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8 Dec 2008 : Column 256

We should remember that at the time consent was given it appears that a magistrates court had issued a warrant to search the hon. Gentleman’s home and constituency office. But further to your statement, Mr. Speaker, I can tell the House that I have asked that we consider at our next House of Commons Commission meeting two further matters that should provide even further reassurance to hon. Members: first, whether it should not be a magistrate, but only a High Court judge who would have the power to grant a warrant to carry out a search in Parliament, and, secondly, whether, through the Speaker’s counsel, there could be an opportunity for representations to be made to a court considering an application for a warrant to search in the House about the high test that should be applied before a warrant is granted for a search within Parliament.

Indeed, Mr. Speaker, the Commission could consider a further question: if hon. Members’ data and papers are to be protected when they are on the parliamentary estate, should they attract the same level of protection when they are in the Member’s home or in his or her constituency office? It is, of course, the material that is at issue here, not the building. This is something that the Commission could consider as you take forward the changes in search procedure that you announced last Wednesday.

Mr. Dominic Grieve (Beaconsfield) (Con): I thank the Leader of the House for giving way. She said at the outset of her remarks that she accepted that hon. Members would be concerned that there should be no delay in following up the Speaker’s recommendations for an internal inquiry, but does she not realise that by tying it to the police investigation, that is exactly what will happen? Does she not also recollect that, in the case of cash for honours for example, it was up to the Committee to receive representations from the police, if the police believed that there was a reason why the Committee should not pursue its inquiries? It was not the role of this House to fetter the way in which the Committee conducted its business. Why cannot we do that in this instance?

Ms Harman: As I develop my line, I will answer the points made by the hon. and learned Gentleman, as they also lie behind several of the amendments tabled to the motion that I have put before the House.

I just want to make one further point that I hope will provide reassurance to hon. Members. Mr. Speaker, you also provided immediate reassurance for Members concerned about police access to the parliamentary computer network, saying that it was your serious responsibility and that you had already taken action and would look further into the matter. So the House should be reassured on that point too.

Several hon. Members rose

Ms Harman: I shall give way later, when I have developed my argument.

The motion before the House establishes a Committee to start its work as soon as the police investigation is concluded. Mr. Speaker, in your statement on Wednesday, you said that you had decided to refer the matter to a Committee that would report for debate by the House
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as soon as possible. But let me explain to the House why that must mean not before the police have completed their investigation.

If the Committee were to be responsible for looking at the process for any search in the immediate future, or at the current protection of data of hon. Members, they could and would need to do that now, but—as I have said—you, Mr. Speaker, have already acted on that. So what remains for the Committee are questions which fall four-square on the same territory as the current police investigation, and the issue for the House is whether the Committee should be conducting an investigation into police action at the same time as the police inquiry of which that action formed a part.

Mr. Edward Garnier (Harborough) (Con): Could the Leader of the House confirm that when the motion states that

it is simply a question of embarrassment, rather than of contempt of court? As she will know, contempt of court does not apply until someone is charged before magistrates or summonsed before the Crown court.

Ms Harman: As an hon. and learned Gentleman, he should know that it is certainly possible for prejudicial statements to be made even before charge. I will develop my argument on that point, because I know that it is most strongly felt by hon. Members.

Several hon. Members rose

Ms Harman: Let me set out my answer to the hon. and learned Gentleman’s point.

There are two problems here. The first is the need for the House to avoid the accusation or perception that we are in any way interfering with the police or breathing down their necks. The second is the need for the House to avoid any inadvertent potential prejudice to any future proceedings in court. What is said and done in Parliament is important. That is why there is concern about the search and seizure. By the same token, anything that we say is influential in criminal cases. We have to look ahead to any future criminal trial. We have to avoid doing or saying anything that could hinder justice—either for the prosecution or the defence.

Several hon. Members rose

Ms Harman: I will press on with my argument because I hope that it is helpful to the House.

That is why Prime Ministers and Home Secretaries have to be very careful about what they say. Leaders of the Opposition and shadow Home Secretaries have to be careful about what they say too. It is for neither Government nor Opposition to pronounce what the evidence is and whether a crime has been committed.

Mr. Robathan: I understand that the Leader of the House began her legal career with the National Council for Civil Liberties as a human rights lawyer. What does she think that her erstwhile colleagues would think of those weasel words?

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Mr. Speaker: Order. Temperate language is what we need, please.

