and accountants) were a lot cleverer than the politicians, they still weren’t as clever as they thought they were. He’d then go on to admit that the recession we’re facing was also only caused by the credit crunch in the same way that the credit crunch was caused by sub-prime.
Gordon Brown is having a good crisis. Polls are moving and public perception seems to have moved with them. To an extent this is inevitable – storms are not considered to be good times to change the skipper – but Brown (and Mandelson, whose appointment will look better and better until the day he is forced to resign in scandal) have managed crucially to manage the news cycle, and to control the message. Brown is the great helmsman, steering the ship of state through treacherous waters (caused, naturally, by America); the Tories are do-nothing layabouts, who believe that the people should suffer through a recession they would do nothing to prevent.
Clear, simple messages put forward continuously: that’s the way to structure a narrative. And it doesn’t seem to matter that the message is essentially dishonest. This recession has been triggered by a collapse in bank lending. This collapse has happened because the banks have lent too widely, on too little capital, for too long, trusting that the risk of default had been so widely dispersed by structured financial products that it no longer mattered.
That theory now having been tested to destruction, the banks have been told that they need to return to old-fashioned prudent lending. Which they are doing, rather desperately trying to prop up their balance sheets and restore some capital adequacy. And the price of that is that there is less money to be lent out. Another factor – the Government, as part of their bail-out conditions, has insisted that the banks invest heavily in treasury bonds, gilts. This has crowded out private sector lending. A third factor – the money lent to the banks by the taxpayer has been lent at a rate of 12-13%. This is why complaining that they are not passing on the benefit of the interest-rate cuts is fatuous. Borrowing at 12 and lending at 2 is a short route to bankruptcy – again. The old bankers dictum: ‘borrow at 2, lend at 3, go home at 4’.
So in fact the Government’s message contains a glaring contradiction: this crisis happened because of lax lending policies by the banks; the banks need to return to those policies as soon as possible. Got it?
There is another problem here. The reasons that the banks were encouraged to loosen their lending practices was to allow the poorer in society access to credit on better terms than loan sharks. Those calling for a return to the bank manager and interviews before mortgages are effectively calling for a return to lending money only to ‘the right sort of chap’. Being ‘the right sort of chap’ myself, I wouldn’t be particularly affected by this, but I’m not sure that this is really in line with Labour policy.
So there is a lack of internal consistency with the Government’s plans to deal with the recession. Do they want a reform in bank lending? If so they must be prepared to accept that lending will dramatically diminish. Alternatively, do they just want to bail out the ship’s bad-debt bilges, allowing the good times to keep on rolling? If so, they’re going to need a bigger bucket.
Right, hopefully this will be my absolute last post on the Green affair. I’m as bored of it as I assume you are. But there is a line of argument that has been used frequently by bloggers and commentators alike over this affair – mostly from the left perspective. That is the twin argument that ‘MPs are not above the law’ and that Christopher Galley was a politically motivated Tory rather than a fearless seeker after truth. As such, it was right and proper for the police to investigate.
It’s a line that Yasmin Alibhai-Brown pursues in today’s Indy:
No British citizen is above the law. Not should they be. Article 9 of the 1689 Bill of Rights states: "The freedom of speech and debates or proceedings ought not to be impeached or questioned in any court or place outside Parliament." That, according to the impeccable constitutional expert Vernon Bogdanor, does not mean anything goes within the walls of the palaces of Westminster.
The protection extends to procedures and correspondence between MPs and their constituents. What if a rogue parliamentarian secretes a cache of stolen money in his office? Or assaults his researcher? Or is passing information to al-Qa'ida?
This is true, but irrelevant. The problem with the Green arrest was that there was no law under which there were any grounds to arrest him. The one the police ended up using, ‘Misconduct in public office’, with Green tacked on as an abetter, was specifically ruled not to be applicable in a court decision made only days before the arrest. So what is being argued is that the police should not arrest people who have committed an act that is specifically not a criminal offence. I don’t think that should be all that controversial really.
As for the other point:
Christopher Galley, the civil servant in the Home Office who regularly supplied Damian Green with information, presents himself as a conscientious and politically-neutral whistleblower. Is he? Or is he a closet Tory mole who is only interested in his party winning the next election? We don't know yet. But the greatest strength of our civil service is its impartiality.
And this is also entirely irrelevant to the issue at hand. If Galley was leaking documents, that is a ground for dismissal. There are certain protections he could try and call here – the public interest defence for example – but realistically he’s toast. If you breach your employer’s confidentiality rules you can usually expect to be fired. Fired that is, not to get hauled off by the rozzers and have your home and office searched by police, and your phone and computer taken.
