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

Conclusions and recommendations

The Home Office and the Cabinet Office

1.  We consider that Home Office officials were at fault in allowing an exaggerated impression to be formed by the Cabinet Office of the damage done by the leaks. (Paragraph 13)

The Cabinet Office and the Metropolitan Police

2.  While we can understand the Cabinet Secretary's concern arising from the wider pattern of previous leaks, the reference to national security in the letter from the Cabinet Office to the Metropolitan Police Service of 8 October 2008 was ill-judged. We agree with the Home Affairs Committee that giving the impression that national security had been damaged by the Home Office leaks was hyperbolic and unhelpful. Civil servants who perpetrate leaks are quite rightly liable to disciplinary action, with consequences up to and including dismissal. (Paragraph 17)

3.   In our view the impact of leaks on the conduct of Government business is not, and never can be, a sufficiently weighty reason in itself to justify a police investigation. (Paragraph 18)

4.  We wholeheartedly agree with the tone and content of the Cabinet Office guidance paper on official information standards of conduct and procedures, in the revised form issued in November 2009, and we endorse in particular the need for an honest and realistic assessment of any damage caused by leaks. (Paragraph 20)

National security leaks

5.  We are concerned by the Cabinet Office's continued failure to identify the source of other leaks across Government of more highly classified material. (Paragraph 21)

The Police and the Crown Prosecution Service

6.  In our view the Metropolitan Police made the wrong decision after their discussions with the Crown Prosecution Service on Wednesday 22 October 2008. (Paragraph 29)

Misconduct in public office

7.  We consider that if sufficient rigour had been shown on 22 October 2008 the conclusion reached on 16 April 2009 — that the facts failed to reach the standard required for prosecution—could have been reached six months earlier. (Paragraph 53)

8.  We agree with the Public Administration Select Committee and we wish to emphasise that the common law offence of misconduct in public office should not be used in relation to allegations of leaking of information in order to subvert the clearly expressed will of Parliament to limit the application of the Official Secrets Act to protecting only information whose disclosure is likely to be damaging to the security and intelligence services, to the armed forces, to the interests of the United Kingdom abroad or to the prevention and detection of crime. (Paragraph 54)

9.  We recommend that the published CPS guidance should be updated to include the Director of Public Prosecutions' position on the offence of misconduct in public office, as set out in his Statement of 16 April 2009. (Paragraph 56)

10.   We recommend that the Law Commission re-visit its 1997 recommendation that misconduct in public office be made a statutory offence, in the light of developments of the past dozen years. (Paragraph 57)

The Cabinet Office

11.  We deplore the Cabinet Office's failure to follow its own guidance by not calling a case conference which could have ensured a properly balanced approach was taken to investigating the Home Office leaks. (Paragraph 24)

12.  The comments made by David Davis on the BBC, the day after the arrest of Damian Green, do not excuse the decision made by the Cabinet Office on 8 October to call in the police to investigate the apparent unauthorised disclosure of unclassified or restricted documents to certain newspapers. (Paragraph 35)

13.  If the Cabinet Secretary had been adequately briefed about the stage the leak investigation had reached by 22 October 2008, it could and should have been called off. (Paragraph 59)

14.  None of the leaks of which Christopher Galley was suspected had inflicted any damage on national security. There was no basis for the concern that the potential for future damage to national security was significant. The Cabinet Office was wrong on 29 October to continue to press for a police investigation of the recent Home Office leaks, and it was a mistake for the Metropolitan Police Service to act upon the Cabinet Office's request. (Paragraph 60)

The arrest of Damian Green

15.  We have no hesitation in agreeing with Sir Ian Johnston that the decision to launch the surprise arrest of Damian Green was disproportionate. (Paragraph 67)

16.  While we note the decision of the Gold Group chaired by Assistant Commissioner Robert Quick to take stock of the evidence from Christopher Galley before making a decision on whether and how to arrest Damian Green, we find their approach difficult to understand or justify. (Paragraph 68)

17.  The arrest of Damian Green by the Metropolitan Police was poorly executed and in any case quite unnecessary, since the police could have arranged to interview him by appointment. (Paragraph 70)

18.  We condemn the covert use of electronic surveillance, which was not authorised in the way that good practice normally requires. (Paragraph 71)

Search warrants

19.  We are deeply concerned by the sloppy wording of the written informations, upon which search warrants were obtained, and their inconsistency with the true character of the leaks uncovered in the actual investigation which must have been known and understood as a result of the scoping operation. (Paragraph 74)

20.  We are clear that to exaggerate or to make a mistake in a written information submitted to a Judge when applying for a warrant is to breach lawful standards. (Paragraph 75)

The Police and the Palace of Westminster

21.  We take this opportunity to commend the professionalism and dedication of the police staff who serve at the Palace of Westminster. (Paragraph 81)

22.  We recommend that SO15 either be re-named or that it be stripped of any role in dealing with non-terrorist offences. (Paragraph 88)

23.  We would expect the House authorities to co-operate fully with police operations genuinely directed against a possible terrorist threat, but they ought not to allow a mistaken perception that alleged offences might be linked to terrorism to over-ride their better judgement. (Paragraph 89)

24.  We consider that the failure by any police officer expressly to advise the Serjeant at Arms of the right to refuse consent was symptomatic of the sloppy approach of the police in this case. It is true that failure to do so does not necessarily make a subsequent search unlawful but there was no excuse not to observe proper procedure. (Paragraph 98)

