The higher courts have made it clear that the threshold for the common law offence of misconduct in public office is a high one. A unifying factor appears to be the existence of some improper, dishonest or oppressive motive in the exercise or refusal to exercise a public function rather than a mere abuse of power. The Committee on Standards in Public Life, in a consultation paper in 1997, recommended the partial replacement of this common law offence of misconduct in public office with a new statutory offence of misuse of public office. In 1998, as Home Secretary, I reported to a parliamentary Joint Committee on the difficulties of defining the proposed new offence. The Joint Committee on the Draft Corruption Bill concluded in 2003 that such a Bill was not the appropriate vehicle for giving a statutory definition of misconduct in public office. I am unaware of any representations made to me since on this matter.
The Secretary of State seems to be admitting that the law is flawed. Is it really appropriate that an offence created by a judge in 1783 that is punishable by life imprisonment is used against someone who simply receives material that may embarrass his own Government?
May I say to the hon. Gentleman that a great many offences in the criminal calendar are based on common law—they trace their provenance to decisions of the courts made, in this case, in the 18th century? Such offences are continually redefined and refined by the higher courts of the land. There have been two leading authorities, among others, published on the definition of misconduct in public office—one in 1979 and another in 2004. Although the Committee on Standards in Public Life considered the matter, it recommended only a partial replacement of the offence of misconduct. As I have reported to the House, the Joint Committee on the Draft Corruption Bill considered whether to propose the inclusion of a statutory definition of misconduct in public office, but decided against doing so.
Would the Secretary of State tell us how many civil servants have been arrested under this offence, how many of those civil servants were subsequently charged, and how many of those who were charged were then convicted in the courts? If he cannot answer today, will he ensure that an answer is put in the Library as quickly as possible?
An answer was given in April of this year about the number of offences for which there have been convictions dating back to the past 10 years. I have asked the statisticians in my Department to provide further particulars of those offences. When they are available, I will make them available to the right hon. Gentleman and to the House.
This does seem to be an enormously elastic offence. I believe that the most recent successful prosecution was that of a female police officer who was operating on the side as a prostitute.
Will the Secretary of State comment on the case of Sally Murrer last week? That prosecution failed, the upshot of which appears to be that journalists are immune, as are their sources.
It is not appropriate for me to comment in detail on that case except to say that I note that the hon. Gentleman is celebrating, or endorsing, the acquittal in that case, which was made under article 10 of the Human Rights Act 1998. If the Conservatives are now changing their position in respect of the incorporation of the European convention on human rights, so be it.
I also point out to the House that the Joint Committee on the Draft Corruption Bill, which considered under paragraph 77 of its report making misconduct in public office a statutory offence but then decided not to propose that, included a number of luminaries from the Opposition Benches, including the Front-Bench spokesman, the hon. and learned Member for Harborough (Mr. Garnier), in whose opinion this offence did not need statutory definition. From the look on his face, he has forgotten that, but I have here a copy of the report and the minutes of proceedings.
As it happens, I am the wrong person to ask because I am not in favour of leaking and I do not do it. As far as investigations are concerned, when I was a special adviser in 1976, there was a police investigation into the leaking of a limited circulation annexe of the Cabinet minutes in respect of child benefit. I had seen that limited circulation annexe and I was therefore interviewed by Commander Haversham of the Yard and a sergeant who reminded me very much of Mr. Oddjob from the James Bond movie—those were the days before the Police and Criminal Evidence Act came into force. I was exonerated because I did not leak any more at that time than I have subsequently.
How does my right hon. Friend feel he should have been judged if, when he was at the Home Office and effectively the police authority for London, he had rung someone who was part of an ongoing inquiry by the police to discuss their case? Would that have been a matter of misconduct, and would it have been a resigning issue?
It certainly would have been misconduct with a small “m” because it would have almost certainly compromised a police investigation. I suspect that there would have been demands for my resignation not just from the Opposition, but from those on the Labour Benches as well.
