Police Searches on the Parliamentary Estate - Committee on the Issue of Privilege Contents


Examination of Witness (Question Numbers 1040-1059)

DR MALCOLM JACK

18 JANUARY 2010

  Q1040  Ann Coffey: That is not a grey area at all.

  Dr Jack: No, that is not a grey area. It is this phrase in the Australian Act "incidental to" which is used, incidental to proceedings, and that is where the problem is. I think in his evidence to you Sir William said that was your problem.

  Q1041  Mr Blunkett: So if these matters had not been presented in newspapers and he had not yet presented them on the floor of the House, but there was a suspicion that he had received material from Christopher Galley and the raid had taken place—let us call it a raid—if Damian Green had been able to say, "I got this material and I was putting it together for speaking in the House", as Ann Coffey has described, that might well in the Australian Code fall into privilege?

  Dr Jack: Yes, I think that is right, Mr Blunkett, provided that the link was clear and there was some clear evidence of this link, yes.

  Q1042  Chairman: It would be quite difficult if a Member said on oath, or not even on oath, "This document was one that I was preparing because I was going to apply for an adjournment debate," or "I had applied for an adjournment debate and this was therefore prepared from material which had reached me by a circuitous route in order to put in front of Parliament," for anyone, the police or a court, to challenge that?

  Dr Jack: Yes, I think that is right.

  Ann Coffey: Because we collect lots of material some of which is used and some of which is not.

  Chairman: We also collect material which we keep against the possibility that we might use it in future or sometimes that we might read it in the future! Sir Alan Beith?

  Q1043  Sir Alan Beith: Are we not trying in some of this from very good motive to use privilege to protect a wider public benefit, namely that Members of Parliament should be able to accumulate and receive material which may involve very serious criticism of people in public office, including perhaps the police, and should be free from interference from this process or indeed from disclosure of the source of some of the material, and privilege is not drafted to meet that objective, is it?

  Dr Jack: No, I think that is right. This is a theme that has come up quite often that in some senses, if I can put it this way, the modern function of a Member has changed and correspondence with constituents is a very big part of that and that is not covered by parliamentary privilege unless it relates to some proceeding. The Joint Committee in 1999 looked at this and they came to the conclusion that correspondence should still not be covered by privilege, which is the general Commonwealth position. I think their reasons were that it would be very difficult to define what this correspondence was. They said one would not know what material one was dealing with. They reckoned that absolute privilege should be limited to matters closely related to proceedings and that the common law protection of qualified privilege in the courts had worked sufficiently well, but the Committee may not feel that is any longer the case. I recognise that a lot of Members have talked to me about this and said that in modern circumstances this is just not sufficient.

  Q1044  Sir Alan Beith: It is not a new problem, is it? Churchill must have been in that position when people supplied him with information about our failure to rearm, which he had every intention of using in the House without disclosing its source. When the Speaker has to consider whether to allow a search to take place without a warrant or whether in some way to try to resist the execution of a warrant, which of course in the Canadian case he can do, what question is he really asking himself? Is he taking a definition of parliamentary privilege and saying, "I do not want this search to take place because it would interfere with parliamentary privilege," or is he actually saying, "It is in the general public interest that Members' offices should not be raided and correspondence removed unless there is very clear and overriding public interest in the particular case for this to be done," because these are quite different exercises, are they not?

  Dr Jack: I think the Canadian system and the Protocol system which is before you, if I can call it that, envisages, if I can put it that way, a set of technical requirements about the warrant, its specificity, notice of it and all these kinds of things. I think this has come up in evidence to you already. It is quite hard to imagine the police arriving with a warrant that actually interfered with proceedings of the House and therefore raised a matter of privilege that the Speaker would have to consider at that point. It really is quite hard to imagine a judge acting as King Charles, which is what he would be doing. He would be signing a warrant saying, "Go to the House of Commons and arrest Mr So-and-so or Madam So-and-so because they have spoken these words in Parliament." It is very hard to imagine a warrant which would say such a thing. I think the Speaker's involvement in the warrant is really mainly to ascertain whether technical requirements have been met.

  Q1045  Sir Alan Beith: It is that judgment. It is a judgment about the technical requirements of whether it meets the conditions that are dictated by the existence of parliamentary privilege, not some wider public interest.

  Dr Jack: That is absolutely correct, although may I add, Chairman, I think you have had evidence from the police as well about a plea for greater clarity. I think the House should respond to that. I see no reason why we could not develop a better dialogue with the police on these matters by having a Code, again like the Australian one, which guides the police, because the police want an operational set of things to tick off so they know they are complying.

  Chairman: I want to ask you some questions about that myself but Ann Coffey?

