House of Commons - Police Searches on the Parliamentary Estate

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

6 The privilege issues

Matters relating to privilege arising from the police operation

136. Our terms of reference require us to consider any matter relating to privilege arising from the police operation. We have reviewed the police operation extensively above, as it cannot be separated from our consideration of the internal processes of the House.

137. The Johnston Report recommends there should be discussions between the Metropolitan Police and the DPP/CPS "about the handing of similar cases in the future, because they create real challenges for investigators in balancing the need for thoroughness, transparency and even-handedness in investigations, with the responsibility of MPs to carry out their lawful duties robustly and in confidence". Johnston also called for greater clarity on Parliamentary Privilege.[286]

138. Denis O'Connor set out a model Protocol on leak investigations, which suggested that in cases where a Member of Parliament is suspected of an offence the impact of parliamentary privilege must be addressed and constantly addressed at every step of the leak investigation process, ideally through a single parliamentary official as a single point of contact (SPOC).[287]

139. We have expressed our opinion upon various aspects of the police operation, and we have noted a number of criticisms of it made in the Reports by Denis O'Connor and by Sir Ian Johnston. We have identified failings and errors of judgement in the way the matter was handled by the police, particularly in accepting the initial brief from the Cabinet Office, in pursuing charges relating to misconduct in public office, deciding to launch a surprise arrest instead of seeking an appointment with the Member of Parliament concerned, in pressuring the Serjeant at Arms into consenting to the search of the parliamentary office, and in not abiding by the PACE Code of Practice.

140. We do not consider that anything the police did amounted to a breach of privilege or a contempt of the House but the conduct of the police in this matter clearly fell below acceptable standards, as the Johnston and O'Connor Reports bear out. We understand that the Metropolitan Police has accepted the conclusions of those Reports.

Matters relating to privilege: recommendations for the future

141. Sir William McKay's Memorandum of 28 July 2000 stated that "we have no real precedent for how such a request should be met". In the memorandum which "tries to suggest what the reaction might be, resting on first principles and on Canadian practice", Sir William McKay set out what he described as some "unresolved imperatives"—

Control of the premises is vested in the Speaker
The Speaker is guardian of the House's privileges (subject to the House itself)
The House's privileges must not be infringed
Proceedings and Members taking part in them, must not be impeded
Privilege does not afford protection from a proper search
The Palace of Westminster is not a sanctuary.[288]

142. These imperatives remain and we endorse them as central to any discussion of the issues thrown up by this case. It is fruitless to attempt to cover every possible set of circumstances that might conceivably arise in the future from the interaction of the House, its Members and the criminal law, but those imperatives provide a firm starting point.

143. The question of the police search of a Member's office was not mentioned at all in the Report of the Joint Committee on Parliamentary Privilege in 1998-99.[289] Sir William McKay commented that the problem had however arisen in various Commonwealth jurisdictions, and in the United States, over the past twenty years.[290]

144. The Joint Committee stated, correctly, that Parliament is not a haven from the law, and there is no general criminal immunity in our jurisdiction for Members of Parliament. Malcolm Jack told us that the "crux of the problem" was whether the House could interrupt the process of a criminal investigation without in some way prejudicing it.[291]

THE SPEAKER'S PROTOCOL

145.   As we have already noted, on 8 December 2008 Mr Speaker Martin issued a Protocol, which we set out below, on the execution of a search warrant in the precincts of the House of Commons[292] —

