5 After the search |
Thursday 27 November (evening)
119. Damian Green was released from Belgravia
police station at 11.09 pm, having told the police in his second
formal interview that he was too tired to answer questions.
Later that evening, he gave a television interview from College
Green, opposite the Houses of Parliament.
Ministers distanced themselves from the furore which followed
the arrest by emphasising that the decision to arrest Damian Green
was an operational decision taken by the police.
Monday 1 December: the Metropolitan
120. In his written evidence Robert Quick maintains
that the police were by no means insulated from the political
row which followed the arrest: by Monday 1 December, according
to Robert Quick, on his very first day as Acting Commissioner,
Sir Paul Stephenson had drafted his own resignation.
Again according to Robert Quick, Assistant Commissioner John Yates
told him that the investigation was "doomed".
Assistant Commissioner Yates predicted that the Crown Prosecution
Service would withdraw their support due to the outcry, in much
the same way as they had decided at the end of the 'cash-for-honours'
inquiry not to bring charges against anyone despite having given
positive indications throughout the investigation.
Tuesday 2 December: the Speaker
and his advisers
121. It was not until Tuesday 2 December, on
the eve of the new Session, that Mr Speaker Martin, the Clerk
of the House, the Serjeant at Arms and Speaker's Counsel sat down
Martin of Springburn told us that at this meeting the Clerk of
the House had said that Chief Superintendent Ed Bateman had "bamboozled"
the Serjeant at Arms and "tricked" her into keeping
the matter from her immediate superiors.
Whether those actual words were used by the Clerk of the House
or not, the recollection of those present is that the collective
view taken by the most senior officers of the House was that the
police could be criticised for the way they had "pressured"
the Serjeant at Arms in the period leading up to the search.
Wednesday 3 December: the Speaker
and the House
122. When the House of Commons met on Wednesday
3 December, the day of the State Opening of the new Session, Mr
Speaker Martin made a statement before the beginning of the debate
on the Address in reply to the Queen's Speech.
He began by saying that "it was right and fitting that I
should make no comment until Parliament reconvenes, because it
is this House and this House alone that I serve, as well as being
accountable for the actions of its Officers". We reproduce
that statement in full because of its importance:
SPEAKER'S STATEMENT (3 DECEMBER 2008)
|Mr. Speaker: I wish to make a statement to the House about the arrest and entry into the offices of the hon. Member for Ashford (Damian Green) last Thursday, 27 November, which raises a subject of grave concern to all Members of the House.
In the past few days there has been much pressure on me to make public comment about these matters, but I felt that it was right and fitting that I should make no comment until Parliament reconvenes, because it is this House and this House alone that I serve, as well as being accountable for the actions of its Officers. I should emphasise from the start that it is not for me to comment on the allegations that have been made against the hon. Member or on the disposal of those allegations in the judicial process.
I should also remind the House, as stated in chapter 7 of "Erskine May," that parliamentary privilege has never prevented the operation of the criminal law. [Interruption.] Order. The Joint Committee on Parliamentary Privilege in its authoritative report in 1999 said that the precincts of the House are not and should not be "a haven from the law".
There is therefore no special restriction on the police searching the parliamentary precincts in the course of a criminal proceedingnor has there ever been.
On Wednesday last, the Metropolitan police informed the Serjeant at Arms that an arrest was contemplated, but did not disclose the identity of the Member. I was told in the strictest confidence by her that a Member might be arrested and charged, but no further details were given to me. I was told that they might be forthcoming the next morning.
At 7 am on Thursday, police called upon the Serjeant at Arms and explained the background to the case, and disclosed to the Serjeant the identity of the Member. The Serjeant at Arms called me, told me the Member's name and said that a search might take place of his offices in the House. I was not told that the police did not have a warrant. [Hon. Members: "Ah!"] Order. I have been told that the police did not explain, as they are required to do, that the Serjeant was not obliged to consent, or that a warrant could have been insisted upon. [Interruption.] Order. Let me make the statement. I regret that a consent form was then signed by the Serjeant at Arms, without consulting the Clerk of the House.
I must make it clear to the House [Interruption.] Order. I must make it clear to the House that I was not asked the question of whether consent should be given, or whether a warrant should have been insisted on. I did not personally authorise the search. It was later that evening that I was told that the search had gone ahead only on the basis of a consent form. I further regret that I was formally told by the police only yesterday, by letter from Assistant Commissioner Robert Quick, that the hon. Member was arrested on 27 November on suspicion of conspiring to commit misconduct in public office and on suspicion of aiding and abetting misconduct in public office.
I have reviewed the handling of this matter. From now on, a warrant will always be required when a search[Hon. Members: "Oh!"] Order. If the hon. Gentleman will let me finishI have waited for four days. Some have been able to go on television; I have not had that luxury. I have not been able to speak to the media. A warrant will always be required when a search of a Member's office, or access to a Member's parliamentary papers, is sought. Every case must be referred for my personal decision, as it is my responsibility. All this will be made clear in a protocol issued under my name to all hon. Members.
