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Losing the plot

My respect for the EU Referendum blog, one of my daily reads, has just cratered. It argues that because the person leaking immigration details to Damian Green had sought to get a Tory party job, and the leaks of such data were a serious matter, that the authorities were entirely right to treat Mr Green as they did. As far as EUR is concerned, we are all getting het up about nothing and that it is high time that politically motivated civil servants were given a warning. This is nonsense: given the vast number of leaks out of the government that often have direct impacts on things like financial markets, the use of sweeping laws to deal with such matters is bizarre.

What on earth has got into that blog’s authors that they should seek to excuse the use of anti-terror police in dealing with leaks that while embarrassing, posed no danger to UK national security? Had the EU acted in this way, that blog would have gone ballistic.

Update: EUR continues to attack those who are attacking this arrest, arguing that if the cops had suspicions that something was fishy about Mr Green’s activities, they were entitled to act as they did. But again, why the use of anti-terror police when this was plainly not an issue that raises national security issues?

I see that the Devil’s Kitchen blog, which normally has little time for the intrusions of state power, goes into an incoherent rant at MPs’ expense, saying, pretty much, that Members of Parliament have been such poor custodians of our liberties – which is a true fact – that they deserve no sympathy now that the guns are turned on them. Well yes but so what? The point that DK misses is how this story plays, or should play, straight into the hands of civil libertarians anxious to focus attention on how out of control government and its agents now are. As Brian Micklethwait said the other day, this story is great news for civil libertarians, and terrible for the government. Perhaps EU Referendendum and DK are so consumed with hatred for the Tory Party that they are untroubled by the significance of last week’s arrest other than to yell abuse.

52 comments to Losing the plot

  • Give them a break,somebody being law abiding is hard to come by nowadays,

  • Yeah, right.

    And who’s betting that a civil servant in the progressive Neu Arbeit PFI type course would have been given a bye?

    The very idea that the CS is neutral has had a coach and horses driven through it by NeuArbeit.

    Damian Green gets hold of stuff to embarrass the government and the monocular jock cunt sends in the STASI (national security innit? – move along, nothing to see here).

    It is an outrage on so many levels. The anti-terrorist cops ought to be used to prevent terrorism not to hassle non-believers in the divinely sanctioned “project”.

  • Pa Annoyed

    “given the vast number of leaks out of the government that often have direct impacts on things like…”

    Do you approve of those leaks?

    I think EUR’s argument is that the New Labour politicisation of the Civil Service is bad and dangerous, but you can’t credibly argue that this is so without condemning all such politicisation. This is to excuse Tory misbehaviour by saying “Labour did it first.” That’s no excuse.

  • Ian B

    Well, in a sense we’re all overreacting because this is all just part of the Westminster pantrymime. The rot in our liberties is far deeper than an MP, cocooned by the political class, getting a bit of a frightener. Really it’s not as important as BNP activists getting arrested for distributing leaflets. They’re both important incidents, yes, but just part of the rot. The problem really is, what is policing for? What are the police supposed to do?

    The powers that be arseholes have decided, and this isn’t really a new thing, that policing isn’t just catching burglars. It is about enforcing standards on society. And they have thus made laws which require the police to do this. This then puts the police in the position of having to make value judgements about what standards they ought to be enforcing, and how- and if they don’t do enough it’s dereliction of duty and if they do too much it’s the stasi. The problem is the laws, not the consequences of the laws. It’s the same problem as when you have obscenity or blasphemy laws on the books; it requires the police to make the decision about what is obscene or blasphemous; they have to decide whether a crime has taken place, rather than merely catching somebody who has committed a crime which everybody agrees about (e.g. murderers or buglers). ONce you’re in that situation you will never get a happy medium; either the police will do too much, or will not do enough.

    Leaking documents or misconduct in a public office never should be a matter for criminal law; it should be a matter of sackings or dismissals from office. But then obscenity, blasphemy or racism shouldn’t have anything to do with the criminal law either- but they do, as do far, far too many things. The inevitable result is inconsistency, persecution and a certain failure that the police will be able to do a good job. It’s just not what the police are supposed to be for.

    Anyway, this is all consequential from out of control government. Sadly, the government has always been out of control and so long as we have the current model of government as a “sort of elected monarchy” it always will be. If I seem dismissive I’m having a phase of dismissive despair to be honest. The whole thing’s too broken for anyone to ever get near fixing. Really I’m more angry about the plans to ban the display of ciggies right now. Until the Tories start declaring a radical reduction in government power as policy, they’re just as much part of the problem as their mates on the other side benches. To hell with the lot of them. At least one of them now knows what it feels like out here beyond the Bubble.

  • Otto

    I suspect it would be a step in the right direction if chief constables were directly elected like sheriffs are in some parts of the States. Taking it a step further, we could have direct elections for senior crown prosecutors and in Scotland for procurator fiscals like in some parts of the States they elect district attorneys.

  • Seems to me that this affair was exacerbated by the fact that the job of Commissioner for the Metropolitan Police is uo for grabs.Could be someone was trying to shine in front of their master,or in this case mistress.

  • Sorry to say that Richard North is an arse.
    Met him, wasn’t taken with him much but when he claimed the EU was finished and we should be concentrating on the aftermath, then I knew he was full of the brown stuff.

  • RAB

    Oh for heavens sake!

    The Official Secrets Act was brought in in 1911 to guard against persons stealing and disseminating REAL secrets of the realm.
    Military secrets, Treaty terms secrets, things that could really land the Country in the shit.

