In one document Sir Kim wrote: 'We don't really believe this Administration is going to become substantially more normal; less dysfunctional; less unpredictable; less faction riven; less diplomatically clumsy and inept.'
The Telegraph 7 July reported - "The correspondence - marked ‘official sensitive’ - was leaked to Ms Oakeshott via a third party. The memos were widely circulated across the Foreign Office and other Government departments to up to 100 people, according to well-placed sources, making it difficult to trace the mole ...."
The leaked comments were not well received by President Trump - The Conversation 10 July
- who commented via Twitter - “I do not know the Ambassador, but he is not well liked or well thought of within the US. We will no longer deal with him.”
On 10 July, Sir Kim Darroch resigned in a letter to Sir Simon McDonald, Permanent Under Secretary at the FCO - BBC News 10 July 2019 - Sir Kim Darroch resigns: Letter in Full
On 9 July a debate was televised between Conservative Party leadership contenders Boris Johnson and Jeremy Hunt. It is widely thought that a factor in Sir Kim's resignation was the failure, during that debate, of Boris Johnson to support him - see, for example, the The Guardian article by former Foreign Secretary Sir Malcolm Rifkind and The Guardian editorial of 10 July 2019.
The government announced an internal inquiry into the leak. This was followed by the announcement that the Metropolitan Police Counter-terrorism command will investigate the leak. Even this has resulted in further controversy given that the Police warned media organisations that they could be breaking the law if they published further details from the cables. Assistant Commissioner Neil Basu said - “The publication of leaked communications, knowing the damage they have caused or are likely to cause, may also be a criminal matter."
The latest leaks are not the first. In November 2016, following the US election, a memo by
Darroch to Prime Minister Theresa May was leaked in which he said the President-elect of the United
States, Donald Trump, could be influenced by the British
government. The following week, Trump tweeted that Nigel
Farage should serve as British ambassador to the United States. Downing
Street said that there was no vacancy and that the UK had "an excellent
ambassador to the US".
Darroch was in London the next day for consultations with May that were said to
have been long planned.
Recent times have seen leaks concerning the health of Labour Leader Jeremy Corbyn and also the leak from the National Security Council about the involvement of Huawei in 5G provision. Defence Secretary Gavin Williamson was sacked following the latter leak.
A further Mail on Sunday article by Isabel Oakeshott - Daily Mail 14 July 2019 - states that Sir Kim Darroch wrote in a memo to Downing Street that Donald Trump abandoned the Iran nuclear deal as an act of ‘diplomatic vandalism’ to spite his predecessor Barack Obama.
It ought to be the case that communications between UK diplomats and the UK government are treated with the greatest possible confidentiality. Unless that is the case it is possible that diplomats will be less than candid in their assessments of foreign leaders and governments. As Sir Malcolm Rifkind has said - "The first person who should hang his or her head in shame is whoever was responsible for the leak in the first place. Whatever the motive, it was a treacherous and indefensible act of disloyalty."
The Vienna Convention on Diplomatic Relations 1961 requires that, in the appointment of a "Head of Mission", the sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State - (Art 4). The receiving State is able to refuse agreement and is not obliged to give reasons for a refusal. The Convention goes on (Art.9) to state that - "The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State."
The USA did not exercise those rights in relation to Sir Kim Darroch but, following the President's comments, it appears that Sir Kim was excluded from certain meetings which, as Ambassador, he would normally attend. This clearly made Sir Kim's position untenable despite the official support he received from Downing Street even if not from Boris Johnson.
A possible breach of the Official Secrets Acts is under investigation. A good explanation of the Acts is to be found in this Research Briefing published in May 2017.
The Official Secrets Act 1989 s.3 makes it an offence for a person who is or has been a Crown servant or government contractor to make a damaging disclosure of - (a) any information, document or other article relating to international relations; or (b) any confidential information, document or other article which was obtained from a State other than the United Kingdom or an international organisation, being information or a document or article which is or has been in his possession by virtue of his position as a Crown servant or government contractor. Crown Servants are defined in section 12.
A disclosure is damaging if - (a) it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or (b) it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects.