Lastly, I have decided, myself, to refer the matter of the seizure by police of material belonging to the hon. Member for Ashford to a Committee of seven senior and experienced Members, nominated by me, to report as soon as possible. I expect the motion necessary to establish this Committee to be tabled by the Government for debate on Monday. I also expect a report of the Committee to be debated by this House as soon as possible thereafter.
123. As can be seen from his Statement, Mr Speaker
Martin reminded the House that the precincts of the House are
not and should not be "a haven from the law". He then
went on to refer to his confidential (and incomplete) briefing
by the Serjeant at Arms on the morning of Wednesday 26 November
and his phone conversation with the Serjeant on the morning of
Thursday 27 November. He informed the House that he had not been
told that the police did not have a warrant and that he had been
told that the police had not explained, as they were required
to do, that the Serjeant at Arms was not obliged to consent, or
that a warrant could have been insisted upon. Mr Speaker Martin
told the House that he regretted that a consent form was then
signed by the Serjeant at Arms, without consulting the Clerk of
124. Again as appears from his Statement, Mr
Speaker Martin made it clear that he had not been asked whether
consent should be given; that he had not been asked whether a
warrant should have been insisted upon; that he did not personally
authorise the search; and that it was only later in the evening
of Thursday 27 November that he had been told that the search
had gone ahead on the basis of only a consent form.
125. Mr Speaker Martin announced that in future
a warrant would always be required when a search of a Member's
office, or access to a Member's parliamentary papers, was sought.
Each case would have to be referred for the Speaker's personal
decision, as it was his responsibility. He undertook to issue
a Speaker's Protocol.
Monday 8 December: the Speaker's
126. In his statement on Wednesday 3 December,
Mr Speaker Martin told the House that he had decided to refer
the matter of the seizure by police of material belonging to the
hon. Member for Ashford to a Committee of seven senior and experienced
Members, to be nominated personally by the Speaker, to report
as soon as possible. In
our view it would have been possible for the Speaker to use his
power to allow a Member of the House to move a Motion referring
the matter of the search of a Member's office to the Committee
on Standards and Privileges, instead of proposing that a new committee
should be appointed.
127. Lord Martin of Springburn told us that he
was dismayed later on Wednesday 3 December, after he had made
his Statement to the House, to be informed by the Leader of the
House, that, on the Attorney General's advice, the Government
Motion to establish the Speaker's Committee would provide that
the enquiry could not sit until criminal proceedings had been
dealt with. Mr Speaker Martin appealed to the Prime Minister that
evening that such a restriction was unnecessary and that the Committee
should meet as a matter of urgency, but his request was declined.
The proposed delay to the start of the Committee's work was much
criticised in the debate on Monday 8 December, at the end of which
an amendment proposing different terms of reference, moved by
the Chair of this Committee and backed by Members of all parties,
was put to the vote and lost by only four votes.
Immediately after the vote on the main question to establish the
Committee as proposed by the Government had been carried (by 293
to 270), spokesmen from the two main Opposition parties announced
that they were unable to recommend to their colleagues that they
should serve on the proposed Speaker's Committee.
128. Over the next few months efforts were made
by Damian Green himself and by other Members, in accordance with
the normal procedure, for the matter to be referred to the Committee
on Standards and Privileges, but Mr Speaker Martin turned down
every application for such a referral Motion to be given precedence
over the Orders of the Day.
Parliamentary Privilege and the
sealed bags of papers: the sift
129. The Clerk of the House warned the police
soon after Damian Green's arrest that the material seized as a
result of their search of his office in Parliament might include
material subject to parliamentary privilege.
The seized papers were placed in sealed bags until the privilege
issues raised by Kingsley Napley, Damian Green's solicitors, could
be resolved. Kingsley
Napley attended by agreement a preliminary sift on 22 January
2009 carried out by Speaker's Assistant Counsel (Veronica Daly)
and the previous Clerk of the Journals (Jacqy Sharpe) which identified
20 documents closely related to parliamentary proceedings.
Further sifts of electronic records were carried out on 30 March
and 2 April 2009 and identified a further two documents.
The documents identified in this way, as "advice and not
a definitive decision" were those which the two officers
of the House could be "pretty certain that on precedent that
would be regarded as something which was privileged".
This narrow definition of parliamentary privilege stems from the
concept, expressed in Article IX of the Bill of Rights, that proceedings
in Parliament should not be "impeached or questioned in any
privilege limits the use which courts may make of parliamentary
proceedings and does not necessarily cast a cloak of privacy over
them; in the modern context, proceedings include a very great
deal of published material (such as speeches, motions and questions).
130. Damian Green described the sift as "pretty
He was concerned at possible prejudice to his defence if it was
not established before he was interviewed by the police which
material was subject to parliamentary privilege, and was therefore
material on which he could decline to comment at interview.
The Clerk of the House advised Damian Green that he would not
be prevented from commenting on material in a police interview
because the material might be privileged, that it would be open
to Damian Green to make representations in a police interview
as part of his defence that he disagreed with the initial assessment
of privilege and that if a prosecution were brought, the question
of admissibility of evidence would be determined by the trial
Green objected to decisions being made by officers of the House
without express authority to do so from the House itself.