    Now it is used as an excuse to prevent any disclosure that the Govt does not wish disclosed, even down to the number of paperclips a Department gets through in a month.
    It’s purpose has been subverted to cover the backs of fuck up Civil Servants and Politicians.

    But there are leaks and leaks, are there not?
    Gordon Brown made his reputation on them. I have just seen a clip of him from the 80s saying quite frankly where he got the info on Social security cutbacks from.
    “A civil Servant who was concerned as I as to these cuts and thought that it should be known in the public interest”. Bang to rights there then!
    The “Public Interest” defence was, of course, ammended by the Tories incensed by Clive Pontings leaking info to Tam Dalyell on the sinking of the Belgrano.
    Petards and hoist there I think!

    So as recently as our Dearest Darlings Pre Budget speech (so pre that we knew every word of it before he stood up and delivered it) the Govt will leak for its own advantage and get enraged if it happens contra to their carefully managed News Agenda.

    When I was a Civil Servant in the Crown Court, we leaked officially to our tame Local Press every goddam week.
    We had a guy I will call M, who was a retired Fleet Street veteran, who couldnt get the hang of retirement, so he got a freelance job on the Bristol Evening Post.
    We trusted the guy so much that we would give him a desk in the corner of the office and plonk down out latest juicy cases for him to read through and make notes.
    Full Depositions, scenes of crime pics, morgue and autopsy reports.
    We had a few good cases of National importance in my time there too. The Operation Julie Drugs trial, and the Bristol Riots Trial to name but two.
    He never let us down.We did it because we wanted the facts to be known (Justice is supposed to be public after all. Ha some hope of that these days. Look at the Family Courts!)
    And he never abused his access.
    So that was official sanction of leaking in action.

    But this case is pure Politics.
    The Govt has been found out lieing once again.
    But the Monocular Jock has forgotten that was once sourse for the goose is…

  • This, is an engineered event in the true sense of the word.

    Information leaked, leaked information sent to press, public embarrassment for the ruling party.

    Ruling party let leaks continue, call in police. Police to arrest MP involved, spark public debate.

    Much outrage, Parliament being violated, confidentiality of MP’s breached, blah blah.

    Leader of House, Harriet Harmen then states on Sky news.

    There were “very big constitutional principles” that needed to be safeguarded, Ms Harman added, including the rights of MPs to get on with their job without interference from the law.

    And she said Speaker Michael Martin should look at how police are able to enter the Palace of Westminster once the investigation into Home Office leaks is concluded.

    Next week expect to hear in Queens speech new laws to protect the ‘rights’ of MP’s and to exclude them from laws that have been written for the rest of us.

    In effect, to place MP’s above the law, by law.

  • Pa Annoyed

    RAB,

    This stuff is nothing to do with the official secrets act. That’s something else entirely, and is not the law being invoked in this case. The OSA is a complete red herring, and it does not protect paperclips.

    The common law tort of misconduct in public office does not imply keeping secrets simply for the sake of it. It means using your public office to cause harm, or for your own ends. There’s case law dating back to seventeen hundred and something, probably earlier.

    And again, just because Gordon did it doesn’t make it all right.

  • lucklucky

    Leaks are the habit, the costume, the behaviour of a Free democracy. Every day there are literally a dozen of news that are by definition illegal since they came from somone that didn’t respected the rules.

  • RAB

    There are two laws invoked here PA.

    The Official Secrets Act is what the Civil Servant has, or will be charged with, and the second and massively obscure piece of Common law procuring misconduct in public office is what they are trying to stick to the Tory MP.

    I repeat this is political, not legalistic in any sense of the word.
    The information is trivial at its base.
    But the sledgehammer to crack a nut is out of all proportion to any real crime that has been or not been committed.
    My public interest has not been at all served in this case, except to highlight what a bunch of two faced venal cunts our ruling elites are!

    Be advised. You are also subject to the OSA, whether you have signed it or not.

    I have many times. It is a nudge nudge, wink wink, dont be a naughty boy sort of moment, when your masters tell you that you can only do what they want you to do, or else.

    If you have a problem with people revealing things that are in the Public Interest, regardless of whatever pressure, contractual or criminal that is put upon them, then you would probably make a great lawyer.

    If people brake a trust or contract, then discipline and/or fire them.

    But specialist Terrorist Police coming in mob handed at 4 different addresses simultaniously for telling the world the Govt has sanctioned 5000 illegal immigrants to work in Govt offices and various other misdemeanors?
    Gimme a fuckin break mister purist!

  • Johnathan Pearce

    I think EUR’s argument is that the New Labour politicisation of the Civil Service is bad and dangerous, but you can’t credibly argue that this is so without condemning all such politicisation. This is to excuse Tory misbehaviour by saying “Labour did it first.” That’s no excuse.

    PA, get into the real world. Leaks happen: they should be treated as a disciplinary offence by the employer of those making the leaks. But leaks will happen and when there are people who feel their organisation is out of control, then some “whistle-blowers” are going to tip off journalists and others. That is how things are in an open society such as Britain’s, or at least should be.

  • guy herbert

    RAB,

    No; because the Official Secrets Act 1911 is no longer in force in its original form. After it fell into disrepute, and it proved difficult to get prosecutions under the impossibly broad s2, it was replaced with the Official Secrets Act 1989 which would not likely be applicable in this case.