You can argue, with a good deal of justice, that leaking is bad m’kay. But things that are bad are not always the same as things that are illegal. It’s a simple point, but one that seems to be beyond some people.
It’s really very depressing. On the one hand, the recent kerfuffle about Damian Green, the Met police and the breaching of Parliamentary privilege and prestige has made great news – Iain’s site has been jammed, and it’s got me blogging again. On the other, it really is, as Bob Marshall-Andrews said on Any Questions, so miserably in line with this Government’s whole attitude towards civil liberties that the question of whether any Government ministers were involved in the process is basically irrelevant. If they weren’t, the argument goes, then they have clearly so debased the entire nexus between police and politics that the police thought they didn’t even need to involve the Government.
90 days’ detention without charge (hell, 42 days – wait even 28 days. Under the Tories this was, what 48 hours? Five days maybe?), DNA databases for the innocent and guilty alike, ID cards, the restriction of trial by jury, the abolition of the double jeopardy rule, the niggling restrictions on free speech, the numerous retrospective laws, the proposed right of the police to demand identification on the street, the curtailing of Parliamentary debates, the transformation of the House of Lords into a wholly appointed chamber, the mass expansion of political SpAds into the civil service. Enough. Labour has debased the political landscape, tarnishing everything it has touched.
But Westward look! The land is bright. This Government really is on its last legs. 2010 will see a General Election; the Tories will win; the task of returning probity and accountability to politics can begin. Hmm. Maybe. I don’t feel particularly confident that it will. The rampant expansion of the executive didn’t begin under Tony Blair, after all. Why should David Cameron reverse it? Does any Government really put shadowy principles of democratic accountability ahead of the concrete accretion of power?
There’s a sense of Augean stables about politics and government at the moment. Partly this is due to John Lewis lists, and Conway and Balls-esque abuses of the expenses system. But it’s also partly to with the nature of Government. Executives seek to build up power. Progressives seek to limit the power of institutions. Progressive Governments do both – ripping down the Establishment, and filling the vacuum with more executive power. Why should a new Tory Government take difficult procedural steps to ensure that its job will be more difficult? Why should they consciously reduce the powers that they have to combat terrorism, or unemployment, or leaks? “Because it’s the right thing to do!” we declare ringingly. Maybe, but do you really hold out much hope that this is a winning argument? As I say, it really is very depressing.
Incidentally, on the whole Damian Green thing (sorry, I know…) there is of course good precedence in the criminal law for prosecutions for both ‘misconduct in public office’ and ‘aiding and abetting misconduct in public office’: the trial of Sally Murrer and Mark Kearney.
Although the trial collapsed over the illegality of the methods by which police had acquired their information, the following ruling was made:
The court ruled, as courts across Europe have ruled, that leaks to journalists are not criminal unless they involve matters of national security or impair the investigation of serious crime.
The Met police knew about this decision, as they were involved in assisting Thames Valley police make the arrests and prosecution. There has been no use of the OSA in this case, and despite ‘suggestions’ that national security has been involved, these have been utterly unbacked by anything further. Case pretty much closed really. No crime here. And if the leaks weren’t criminal, nor was ‘soliciting’ them – even if Damian Green did so.
It remains to be seen, of course, whether those who energetically yell at the Tories, like Paulie at Never Trust A Hippy, that having moles in Government departments is wrong m’kay will be impressed by the revelation that a current Labour MP was widely suspected of leaking Treasury documents to Gordon Brown in 1996.
Brown published the leaked report on the eve of a major economic debate in the Commons in 1996, in the process causing huge embarrassment to Ken Clarke.
The report forecast various policy changes such as the privatisation of pensions and welfare benefits. It suggested the Tories would sell off roads and force drivers to pay to use them. A gleeful Brown described the report as "a nightmare vision of the future under Tory rule". Clarke dismissed it as the "cranky" work of "juniors at the office".
It then emerged that when she was not working at the Treasury under her maiden name of Goodman, the report's author was an ambitious Labour politician using her married name of Helen Sleaford. She made the shortlist for the safe Labour seat of Barnsley East but suddenly withdrew when the furore over the report blew up.
Ms Goodman left the Treasury in 1997, worked for charities until finally being selected for a fresh safe seat of Bishop Auckland in 2005. She was instantly promoted when Brown became leader, taking the post of Deputy Leader of the Commons. She has since been moved into the whips' office.
Gah! Of course they didn’t have a warrant! This isn’t a shock, it’s the whole damn point of this farrago of nonsense. In order to obtain a warrant, the police would have had to go before a magistrate and argue why they needed one, and what offence had been committed. I suspect, and clearly the police did too, that magistrates would ask what steps the police had taken to obtain information already, what grounds they had for believing that the suspect would not co-operate and so on. There is not remotely a guarantee that they would have got approval for their request.