1.  In my statement of 3 December 2008 (OR col 3) I said I would issue a protocol to all Members on the searching of Members' offices. In future a warrant will always be required for a search of a Member's office or access to a Member's parliamentary papers including his electronic records and any such warrant will be referred to me for my personal decision.
2.  Though much of the precincts of the House are open to the public, there are parts of the buildings which are not public. The House controls access to its precincts for a variety of reasons, including security, confidentiality and effective conduct of parliamentary business.
3.  Responsibility for controlling access to the precincts of the House has been vested by the House in me. It is no part of my duties as Speaker to impede the proper administration of justice, but it is of equal concern that the work of the House and of its Members is not unnecessarily hindered.
4.  The precincts of Parliament are not a haven from the law. A criminal offence committed within the precincts is no different from an offence committed outside and is a matter for the courts. It is long established that a Member may be arrested within the precincts.
5.  In cases where the police wish to search within Parliament, a warrant must be obtained and any decision relating to the execution of that warrant must be referred to me. In all cases where any Officer or other member of the staff of the House is made aware that a warrant is to be sought the Clerk of the House, Speaker's Counsel, the Speaker's Secretary and the Serjeant at Arms must be informed. No Officer or other member of the staff of the House may undertake any duty of confidentiality which has the purpose or effect of preventing or impeding communication with these Officers.
6.  I will consider any warrant and will take advice on it from senior officials. As well as satisfying myself as to the formal validity of the warrant, I will consider the precision with which it specifies the material being sought, its relevance to the charge brought and the possibility that the material might be found elsewhere. I reserve the right to seek the advice of the Attorney General and Solicitor General.
7.  I will require a record to be provided of what has been seized, and I may wish to attach conditions to the police handling of any parliamentary material discovered in a search until such time as any issue of privilege has been resolved.
8.  Any search of a Member's office or belongings will only proceed in the presence of the Serjeant at Arms, Speaker's Counsel or their deputies. The Speaker may attach conditions to such a search which require the police to describe to a senior parliamentary official the nature of any material being seized which may relate to a Member's parliamentary work and may therefore be covered by parliamentary privilege. In the latter case, the police shall be required to sign an undertaking to maintain the confidentiality of that material removed, until such time as any issue of privilege has been resolved.
9.  If the police remove any document or equipment from a Member's office, they will be required to treat any data relating to individual constituents with the same degree of care as would apply in similar circumstances to removal of information about a client from a lawyer's office.
10.  The execution of a warrant shall not constitute a waiver of privilege with respect to any parliamentary material which may be removed by the police.
11.  In view of the concern shown by Members, I am circulating this document without delay, but I shall take into account any representations by Members for its revision and will issue a revised document, should this be necessary.

146. The first point to note is the assertion that a warrant will always be required for a search of a Member's office; that statement fulfils one of the PACE conditions for securing a warrant, by making it clear that consent to a search will never be granted by the House authorities. Looking back on the Damian Green case, if the Protocol had been in force at that time the police could have asked the District Judge for a warrant to search his parliamentary office at the same time as they were granted the warrants for the search of his homes and constituency office.

147. The second, and contrasting, point in the Speaker's Protocol is that "any such warrant will be referred to me for my personal decision". Here we begin to depart from PACE and to enter what Malcolm Jack described as the "slightly mysterious" domain of exclusive cognisance as far as the precincts of the House are concerned.[293] Malcolm Jack found it "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".[294] Under the Protocol, the Speaker's involvement would deal with technical aspects including the formal validity of the warrant, the precision with which it specified the material being sought, its relevance to the charge brought and the possibility that the material might be found elsewhere. Michael Carpenter, Speaker's Counsel, advised us that the proper course would be to accede to the execution of a warrant, as one is under a legal duty to do so, and then apply in the first instance for judicial review of the issue of a warrant.[295] When we invited Speaker's Counsel to speculate on what might happen if the Speaker declined to permit execution of the warrant, he replied "Then you might have an undignified scuffle at the door"; he thought that the police would either exercise reasonable force, or go away and consider bringing charges of obstruction against those who had refused the officers entry to the premises specified in the warrant.[296] Sir William McKay told us that he could not envisage circumstances in which a Speaker might wish to prevent the execution of a warrant.[297] If there ever were such circumstances, the need for the clarification of the role of the Head of Parliamentary Security, which the Clerk of the House agreed would be helpful, would become acute.[298]

148. The Metropolitan Police Service (MPS) submitted to us a commentary on the Speaker's Protocol, noting that as a unilateral protocol issued to Members of the House it has no binding effect on the MPS or its operations.[299] The MPS accepted that a search warrant should not be executed over premises in Parliament on a Parliamentary sitting day without the express concurrence of the Speaker (or his Deputy if the Speaker is not in Parliament).[300] The MPS contested other parts of the Protocol —

It is respectfully submitted that any decision relating the sought material to the relevance of the charge or whether such material may be found elsewhere is not a proper function of the Speaker when deciding matters related to the execution of a properly granted and valid search warrant. These matters will already have been judicially determined upon the grant of the warrant.[301]

149. The MPS argued that the courts are entitled to determine whether a document is capable of attracting parliamentary privilege, which is affected by the purpose for which it is being adduced: "if the documents seized are to prove the occurrence of parliamentary events they are admissible; if they are adduced to question the propriety of the parliamentary event then they are embargoed by Article IX of the Bill of Rights".[302] The MPS proposed a procedure to allow a Member to insist on House officials reviewing any disputed material, subject to the final decision of the court.[303]