    Jonathan and RAB,

    The “anti terrorisst police” emphasis is back-firing spin by the police and Home Office who were setting out at the beeginning to blacken Green’s and his contacts’ reputations and ramp up the perceived seriousness of the motive for their fishing expedition, by association with ‘terrorism’. Historically leaks as well as subversion and terrorism were investigated by Special Branch as politically motivated crimes and quasi-crimes. Special branch has ceased to exist, and so has its culture of tact and discretion. Its former responsibilities are handled by one of the many cohorts in the glorious War on Terror®

    Having hyped the investigation as a bit of terrorism of its own – attempting to terrorise MPs, journalists, campaigners and their sources who might be tempted to embarrass ministers or officials – they are now stuck with no spin-control and massive amounts of spinning going on: police are still trying to blackguard any critics in a fairly crude way, while the Labour Party is desperately trying incompatibly to calm the situation and pretend nothing happened for parliament, to shift the blame to others for the general public, and to blame Tory wickedness for party loyalists consumption.

  • Richard North is in fact on to something important. But he gets it wrong too:

    http://charlescrawford.biz/blog.php?single=668

    It’s all about Judgement…

  • Richard North is in fact on to something important. But he gets it wrong too:

    http://charlescrawford.biz/blog.php?single=668

    It’s all about Judgement…

  • el windy

    What’s all this about “politically-motivated civil servants”? As far as I’m aware its perfectly normal for civil servants to be employed by Whitehall (e.g.Home Office), hardly ever turn up for work because they are either a union delegate or a local councillor (sometimes both) and still draw a civil service salary etc…Presumably these individuals never have any conflict of interest. Its probably just as well that they never turn up for work!

  • The Wobbly Guy

    I think the civil service bureaucracy now controls the government and pays lip service to their ‘political masters’. They are not answerable to anybody, and their members’ only purpose is to secure their own power and influence.

    It has been said that this is a feature of all democracies. Can’t say I disagree with it nowadays.

  • I am afraid Dr North seems to frequently lose the plot which downgrades much otherwise worthy effort.

    “Ironies Too’ continues to plough a straight but lonely furrow on the EU and other important matters threatening democracy as defined by Karl Popper.

    The arrest of Damian Green MP is an outrage as discussed and linked from that blog.

  • hovis

    Apologies if a little off topic but, it’s good to see even “The Sun” apparently moving towards an anti ID card, Anti Police state narrative … here(Link)

  • There are at least two separate issues here.One the leaking of official documents which the government has deemed to be for their eyes only.

    Secondly, the wholly inappropriate way in which the police operation was carried out.

    If the documents were not covered by any kind of official secrets legislation and there was no theft involved,then this was a civil matter and should have been dealt with internally.
    The usual procedure is for the civil servant to clear his desk and be escorted from the premises.

    If it was a civil matter why involve the police.let alone Counter Terror police.?
    If an informal interview by appointment was deemed sufficient for Tony Blair (Labour) regarding the sale of peerages.
    I don’t remember No 11 being raided when Cherie Booth was home alone.
    The alleged offence is the breaking of such a catch all kiss my arse law that shows the arrest up for what it is political intimidation.
    Look at the chain of command who were aware of the operation and ask why someone though that ringing Boris was a better idea than calling the Home Secretary.

  • What this whole affair shows is how broken the British Government is. I’m sort of with Charles Crawford here though I think I’m coming from a different angle as I explain at my blog.

  • Neil Stansbury

    So just let me get this straight.

    I pay civil servants to work for me, but I’m not entitled to know the details of the work they do.

    If someone else whom I elected, and who I also pay to work for me, attempts to acquire the details of the work I’ve paid for the other people do for me but don’t want me to know about by “grooming”, even though I paid them to get the information I have already paid for – they get arrested?

    Specifically, they will get arrested by “Anti-Terror” police even though the information bears no relation to “national security”, and thus the information relating to the work I originally paid for actually belongs to me & should be in the public domain anyway?

    I vote the civil servant, the MP and the policeman are all detained for 42 days without charge.

    Intellectual sloth truly must be a requirement to become a politician

  • Paul Marks

    Sadly someone being anti E.U. does not mean that they will be correct on other issues – even if they say they are anti E.U. on the grounds that is bad for freedom.

    The example of A.E.P. on the Daily Telegraph.

    He is a “free market” person who is against the Euro.

    But look at his arguments:

    The Euro is bad because the E.U. Central Bank has not increased the money supply enough (although he gives no numbers on that) and because it has not “cut interest rates” enough or soon enough.

    Arguements like these make me less opposed the Euro.

    And the “killer arguement”?

    That the E.U. does not have a vast Treasury capable of spending money (on transfer payments and other such) on the relative scale that the British or American governments now do.

    Pass the sick bag Alice.

  • Paul Marks

    As for the “specific issue”:

    Dear Dr North.

    If a Minister finds that a Civil Servant has leaked embarrising information to the opposition, specifcially that at least five thousand illegal immigrants have been allowed to work as security guards at the time when British people were being forced out of the industry for not having one of the new “licences”, then that Minister should be allowed to press for the Civil Servant to be dissmissed for violating his contract of employment.

    Whether the Civil Servant acted as he did in order to become a Conservative M.P. (like all those Civil Servants who became Labour M.P.s after leaking against the last Conservative party govenment), or (for example) because he felt God wanted him to act as he did – is not relevant.

    However, for an Member of Parliament to be arrested (held for nine hours, private office searched and so on) for accepting the leak of embarrising information and bringing it to the attention of the public, is not acceptable.

    Yours Sincerely.

    Paul Marks.

