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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