House of Commons - Police Searches on the Parliamentary Estate

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

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.[251] Later that evening, he gave a television interview from College Green, opposite the Houses of Parliament.[252] 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.[253]

Monday 1 December: the Metropolitan Police Service

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.[254] Again according to Robert Quick, Assistant Commissioner John Yates told him that the investigation was "doomed".[255] 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.[256]

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 together.[257] Lord 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.[258] 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.[259]

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.[260] 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 proceeding—nor 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 finish—I 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 the House.

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.[261]

Monday 8 December: the Speaker's Committee

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.[262] 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.[263] 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.[264]

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.[265] The seized papers were placed in sealed bags until the privilege issues raised by Kingsley Napley, Damian Green's solicitors, could be resolved.[266] 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.[267] Further sifts of electronic records were carried out on 30 March and 2 April 2009 and identified a further two documents.[268] 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".[269] 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 court" — parliamentary 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).[270]

130. Damian Green described the sift as "pretty unsatisfactory".[271] 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.[272] 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 judge.[273] Damian Green objected to decisions being made by officers of the House without express authority to do so from the House itself.[274]

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.[275] 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.[276]

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.[277] 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.[278] 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.[279] 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.[280]

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".[281] 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 was conducted".[282]

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 business.[283] Denis 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 either man".[284]

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.[285] 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 debate.

251 Ev 166 para 23; Johnston Report, page 45 Back

252 Ev 166 para 23 Back

253 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

254 Ev 166 para 25 Back

255 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

256 Ev 167 para 26 Back

257 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

258 Q 120 ; Ev 147 para 29 ; Qq 203 (Angus Sinclair), 307 (Malcolm Jack), 325 (Michael Carpenter), 786 (Jill Pay) Back

259 Q 788 Back

260 HC Deb 3 December 2008 vol 485 col 3 Back

261 Set out below at paragraph 145 of this Report Back

262 Qq 120, Ev 147 para 32 Back