  • Pa Annoyed

    Paul,

    I think you’ve got the wrong “specific issue”. Mr Green wasn’t arrested for “accepting the leak of embarrassing information and bringing it to the attention of the public,” he was arrested for the way he went about obtaining the information.

    It is perfectly acceptable for an MP to receive information brought to them, and to use it to ask question in the House or via the committees or the FOIA, or even just politely popping round to see the minister and asking about it. It’s slightly dodgier to bypass the House of Commons and instead provide the information direct to the media. And it’s very dodgy indeed to bypass all the normal Parliamentary procedures and set up a politically partisan spy in a civil service post that’s supposed to be neutral and impartial, and employ them to dig up political dirt. (Which is what he’s effectively been accused of.)

    It’s quite correct that there needs to be a mechanism for getting this sort of information out. But Civil Servants shouldn’t have to risk their careers to do so. To say that getting this information out is right, but at the same time to say that it’s ok to sack the civil servant for doing so is at the very least verging on inconsistent. And yet hardly anybody is calling for a legitimate mechanism to be set up.

    It’s also quite right that MPs need to be able to speak freely, and indeed that hasn’t been challenged, even though it might have been. But such ends do not justify any means in support of them. If the rules are wrong, change them; but when politicians start being able to freely break any rules they find inconvenient, and getting away with it even when they’re caught, who knows where that will stop?

    Is that really the sort of precedent you want to set?

  • Pa:

    It’s slightly dodgier to bypass the House of Commons and instead provide the information direct to the media.

    Why? And why is following the rules (which you admit are wrong) more important than getting the political dirt out? It’s not as if he killed someone to get the information.

    As to the civil servant in question, his situation is quite different from that of Green. He has freely (unless it can be shown otherwise) violated the terms of his employment, which he has also accepted of his free will. He is now facing the consequences. Unlike him, Green is not only not employed by the government, he was specifically sent by the people to, among other things, dig out political dirt on the government.

  • Pa Annoyed

    Alisa,

    It’s not so much that I “admit” the rules are wrong, but that I insist the rules are wrong, and am saying this is the real issue. That we should be demanding a change to the rules, not demanding politicians have legal immunity over breaking them.

    I am not as paranoid as some here over the automatic wickedness and corruption of politicians, but just as a matter of principle I don’t want politicians especially being given carte blanche to break any law that binds their power, subject to no scrutiny or control.

    You say, “It’s not as if he killed someone to get the information.” What if he had? Why wouldn’t that be the same?

    And where do you draw the boundary? Would it be OK if he broke into somebody’s house or office to get it? Or tapped somebody’s phone without a warrant to get it? Or had his buddies in the police arrest the Home Secretary and question her about immigration policy, maybe giving her a slight waterboarding in the process, while ransacking her office to get it? Would that be OK, and if not, why not? After all, it’s not as if it would involve killing anybody.

    Where do you draw the line? On what basis? And what if some corrupt politician draws it a bit further along than you would?

    In the same way that Parliamentary privilege is explicitly written into law, if we really believe that private political espionage ops are a proper function of government, then that exception needs to be written into law too. That way, everybody knows where they are.

    If we (as opposed to the Tory party hierarchy) have truly sent MPs to Parliament to ‘dig out dirt’, then let them use that mandate to change the law. Or if they’re not so sure, then put “private unaccountable intelligence services for MPs” on their next election manifesto. That way it would have the clear approval of the people via their elected Parliament.

    The fact that they haven’t suggests that in actuality we haven’t sent them on any such mission, and that they are, as is usual for politicians, up to no good.

    I know all of this would have saved Richard Nixon a heck of a lot of trouble…

  • Pa, I am not so sure that Watergate was the worst thing Nixon has ever done.

    More to the point: at least at first glance, all the different questions you asked invite quite different answers. But before (and if) we get into that, I’d like to establish that Green has actually broken any laws. I understand that you think he did. If so, can you show specifically which one?

  • To be more specific, let’s say that the civil servant in question was not a civil servant, but an employee of a private company, and Green was not an opposition MP, but one of the partners of another private company, in competition with the first one.

  • Pa Annoyed

    Alisa,

    I don’t know that Green has broken any laws, and I suspect neither do the police, given that he hasn’t been charged. (The police can arrest people on suspicion.) However, that’s a caveat that I’ll take as understood from here on, for the sake of clarity. I think it’s the legal principles that matter here more than this particular case.

    The police say they arrested Mr Green on suspicion of “conspiring to commit misconduct in a public office” and “aiding and abetting, counselling or procuring misconduct in a public office”.

    Since this is a common law specific to public office, your example of corporate espionage isn’t applicable.

    The elements of misconduct in public office are:
    a) A public officer acting as such.
    b) Wilfully neglects to perform his duty and/or wilfully misconducts himself.
    c) To such a degree as to amount to an abuse of the public’s trust in the office holder.
    d) Without reasonable excuse or justification.
    http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/

    Remember, this applies to the Civil Servant. Mr Green was arrested for conspiracy.

    The definition of conspiracy is:
    “…if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either -
    (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
    (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, [added by S.5 Criminal Attempts Act 1981]
    he is guilty of conspiracy to commit the offence or offences in question.” .
    (Criminal Law Act 1977 Section 1(1).)

    I am not a lawyer. But Special Branch do have access to lawyers, say they consulted with the CPS first, and managed to get warrants for several searches and an arrest, so I expect that from a legal point of view, they’ll have made sure at least that there is such a crime before marching publicly into the Houses of Parliament. Even the thickest copper is going to insist on that much, and I doubt these coppers are thick.

