The grass is always Green

Damian Green's arrest reflects badly on all political parties and their politicians. It also raises questions about the common law offence of misconduct in public office.

Apparently arresting a publicly elected legislator is a sign of a "Stalinesque" state. I would suggest shooting them more so. Let's make no mistake, the arrest of Damian Green - the Conservative's Shadow immigration spokesperson - is a grave affair. But not for the party political reasons we're likely to hear much of over the coming days.

The real issue surrounds the common law offence of "misconduct in public office". The offence was introduced post-Hamilton following a recommendation by the Nolan Committee on standards in public life, and has been used in the past to prosecute, for instance, police officers who have sex whilst on duty.

Let's be clear: Damian Green is not accused of misconduct in public office. He is accused of "aiding and abetting misconduct in public office" - i.e. helping someone else commit an alleged offence.

That individual is the unnamed civil servant who appears to have been passing information about the Home Office to Damian Green, which Green subsequently passed to the press. It is unclear to me what the "aiding and abetting" could have consisted of, if not the act of supplying that information to the press.

It is perhaps a bit rich for Damian Green to have criticised the Government earlier in the year over leaked documents, especially if he actively solicited those documents from a helpful insider.

But that isn't justification for arrest. Misconduct in public office is proven on the basis that an act "amounts to an abuse of the public's trust in the office holder" (amongst other things).

Does passing confidential documentation which the government of the day are witholding from the public amount to an abuse of the public's trust in that office holder?

On one hand, I can see the arguments which suggest it is - someone who more often acts against their employer, than for them is a liability. Nonetheless, the public should expect that information is not deliberately withheld from them by the politicians they elect.

I expect the Conservative party will make some ridiculous statement about erosion of civil liberties in the wake of this arrest. No doubt they will call for resignations. Perhaps Labour will too. Nonetheless, the fact that it has happened, and on Labour's watch, makes this a rather sorry affair for the Government.

The real question, however, is whether the misconduct in public office offence is being appropriately used. On the evidence of this arrest, I suspect not. And there are other ridiculous examples - such as affairs by politicians being investigated under that offence.

It appears to me that, when it comes to misconduct in public office, the letter, rather than the spirit of the law is being applied all too often.