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


Annex 1

Advice in the matter of Mr Damian Green MP and the Metropolitan Police

  1. I am instructed by Mr Michael Caplan QC, of Kingsley Napley, solicitors, to advise Mr Damian Green, MP for Ashford, on some questions of parliamentary privilege that arise in respect of the present state of the investigation by the Metropolitan Police following the arrest of Mr Green and the removal of documents and electronic material from his office at Westminster on 27 November 2008. This opinion addresses issues relating to the continued retention of the material removed from Mr Green's Westminster office. It does not deal with questions as to the legality of the police action in entering and searching that office or in removing the material found there.

2. I have read several communications relating to the present position of the materials retained by the Metropolitan Police, namely:

    (a) a letter to Mr Green's solicitor from Ms Veronica Daly, Assistant Counsel in the Legal Services Office of the House of Commons, dated 15 January 2009;

    (b) a letter to the Metropolitan Police from Mr Malcolm Jack, the Clerk and Chief Executive of the House, dated 28 January 2009;

    (c) a letter to Mr Green's solicitor from the Legal Services of the Metropolitan Police, dated 29 January 2009;

    (d) a letter to the Speaker (the Right Honourable Michael Martin) from Mr Green, dated 3 February 2009; and

    (e) the Speaker's reply to that letter, dated 4 February 2009.

  I have also taken into account the Speaker's statement in the Commons (Hansard, 2 February 2009, col 592) referring to the decision of the House on 8 December 2008 and explaining why he has not allowed a matter of privilege raised in this context to have precedence over the Orders of the Day.

PARLIAMENTARY PRIVILEGE: SOME GENERAL CONSIDERATIONS

  3. At the outset, some brief comments on the constitutional status of parliamentary privilege may be helpful. First, as the Joint Committee on Parliamentary Privilege, which was chaired by Lord Nicholls of Birkenhead (hereafter, "the Joint Committee"), said in 1999:

    "Parliamentary privilege consists of the rights and immunities which the two Houses ... and their members and officers possess to enable them to carry out their parliamentary functions effectively. Without this protection members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished".

      4. In particular, the privilege of freedom of speech, under the Bill of Rights 1689, Article 9, "is secured to members not for their personal benefit, but to enable them to discharge the functions of their office without fear of prosecutions civil or criminal". In the view of the Joint Committee,

    "freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it."

  5. In the view of the Select Committee on the Official Secrets Acts in 1939, in a report which was adopted by the House of Commons, the term "proceedings in Parliament"

    "covers both the asking of a question and the giving written notice of such question, and includes everything said or done by a member in the exercise of his functions as a member in a committee of either House, as well as everything said or done in either House in the transaction of parliamentary business."

  Communications between one member and another, or between a member and a minister, while taking place outside the chamber or a committee room, may be

    "so closely related to some matter pending in, or expected to be brought before, the House, that ... they form part of the business of the House".

  6. In 1999, the Joint Committee stated that "proceedings in Parliament"

    "are broadly interpreted to mean what is said or done in the formal proceedings of either House or the committees of either House, together with conversations, letters and other documentation directly connected with those proceedings".

  The Joint Committee further observed that, although in the past difficult questions had arisen at the boundary between the role of Parliament in maintaining parliamentary privilege and the role of the courts in enforcing the ordinary law, there is today "a large measure of agreement between Parliament and the courts about the areas where Parliament reigns supreme". But the Committee said that there are still "grey areas where the position of the boundary is unclear", notably concerning the meaning of "proceedings in Parliament". The Committee recommended that the absolute privilege accorded by article 9 should not be extended to include communications between members and ministers, but were of the view that MPs' drafts and notes, that "frequently precede speeches and questions" must have immunity:

    "It would be absurd to protect a speech but not the necessary preparatory material.... This principle must also apply to drafts of speeches, questions and the like which in the event are not used. A member cannot always catch the Speaker's eye, or he may change his mind".

  7. It must be remembered that, despite its key importance in maintaining the freedom of speech of MPs, article 9 of the Bill of Rights is not a comprehensive statement of the privileges of Parliament.

    "Any action which, without actually infringing any privilege enjoyed by members of the House in their capacity as members, yet obstructs or impedes them in the discharge of their duties, or tends to produce such results, even though the act be lawful, may be held to be a contempt of the House".

Moreover,

    "Each House has the exclusive right to judge whether conduct amounts to improper interference and hence contempt. The categories of conduct constituting contempt are not closed."

  8. While the House has no power by resolution to create a new privilege, or to override the existing law, it is for the House to determine whether particular conduct or action constitutes a breach of an existing privilege or whether it may be held to be a contempt of the House. This, as has just been seen, is the "exclusive right" of the House. It is the long-established practice of the House that issues of privilege and contempt should be examined by the Committee of Standards and Privileges before they are the subject of a substantive decision by the House.