    Whether there is sufficient evidence, or whether the actions of the civil servant are enough to constitute misconduct are properly for a court to decide. (It might not be the leaks as such, but acting as an agent for the Tory Party, for example.) Based on what little I know of the evidence, I think it is at least a reasonable question.

    (And if your argument is that the repeated leaking should not constitute misconduct, then you all ought to be expressing comparable outrage over the arrest – not just disciplining – of the civil servant. I’m not seeing that.)

    However, the question of whether this particular incident was a crime is aside from the more important question of how the rules need to be changed to allow Parliamentary business (if such it is) to be conducted within the rules. Do you need to make leaks legal? Or give the Opposition better access? Or allow civil servants to be political? Or enhance the powers and independence of the National Audit Office? Or what?

    And what might any government do in response, knowing that it might have spies setting out to embarrass within it?

  • I think it’s the legal principles that matter here more than this particular case.

    Yes.

    The police say they arrested Mr Green on suspicion of “conspiring to commit misconduct in a public office” and “aiding and abetting, counselling or procuring misconduct in a public office”.

    Since this is a common law specific to public office, your example of corporate espionage isn’t applicable.

    Pa, re-read your last sentence with my emphasis. That is exactly why my example is applicable: Green is not an employee of a public office. For the purpose of this case he is just another citizen. If you were the one who got the info and not Green, should you have been arrested? I don’t think so. The elements of misconduct in public office that you quote are not/shouldn’t* be part of the common law as such. They are/should* be rules of conduct for public employees. Anyone who is not a public employee should have the need to ever be concerned with these rules. I hope you can now see why I (and presumably others) are not outraged about the arrest of the civil servant, but are outraged over the arrest of Green: there is no reason on earth why these rules should at all apply to Green.

    *I am not a lawyer. But Special Branch do have access to lawyers, say they consulted with the CPS first, and managed to get warrants for several searches and an arrest, so I expect that from a legal point of view, they’ll have made sure at least that there is such a crime before marching publicly into the Houses of Parliament. Even the thickest copper is going to insist on that much, and I doubt these coppers are thick.

    If it was indeed legal for Green to be arrested over this, then this in itself is an outrage, and the law (if it is such) needs to be changed ASAP.

    As to what needs to be done to prevent public employees from the need to violate their terms of employment, there must be greater minds who can come up with some ideas.

  • Pa Annoyed

    Alisa,

    “Pa, re-read your last sentence with my emphasis. That is exactly why my example is applicable: Green is not an employee of a public office.”

    Yes, I know. Now re-read what I said a little later:
    “Remember, this applies to the Civil Servant. Mr Green was arrested for conspiracy.”

  • Pa, on the assumption (which you might reject) that this law/rule does not apply to Green (or anyone else who is not a civil servant): how can someone be accused of conspiracy to break a law that does not apply to them? It is not for noting that I insist on the example of private corporate espionage.

  • Pa Annoyed

    Alisa,

    Conspiracy is the legal term for making an agreement with someone that will involve the commission of a crime in future. It only requires one member of the conspiracy to actually commit the crime – all the other parties to the agreement are guilty of conspiracy.

    For example, if you hire a hitman to commit murder, then the hitman would be guilty of murder, and you would be guilty of conspiracy to commit murder. It doesn’t matter that you didn’t personally kill anyone. It wouldn’t matter if you was incapable of killing anyone. Entering into an agreement with them in which murder is planned is itself a crime.

    Allegedly, Green and the civil servant entered into an agreement in which the civil servant would commit a crime. The misconduct itself is one crime, which only the civil servant commits. The conspiracy is a separate crime, (by virtue of the actions they plan for the civil servant to do being offences,) which both commit.

    Conspiracy is a law that applies to anyone, and it doesn’t matter that the crime they are conspiring on can only be committed by one of the parties, only that it is criminal.

  • Pa, my point is that it is illegal for me to commit murder. The point is not whether or not it was possible for me to commit it, but whether or not, if it was possible, it was legal for me to commit it.

  • Pa Annoyed

    Alisa,

    If it had been legal for you to commit murder, but you instead got someone else to do it for who it wasn’t, that would still be conspiracy.
    (If you want to suggest a better example with another sort of crime that only some subset of people can commit, I’d be interested. This one was just the first that occurred to me.)

    And actually, the law does technically apply to everyone – it’s just that most people are not in a position to commit it. If Mr Green joined the civil service and leaked documents, he’d be guilty too. It’s the combination of the two – public office and misconduct – that’s the crime. But it wouldn’t matter if it didn’t. The fact that it’s criminal for the one doing it is enough.

  • Pa, for the sake of clarity, and seeing as both of us agree that we are not certain whether Green has in fact broken any law, other than that conspiracy issue, let’s imagine that instead of using the help of the civil servant, he simply went into the relevant public office, and managed to obtain the information himself, without causing any damage to public property or national security, or any bodily harm to anyone. In my view, there should be no law preventing him from doing so. The fact that it was technically impossible for him to do so is, as you pointed out, worthy of consideration, but beside the point.

    At the same time, and with the same caveat that we are not sure what the actual law is: the terms of employment that prevent civil servants from sharing information related to their work, should not be a law (a ‘law’ being a rule that by definition applies to all citizens), but merely just that: terms of employment.

