Derek Pasquill on Damian Green

This is a guest post by FCO whistleblower Derek Pasquill

Like everyone else I was astonished by the arrest of Damian Green. I too was interrogated for the same number of hours in the same central London police station by the same type of special branch officers. I too may have been amused (admittedly after the event) by their attempt to portray my actions as politically motivated, in my case, incredibly enough, of the hard left variety, rather than as public-interest spirited deeds.

There, however, the similarities end, because while Damian Green was doing his job as an opposition MP in holding the government of the day to account, my actions breached a level of confidence or loyalty that an employer might reasonably expect from their staff.
Yet legislation exists to protect the whistleblower as enshrined in the Public Interest Disclosure Act (PIDA) 1998, where, if a certain number of conditions are met, disclosed documents are given protected status. As my case is the subject of legal proceedings I will make no further comment, apart from the observation that the onus should more properly be on the employer to satisfy itself that PIDA has been observed. I question whether in fact legal advice was obtained, either in the case of Christopher Galley or in my earlier case, concerning the implications of PIDA. Events would indicate that it was not, and it is this omission which may explain the heavy handed policing that the Government has resorted to in attempting to control what have been undeniably embarrassing revelations.

Secret agenda

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It is now more than 20 years since The Guardian and The Observer fought off attempts by the UK government to force them to hand over documents in the case of MI5 whistleblower David Shayler. At a judicial review, Judge Igor Judge concluded that demands to hand over journalistic material “would have a devastating and stifling effect on the proper investigation of the … story”.

The case reinforced the special status of journalistic sources in law – even in official secrecy cases – and established the principle that the police should not use journalists as informers.

As the Observer journalist responsible for writing the stories about Shayler’s disclosures, which included allegations of the involvement of UK intelligence in a plot to topple Libya’s Muammar Gaddafi, I was particularly concerned to see the latest proposals for the reform of the Official Secrets Act.

These include enhanced search powers to give police access to just the sort of journalistic “special procedure material” (notes, emails and recorded interviews) we fought so hard to keep from the police two decades ago. The new OSA would thus enshrine in law the “devastating and stifling effect” on journalism that so concerned Judge.

Much has happened in the two decades since The Guardian and The Observer’s principled stand in the High Court. The growth of digital technology, the emergence of global Islamist terrorism and the increased national security threat to the UK from Russia and China have given the government good arguments for reform of legislation that was enacted when the world wide web was in its infancy.

But the new act is authoritarianism by stealth – a full-on assault on media freedom, carefully hidden behind an apparently reasonable desire for reform.

The National Union of Journalists has rightly sounded the alarm over plans to increase the maximum prison sentence for breaches of the OSA, which currently stands at two years. This will have significant chilling effect on journalists investigating government wrongdoing and their civil servant sources. More worrying still is the distinction now being made between espionage and so-called “unauthorised disclosure offences” (ie, leaks to journalists). As the consultation makes clear, this government believes “there are cases where an unauthorised disclosure may be as, or more, serious in terms of intent and/or damage”. The argument is that a large-scale digital disclosure could benefit a number of hostile actors, whereas espionage is usually carried out by a single state. The effect, in practice, is that a journalist in receipt of secret documents could face a longer sentence than a spy.

Where the government really lets its authoritarian slip show, however, is in a section of the consultation about the number of successful prosecutions under existing legislation. The truth is that the record here is woeful. The government argument is as follows: “This is primarily due to the sensitive nature of the evidence that would typically be required to be disclosed in order to bring prosecutions, but also because of the age of the legislation, which means many of the offences are not designed for the modern world. Prosecutions, as a result, are challenging and rare.”

This is patent nonsense. In most cases, Official Secrets prosecutions fail because they should not have been brought in the first place.

Since the Shayler case, I have been involved in two other high-profile Official Secrets cases, both of which eventually collapsed. The first concerned Katharine Gun, a GCHQ whistleblower, who leaked details to The Observer of a covert US/UK operation to fix the vote at the UN Security Council in advance of the Iraq War in 2003.

As the recent film of the case – Official Secrets – made clear, the problem was not disclosure of evidence of the crime (Gun confessed to the leak) but disclosure that would lead to ministerial embarrassment about the legality of the war.

The second case involved a Foreign Office official, Derek Pasquill, who leaked details of government policy on radical Islam in 2006. Here again, the trial did not collapse over evidential disclosure. In this case there were serious questions over whether any of his disclosures should have been covered by the OSA in the first place.

For those who care about free speech, civil liberties and democracy, the most serious concern should be the resistance of the government to a public interest defence in such cases. This is where the British state and the British people come into direct conflict.

In the cases of Gun and Pasquill, there is no doubt they acted in the public interest to reveal uncomfortable truths for the government. Their revelations served not just the public interest but the national interest. If the new legislation had been in place at the time, it is quite possible that Gun and Pasquill would both have been sent to prison.

Boris Johnson, the UK’s journalist prime minister, has said he doesn’t want to see a world where people are prosecuted for doing their public duty. I look forward to his column condemning his government’s own Official Secrets proposals, which will create just that nightmare world.

This piece first appeared in the British Journalism Review


Martin Bright: whistleblower Christopher Galley should not be sacked

This is a guest post by Martin Bright

The sacking of Christopher Galley, the Home Office civil servant who leaked documents to the Conservative Party, demonstrates the golden rule in such cases: the whistleblower always suffers. As a serial recipient of leaks, I know this is defeatist talk, but journalists and their publications should recognise this as a fact.

The criminal case against Galley and his Tory ‘handler’ Damian Green MP collapsed this week. But Galley was still dismissed for gross professional misconduct. In times like these, depriving someone of their job is a serious matter, especially when it leaves a disciplinary charge on the CV.

This is a particularly vindictive way to approach a whistleblower, especially cruel when the information he leaked should have been in the public domain anyway. I don’t believe there isn’t somewhere in the vast Home Office bureaucracy that Galley could have been found a job (well away from confidential documents if necessary).

The same is true of Derek Pasquill, the Foreign Office whistleblower who leaked details of the government’s relationship with radical Islam to me. Derek was also dismissed, despite the immense service he did to the country and the government (its policy changed as a direct result of his disclosures).

I believe there is a duty of care on the part of those who directly benefit from the work of whistleblowers towards those who have taken risks on their behalf. Derek Pasquill is fighting his dismissal, and I believe the New Statesman, the Observer and the think tank Policy Exchange (the publishers of his allegations), should help him with his legal costs.

The same is true for the Conservative Party in this case, which should help Christopher Galley back into employment immediately.