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8 Dec 2008 : Column 285

What should we ask the Committee to do? What should allow the police to go through the files and data of a Member of Parliament and, therefore, of his constituents, and not just of his constituents, but of legitimate whistleblowers who come to the Member of Parliament in the public interest? First, the crime should be serious and specific. It should not be minor—we should not be followed to catch us on speeding offences so that the police can go through our files. The charge should not be “conspiring to commit misconduct in public office”, which is vague and a general catch-all. That should not be acceptable to the Speaker of the House of Commons.

Secondly, there should be solid evidence. If the MP has not been charged—my hon. Friend the Member for Ashford (Damian Green) still has not been charged, and I do not think the young man involved has been charged either—that almost certainly means obtaining explicit approval from a Law Officer: the Attorney-General or the Director of Public Prosecutions.

Thirdly, and very importantly—a point that we have not addressed before—the charge should not relate to the Member of Parliament’s legitimate parliamentary activity. The charge in the Duncan Sandys’ case was serious disclosure of official secrets about military preparedness, yet it was ruled an appropriate parliamentary action, risky though it was. History proved that judgment right. My hon. Friend the Member for Ashford did not disclose anything so sensitive, and everything he did disclose was entirely proper in pursuit of his duties in holding the Government to account.

Finally, the intrusion on the constituent’s privacy must be necessary, not some further fishing expedition to see what the police can find. What will be the feelings of every whistleblower who speaks to a Member of Parliament if there is a fishing expedition? Again, that can be assessed only by an appropriate Law Officer.

The assault on privileges that we are discussing today is serious and, if we are not careful, it will set a very serious precedent for the future. No intrusion for a minor offence should be allowed. If we allow that, it will turn out to be disastrous. It will fatally undermine the last vestiges of power in the House. It will lead to intimidation of decent whistleblowers who are standing up for what they see as the public interest. It may not quite make speaking the truth illegal, but it will make finding out the truth illegal.

5.2 pm

Keith Vaz (Leicester, East) (Lab): This has been an important debate with some outstanding speeches, in particular those of the right hon. and learned Member for North-East Fife (Sir Menzies Campbell) and my hon. Friend the Member for Thurrock (Andrew Mackinlay). I spent most of the early 1980s touring unwinnable seats with my hon. Friend, trying to be selected. In those days there were only unwinnable seats to fight and he always won the contests. If he was on the form that he was on today, it is no wonder that he won on those occasions. I wish I had some documents to leak to him so that he could use them.

The Speaker has made it clear what his mind is in relation to the debate. He was right to wait until Parliament resumed last Wednesday before he made his announcement
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to the House. That is where such announcements ought to be made—first and foremost, to Members of the House. He was also right to suggest the creation of a Committee of wise persons. That is the right approach to take on a matter of such importance and seriousness. The Government’s motion concedes that, but it is different from what the Opposition and the right hon. and learned Member for North-East Fife want. The Government want the matter delayed until after the conclusion of proceedings, if any, against the hon. Member for Ashford (Damian Green).

The Government have nothing to fear from an inquiry. The Home Secretary, in her very good statement last Thursday, made it clear what information she had, what information she received and what action she took. In his intervention on her, the former Home Secretary made it clear that, if he was in that position, he would have expected to be told what was going on with the investigation. However, she made it very clear that she was not told what happened until after it had happened, and that she did not know the identity of the Member of Parliament concerned until after he had been arrested.

John Reid (Airdrie and Shotts) (Lab): I want to put the record straight on this point. My intervention was precisely as my right hon. Friend said—to criticise the systems and structures that had failed to alert the Home Secretary to a matter of such potentially explosive political consequence. I do not regard a Home Secretary being told that information as in any way intervening on the operational independence of the police; any former Home Secretary here will recognise that. The point that I am making is that it was not the Home Secretary who was at fault in those circumstances, but the structures and systems that failed to alert her.