The Clerk of the House, the Serjeant at Arms and the Speaker

25.  The conversation between the Clerk of the House and the Serjeant at Arms on the afternoon of Wednesday 26 November was a missed opportunity to recognise and forestall the storm which broke over Parliament when Damian Green's office was searched. In that short exchange the information not given, the questions not asked, the assumptions made and the misunderstandings caused led to confusion which could and should have been avoided. We remain perplexed that the seriousness of what was being discussed did not alert either of the two protagonists to enquire further of each other. (Paragraph 93)

26.  We agree that Mr Speaker Martin's Statement on 3 December 2008 was accurate, in that the conversation between the Clerk and the Serjeant was not a proper consultation, but we regret the opportunities missed on the afternoon of Wednesday 26 November, first, for the Serjeant to alert the Clerk to the intended police operation and, secondly, for the Clerk to make clear to the Serjeant the limits to her authority. (Paragraph 94)

27.  In the circumstances we are surprised that no effort was made to convene a meeting of senior officers of the House and the Speaker on the evening of Wednesday 26 November to consider the significance of what was about to take place and the possible consequences to the House itself. (Paragraph 100)

28.  We consider that seriously inadequate communication between these three key figures — Speaker, Clerk of the House and Serjeant at Arms — resulted in complete misunderstanding about the proper process for allowing a search of a Member's office. Had all three been more persistent in their questions and more forthcoming in their responses they must surely have appreciated the nature of events and their unfolding significance. We agree with Lord Martin of Springburn that the House officials should have served the Speaker better, and the Clerk of the House has rightly apologised that matters were not better handled; but it was inescapably Mr Speaker Martin's responsibility to make sure the right questions were asked. Mr Speaker Martin failed to exercise the ultimate responsibility, which was his alone, to take control and not merely to expect to be kept informed. (Paragraph 115)

The Speaker's Committee

29.  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. (Paragraph 126)

Matters relating to privilege arising from the police operation

30.  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 (Paragraph 140)

Matters relating to privilege: recommendations for the future

31.  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. (Paragraph 163)

32.   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. (Paragraph 169)

The views of the Committee: the offences

33.  When the Director of Public Prosecutions announced on 16 April 2009 that he had decided that charges should not be brought against either Christopher Galley or Damian Green for the offences alleged against them, it was because on the particular facts of the case there was no realistic prospect of a conviction against either of them. (Paragraph 170)

The views of the Committee: leaks and the Police

34.  We endorse the four concluding Recommendations of the O'Connor Report—

1. That the Metropolitan Police Service, together with the Association of Chief Police Officers (ACPO), review and formalise guidance on police investigations involving high impact cases, to fully incorporate the principles of 'without fear or favour'.

2. That the Cabinet Office reviews the Civil Service's capability to respond to leaks and facilitates the development of appropriate standards of preventative security and investigation in accordance with departmental risks.

3. That the Cabinet Office review its guidance to departments on leak investigations to clarify that the police will have the lead in Official Secrets Act inquiries or other very exceptionally serious criminality but that the Cabinet Office/departments will deal with other leaks and agree the guidance with police.

4. That the police, Cabinet Office and Crown Prosecution Service jointly agree a protocol that provides checks and balances for future investigations recognising that decisions on the conduct of investigations must ultimately rest with the police. (Paragraph 171)

The views of the Committee: searches on the Parliamentary Estate

35.  We give our support and endorsement to the Speaker's Protocol of 8 December 2008, which makes clear the indispensability of a Judge's search warrant, while reserving to the Speaker on behalf of the House the responsibility for ensuring that any such warrant is executed with proper respect for the functioning of Parliament. We recommend that the Speaker's Protocol should be drawn to the attention of any future Speaker, Clerk of the House or Serjeant at Arms of their initial briefing, handover or induction. (Paragraph 172)

The views of the Committee: the House of Commons Service

36.  We have set out in this Report our views about the response of the House authorities and particularly that of the Speaker, the Clerk of the House and the Serjeant at Arms to an unusual challenge to the good management of the House of Commons. Despite the progress made since the Tebbit Report towards a more unified House of Commons Service, our inquiry has demonstrated that there were lapses in communication, induction and lines of accountability and responsibility at the very top of the organisation. (Paragraph 173)

37.  As Chief Executive of the House of Commons, the Clerk of the House should have made sure that the Serjeant at Arms had a better grasp of the limits of her authority, that she was fully aware of the McKay Memorandum of July 2000, and that she realised that no claim of confidentiality should have prevented her from making sure that the Speaker and the Clerk of the House were fully aware of the intended police operation affecting a Member of Parliament. (Paragraph 174)

38.  We recommend that the next review of Management and Services of the House of Commons should take place early in the new Parliament, to continue the series which runs from Ibbs (1990) to Braithwaite (1999) to Tebbit (2007). We would like to see a fresh examination of the roles and responsibilities of the officers of the House and the Speaker to ensure the effectiveness of the support for individual Members and the good management of the House. Such a review should include greater clarity on the role of the most senior personnel, line management responsibilities, and lessons to be drawn from best business practice as well as the management of other comparable legislatures. (Paragraph 175)

39.  While the House and its Speaker could and should no doubt have been better served by their officials, the Speaker himself should have been asking the right questions and he should have taken more responsibility for exercising the authority of his high office. (Paragraph 176)

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