So Plan B was needed. And Plan B was to arrest Damian Green on an arrestable offence, thereby triggering section 18 of PACE. The wording is clear:
18. Entry and search after arrest. —
(1) Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an arrestable offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates—
(a) to that offence; or
(b) to some other arrestable offence which is connected with or similar to that offence.
Accepting that ‘procuring misconduct in public office’ is an arrestable offence, clearly the police were in the right here. They didn’t need a search warrant to search Green’s home or constituency office. But would the Speaker have been able to demand they produce one before allowing them entry into the Commons? Well, he seems to think so, though I don’t quite know on what basis.
Something doesn’t quite add up in the account by Barack Obama’s Kenyan grandmother that her husband was arrested by the British in 1949 as part of the crackdown against the Mau Mau uprising.
We’ll pass on the myriad accusations of torture that fly around. I wasn’t there, and it’s proved beyond reasonable doubt that torture did happen under British rule – though I remain to be convinced that it was quite as institutionalised as Caroline Elkins claims in Britain’s Gulag – which is a stupidly sensationalist title in my opinion.
But even on the very barest bones of the case as presented this smells funny. It’s alleged that:
Hussein Onyango was arrested in 1949 and jailed for two years in a high security prison as the British struggled to quell one of Africa's bloodiest and most desperate rebellions against colonial rule.
So, he was released in 1951. But Mau Mau didn’t really start until 1952 – there was no uprising in 1949 certainly. Furthermore, Mau Mau was overwhelmingly a Kikuyu rebellion. Hussein Onyango Obama was a Luo. The Luo played almost no part in Mau Mau – indeed were tainted post-independence as non-activist precisely because of their lack of involvement.
His family allege he was tortured by his British guards to extract information about the insurgency.
“The African warders were instructed by the white soldiers to whip him every morning and evening till he confessed,” said Sarah Onyango, Hussein Onyango’s third wife, told the Times.
Information on an insurgency that the British were not aware of until a year after he was released? Looks a bit fishy really. In fact it looks like the standard line used by nearly everyone in Africa post-independence - "look we were tortured for our stand for independence too!" Doesn't pass the smell test.
So Boris has stated what looks pretty obvious: there’s not going to be a prosecution of Damian Green over this affair. I could have told you that – not only has no MP ever been arraigned on a “misconduct in public office” offence, but no-one has ever been successfully convicted of “conspiracy to procure misconduct in public office”.
Heaps of sound and fury have been unleashed over this case – much of it corresponding to Shakespeare’s original quotation. Yet much of it has ignored one particularly salient point; even if it were wrong for a civil servant to leak non-OSA material, it’s almost certainly not a crime. That’s why the police tried to use the ‘catch-all’ offence of misconduct in public office. If Galley did not commit a crime, Green cannot have done. There is one circumstance in which it is a crime to procure or encourage non-criminal behaviour, but it ain’t this one (suicide, if you’re interested).
Provided that there was no Official Secrets Act angle to this case – and there has been no evidence put forward by anyone that there was – there was no justification in the Home Office inviting the police to inquire into the leaks. They were a purely internal disciplinary matter. What is mind-boggling about this is the apparent absence of thought that went into this:
Civil Servant: We’d like you to investigate a series of leaks coming from the Home Office
Policeman: What crime do you suspect has been committed here?
Civil Servant: We’re not sure. There doesn’t seem to be an Official Secrets Act angle. Can you think of any?
Policeman: Well, we could try and get him on ‘doing something wrong while being a civil servant’. There’s never been an equivalent prosecution, but hey it’s worth a try!
Civil Servant: OK, what could possibly go wrong – oh, and be sure not to tell anyone in Government what you’re doing – la la la, we can’t hear you!
And one further thing, on criticising the fact that Boris Johnson had spoken to Damian Green since the latter’s release,
Former chairman of the Authority, Len Duvall, told Sky News it was "astonishing and inappropriate" for Mr Johnson to be speaking to a "potential criminal suspect".
A ‘potential criminal suspect’ eh? Given the rather wide latitude that the police appear to have given to the technicalities of the criminal law in the particular case, that would seem to suggest that Boris shouldn’t talk to any politician in any party. So Len Duvall should probably just fuck off and mind his own business. I hate that weasel word ‘inappropriate’ anyway. And what’s this I see? Not just a tiresome little fuck, but a tiresome Labour little fuck. Well well well. I blame Boris Johnson for politicising the police.
