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The 1960′s saw an end to deference based upon class in the UK however, it was the start of just another stage in a much longer process of change that probably started with the outbreak of WWII. One of the hallmarks of change is the loss of past certainties, things previously taken for granted are swept away and it is difficult to see what will replace them. What bought this to my mind was the collapse of the case against a Civil Servant called Derek Pasquill, before that David Keogh and Leo O’Connor, David Kelly, some junior clerk at GCHQ Cheltenham, Spycatcher and so on.

I am not particularly interested in commenting upon the details in these specific cases, there has been a chain of offences covered by the Official Secrets Act and far more frequently, lower level “leaking” of all kinds of documents, it has become an all too familiar feature of public life at any level of Government. The interesting questions surround why this has happened, is it a good thing and if not, how may it be moderated effectively and fairly ?

How Has it Happened ?

A consequence of the Nuremberg War Trials was the establishment of the basic principle that “I was just following orders” is no excuse or defence when it is perfectly clear that those orders were morally wrong by any code of conduct but you still followed them and herded women and children into gas chambers to be killed.

But also in the UK there has been a total loss in the idea that “The Boss knows what he’s doing, you can trust him…” There has been a diminution of respect for all authority and this has particularly impacted upon the Civil Service. At the top end, Senior Civil Servants have become “politicized” by the Labour Government over these past 10 years whilst at the bottom end, there has been a vast expansion through new recruitment that has diluted any ethos or concept of “service” that existed in previous generations of Civil Servants.

Is It a Good Thing ?

In the broadest sense it is neither a bad nor a new thing, the tabloid press of today are merely the inheritors of the “yellow press” of centuries past so a certain level of disrespect for authority is endemic to British history and culture. However there is one thing that is new and therefore negative, the apparent common supposition by the people who do the leaking that somehow it is their “right” to do so and that they “know better than anyone else” about whatever it is which justifies their actions. In some if not most cases, whilst acting genuinely, the reality is that they don’t have a complete picture because that information is most likely above their pay level to know so most often, they are plainly in the wrong.

In this context, I would suspect that the only person who could have justifiably made such a claim was David Kelly because of the considerable time he had spent on the ground in Iraq prior to the second Gulf War, for the rest that get caught, all one hears is unconvincing self justification for what mainly are petty acts of betrayal carried out by rather insignificant individuals. However, do not imagine that by this that my stance is to condemn them and exonerate the “Establishment” because that is not the case, we have a major problem here very much of our time that needs to be addressed by society first and then, through Parliament with “appropriate” legislation agreed on a cross-party basis.

A Civil Service Charter and a revised Official Secrets Act

The Civil Service we have like the politicians we elect, are representative of the society that they come from and reflect both the strengths and weakness of that society. In basic principles and the Laws that have flowed over these past 10 years, it is a society that has lost its way and needs to get back on course by discovering or rediscovering it’s basic truths. It is clear that even if unintended, the Civil Service has been abused and totally misused under this Labour Government so one clear order of the day is that a legally binding “Civil Service Charter” needs to be drawn up to protect them from the politicians on the one hand whilst detailing exactly, their areas of competence on the other.

It is probably no accident and perhaps a sign of the times that similarly, the “Military Covenant” with the Armed forces is also clearly in disarray under this same Government.

The second thing must be a revision of the Official Secrets Act which is obviously not working and/or, not being invoked appropriately. These two things are intricately bound together and therefore will need to be pursued in parallel and taking a look at this, is the reason for this essay.

The Nuremberg Principle vis the Rights of the State

Any Government employee must have the right to refuse to follow an unlawful order but equally on the basis for example that “Megaphone Diplomacy” doesn’t work, the State has both the right and duty to have “secrets” a consequence of which may well be that it projects one view in public whilst, holding and pursuing a different one in private. As ever, the requirement is to balance the rights of the individual against the rights of the State when it is acting for the common good of all or, the majority of citizens.

As a believer that the “Cock Up Theory” governs most things in the UK, I have no assertion to make that the Labour Government is inherently evil, it is not but through a neurotic propensity to legislate copiously and ineffectually on any issue that commands the tabloid headlines, they have demonstrated that the “Road to Hell is paved with good intentions.” Things have been done hastily, badly and wrongly (Dodgy Dossiers) in too many cases and given that as power always corrupts, there must be severe checks on the power of the Executive, whoever they are at the time.

The Civil Service Charter must include a mechanism whereby employees who find themselves in a position of moral conflict (not political), with what they are asked to do, have an internal channel that they may use without loss promotion or career prospects whereby they may raise their concerns. The process would escalate and be run by investigators in total secrecy who are drawn from the Civil Service and possibly aided by seconded Police Officers, the Government would be bound to answer honestly all enquires made of it on the specific topic or those clearly connected to it.

The whole process must be carried out in secrecy, a final report drawn up and lodged under seal in each case with an appropriate Court as it must fall under the ultimate jurisdiction of the Courts and not the Government of the day. Once the process has been completed and most likely, found that the Government is acting legitimately, without a detailed explanation, the original employee would be assured that this is so and required to accept the conclusion although and where appropriate, offered a transfer to another department or duties. Once a full investigation has been carried out, should an employee then “leak”, they should be charged and imprisoned under the Official Secrets Act.

The interesting thing would be if an investigation discovered that the Government was acting illegally or over stepping its legitimate authority. If the matter was a purely “administrative”, a public apology on the floor of the House and rectification would be enough but if worse, Impeachment of specific Ministers, even the Prime Minister must be a distinct possibility overall though, it is an interesting problem to try and solve.