Keith Vaz: Absolutely. The operational independence of the police is one of the fundamental principles of this debate. There should be no question of any politician, whoever they are, intervening in this process. Once there is intervention, frankly, the whole system becomes prejudicial. That is why it is important to underline to the Government and my right hon. and learned Friend the Leader of the House—a great champion of civil liberties for more than 30 years, before she entered the House and since—that the Government have had nothing to do with this circumstance. It is vital for the Government to understand that. It was the permanent secretary, in his own way, who decided to initiate the inquiry because of the leaks. The matter was then passed to the police, and it was the police who decided to take appropriate action to deal with the situation. That is the first point that I want to make.

Mr. Robert Marshall-Andrews (Medway) (Lab): Will my right hon. Friend give way?

Keith Vaz: I will not give way.

My second point relates to the action of the police. I do not know whether right hon. and hon. Members have seen the letter from Mr. Bob Quick to the Home Secretary, which has been put in the Library of the House. It is about the action that he took in respect of this matter. He seems to be relying on paragraph 5.2 of code B of the Police and Criminal Evidence Act 1984 in his assertion that what he did in going to the Serjeant at
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Arms and seeking to ensure that he was able to get her consent for the search of the property underlines and vindicates his position.

There are serious questions to be asked about how the police dealt with that process. That has nothing to do with the substance of the case—if any—against the hon. Member for Ashford; it is to do with the process adopted by the Metropolitan police in order to enter the premises of the hon. Gentleman. Those questions need to be asked now; frankly, I do not believe that they can wait until after the proceedings have concluded. As other right hon. and hon. Members have made clear, the investigation may last much longer than is envisaged and the two principal actors may well be bailed again. There may be a prosecution, and therefore due process will take several months to complete.

Mr. Bellingham: Will the right hon. Gentleman give way?

Keith Vaz: I will not give way, because time is very short.

To wait such a long time before Parliament has an opportunity to make a decision would, I think, be wrong. That is why I have a great deal of sympathy with the amendment tabled by the right hon. and learned Member for North-East Fife. I hope that the Leader of the House and other colleagues will reflect on the issue. It is possible for the Committee to meet and, of its own volition, to decide to sit in camera and to adjourn. If there are to be seven wise people, we assume that they will be wise enough to know what bits they do and do not want to put into the public domain. If we do not trust Members of the House to deal with those processes, there will be no one else whom we can trust in respect of these matters.

There has been speculation in the press about whether the Home Affairs Committee is to hold an inquiry on these matters. These matters go far beyond its remit. There are distinguished members of the Select Committee from both sides of the House all around me; we will not have a chance to discuss these matters until tomorrow, which is when we will take a decision. However, before then it is important for the House to reflect on what is a very serious situation. If it is only a question of timing, that is a very small concession that the Government have to make, and then one leaves it to the good offices of those sitting on the Committee to make a decision.

I have debated with the hon. Member for Ashford many times across the Floor of the House on matters to do with home affairs, and I have always found him to be a decent man and a person of great integrity. We, as Members of this House, are able to put up with the brickbats of public life and exposure in the media, as we all do many times, some more than others. My sympathy is with his family, especially his young daughter, in having faced what he and they faced that day, and with his members of staff. I know that members of my staff sometimes wish that somebody would come and take all their computers away because of the level of casework that we have. However, it must be a terrible experience for the hon. Gentleman’s staff and constituents, because on those computers is routine casework. Some cases may well involve complaints against the press— [ Interruption ] I mean the police; perhaps that was wishful thinking—and therefore cannot be dealt with. The hon. Gentleman therefore has our sympathy.


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I hope that as a House we can come together on this matter. It should not be a partisan issue—it should be a question of the rights of Parliament, and I hope that the Leader of the House will bear that in mind when she replies to the debate.

5.11 pm

Mr. Kenneth Clarke (Rushcliffe) (Con): I am one of those Members, together with the hon. Member for Thurrock (Andrew Mackinlay), who put their name to the amendment tabled by the right hon. and learned Member for North-East Fife (Sir Menzies Campbell). I like to feel that there is a consensus growing for an approach on that basis that will give much more effect to Mr. Speaker’s statement last week, allow for a quicker inquiry, and allow us to look straight away, in proper order, at some of the issues of principle rather than the details of continuing police investigations. I agree with the right hon. Member for Leicester, East (Keith Vaz) that this should be approached in a non-partisan way. I usually enjoy the party rancour in this place, and realise that it can often be a useful way of checking the Government, but on this occasion it is totally unsuitable. I hope, as I see discussions taking place on the Government Front Bench, that even at this late stage there might be some reconsideration.