Tim Ireland has been contemptuous of Iain Dale and the Tories’ argument that the police claim that Damian Green had been ‘grooming’ the civil servant at the heart of the current scandal. Ireland states both on his site, and on Iain’s Guardian piece that:
Using Google to explore Iain Dale's own neighbourhood, I see that the words 'groom', 'groomed' and 'grooming' have been used dozens of times on his website (by Iain and his audience), but only *once* can I see it being used in relation to paedophilia. The rest of the time it's about politicians being groomed for this position or that... or about dogs or horses
Well, I think Tim’s wrong on this one. It’s all about context. If a barber talks about grooming he’ll be talking about moustaches and hair. When a vet talks about it, he’ll be talking about horses. When a policeman talks about it? Well, here’s an experiment. Try doing Tim’s Google experiment, except put in “grooming” and “police”. Spot anything? On the front page 7 of the 10 results refer to paedophilia or rape. It’s all about the context, and in this context the police’s insinuations are fairly clear. Ask the senior editor of the Collins English dictionary.
I know Tim takes particular delight in highlighting any and all of Iain’s shortcomings, real and imaginary. This, I think, falls into the latter category.
Why am I still unhappy about the Damian Green affair? Pace Bob Piper, it is not because he is a Tory, nor because I believe that MPs should always be above the law. But I do have several specific concerns:
1. This was by any measure a very heavy-handed action by the police. Regardless of the official designation of the force involved (reports said anti-terrorist police, they are apparently “counter-terrorist police”. I’m not entirely clear on the difference) sending 20 officers to arrest and search Green’s home and parliamentary and constituency offices is an extremely serious step. It’s very hard to justify on the grounds that Green might do a runner, or destroy evidence - he’s a minister for God’s sake! When Tony Blair was investigated on a criminal matter, he was interviewed at a time of his choosing. Surely a better step would have been to inform Damian Green that, unless he co-operated fully with them, an arrest would take place. Had Green not then co-operated, he would hardly have been able to complain if an arrest did then occur.
Probably the reason he was arrested was so that the search could take place, without having to persuade a magistrate of the merits of the case - under s.18 PACE you can search the premises of an arrested person without a warrant. I don’t entirely like the implications of that.
2. I’m really not accusing the Labour Government of anything here. I’m actually trying not to turn this into a party political thing. I am, obviously a Tory, but still… But the question of why the Home Office was not informed of this procedure remains a difficult one. The police obviously saw the political implications of this arrest - they told Boris Johnson, one of the Met’s ‘bosses’. They told David Cameron. Why didn’t they tell their other boss? It doesn’t make sense. We can talk about ‘operational independence’ all you like, but that would not have been affected had the police kept the Home Office in the loop on this - after all, when they informed Boris he said, basically, that this looked like a bad idea and they’d better be absolutely sure. But he didn’t stop them did he? What was to stop precisely the same information being passed to the Home Secretary?
3. The offence. The crime that has been alleged is not “breaching the Official Secrets Act” (under s5). Moreover, the OSA relates almost exclusively to security, defence and international relations leaks. It was not designed to cover memos to the Prime Minister about possible future crime levels. Given that, and unless there have been leaks that are national security or defence based leaks, the OSA will not apply.
Interestingly, Unity mentions that the OSA will be an issue with the Treasury mole. Well, unless the leaks are about national security, defence or international relations, no it won’t. He could leak the whole budget in its entirety and it would probably not contravene the OSA. There’s a reason that the OSA martyrs have been sacrificed for the Belgrano, Trident and cruise missile sites.
4. So what we’re left with is this crime of ‘procuring misconduct in public office’. Well, that’ll be a right sod to prove. I don’t believe that it has ever been proved in court of law in fact. Green was a political journalist and a barrister. I would be surprised, shall we say, if he had left anything resembling a smoking gun here. Nods and winks are not punishable by imprisonment.
5. The protection for whistleblowers Unity refers to here may well not apply in this case. It is clearly not acceptable for the Home Office to employ a politically motivated leaker. So unless the terms of the Act apply, fire him. That’s what that act is for - to protect workers from being sacked if they speak out - not to keep them out of chokey. The reason the police have gone down the ‘misconduct in public office’ line is because, if there is no OSA breach, as there probably isn’t - there is no other crime being committed here. Not by Galley, and certainly not by Green.
6. We don’t live in a police state, Labour doesn’t have a ‘Nu’ before it and Gordon Brown’s middle name is not Gabriel. The sheer political ineptness of the way the police have handled this so far is surely pretty strong evidence that the Government weren’t behind it. Peter Mandelson must be tearing his hair out.
I’m going to try and explain why I think that the principle behind the arrest of Damian Green was also wrong in a constitutional sense (for all that I’ll be disagreeing with Vernon Bogdanor…) later. What I’ve outlined above is what I disagree with in its practice.