  • Pa Annoyed

    Alisa,

    Possibly trespass. But I’m not arguing. I will agree that if he obtained the information by legitimate means then there is no problem, and I certainly agree that there ought to be a legitimate means for such information to be discovered – whether that’s via Opposition MPs or the NAO or FOIA or whatever. That is the main issue, as I see it.

    Thank you.

  • Midwesterner

    re “Posted by Pa Annoyed at December 6, 2008 05:44 PM”

    The analogy breaks down.

    Your conduct on blogs almost certainly can be considered conspiracy to incite violations of sharia law. You are not subject to sharia law but if any of your comments influence people who are, you have committed conspiracy to violate laws that don’t apply to you.

    Doctrinal Muslims believe you have committed a crime and it is right and proper to charge and punish you for that crime. They claim jurisdiction over you even though (you believe) they have none. Are you agreeing that they in fact do have you on ‘conspiracy’?

    This is a question of jurisdiction. The legislative clearly falls outside the bounds of government jurisdiction. In my opinion legislative activities, records and disclosures must be as untouchable by the executive authority as you are from sharia enforcement.

    In the US the SCOTUS determined that the judicial branch, as a neutral referee interpreting the Constitution and laws, would inspect the evidence that the executive (FBI in this case) claimed was of non-privileged activities and that Rep Jefferson claimed was of privileged legislative activities, and shield (as best they could after the fact) all evidence of activity done as a legislator from the executive branch.

    If the executive believes there is criminal activity happening within the sphere of legislative privilege, then the proper course is for them to relay their suspicions and whatever information they have uncovered in the unprivileged category to the legislative function that deals with those matters. Ultimately, I believe, any searches and inspections and taps on legislators offices and politically motivated activities must be conducted by the Sergeant at Arms or other legislative police function.

    If the legislative branch refuses to discipline its own for an act, then that is in fact the people speaking. There may be other claimants to being ‘the voice of the people’, but the reaction of the legislative branch to acts of its own members is in fact the only voice that has clear and unquestionable provenance from the people.

    You can have elected officials controlling the appointed ones or appointed officials controlling the elected ones and I assure you, however bad a democratic tyranny is, a self appointed one is worse.

  • Midwesterner

    Just to make sure the point is clear. This is a matter of jurisdiction, not whether a crime occurred. The executive branch must not exceed its jurisdiction even when the laws it is charged with enforcing are violated. To allow extra jurisdictional enforcement is a recipe for government by the most powerful. The US executive tinkers with extra jurisdictional enforcement on a regular basis.

    I believe in individual self rule. Moving from majoritarian to authoritarian is a (darn near irreversible) step in the wrong direction.

  • Pa Annoyed

    Mid,

    When it comes to Sharia, I plead extremely guilty, of a lot more than mere conspiracy, and very proud of it. :-) And should they ever come to power here, I will no doubt be in a lot of trouble.

    You say:
    “In my opinion legislative activities, records and disclosures must be as untouchable by the executive authority as you are from sharia enforcement.”

    And you’re entitled to your opinion, of course. However, it isn’t the way the law works in the UK. (And it certainly wouldn’t work that way under Sharia.) You keep on saying it’s outside their jurisdiction, what you mean is you think it ought to be.

    Which is fair enough, but you can hardly complain that the police here uphold the law as it is, not as you want it to be.

    Personally, I don’t agree with your view, I think it’s sufficient that the executive can’t enforce any laws the legislature haven’t set. And I don’t like any sort of generic immunity from the law for any sort of politicians – knowing they might be on the receiving end is hopefully motivation for being careful about introducing any over-broad repressive laws. Magna Carta first broke the divine right of kings – making rulers subject to law too. I think the value of preserving that safeguard is more than worth the risks.

    I believe they should have only the minimum privileges needed to do their job. And I think that whatever needs doing here can be done with far less dangerous measures than generic immunity to prosecution.

    But all of that is a value judgement, and one I appear to be in the minority on here. I’ll be satisfied if people can at least get the legal facts of the case straight.

  • Midwesterner

    Well, as a tactic, your approach is extremely high risk. It will quickly devolve into a race to see whether the legislature can roll back all of the laws they may be suspected of violating (under UK system it would appear a conviction is not necessary to politically disable someone) faster than the permanent government can selectively use them against the Members they don’t like.

    In a battle drawn along those lines I have little doubt who will win. But good luck.

    I believe they should have only the minimum privileges needed to do their job.

    We agree on this point, but apparently we disagree hugely on what is needed. Allowing the standing police to confiscate parliamentary representation materials and deny the Member access to his/her official means of communicating with constituents seems to me to clearly violate “minimum privileges needed”.

    You were the one who first raised ‘separation of powers’. Too maintain them in this (Green) case it seems to me that the actions taken may only be taken by the legislative (ie S at Arms) and the evidence taken be evaluated for privileged status either by the legislative process itself or, barring satisfaction of the executive with that plan, by the judicial (in this case almost certainly straight to the Law Lords) branch of government. If it had been handled that way, I think there would have been no fuss beyond the usual cries of ‘hypocrite’ that are the standard (and appropriate) refrain of all politics.

  • Paul Marks

    How odd.

    First it appeared that my “letter to Dr North” had not appeared (I kept getting “internet explorer can not display the webpage” till I gave up) – but somehow it did appear.

    And Pa Annoyed replied and I, out of ignorance, did not reply to him.

    I apologise.

    I am sure you are quite correct about the statutes and regulations. Almost everything is “illegal” in modern Britain – unless it is compulsory. And sometimes a different (or even the same) law makes something both forbidden AND compulsory.