150. Malcolm Jack emphasised in his evidence to us that a Member cannot be arrested in the precincts while the House is sitting "because that would interfere with his first duty which is to attend upon the House".[304]

THE JOINT COMMITTEE ON PARLIAMENTARY PRIVILEGE 1998-99

151. Sir Patrick Cormack, the Member for South Staffordshire, drew our attention to the 1999 Report from the Joint Committee on Parliamentary Privilege, of which he had been a member.[305] The Joint Committee had recommended putting more of parliamentary privilege on statutory footing. In its Report on the Parliamentary Standards Bill, published in July 2009, the House of Commons Justice Select Committee suggested that it was an appropriate time for considering whether to have a Parliamentary Privilege Act.[306] The Report of the Joint Committee on the draft Bribery Bill, also published in July 2009, concluded that —

The issue of parliamentary privilege has arisen in relation to several pieces of legislation and draft legislation in recent years. Legislating in a piecemeal fashion risks undermining the important constitutional principles of parliamentary privilege without consciousness of the overall impact of doing so. This issue was examined in considerable detail by the 1999 Joint Committee on Parliamentary Privilege, which concluded that a Parliamentary Privileges Act was required. We believe that, should the Government deem it necessary, such an act would be the most appropriate place to address the potential evidential problems in relation to bribery offences.[307]

152. The Joint Committee on Parliamentary Privilege emphasised that the right of each House to administer its internal affairs within its precincts was intended to protect each House in respect of the conduct of its internal affairs and not to embrace and protect activities of individuals, whether Members or non-Members, simply because they took place within the precincts of Parliament—

Thus, unless protected by Article 9 as part of proceedings in Parliament, the speech and conduct of members enjoyed no special privilege under this heading. Article 9 aside, members can be prosecuted for criminal conduct, such as a breach of the official secrets legislation, or pursued in the civil courts for slander or other wrongs, even when the conduct complained of occurred within the Palace of Westminster. If a member is charged with a criminal offence, no waiver of immunity is required. If one of their members is imprisoned and cannot attend the House, the two Houses expect only to be informed of the fact. The same principle applies to the premises in which Parliament meets. A criminal offence committed in the precincts is triable in the courts. A member may be arrested within the precincts.[308]

ELECTRONIC SURVEILLANCE

153. Ben Wallace, the Member for Lancaster and Wyre, raised with us concerns that the "Wilson doctrine", instigated in 1966 to cover all forms of interception which were subject to authorisation by Secretary of State Warrant, needed updating in the light of technological developments over the past 40 years. Surveillance methods have rapidly overtaken the basic intercept and these now enable Authorities to have a significant capability: listening devices, directional microphones, software, covert searches and concealed cameras. He also suggested that if Parliament were considered to be a "public" place under the relevant Regulation of Investigative Powers Act (RIPA) legislation, the bugging of Members' offices could be authorised by any police superintendent, or indeed a district inspector of sea fisheries, without reference to any Minister or other authority.[309]

154. The "Wilson doctrine" was set out in answer to questions in the House of Commons on 17 November 1966. The then Prime Minister, Rt Hon Harold Wilson, said that he had given instructions that there was to be no tapping of the telephones of Members of Parliament and that if there were a development which required a change of policy he would at such moment as was compatible with the security of the country make a statement in the House about it.[310] The Wilson doctrine has been maintained under successive administrations.[311] Following the implementation of the Regulation of Investigatory Powers Act 2000, which updated existing laws and set in place new legal procedures governing the interception of communications carried on both public and private telecommunications systems, the then Prime Minister, Rt Hon Tony Blair, advised the House that he had received advice from the Interception of Communications Commissioner, Rt Hon Sir Swinton Thomas, on the implications for the Wilson doctrine of the regulatory framework established under that Act.[312] Sir Swinton Thomas advised that, taking into account the new and robust regulatory framework governing interception and the changed circumstances since 1966, the Wilson doctrine should not be sustained. The Prime Minster stated that he had considered Sir Swinton's advice very seriously, together with concerns expressed in this House in response to his written ministerial statement on 15 December 2005, and had decided that the Wilson doctrine should be maintained.[313] It was presumably this consideration of the Commissioner's advice that Lord Martin of Springburn was referring to in his evidence when he told us that within the last few years he had involved the Deputy Prime Minister in resisting an attempt by a High Court judge to lift the protection of the Wilson doctrine in the Palace of Westminster.[314]