131. Following the final sift on Thursday 2 April,
the police were able to complete their work on the case file on
the investigation, which was handed over to the Crown Prosecution
Service on Thursday 9 April.
A week later, on Thursday 16 April 2009, the Director of Public
Prosecutions made the announcement to which we have already referred
that there would be no proceedings against either Christopher
Galley or Damian Green.
132. Following the DPP's decision, the Home Secretary
asked Her Majesty's Chief Inspector of Constabulary, Denis O'Connor,
to undertake a review of the lessons learned from the Metropolitan
Police investigation into Home Office leaks.
The O'Connor Report was commissioned to fulfil an undertaking
given by the Home Secretary to the Home Affairs Select Committee
on 20 January 2009 and was published on 12 October 2009, the day
the House returned from the summer recess.
Annexed to the O'Connor Report was the earlier Johnston Report,
which had been commissioned by the Acting Commissioner of the
Metropolitan Police on 2 December 2008 with a tight timescale
of producing an interim report within a week and a final report
by 16 December 2008.
Sir Ian Johnston did not have access to any documentation found
in Damian Green's parliamentary office because of the legal argument
raised by his solicitors regarding parliamentary privilege.
133. Robert Quick, as the Assistant Commissioner
in charge of the investigation, told us that he considered that
the task Sir Ian Johnston had been given was "unenviable"
for which the timescale was "completely unrealistic".
He also told us he was "troubled" by a series of inaccuracies
and material omissions in the Johnston Report which he could explain
only as "a consequence of the chaos amidst which the review
134. Sir Ian Johnston commented in his Report
that greater clarity was needed on the concept of parliamentary
privilege, to lead to more widely understood conventions on search,
and on other engagement by police with Members of either of the
Houses of Parliament, while in the House or while engaged on parliamentary
O'Connor noted that the provision of a case file to the Crown
Prosecution Service was held up until 9 April 2009, whilst legal
representatives resolved issues relating to Parliamentary Privilege,
and that the difficulties posed for lawyers and police officers
alike in respect of Parliamentary Privilege had been a common
theme arising out of both the reviews, carried out by himself
and by Sir Ian Johnston: "the absence of a clearly established
procedure to inform the most effective way of resolving such claims
ultimately contributed to delays in the decision not to charge
135. Even after the Director of Public Prosecutions
had decided that there should be no proceedings, it did not immediately
prove possible to establish the committee proposed by Mr Speaker
Martin in his Statement of 3 December 2008. In his valedictory
statement to the House on 17 June 2009, Mr Speaker Martin announced
that the Government Chief Whip had assured him that an all-party
inquiry of eight senior Members, with a member of the Opposition
in the Chair and with no Government majority, would inquire into
the matters arising from the police search of a Member's office.
On 13 July 2009 the House's decision of 8 December 2008 was formally
rescinded and replaced with the Order of Reference of this present
Committee, a decision taken by the House without objection or
251 Ev 166 para 23; Johnston Report, page 45 Back
Ev 166 para 23 Back
According to the www.Number10.gov.uk morning press briefing on
Monday 1 December 2008, "the Prime Minister's view on this
matter in general was as he had said on Friday [28 November] that
this was a matter for the police and it would be inappropriate
to comment on the specifics of this case" Back
Ev 166 para 25 Back
Ev 167 para 26; for the so-called 'cash-for-honours' investigation,
see House of Commons Public Administration Committee's Second
Report of Session 2007-08, Propriety and Peerages, HC 153 Back
Ev 167 para 26 Back
Q120, Ev 147 para 25. The Speaker had had a meeting with the Clerk
of the House and the Speaker's Secretary at about 2100 on Monday
1 December (Q 120, Ev 146 para 24). Back
Q 120 ; Ev 147 para 29 ; Qq 203 (Angus Sinclair), 307 (Malcolm
Jack), 325 (Michael Carpenter), 786 (Jill Pay) Back
Q 788 Back
HC Deb 3 December 2008 vol 485 col 3 Back
Set out below at paragraph 145 of this Report Back
Qq 120, Ev 147 para 32 Back
Sir Menzies Campbell's amendment was defeated by 285 votes to
281 (HC Deb vol 485 col 294) Back
The normal procedure is set out on pages 167 to 168 of Erskine
May, 23rd edition (2004) Back
Ev 124-125 paras 20 and 21, Ev 142 Back
Q 392 Back
Ev 136 para 12 Back
Qq 389, 407 Back
Q 408 Back
Q 643 Back
Q 89 Back
Ev 143 Back
Ev 143 Back
Ev 138 Back
O'Connor Report, para 7.2.17 Back
Second Special Report from the Home Affairs Select Committee,
Session 2008-09, Policing Process of Home Office Leaks Inquiry:
Government Response to the Committee's Fourth Report of Session
2008-09, HC 1026 Back
O'Connor Report, para 4.7 Back
HC Deb vol 497 col 11 WS Back
Johnston Report, page 27 Back
Johnston Report, page 28 Back
Ev 167 para 29 Back
Ev 169 para 36 Back
Johnston Report, page 58 Back
O'Connor Report, paras 7.2.17 and 8.3.6 Back
HC Deb 17 June 2009 vol 494 col 311 Back