My right hon. Friend was our first Home Secretary in 1997, and has extensive experience of police authorities throughout the land. There are 44 police authorities in England and Wales, including the British Transport police. Outside of London, can he think of a single instance when a chairman of a police authority has contacted a close personal, political and professional friend after they have been bailed as a potential criminal suspect? Further to the question by my hon. Friend the Member for Eltham (Clive Efford), should we be looking to redefine misconduct in a public office to incorporate reprehensible behaviour of that kind?
I cannot think of a single occasion when a chairman of a police authority acted in the way that my hon. Friend described. As for the definition of that common law offence, the general view up until now has been that taken by the hon. and learned Member for Harborough when he considered this matter as a member of the Joint Committee on the Draft Corruption Bill—he decided that it did not need further statutory definition at that stage.
Given that it was the intention of the Government, to their credit, and of this House, when passing the Freedom of Information Act and modifying the Official Secrets Act, that unauthorised disclosure of information not involving national security or intelligence should be dealt with as a disciplinary matter within the civil service and not by the criminal law, if it emerges that the police have extended the meaning of the offence of misconduct in public office beyond corruption to apply the criminal law to leaks, will it be the Government’s intention to bring in statutory law to restore the intention of Parliament?
I remind the right hon. Gentleman that the question whether there should be a conviction is a matter for a jury, not for police officers. They merely make arrests and, in certain circumstances, lay a charge on the advice of the Crown Prosecution Service. The judicial authorities, in respect of misconduct in a public office, make the components of such offences clear. I have said that there is a higher bar in respect of such offences, but ultimately, it is a matter for a jury to judge. I understand that that is also the view of the Opposition.
With respect, the Secretary of State did not answer the question of the right hon. Member for Hitchin and Harpenden (Mr. Lilley). The central point is this: what should be the relationship between misconduct, leaks in the civil service and national security? The one thing that we learned from the Government’s account of the events leading up to the arrest of the hon. Member for Ashford (Damian Green) is that they think that there should be no police investigation unless there is some sort of potential threat to national security. Will the Secretary of State accept that there is a case for removing the possibility of the use of that offence in the case of leaks by civil servants that do not involve national security?
The issue has not arisen, but when it has been more calmly looked at, the nature of the offence of misconduct in public office, albeit as a common law offence, which the higher courts have defined and refined in recent years, has met with general approbation. I know of no direct provenance for the hon. Gentleman’s suggestion that, even if there is continued, wilful misconduct by an official in breach of their office, the criminal law should apply. That would be a very odd circumstance. I do not wish to comment on current investigations, and I shall not.
I respect the Justice Secretary’s desire not to comment on current investigations, but the point that my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) made was surely that the Official Secrets Act 1989 was supposed to remove such matters from the ambit of the criminal law. The legislation removed swathes of activity by civil servants from the ambit of the criminal law. Is the right hon. Gentleman concerned that that is being undermined by an attempt to recriminalise using the common law offence?
I would point out that the revision to the Official Secrets Act in 1989 was welcomed, but the matter has been considered since then. The Committee on Standards in Public Life considered it in 1997. As Home Secretary, I looked at the matter in 1998, and it was further considered, including by Conservative Front Benchers, by the Joint Committee in 2003. It was accepted then that the offence did not need urgent statutory redefinition. I suspect that, if it were statutorily redefined, we would end up with the same definition as that currently set out in the authorities, for example, the Crown Prosecution Service’s 2007 charging manual. It makes it clear, as I have already said, that the bar for a prosecution, as well as a successful conviction, is high.
We fully accept that leaks of issues concerning national security—actual leaks about actual national security—should be subject to criminal sanction. However, is not the Secretary of State for Justice worried by suggestions that criminal sanctions should be applied when there is the potential for a national security issue leak to arise, but no such leak has occurred?