I ask Members to imagine what would happen if the two principal parties had been on the opposite sides of the House when this incident occurred and the Met police got it into their heads to start proceeding in this way. I regret to say—I will not name names—that some Back Benchers on my side of the House would make a speech like that of the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) and dutifully rally round, saying, “This is a routine issue—what are we wasting our time for?” and defending his Front Benchers. I think that we would be hard-pressed to find many Labour Members, if they were sitting on the Opposition Benches, who were not beside themselves with rage if a shadow Home Office spokesman had been arrested in these circumstances and treated in this way.

I do not want to personalise this, but I first met the Leader of the House when she was the legal adviser to the National Council for Civil Liberties. That is when I first had dealings with her, although she probably does not remember. She was a pretty feisty, radical lawyer in those days, and I have to tell her that she would not conceivably have made the speech then that she made an hour or two ago—she would have been leading demonstrations outside about the behaviour of the Government in confining matters in this way.

I realise how annoying leaks are. They are not always heroic, although one can find the heroic examples of Churchill, Sandys, and so on. They cause great distrust, break up the teamwork in an office, and cause great annoyance to Ministers, as I know. In fact, most leaks come from other Ministers and their political advisers, or are authorised by them. The civil service always gets very indignant when leak inquiries are set up, because that is where they usually come from. I well remember the right hon. Member for Birkenhead (Mr. Field) getting leaks about child benefit that he shared with me, as an Opposition spokesman, from time to time. I am sure that those leaks came from Barbara Castle, or with her authority. Similar examples have multiplied in this Government over the past 10 years.


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We addressed the whole matter because of the problems that we had over the criminal law when foolish decisions were made to prosecute Clive Ponting and Sarah Tisdall, who had been leaking material from the Ministry of Defence on security issues, and one of them was acquitted by a jury on the public interest defence. We decided that the Official Secrets Act and the panoply of the relevant law should relate only to national security. The law was changed precisely to avoid the outrage that occurred on this occasion. We cannot anticipate all the inquiries, but by now the police or the Government would have briefed us on any aspect of this matter that would support a stronger view being taken. No crime has been committed; it is a disciplinary offence inside the Department. Nobody is going to be prosecuted. If any prosecution is brought, it will fail because the public interest defence is absolutely self-evident. Indeed, there will be outrage in this House if a prosecution succeeds, and that should have been apparent from the word go.

I do not know what the timing of the debate is, so I shall try to be brief. I do not think that anybody here is in favour of totalitarian government. The partisan stuff on both sides is quite absurd; no one on this side is running spies inside the Government and no one on the Government Front Bench is advocating a police state. At the moment, we have a House of Commons where everybody is in favour of parliamentary democracy, which I could not have said 20 years ago when the Militant Tendency had members in our midst. I think that we are pretty safe now.

We are, however, in danger of being led by an increasing air of carelessness and indifference to basic rules. We all respect the rule of law, but sometimes we do not pay too much attention to it in some of the legislation that comes before the House. Anger, rage and unfavourable press comment always affect Ministers, but we now have an intolerance of dissent and an inability to take those brickbats that has led to a minor version of Henry II’s expressions of rage about Thomas Becket. In this case, it must have been, “Who will find and dispense with this turbulent priest for me?” At every stage, as somebody said earlier, people should have thought better. The permanent secretary should not have called the Cabinet Office in, and certainly should have stopped them talking to the police. In her statement, the Home Secretary said she agreed with the view of Sir David Normington that it was necessary to request police assistance. I am sure that she regrets that bitterly. She was already in trouble with leaks, but when she agreed to that, he got her into a lot more trouble.

I am worried about the Met, given their behaviour in the so-called “cash for honours” case, and the case of the right hon. Member for Neath (Mr. Hain). When the police are called in they should not think, “Here’s a good public interest case. We’ll get a lot of good publicity out of this; it’ll be a good high profile thing.” They should have said to the Cabinet Office, “This is not a matter for us. Go away and sort it out inside the Department itself.”