    So to say something is “against the rules” or “illegal” is no doubt quite correct – but hardly a killer argument. “Do I want to set a precident when people break the law as a normal part of their daily lives” – that precident was set up long ago (by the above) and it was not me that set it.

    As for the specific case:

    Trying to get Civil Servants to leak information embarrising toe the government of the day and then doing one’s best to get this information on the front pages of the newspapers (in the hope of making the government of the day look stupid and/or evil is a large part of the job of a opposition politician.

    Most of the major figures in British politics have done this in opposition (from Edmund Burke and so on in the 18th century) and had it done against them when they were in government.

    Some politicians even do it against their own party – as Winston Churchill did in the 1930′s.

    It is a central part of the unwritten British constitution.

    “But it is now illegal Paul”.

    So what?

    Everything is now “illegal”.

  • Paul Marks

    This business of Edmund Burke (before there was a formal Civil Service I know) and Gladstone and Dizzy and Winston Churchill (and just about everyone serious about political work) is now a “criminal” because they seek to induce public servants to give them information (by promises of advancement and so on) which they seek to at once put on the front of the sheets – in the hope of making the government of the day look stupid and/or evil.

    I can not say it surprises me that being serious about being in opposition to the government of the day is now a “crime” – that the unwritten conventions of the British Constitution are now “criminal” is exactly what I would expect.

    However, it has got me thinking about the understanding to the law.

    Recently I was impressed (and not in a good way) by people writing to me and saying that the most obvious frauds (such as lending out more money than there was in real savings) were not “fraud” at all – because the statutes and the court judgements said they were not.

    Our old friend Legal Positivism is at work here.

    The idea that law is a “command” that is associated with Thomas Hobbes.

    So instead of their being a “High Court of the Queen in Parliament” trying to FIND what the law is – they somehow have the authority to “make law” which is just a matter of their arbitrary will.

    They are a “legislature” which is defined as a factory for “making” law.

    F.A. Hayek points out (see the Constitution of Liberty and Law, Legislation and Liberty) that this was a live debate in Ancient Greece – although he also points out that those who understood “law” as the commands of the Assembly (or other such) won out in the end. This was indeed one of the principle reasons for the decline of Greek civilization.

    It is also worth remembing that Hayek was NOT a “natural law” person (indeed he was a student of Hans Kelson – and the opposition to natural law was one position of Kelson, Hayek never rejected) – so one can reject the concept of “law = command of the ruler or rulers” without being a natural law person.

    The debate is an old one (it goes back well before Hobbes) for example under the Roman Republic the juris consults (spelling alert) helped the Praetors (ditto) to try and find what the law was – whole schools of thought grow up about the process of finding the law (the Procrians and Socrians – more spelling alerts).

    This (not the “Twelve Tablets” that even the Patricians ignorned) was what was meant by the term “Roman law”.

    Of course the Senate and the Assembly did try to “make” (not find) law on occasion – but this did not tend to turn out well.

    Then came the Emperors (the military commanders who turned themseleves into rulers) and the doctrine that the Emperors “commands” where somehow law.

    This is what came to be “Roman law” – as if law was commands on a battlefield, and there was no difference between people in Civil Society and soldiers in the army in time of battle.

    There are some students of law who follow the older interpretation of what “Roman law” means – and there are (of course) those students of law who follow Hans Kelson in thinking that law is whatever “command” the ruler or rulers come up with (“Pure Theory of Law” style).

    In the Common Law it is true that lawyers were less philosophical – but they were just as opposed to the doctrine of “law = command of the lawgiver or legislature” as the old lawyers of the Roman Republic.

    Till men like Blackstone came along – with their doctrine that Parliament can do anything it likes (with Blackstone’s dishonest wink – do not worry Parliament is dominated by people like us, they will not do anything too nasty).

    “Stop all this high flown theory Paul – the debate is over, law is the command”.

    Indeed – not the commands even of Parliament anymore thanks to the vague enabling acts that allow the govenrment of the day to pass so much “statutory instuments” and other “delegated legislation”.

    Let us say that I thought that the debate was over and that “law” was just the “will” of the lawgiver – a series of “commands”.

    Then why should I take a blind bit of notice of “the law”.

    Indeed why is it called “the” law at all?

    And what is the “the rule of law” supposed to mean? If it is a matter of will-command.

    “Fear of punishment”.

    Coward I am – but not that big a coward.

    I could not care less about the threat of punishment.

    Let the swine do their worst – if they can.

  • Paul Marks

    Of course the task of applying the principle of justice (i.e. to each his own – the nonaggression principle) to the concrete circumstances of time and place (the function of law) is a very difficult one.

    Legal thinkers have worked on this task for thousands of years – some have used the term “natural law” and some have hated the term. But to regard law as simply the product of the will of the “legislature” or “lawgiver” (a series of “commands”) is to ignore the work done over these thousands of years.

    For those who hold, for example, that to rob or murder is somehow “legal” if Parliament does not forbid it – or that Parliament can make criminal things honest by “passing a statute” (understood as a command – not an effort to make a legal judgement, indeed denying there is any independent thing called “law” or any “principle of justice” that it is the function of law to apply in the circumstances of time and place)……..

    Well such people, by trying to make law their plaything, in truth make it of no importance.

    For if “the law” is simply the will of the rulers – then there is no reason to have respect for it.

    One need no longer say to oneself the following:

    “Well I do not agree with their legal judgement – but they are learned men working on the foundations of centuries of legal thought, so I must respect their judgement and accept it this case”.