ISSUES REQUIRING DECISION

  9. The present situation raises issues as to the exercise of police powers in respect of a criminal investigation involving an MP that, by reason of the nature of what is alleged against Mr Green, necessarily calls for an appraisal of the proper extent of parliamentary privilege. These issues have not hitherto been resolved, possibly because the need to do so has not previously arisen. They were not considered in 1999 by the Joint Committee, whose report does not deal with police powers of search and seizure of materials held in an MP's office. Nor is an answer to them to be found in the established practice of the House or in Erskine May. It is of course widely accepted that in general the criminal law should apply to MPs as it does to the public at large. But the case of Mr Duncan Sandys in 1939 made clear that this is not an absolute proposition, and the House held that an MP's freedom of speech is not restricted by the threat of prosecution under the Official Secrets Acts. (There has also been long-standing uncertainty as to the application to MPs of the law of bribery and corruption.) In reality, the application of the criminal law to MPs must be qualified to take account of their public duties and of the purposes for which parliamentary privilege exists.

10. The present situation arises from the fact that Mr Green has claimed parliamentary privilege in respect of a substantial amount of material belonging to him that is now held by the Metropolitan Police. How is this claim to be resolved in an authoritative manner?

AN OUTLINE OF RECENT EVENTS

  11. In her letter of 15 January 2009, Ms Daly, Assistant Counsel to the House of Commons, seeks to explain "the procedure that the House will follow in relation to determining the privileged status of the material" (para 1: here and below, I have underlined references to the House, for reasons that will become evident). She states that it is "for the House of Commons | rather than an individual Member to determine whether or not the House's privileges have been, or are at risk of being, infringed" (para 2). Further, Ms Daly states that the House "has an interest in the documents" held by the police which is "separate from the interests" of Mr Green, and that it is for this reason" that the House wishes to inspect the material held. She then explains that she and Ms Sharpe as officers of the House propose to inspect and form a preliminary view as to whether privilege attaches to the documents, and that the Clerk of the House will write to explain what claim is being made to privilege in the documents. Explaining that the Standards and Privileges Committee "is not presently seized of the issue" because no reference to the Committee has been made, Ms Daly states that "if there is any continuing dispute over the status of the documents, following the Clerk's consideration of them as described above, it will be a matter for the House to determine at the request of" Mr Green.

12. An inspection of the documents by Ms Daly and Ms Sharpe took place on 22 January 2009, with the agreement of the Metropolitan Police and of Mr Green's solicitors. Following this, the Clerk of the House wrote on 28 January 2009 listing twenty documents that engaged parliamentary privilege. These comprised 17 written answers, two texts of parliamentary questions and one extract from Hansard. The inspection was limited to documents, and it appears that inspection of electronic material held by the police will take place at a time to be arranged.

  13. On 3 February 2009, Mr Green wrote to the Speaker, quoting from Ms Daly's letter and asking that the matter now be referred to the Standards and Privileges Committee. Mr Green stated that he was advised by senior and experienced colleagues "that it is a matter for the House to determine the question of privilege and not officials", and that the Clerk of the House "has suggested an extremely narrow interpretation of what items may attract privilege. It appears to take no account of material which originated outside Parliament but was then used in Parliamentary proceedings or in connection with" Mr Green's parliamentary work. He stated further that, in contradiction of Ms Daly's letter of 15 January 2009, the Metropolitan Police were proceeding as though the interpretation by the Clerk of the House was final, having said in their letter of 29 January 2009 that Mr Green could have no privileges "he can personally claim if Parliament waives any such privilege or holds that no privilege applies".

  14. On 4 February 2009, the Speaker refused the request made by Mr Green, saying that he did not feel able to allow the matter precedence over the Orders of the Day in view of the decision of the House on 8 December 2008 to set up a committee subject to the condition that the committee "must not in any way prejudice any police inquiry or potential criminal proceedings and that therefore it will be adjourned immediately after choosing a chairman until the completion of any relevant inquiry or proceedings that may follow". The Speaker further stated that "it is for the House to determine its own privileges", not an individual Member, and that the Clerk of the House acts as the House's principal adviser in matters of privilege.

CONCLUSION

  15. The question that I have to consider is how Mr Green's claim that parliamentary privilege exists in relation to many of the materials removed from his office may be resolved in an authoritative manner. Against the background relating to parliamentary privilege and its legal significance which I have set out above, does the recent sequence of events provide an authoritative and appropriate manner of dealing with Mr Green's request that the issues of principle be now referred to the Committee of Standards and Privileges? I have concluded that it does not.

16. My reasons for coming to this conclusion are the following:

    (1) Ms Daly in her letter of 15 January was correct to state that it is for the House "rather than an individual member" to determine whether or not the House's privileges have been or at risk of being infringed. However, it is undoubtedly the right of an individual member to claim to the House that certain action has infringed or is at risk of infringing parliamentary privilege. If such a claim is made to the House, it can only be decided by the House itself.

    (2) The action that has so far been taken by officers of the House, including the Clerk of the House, cannot be regarded as being a substitute for a decision made on the authority of the House. The procedure that has been followed breaks new ground and appears not to be covered by precedent nor by a ruling of the House.