Ms Harman: I think that I am showing a proper understanding that justice in this country is a matter for police investigation and decision by the courts. When I was a lawyer at the National Council for Civil Liberties, I never misunderstood the difference between the roles of Parliament and the courts, and neither should the hon. Gentleman. The courts are rightly very vigilant about this matter.

Dr. Tony Wright (Cannock Chase) (Lab): The precedent of the Select Committee inquiry into the so-called cash-for-honours affair has been cited, but we did not have to set that inquiry aside for the duration because the police told us to do so. We did so because we took an independent legal opinion from leading counsel, who said that the danger was that any prosecution would be compromised by anything that happened in Parliament. That was the danger that needed to be avoided.

Ms Harman: My hon. Friend is right. That is why I asked the House to resist the amendments that would have the Committee start its work now.

Mr. Grieve: I come back to my point: there is no necessity for the House to fetter the Committee because it can take the advice of leading counsel and make up its own mind. One of the issues that will undoubtedly arise when the Committee comes to consider the matter is whether on any showing there is any possibility of a prosecution being brought against anybody. I have always found it very difficult in this matter to see how the law can possibly operate to do that at all.

Ms Harman: It is not for anyone to substitute their view for the judgment of the Crown Prosecution Service about whether there should be a charge. It will be helpful for the police to recognise that the House will not be breathing down their necks and that we will adjourn the proceedings of the Committee. We are making a strong statement that this matter is one for the police and that the House of Commons will leave them to get on with the job. I know that the shadow Home Secretary, who is also shadow Attorney-General, and the right hon. and learned Member for North-East Fife (Sir Menzies Campbell) understand the importance of this argument and I urge them to acknowledge it and to act in accordance with it.

In conclusion, I want to set out the four principles that all Members of this House—Government and Opposition, Back Benchers and Front Benchers—should be mindful of and vigilant to protect.

Lynne Jones (Birmingham, Selly Oak) (Lab): I would like some light to be shed on the legal advice that, according to Assistant Commissioner Quick, the Serjeant at Arms took before granting permission for the search of the offices of the hon. Member for Ashford (Damian Green). Is my right hon. and learned Friend aware of any reason why that legal advice should not be published? Is she aware of the contents of that legal advice? As Leader of the House, has she obtained legal advice on the same matter herself?

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Ms Harman: If a search was undertaken as part of an ongoing police investigation, it is important that we should not comment on it in this House. [Hon. Members: “Ridiculous.”] Hon. Members think that it is ridiculous that we should not comment on an ongoing police investigation, but I shall proceed to say why I think—

Several hon. Members rose

Mr. Speaker: Order. The Leader of the House is not giving way.

Ms Harman: The first principle that I urge the House to be vigilant to protect is that it is essential for the freedom of our democracy that as Members of this House we are able to get on with our work without looking over our shoulders. Secondly, in respect of the rule of law no one, not Ministers, nor Members of this House, is above the law. Thirdly, we need a professional and impartial civil service, and civil servants who feel in conscience that they have to divulge information should be able to do so without falling foul of the criminal law. It was to protect whistleblowers that we introduced the Public Interest Disclosure Act 1998. Fourthly, there is the principle of separation of the Executive and the legislature on the one hand, from the operation of the criminal justice system on the other. No one in this country wants politicians—whether Government or Opposition—telling the police who to investigate or who not to investigate. In any individual case the police are accountable to the courts and to the independent complaints system.

Several hon. Members rose

Ms Harman: I am moving on to make one further point.

While the police are accountable, too, to police authorities and the Home Secretary, where anyone who is the subject of an investigation is known to the Home Secretary it is imperative that she makes it clear that she is standing right back from the inquiry, and that is what she has done. I hope that all Members will support all those four principles and will support the motion to establish the Speaker’s Committee, which will look into all these matters and make recommendations for the future. I commend the motion to the House. [ Interruption. ]

Mr. Speaker: Order.

3.31 pm

Mrs. Theresa May (Maidenhead) (Con): This debate is about one thing and one thing only: to put into practice the wish expressed by you, Mr. Speaker, in your statement to the House on 3 December to refer

That is the motion that we are debating.