    For the “legal positivists” openly declare that they are not doing any such task of legal reasoning at all.

    One need not respect their judgements – because they BOAST that they are not making any judgements. They openly state that they are “making” law – i.e. applying their will via an arbitrary command.

    For those interested in the law, even Bastiat’s little work “The Law” is worth more than all the texts in a modern legal education reading list.

    As a modern “reading list” is based on the assumption that there is no law (in any sense of moral importance) – just a series of arbitrary commands by rulers.

    I would certainly be prepared to submit to the judgements of people who are trying to apply the principle of justice (i.e. to each his own – the nonaggression principle) to the circumstances of time and place – the purpose of law. Even if I did not agree with their interpretation.

    But if they TELL ME they are doing no such thing (indeed, as I say above, BOAST that they are not – indeed deny any such thing is possible), then submitting to them would be a disgrace.

    As I have said – I am a coward, but not that big a coward.

  • Paul Marks

    I am well aware that there is a theological dimension to all this.

    With extreme Calivinists, and some others, holding that both “good” and “right” (not the same thing of course – as justice is but one virtue, although the only one the law deals with) are simply words for the arbitrary “will” of God.

    In short that “God is good” simply means that whatever God does (or orders others to do) is “good” by definition (not by any standard of reason). And that even “right” (justice) is simply a matter of will – and can mean anything God says it does.

    I am even told (although I do not know – as I can not read Arabic) that this is the basis of Islamic thought. With “law” simply being a matter of the arbitrary orders of God, not to be subjected to any process of moral reasoning (indeed a denial of the concept of such reasoning).

    However, I have no desire to debate with such people.

    Whether they be religious – or athiests like so many modern legal positivists.

  • Pa Annoyed

    Paul,

    An interesting line of thought – that law is found and not made.

    My view, occasionally expressed, is that ‘law’ is that part of social convention that we impose by force. (The acceptable justifications for which are also culturally defined.) And social convention is constructed in the same sort of way the English language is. Nobody designed it, but it is at the same time clearly a human artefact.

    Legislators are then like people who write books on grammar. Some seek to impose, others to be imposed upon. On the one hand, you have those who forbid split infinitives, on the other, those who document the increasing frequency of the “could of” construction, and see nothing wrong in it. The true rules, if there are any, are defined by the speakers, and as a cursory glance at Chaucer will attest, are not even fixed.

    Some hate that sort of corruption of the pure tongue for its perceived relativity – but in a sense both are wrong. There is still such a thing as wrong grammar and bad spelling, but spellings do change. It is defined by the ever-moving catallaxy, by the market in words, and you will not get far claiming that because the market price is not constant it is therefore undefined.

    Even so, there is still a market for dictionaries.

  • The true rules, if there are any, are defined by the speakers

    You think? How come then you walk into a pub in winter time, and it is virtually empty, with everyone freezing outside, smoking?

  • The true rules, if there are any, are defined by the speakers

    You think? How come then you walk into a pub in winter time, and it is virtually empty, with everyone freezing outside, smoking?

  • Pa Annoyed

    You know, when they first brought in the smoking ban, I had a lot of very long arguments with people (not on here) who thought it was a really good idea. They told me they didn’t like the smell, and complained that there were previously few non-smoking places they could go, and anyway, passive smoking kills. They thought I was weird for arguing so passionately against it, especially when I told them I didn’t smoke. Many thought I was being contrarian simply for the sake of an interesting argument. (Which I have been known to be, from time to time. :-) )

    You shouldn’t think that by “society” I mean everyone wants this to happen. What I’m talking about is the rules by which people get along together – when people’s aims rub up against one another, who backs down, who gives in, who compromises. That doesn’t mean people are happy about it, or want it. But nowadays, when a loud minority makes demands for what is said to be the good, ‘the way things are done’ is to sigh and go along with it.

    But there are also a lot of people in Britain today who are quite keen on other people being told what to do, for their own good, for the common good, or because it fits with their idea of what society ought to be like. (It shows up even here, from time to time.) Of course, they all have their own pleasures, and mildly object when others interfere in those, but they argue only about whether the particular restriction is good or bad, not about whether restrictions generally might be bad.

    The trend towards totalitarian interference is quite distinctly visible in the beliefs of a lot of ordinary people. The politicians simply reflect society. They are a part of it. They’re the ones in power because power attracts people like that, but there are plenty more where they came from. Society is a self-organising structure, a fractal, an image of the whole appearing in each part, and in each component of those parts, and in each sub-unit of those components. It is not the politicians acting alone, pushing us all unwilling down this path, it is society itself. No government minister will ever knock on my door in person to demand I recycle more, it will be well-meaning neighbours, or brain-washed schoolkids, earnest with good intentions. And I will be expected to comply; or face reproachful looks and neighbourly frowns. Eventually I will be considered an outsider.

    It’s one reason why I think the single-minded obsession here with the evils of professional politicians, bureaucrats, and The State is misguided; as if stopping the politicians could stop society, as if they were the source and the cause of the problem.

    As I’ve said before, it is not the fact that a dictator gives the orders that makes him one, it is the fact that everybody else obeys him.

    They’ve not won yet, and the busybodies are still probably a minority. And I’ve even noticed stirrings of a counter-reaction to it lately, which I’ve encouraged at every opportunity. But I am quite sure of where this tendency has come from, and like the latest example of ungrammatical slang spreading among the young, there’s not a lot any one person can do about it.