    (3) It is impossible to find in the letter of the Clerk of the House dated 28 January 2009 any indication of the test for "proceedings in Parliament" that Ms Daly and Ms Sharpe applied in identifying the documents that attracted parliamentary privilege. Certainly, the 20 documents listed must on any view be within the definition of "proceedings in Parliament". But must we assume that Ms Daly and Ms Sharpe were satisfied that there were among the papers taken from Mr Green's office no documents that were "so closely related to some matter pending in, or expected to be brought before, the House, that ... they form part of the business of the House"? It is very doubtful whether this inspection applied the approach favoured by the Joint Committee in 1999, namely that the words "proceedings in Parliament" "are broadly interpreted to mean what is said or done in the formal proceedings of either House or the committees of either House, together with conversations, letters and other documentation directly connected with those proceedings". If there were reasons why this approach was not applied by Ms Daly and Ms Sharpe, they are not stated.

    (4) It is particularly important to know the test applied for any decision about the status of the documents since, in the absence of any warrant authorising the search of Mr Green's office and the seizure of documents from it, the seizure of these documents would appear to have been subject to no legal limit. Moreover, if the police have seized and wish to retain documents covered by parliamentary privilege, it is not fanciful to suppose that the officers concerned may be at risk of committing a contempt of the House.

    (5) It appears in the letter from the Legal Services of the Metropolitan Police that the police take the view that Mr Green has "no privileges he can personally claim if Parliament waives any such privilege or holds that no privilege applies". This statement calls for two comments.

  (A)  This view is not sustainable in law, at least where article 9 of the Bill of Rights applies. If an MP were to be prosecuted in respect of a speech or question in the House, or because of papers held by the MP directly connected with such proceedings, the court would be required to decide the article 9 issue as a matter of law. The House has no power, in the absence of statute, to waive any privilege that an individual member may claim in a court that is based on the right to absolute freedom of speech in Parliament. To illustrate the point, in 1939 the House had no power to waive parliamentary privilege in respect of material held by Mr Duncan Sandys, even if this would have enabled him to be convicted under the Official Secrets Acts.

  (B)  Even if the claim by the Metropolitan Police is taken at face value, then the claim on its own terms is not satisfied since the House of Commons itself has to date not "waived any privilege", nor has it held that no privileges apply. No such decision could be made by officers of the House without express authority to do so from the House itself.

  17. Finally, it must be emphasised that an important aspect of parliamentary privilege is that the House has exclusive cognisance over its own proceedings. It is a central element of the constitutional separation of powers that no court will intervene in the internal procedures of the House. The rulings of the Speaker in dealing with claims of privilege are themselves "proceedings in Parliament" that may not under article 9 of the Bill of Rights be "impeached or questioned in any court or place out of Parliament". The unwritten constitution of the United Kingdom is founded upon the ability of the House of Commons to carry out its democratic responsibilities in an effective and principled manner.

  18. In his recent decision not to award precedence over Orders of the Day to Mr Green's claim of privilege, the Speaker stated that he felt unable to decide otherwise in view of the decision of the House on 8 December 2008. It is necessary to recall the operative part of that decision:

    "That, following the search of a Member's office in the Parliamentary Estate by the police and the seizure of material therein, a committee be appointed to review the internal processes of the House administration for granting permission for such action, and to make recommendations for the future;

    That the committee must not in any way prejudice any police inquiry or potential criminal proceedings and that therefore it will be adjourned immediately after choosing a chairman until the completion of any relevant inquiry or proceedings that may follow."

  In any reconsideration that the Speaker is able to give to this matter, Mr Green and other members of the House may submit that three factors should be given greater weight than appears to have been the case:

  (a)  The remit of the committee ("to review the internal processes of the House administration for granting permission for such action, and to make recommendations for the future") makes no reference to parliamentary privilege. It may be presumed that this omission was deliberate. Parliamentary privilege is clearly something different from "the internal processes of the House administration". I recognise that it must be for the House itself to determine the meaning of the decision of 8 December 2008, but it is surely arguable that the committee's remit does not include matters that would ordinarily fall within the authority of the Standards and Privileges Committee. It is certainly not clear that the resolution of 8 December 2008 can be understood as preventing a reference to the Standards and Privileges Committee of any urgent question of privilege that might arise while the police investigation in this matter is continuing.

  (b)  Since the intention of the House on 8 December 2008 was that the appointment of the committee should not in any way prejudice any police inquiry or potential criminal proceedings, it must be borne in mind that the existing uncertainty surrounding the status of the material currently retained by the police is itself prejudicial to the investigation.

  (c)  If the claim of parliamentary privilege made by Mr Green is referred to the Standards and Privileges Committee, that Committee can surely be relied upon to limit its consideration to any urgent issues of general principle, and would refrain from action that might prejudge the outcome of the police investigation.

Anthony Bradley

Barrister

Emeritus Professor of Constitutional Law

University of Edinburgh

9 February 2009



 
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