Any motion agreed by the House today must put into practice the wishes of Mr. Speaker expressed in his statement last week, and to do so it must include three points. First, the Committee must be able to look into
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the seizure of material from the office of my hon. Friend the Member for Ashford (Damian Green). Secondly, the membership should be chosen by Mr. Speaker and Mr. Speaker alone. Thirdly, the Committee should meet now and its report should be debated by the House as soon as possible.

Mr. Frank Field (Birkenhead) (Lab): Will the right hon. Lady give way?

Mr. Adam Ingram (East Kilbride, Strathaven and Lesmahagow) (Lab): Will the right hon. Lady give way?

Mrs. May: No, I want to make some progress before I take interventions.

I should have thought that it would be simple for the Government to put those points into a motion for the House. Sadly, they have singularly failed to do so. The motion from the Government bears no resemblance at all to Mr. Speaker’s statement and the Leader of the House has singularly failed in her defence of the Government’s motion.

Mr. John Gummer (Suffolk, Coastal) (Con): Would not my right hon. Friend agree that not to carry through in precise measure what Mr. Speaker has asked shows that the Government do not have confidence in Mr. Speaker, and is therefore an unacceptable position for the Government in the House?

Mrs. May: I agree with my right hon. Friend that it is unacceptable for the Government to take Mr. Speaker’s wishes and actually change the motion so that it does not reflect the wishes of Mr. Speaker.

Mr. Frank Field: May I make a suggestion for the right hon. Lady to consider while we are holding the debate and before we come to a vote? If the Opposition are genuine in wanting to uphold the sentiments that Mr. Speaker expressed, does she believe that the best way for the House to come to a mind on that would be for all of us to support the motion tabled by the right hon. and learned Member for North-East Fife (Sir Menzies Campbell)?

Mrs. May: Absolutely. I entirely agree with the right hon. Gentleman, and I will make that same point towards the end of my remarks. On the three points that I mentioned and the motion that the Government have put forward— [Interruption.] It sounds as though a lot of hurried reading of the amendment is taking place. Far from looking into the police’s seizure of material belonging to my hon. Friend, the Committee proposed by the Government is merely to review the narrow issue of the internal processes of House administration for granting permission for such action.

I ask the House to note that the Government’s motion makes the immediate assumption that they were right to grant permission for an hon. Member’s office to be searched and for material to be seized. What the Government want to discuss is merely the internal processes for granting that permission. The Government propose that the Committee’s membership should reflect the composition of the House—in other words, that the Committee should have a Government majority. Can the Leader of the House not understand that, for the
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Government’s own sake, there should be nothing that could suggest that they were trying in any way to rig the Committee’s outcomes? The Leader of the House should be in no doubt: if the Committee were set up with a Government majority, it would not have the support of the Opposition.

Perhaps most serious of all is the Government’s attempt to delay the work of the Committee and effectively kick the issue into the long grass. The Committee is to be allowed to meet only to elect a chairman; then it must immediately adjourn, not just until the police inquiry is over, but until any proceedings—that is, criminal proceedings—are over. That could mean that the Committee would not start its work for many months, and possibly not until autumn next year.

Several hon. Members rose

Mrs. May: I will complete this point before I take any interventions. The motion in the name of the Leader of the House flies in the face of Mr. Speaker’s statement. It is not only a gross discourtesy to Mr. Speaker, but a flagrant abuse of the power of the Executive, in view of the wishes and interests of this House. It is a blatant attempt by the Government to pack the Committee, stymie its debate and delay its work until the controversy has blown over. I tell the Leader of the House that this simply will not do. This House—and Parliament—deserves better from its Leader.

Mr. Mark Harper (Forest of Dean) (Con): I should like to mention one of the reasons why it is important that the Committee should be able to do its work. My right hon. Friend and I asked the Leader of the House a question at business questions last week, but it has not been adequately answered. We asked whether last week the police were granted access to data belonging to other hon. Members. That has not been properly answered. [Interruption.] No, it has not been properly answered, and the Leader of the House needs to answer it properly for the House.

Mrs. May: I entirely agree with my hon. Friend. The Leader of the House referred to the fact that Mr. Speaker said that the issue would be looked into, but—I am very happy for the Leader of the House to intervene on me and confirm this—she did not confirm that the police had not had access to the shared drive or the servers. If they had, they would have had the ability to access every Member’s correspondence and e-mails. I invite the Leader of the House to intervene on me and confirm that that was not the case. Her silence suggests either that she does not know, or that she is not able to give the House the assurance that it requires, and that is of concern to each and every Member of the House.

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