A RIGHT OF REPLY

155. Another issue that the Clerk of the House suggested might be addressed by a new Joint Committee on Parliamentary Privilege could be the balance to be struck between freedom of speech and a right of reply or redress. Although in the case of A v UK the European Court of Human Rights decided in 2002 in favour of Parliament, with the UK having been supported by a number of Member States, there were judicial concerns about the limited options for a person wishing to refute damaging comments made about them in the House.[315]

DEFINITION OF PROCEEDINGS

156. The Joint Committee on Parliamentary Privilege recognised in 1999 that a statutory definition of proceedings in Parliament would not solve all problems, but argued that it would remove some areas of confusion. That Joint Committee recommended that "the uncertainty in these areas should be ended without further delay" and proposed the enactment of a definition on the following lines—

(1) For the purposes of article 9 of the Bill of Rights 1689 `proceedings in Parliament' means all words spoken and acts done in the course of, or for the purposes of, or necessarily incidental to, transacting the business of either House of Parliament or of a committee.

(2) Without limiting (1), this includes:

(a) the giving of evidence before a House or a committee or an officer appointed by a House to receive such evidence,

(b) the presentation or submission of a document to a House or a committee or an officer appointed by a House to receive it, once the document is accepted,

(c) the preparation of a document for the purposes of transacting the business of a House or a committee, provided any drafts, notes, advice or the like are not circulated more widely than is reasonable for the purposes of preparation,

(d) the formulation, making or publication of a document by a House or a committee,

(e) the maintenance of any register of the interests of the members of a House and any other register of interests prescribed by resolution of a House.

(3) A 'committee' means a committee appointed by either House or a joint committee appointed by both Houses of Parliament and includes a sub-committee.

(4) A document includes any disc, tape or device in which data are embodied so as to be capable of being reproduced therefrom.[316]

157. Sir William McKay suggested that this Committee might wish to take the opportunity to elaborate on the thinking of the committee on the Sandys case in 1938-39—

The Attorney General told the 1938-39 committee that the courts would be likely to give a broad construction to the term 'proceedings', 'having regard to the great fundamental purpose which freedom of speech serves.' The assurance may or may not hold good seventy years later, but the distinction between protected and unprotected material is critical to any new arrangements for conducting searches of Members' offices.[317]

CONSTITUENCY CORRESPONDENCE

158. Roger Gale, the Member for North Thanet, proposed that the parliamentary constituency casework of Members of Parliament should be afforded the same privileges of confidentiality as those afforded to doctors' notes and to lawyers' files and that the House of Commons should take a significant step to afford protection, not to Members of Parliament, but to the private details and circumstances of individual constituents.[318] The protections to which doctors' patients and lawyers' clients respectively are entitled depend on a complex interaction of common and statute law, including the Human Rights Act, so assigning a similar level of protection to individual constituents would be no simple task.

159. Malcolm Jack suggested that there was a case for re-examining the conclusions on this matter of the Joint Committee on Parliamentary Privilege, which had adopted the general Commonwealth position that correspondence should still not be covered by absolute privilege and which had concluded that the common law protection of qualified privilege in the courts had worked sufficiently well.[319] The Clerk of the House suggested that it might possible to revisit that matter in the context of consideration of a new Privileges Act.[320]

160. In his written submission, John Hemming, the Member for Birmingham, Yardley, said that there are many situations where MPs receive information from whistleblowers and the identity of the source of that information needs to be protected. He suggested that if there were a request for an MP's office to be searched without the Member's permission, there should be a detailed explanation of the request, which should clearly relate to matters other than parliamentary proceedings covered by Article IX of the Bill of Rights. He also suggested that the search should be performed by two House officials and that the Committee on Standards and Privileges should consider whether any material drawn to their attention by the House officials was privileged before handing over any non-privileged materials to the police. He saw no objection to a Member voluntarily agreeing to provide information to the police. He proposed that a similar system should apply in respect of access to a Member's e-mail and any files or computers that they use for parliamentary business, wherever that may be. He noted that Members hold a large amount of correspondence from constituents and others and that a form of professional privilege should apply to such correspondence, akin to the professional privilege of a solicitor.[321]

161. Rt Hon David Davis, Member for Haltemprice and Howden, viewed privilege in his submission to this Committee as an assertion of a supra-legal right rather than a right based on legal precedent. In his view a broad and absolute parliamentary privilege should allow a Member of Parliament to keep the involvement of a whistleblower secret, in the absence of statutory protection for a public servant disclosing information to an MP. A too narrow view of privilege could lead to the perverse consequence that the only way to protect any leaked secret information would be to make public use of it in parliamentary proceedings.[322]