As I said to the right hon. Member for Hitchin and Harpenden (Mr. Lilley) and others, I know of no provenance for suggesting that the Government have ever subscribed to the view that there are no circumstances in which criminal investigations could take place in such matters, except when a breach of national security has occurred. That applied to the Opposition, too, until the past 10 days.
Since Conservative Members claim that they wish to go into government and that they are ready to do that, they need to reflect on what is necessary for the good governance of this country, regardless of the party that is in office. Let us consider an abstract situation, in which an official who works on a ministerial corridor continually leaks. That is deeply corrosive. [Hon. Members: “Sanctions.”] It is not just a matter of that. Such behaviour is deeply corrosive for the whole system of governance and may require a more extensive sanction than simply dismissal.
With respect, the Justice Secretary is simply not answering my hon. Friends’ questions. The 1988 White Paper on reforming the Official Secrets Act stated:
“The objective of Official Secrets legislation is not to enforce Crown Service discipline—that is not a matter for the criminal law—but to protect information that in the public interest should not be disclosed.”
Does the Justice Secretary agree that the purpose of the reform, which restricted the criminal law to information that is damaging to national security, will be completely defeated if there are prosecutions under a common law offence for matters that Parliament clearly intended should be treated as disciplinary issues?
When Lord Hurd, the then Home Secretary, originally came to the House to make his proposals for changes in the Official Secrets Act in 1988, he did so to deal with a particular mischief in the operation of the Act. He did not, as I recall, come to the House to propose a root-and-branch reform of all areas of the law relating to conduct in public office. Moreover, he had no proposals at that stage to reform the common law offence, which, as we have heard, had existed since the 18th century, of misconduct in a public office. Further, when the Committee on Standards in Public Life reported in the middle of 1997 and when I responded to the then Joint Committee in 1998, I do not recall anybody from the Opposition ever suggesting that the offence should be excised altogether from the criminal law. The only issue was whether it should be partially replaced by a statutory offence. That was turned down by the hon. and learned Member for Harborough.
When Lord Hurd, the then Home Secretary, came to the House and presented the Bill to which the right hon. Gentleman has referred, he said:
“We ask the House today to agree in principle that the criminal law should be prised away from the great bulk of official information.”—[Official Report, 21 December 1988; Vol. 144, c. 460.]
The right hon. Gentleman was simply wrong in his recollection of what Lord Hurd said. The amended Official Secrets Act specifically requires the prosecution to prove that any disclosure of Government information would be damaging to national security. Leaks that reveal Home Office incompetence, for instance, may be damaging to the reputation of this Government, but they do not damage national security. Is it not typical of Ministers under this Government to confuse their narrow party interests with the interests of the country? Will the Justice Secretary now answer this straightforward question: should the common law offence of misconduct in a public office be deployed for prosecutions of recipients of Government information where national security is not at stake? Yes or no?
Lord Hurd makes my point, because he spoke about removing the criminal law from “the great bulk” of what amounts to leaking, and so it has been, and without question by a very long way. However, he did not talk about removing the application of criminal law absolutely. On the hon. Gentleman’s second question, what he is asking me to do, which is entirely inappropriate for a Minister responsible for the judiciary, is to intervene in a continuing criminal investigation. [Interruption.] That is the invitation that he is making, but I am afraid that I shall decline it. Were the unlikely situation ever to arise of his being in my place, I hope that he would decline it in the same way.
As for the hon. and learned Member for Harborough, I am surprised at his wittering from a sedentary position. It is no good his complaining: he put his name to this report from the Joint Committee on the Draft Corruption Bill in 2003, which specifically said:
“We have…considered adding separate specific offences to the Bill such as…making misconduct in public office a statutory offence (with a wider definition of public office).”
The Committee then said that it did not think that the Bill was “the appropriate vehicle”. He considered the proposal, thought about it and then rejected it. That happens to be our position, too. We have not changed our position; the Opposition have.