When the matter came to this House, we were not prepared for it. Instead of letting the police in to search an office, somebody should have made inquiries. It has been revealed that there was no clear process enabling that to be done. Of course, if someone arrived and said
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that a Member was being investigated for a normal criminal offence, I would expect the Serjeant at Arms to give the police officer in question the keys, to send someone to escort him and his officers, and to arrange for them to be provided with tea and sandwiches while they carried out the necessary searches. What if they inquired and were told that there was no warrant, or if they had inquired and were told, “This is all about leaks from the Home Office”? We need to re-establish processes whereby in those circumstances the Serjeant at Arms, without hesitation, shows them to the door and gets them dispatched.

What will happen if we duck everything today, and accept a Government motion plainly designed to kick this into the long grass? They believe that the best thing to do is to get the matter beyond Christmas, let the police spin it out a bit, and hope that it will all die away, as it did in the case of the right hon. Member for Neath. No one will hear any more about it because the fuss will have died down by the time a report comes out. We need an inquiry now. We need one that does not have an in-built Government majority, which is independent and which advises the House on how we deliver our scoundrels to justice while ensuring that our more diligent Members are protected when they carry out their work.

5.19 pm

Dr. Tony Wright (Cannock Chase) (Lab): I agree with the right hon. and learned Member for Rushcliffe (Mr. Clarke) on two things. The way in which this debate has become wholly partisan has done us all a huge disservice. It should not have mattered at all which party the Member of Parliament belonged to. The issue is more important than that.

The second thing on which I agree with the right hon. and learned Gentleman is that the criminal law, as I understand it, should never have gone anywhere near the matter. Without going into the history, we thought that we had banished the criminal law from that area—indeed, I suspect that that is the conclusion that will be arrived at.

However, if we say, “Let’s not do the partisan thing; let’s accept that we think that something on the face of it wholly disproportionate and wrong happened in this case,” we also have to go a little further and accept that that does not mean, as some hon. Members in the past few days have thought, that the immunities granted to Members under the name of privilege are larger than they really are. Those immunities are not general; they are very precious, but also very defined. However, there is clearly a general misunderstanding about what they are, as my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson) said. Whatever else comes out of this debate, we ought to try to be a bit clearer about what this thing called privilege is, which would be a good thing.

On that point, my constituents have not been wholly persuaded over the years that self-regulation has quite met the case when Members of Parliament have done things that they thought should occasion the attention of the criminal law. When my constituents have seen Members of Parliament doing things that looked to them like improper conduct, fraud and embezzlement of public money, they have wanted something to happen. They have not been entirely persuaded that the word
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“privilege” means that nothing should happen to Members of Parliament, so I want us to be clear about what that privilege is.

If we concede, rightly, some things, we should concede the other things, too. There has been much talk of the public interest in this case. However, I had to stop when I heard Mr. Galley’s lawyer, who was also Lord Levy’s lawyer and with whom I had some dealings at the time, talking about the public interest in respect of Mr. Galley, who had been systematically leaking information from the Home Office for political reasons. As someone who first tried to introduce whistleblower legislation in the House, which my friend the hon. Member for Aldridge-Brownhills (Mr. Shepherd) took up with the aid of the Government, and as someone who spent a good deal of time when we passed the Freedom of Information Act 2000 trying to ensure that there was a public interest reason for disclosing official information, even in areas where the Government did not want a public interest test to apply, I can confirm that in all those cases we were concerned about getting the balance right.

As we are talking about public interest, I have to say that there is no public interest in having routine leaking for political reasons. That offends against two principles, one of which is the normal law of confidence. It also offends against the principle of civil service impartiality. We might even get round to passing a civil service Act this Session, after 150 years. If we do, we will enshrine in law the principle of civil service impartiality, which is what has been offended against in this instance, too. Offending against that principle has consequences that are detrimental to the public interest. That is why I am anxious about some of the things that have been said, because if we go down that route, Ministers, fearful that such leaking will occur, will collect around themselves political trusties, thus excluding the civil service from things in which it should be included. That will be extremely damaging to the public interest. There are a number of principles at work.

Martin Salter (Reading, West) (Lab): Will my hon. Friend give way?

Mr. Grieve: Will the hon. Gentleman give way?

Dr. Wright: No, I will not.


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