Civil servant’s case against ministers over claim he leaked diplomatic cables to be heard in private

A former civil servant accused of leaking diplomatic cables that led to the resignation of the UK’s ambassador to the US is to have his attempt to clear his name heard behind closed doors.

Andrew Hale-Byrne is suing the Trade Secretary and the Foreign Secretary for misfeasance in public office, breaches of the human rights convention, and unlawful processing of personal data.

Now Mr Justice Chamberlain has ruled in the High Court that disclosure of evidence in his claim would “unquestionably cause damage to the UK’s national security”.

In October 2020, when Mr Hale-Byrne, who then worked at the Department for International Trade, was recovering from cancer surgery, armed police broke into his home.

They arrested him on suspicion of making a damaging disclosure of information relating to international relations, an offence under the Official Secrets Act 1989 that carries a maximum sentence of two years in jail.

Claimant was never charged over leaks

The civil servant was questioned, but never charged. No reason has been given for his arrest but he claims that officials had falsely identified him to police as the source of internal diplomatic messages that had been leaked to a freelance journalist.

The High Court was told the “essence” of his case was that officials acted to protect Sir Kim Darroch, then the UK’s ambassador to the US.

One of the leaked messages, from Sir Kim to Sir Mark Sedwill, the then national security adviser, included critical comments about Donald Trump that sparked a diplomatic backlash.

He wrote: “We don’t really believe this [Trump] administration is going to become substantially more normal; less dysfunctional; less unpredictable; less faction-riven; less diplomatically clumsy and inept.”

Sir Kim had to resign as ambassador as a result. He was later given a life peerage.

The Government has asked the court to dismiss Mr Hale-Byrne’s case without a trial on the grounds that he has no real prospect of succeeding.

His claim is against Kemi Badenoch, the Trade Secretary, and Lord Cameron as Foreign Secretary, although the post was held by Dominic Raab at the time of the events.

The Government also applied to have the claim heard in private, which was opposed by lawyers representing Mr Hale-Byrne.

A court can make a “declaration permitting closed material applications” if a party to the proceedings would be required to disclose sensitive material and a declaration is “in the interests of the fair and effective administration of justice”.

Sensitive material is material that would damage national security if disclosed. When a closed hearing is ordered, Mr Hale-Byrne can be excluded from part of the hearing.

Lawyers representing the excluded party must also leave court but security-cleared “special advocates” are appointed to represent that party’s interests as best they can.

Arrest allegedly ‘procured in bad faith’

Announcing his decision, Mr Justice Chamberlain said: “The essence of Mr Hale-Byrne’s case is that his arrest was procured in bad faith by named officials as a way of distracting from adverse reporting about Sir Kim Darroch.

“It follows that the reasons why Mr Hale-Byrne was arrested and the information which led to that arrest, insofar as they are known to the defendants, will be central to the determination of liability.

“I am satisfied on the basis of the closed statement of reasons and sensitive schedule that there is evidence which bears on that question and which is ‘sensitive material’.”

The judge added: “In some cases, it may be difficult to say whether the damage which disclosure would cause is damage to the UK’s national security.

“This is not such a case. Disclosure of the sensitive material I have seen would unquestionably cause damage to the UK’s national security.”

He said the court would not be able to effectively investigate the case without access to sensitive material, which could be declared inadmissible if it was to be heard in open court.