  Q1046  Ann Coffey: Is it not interesting that in fact if the police had applied for a warrant then actually you would probably have had the King Charles situation because they would have applied for a warrant because of misconduct in public life, the charge under which Damian Green was arrested, yet in fact the misconduct was simply raising issues that had been drawn to his attention, albeit by a civil servant and not by a constituent?

  Dr Jack: We would go back again to how closely those real actions related to a proceeding, what was this related to, questions he was asking of the House, was this—

  Ann Coffey: My point is that if Damian Green had stood up in the House of Commons and said all that he would not be subject to any charge at all because he has a perfect right to stand up on the floor of the House of Commons and talk about the issues that Christopher Galley raised with him. The fact was he did not do that, although he continued to be involved in it. Because of that he was arrested for this offence of misconduct in public life and his office searched. It seems a bit curious that if he had said it in the House of Commons nothing would have happened to him, but—

  Mr Blunkett: It might under our present system.

  Ann Coffey: Might it?

  Q1047  Mr Blunkett: Yes, because his papers would have still been subject to scrutiny in terms of whether and how he received them.

  Dr Jack: Yes, I think that is right. The misconduct was procuring the confidential information.

  Q1048  Chairman: There were questions as to whether or not that had been induced.

  Dr Jack: Yes, that is right.

  Q1049  Chairman: Or whether it had been at the instigation of the civil servant.

  Dr Jack: The case would have become more complicated if the circumstances that you mentioned were part of it.

  Mr Blunkett: Which is why the Australian Code is difficult to adopt because it then gets into the situation of why and how and under what circumstances somebody has acquired that information, which is why it is taking us so long to get through this.

  Q1050  Chairman: Can I take you back to Protocol, and to some extent you have dealt with this in your evidence. Would it be fair to characterise your evidence as saying that you are supportive of a Protocol but it really goes to matters of practicality and not to matters of substance?

  Dr Jack: Yes, I think that is correct, Chairman. As I say, apart from the unthinkable situation where it actually impinged on proceedings, but it is so hard to imagine such a warrant.

  Q1051  Chairman: Those practicalities would recognise—I do not want to put words into your mouth—the primacy of the courts in determining in the end the extent of privilege?

  Dr Jack: Yes, I think that is right, but some of the practicalities are very important. For example, I think you will have heard evidence from Lord Martin that the lack of prior notice of these matters might have made a great difference in this case. One of the conditions of Protocol is that the police must come early and tell the Speaker what is going on, not turn up on the evening before they are contemplating some action, that sort of thing. The practicalities can be quite important.

  Q1052  Chairman: You use the word "Speaker", I guess, advisedly?

  Dr Jack: Yes.

  Q1053  Chairman: "Speaker" rather than "Serjeant at Arms"?

  Dr Jack: Speaker, yes.

  Q1054  Chairman: Supposing the steps set out in the December Speaker's Protocol had been in place, would they have met these practical tests that you have been describing?

  Dr Jack: Well, that depends what was in the warrant.

  Q1055  Chairman: Who drafted the Speaker's Protocol? Was that something you had a hand in?

  Dr Jack: I had a hand in it, and Speaker's Counsel, who is in the gallery here. I should not refer to people in the gallery. Yes, he did.

  Q1056  Chairman: You say the relationship between that and the warrant would be of significance?

  Dr Jack: Yes, I think so. It would depend on the exact terms of the warrant.

  Q1057  Chairman: Is there any difference between sitting and non-sitting days of the House in this context? Does it matter if the House is sitting or not sitting?

  Dr Jack: It matters in terms of arrest, yes. A Member cannot be arrested while the House is sitting because that would interfere with his first duty which is to attend upon the House. I think you know the famous example of Lord Cochrane at the beginning of the 19th Century who was arrested while sitting on the benches in the House, but the House was not yet sitting. They swooped in and took him away. You can get pretty close to the sitting.

  Q1058  Chairman: At 2.25 it is okay but at 2.35 it is not.

  Dr Jack: At 2.25 it is okay, yes. It is actually a contempt to serve a notice on a Member when the House is sitting.

  Q1059  Chairman: Have you considered whether there are circumstances in which the Speaker would have any legal right to refuse the execution of a warrant? You are probably aware that Sir William McKay did consider that in some extreme circumstances the Speaker might have the right to refuse the execution of a warrant. Have you given any consideration to that?

  Dr Jack: I find it very difficult to imagine what those circumstances could be, I really do, as I said, other than interfering with the proceedings. He is not really acting in legal capacity; he is acting in a capacity of guardian of privilege, which is another matter.



 
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