Section 3 provides for a defence - "It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question was such as is mentioned in subsection (1) above or that its disclosure would be damaging within the meaning of that subsection."
By section 9, prosecutions under the Act require the consent of the Attorney-General.
Another section that may come into play is section 5. This applies to those who have come into possession of any information, document or other article protected against disclosure when the disclosure takes place without lawful authority by a Crown Servant or government contractor - s5(1). The person into whose possession the information, document or other article has come may be guilty of an offence if the information etc. is disclosed without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure by the foregoing provisions of this Act and that it has come into his possession as mentioned in subsection (1) above.
In seeking to find the one who leaked the material it would be natural to ask the journalist who received it. The journalist would almost certainly refuse. The IPSO Editor's Code of Practice states that "journalists have a moral obligation to protect confidential sources of information." There are some legal powers that could be invoked but it is worth noting here that the Contempt of Court Act 1981 s10 provides that -
A further Mail on Sunday article by Isabel Oakeshott - Daily Mail 14 July 2019 - states that Sir Kim Darroch wrote in a memo to Downing Street that Donald Trump abandoned the Iran nuclear deal as an act of ‘diplomatic vandalism’ to spite his predecessor Barack Obama.
It ought to be the case that communications between UK diplomats and the UK government are treated with the greatest possible confidentiality. Unless that is the case it is possible that diplomats will be less than candid in their assessments of foreign leaders and governments. As Sir Malcolm Rifkind has said - "The first person who should hang his or her head in shame is whoever was responsible for the leak in the first place. Whatever the motive, it was a treacherous and indefensible act of disloyalty."
The Vienna Convention on Diplomatic Relations 1961 requires that, in the appointment of a "Head of Mission", the sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State - (Art 4). The receiving State is able to refuse agreement and is not obliged to give reasons for a refusal. The Convention goes on (Art.9) to state that - "The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State."
The USA did not exercise those rights in relation to Sir Kim Darroch but, following the President's comments, it appears that Sir Kim was excluded from certain meetings which, as Ambassador, he would normally attend. This clearly made Sir Kim's position untenable despite the official support he received from Downing Street even if not from Boris Johnson.
A possible breach of the Official Secrets Acts is under investigation. A good explanation of the Acts is to be found in this Research Briefing published in May 2017.
The Official Secrets Act 1989 s.3 makes it an offence for a person who is or has been a Crown servant or government contractor to make a damaging disclosure of - (a) any information, document or other article relating to international relations; or (b) any confidential information, document or other article which was obtained from a State other than the United Kingdom or an international organisation, being information or a document or article which is or has been in his possession by virtue of his position as a Crown servant or government contractor. Crown Servants are defined in section 12.
A disclosure is damaging if - (a) it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or (b) it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects.
Section 3 provides for a defence - "It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question was such as is mentioned in subsection (1) above or that its disclosure would be damaging within the meaning of that subsection."
By section 9, prosecutions under the Act require the consent of the Attorney-General.
Another section that may come into play is section 5. This applies to those who have come into possession of any information, document or other article protected against disclosure when the disclosure takes place without lawful authority by a Crown Servant or government contractor - s5(1). The person into whose possession the information, document or other article has come may be guilty of an offence if the information etc. is disclosed without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure by the foregoing provisions of this Act and that it has come into his possession as mentioned in subsection (1) above.
In seeking to find the one who leaked the material it would be natural to ask the journalist who received it. The journalist would almost certainly refuse. The IPSO Editor's Code of Practice states that "journalists have a moral obligation to protect confidential sources of information." There are some legal powers that could be invoked but it is worth noting here that the Contempt of Court Act 1981 s10 provides that -
"No court may require a person to disclose, nor is any person
guilty of contempt of court for refusing to disclose, the source of information
contained in a publication for which he is responsible, unless it be
established to the satisfaction of the court that disclosure is necessary in
the interests of justice or national security or for the prevention of disorder
or crime."
The ramifications of these leaks will play out over the coming days and, perhaps, weeks. At this stage, it is best to wait and see how things develop. More later !
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