162. In the view of Derek Wyatt, the Member for Sittingbourne and Sheppey, MPs should not be above the law apart from privilege in the Chamber, which had to be protected.[323]

PRIVILEGE AND THE REPORTING OF PARLIAMENT

163. Another matter which the Joint Committee on Parliamentary Privilege recommended for action was the replacement of the Parliamentary Papers Act 1840 with a modern statute.[324] As has been recently pointed out by the House of Commons Culture, Media and Sport Committee, the fair reporting of proceedings in Parliament is a cornerstone of our democracy.[325] The Lord Chief Justice has suggested in a press release that it would be constitutionally improper for a judge to hinder the reporting of Parliament.[326] The freedom of the press to report Parliament fairly is a matter which would need proper attention in any re-statement or revision of the law on parliamentary privilege.

DEFAMATION AND FREEDOM OF SPEECH

164. The House of Commons Standards and Privileges Committee was recently invited by the Law Society to consider problems which can arise when the ability of citizens to assert their legal rights, or to effect a settlement where a defamatory statement is to be withdrawn, may conflict with the rights of Parliamentarians to make, within the confines of the House, statements that might otherwise be defamatory. The Law Society suggested that, given the current debate on the defamation laws and the wide-ranging review announced by the Lord Chancellor in December 2009, the time may now be right to examine these issues in the round, especially when the last comprehensive review of parliamentary privilege was over ten years ago. The Standards and Privileges Committee concluded that even if it had not been precluded from considering issue beyond the narrow matter referred to that Committee by the House, "it would be wrong in the light of proceedings now pending in the courts for us to comment on wider aspects of privilege".[327]

PRIVILEGE AND THE COURTS

165. The Attorney General's memorandum of 3 April 2009 says that any decision by a Committee or the House on what evidence was covered by parliamentary privilege would not be binding on the courts. She concluded that there was a risk that the principle of comity between Parliament and the courts would be undermined by a purported attempt by the House to determine such questions and thus usurp the determinative role of the courts.[328] The Clerk of the House floated the idea that there should be a panel of some senior Members whom the Speaker could consult when deciding upon formal interventions by or on behalf of the House in court cases to establish whether parliamentary privilege applies, or not, to material brought before the court or other matters arising from the Speaker's Protocol.[329]

166. On the question of admissibility of evidence before the courts, Malcolm Jack referred to the provision of the Australian Parliamentary Privileges Act prohibiting the production of documents prepared for submission and submitted to a House or a committee as evidence before a court or a tribunal as a statutory model.[330] While there is a risk that statutory provision could lead to litigation, the Clerk of the House told us that "the Australian experience does not suggest that too much difficulty has been created by the existence of this particular provision".[331]

LEGISLATING ON PARLIAMENTARY PRIVILEGE

167. Among other matters that might be covered in a future privileges statute, the Clerk of the House referred in his supplementary written evidence to the relationship of privilege to the offence of bribery, the need to prevent the use of select committee evidence as the basis of litigation and the need to review section 13 of the Defamation Act 1996 (which allows an individual Member to waive parliamentary privilege in certain libel cases).[332]

168. The traditional view has been to resist entombing parliamentary privilege in statute law—

The dignity and independence of the two Houses are in great measure preserved by keeping their privileges indefinite. If all the privileges of Parliament were set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harrass any refractory Member and violate the freedom of Parliament.[333]

169. As we have indicated, there are a number of issues connected with parliamentary privilege which deserve careful consideration. It would in our view be a mistake for Parliament to legislate in haste or to address only one aspect of the multi-faceted relationship between liberty, Parliament and the law. While we have no unanimous conclusion on the wisdom or necessity of legislating on parliamentary privilege, we agree in recommending that before any Government Bill on the subject was introduced it would be highly desirable for the whole question to be addressed in the round by a special joint committee drawn from both Houses. Before setting out to define and limit parliamentary privilege in statute, there needs to be a comprehensive review of how that privilege affects the work and responsibilities of an MP in the twenty-first century.

286 Johnston Report, page 58 Back

287 O'Connor Report Annex B pages 61 to 63 Back

288 Q 1069 Back

289 Ev 132, 135 para 9 Back

290 Q 625; on international experience, see Ev 126-127 paras 29 to 35, Ev 151 paras 23 to 29 Back

291 Q 1013 Back

292 Ev 126 paras 26 to 28 and Ev 128-129 [full text now in Report] Back

293 Q 223 Back

294 Qq 1044, 1050 Back

295 Q 337 Back

296 Q 339 Back

297 Q 679 Back