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


Memorandum by Sir William McKay KCB

PARLIAMENTARY PRIVILEGE AND POLICE SEARCH OF MEMBERS' OFFICES

  1. On 27 November 2008, officers of the Metropolitan Police entered the office of Mr Damian Green MP within the precincts of the Palace and removed documents and electronic material, having arrested Mr Green on a charge of conspiring to commit misconduct in public office. The case is without precedent. This Memorandum suggests how such circumstances might be dealt with in future. Though of course it is to be hoped that the need for authorised searches will arise rarely and disputes will be even more infrequent, it is clearly advisable now to devise procedures which reconcile the special protection afforded by parliamentary privilege with the principle that Members of Parliament are not per se above the criminal law.

2. There have been similar cases in the 1990s and since in a number of Commonwealth Parliaments. The Clerk of the House's memorandum outlines Commonwealth experience. I have included (beginning at paragraph 25) information on the position in Ireland and on the only relevant US case.

ENTRY AND SEARCH

  3. The problem may perhaps best be addressed by breaking it down into a number of questions. To begin with—

    should parliamentary permission be required before the police enter and search a Member's office in the precincts; who should give it; is the obtaining of a warrant an essential prerequisite; what should be the procedure for considering requests for entry; should any limitation be attached to consent, and how should it be enforced?

      4. The most natural source of authority for permission to search in that part of the Palace occupied by the Commons is the Speaker personally, who acting in the name of the House, would decide whether to permit police to enter with a view to searching a Member's office in the precincts in investigation of allegedly criminal acts. The Speaker is, as May puts it (23rd edition at page 218), "the representative of the House ... in its powers, proceedings and dignity."

      5. Since the issue of a warrant involves a separate and independent scrutiny by a district judge of the need to search in the Palace, it seems reasonable that a warrant should always be required before permission is granted.

      6. What details a Speaker and those advising him or her would need to be supplied with before taking a decision on a warrant would of course vary from case to case, but as a generality they might include reassurance from a very senior police officer (in the case of the Metropolitan Police perhaps an Assistant Commissioner) that:

      (a) the material sought on the precincts was relevant and essential to the proving of the charge; and

      (b) it could not be secured in any way other than by a search in the Palace.

    The warrant should be as specific as possible in reference to the documents sought, and their relationship to the alleged offence.

  7. Information held electronically on the Parliamentary Information and Communications Technology (PICT) service should, as explained in the Speaker's statement of 9 December, be treated as if it were physically in a Member's office. The Speaker's permission and a warrant should also be required to search an office in the precincts occupied by an official in the House Service if it was thought to contain material relevant to a criminal charge against a Member of the House. On the other hand, the gravity of the offence need not, I suggest, be of relevance in deciding on the adequacy of a warrant. It is a subjective judgement and taking it into consideration might be thought at odds with the principle that Members are not above the law.

  8. Before taking his or her decision, the Speaker would no doubt consult those officers of the House qualified to advise in such matters on significance of the answers to his or her questions, whether the form of the warrant itself was unobjectionable, and whether there were any other circumstances which ought to be taken into account. As the Speaker's protocol of December 2008 indicates, the Speaker might also consult the Law Officers. If the Speaker were not satisfied with police arguments for the execution of the warrant—one would hope the very rarest of cases—consent could be withheld, and the consequences would have to be sorted out in the courts.

  9. Improper obstruction of Members in the performance of their functions in that capacity is a contempt, and any action proposed to be taken by police by way of search of an office in the precincts should therefore minimise disruption to Members not involved. While the House would not wish to stand in the way of the administration of justice as regards one Member, the interests of others (working for example in shared facilities) should not be lost sight of. The Speaker may consider imposing constraints on the police in that area.

  10. In the interests of balancing the demands of justice with those of the collective privileges of the House, the Speaker might, having given consent, give instructions that:

    (a) between the giving of consent and the entry, the Member concerned should be informed of the impending search, provided with a copy of the warrant, and given an opportunity to be present or represented at the entry (steps being taken to ensure that the material sought was not accessible to him or her in the interim); and

    (b) the Serjeant at Arms, Speaker's Counsel or their deputies, or other senior officers of the House, should witness the entry and any search or removal undertaken in the Member's office, to see that any conditions imposed by the Speaker are met.

"PROCEEDINGS IN PARLIAMENT"

  11. By statute—article IX of the Bill of Rights 1689—papers which are part of "proceedings in Parliament" may not be "impeached or questioned in any court or place out of Parliament". Such papers may not therefore be used as evidence in a case, criminal or otherwise, in which they are likely to be subject to such treatment.

12. It is crucial to bear in mind that decisions on whether any document is part of "proceedings" are not for the House or the Standards and Privileges Committee but (as with any statute) for the courts. In a number of Commonwealth jurisdictions in contexts cognate with that before the Committee, such judgements have been made by independent persons acting under parliamentary authority. However attractive an option from the parliamentary point of view, I would be uneasy at such a solution if conclusions reached in these circumstances were regarded as final. Conclusive resolution of a dispute over whether a document or record is a "proceeding in Parliament" must be a matter for the courts, if there is an attempt to rely on it in evidence. A fortiori, suggestions that the House or a committee should discuss and determine the privileged status of impounded documents would offend against the sub judice rule. Where moreover would be the virtue in the House or a committee formally expressing a view if it could not be conclusive in a particular case? The House need not be without a voice in court proceedings to which it is not directly a party, since the appearance of an amicus curiae to watch over parliamentary interests is well-precedented.

  13. In one sense, "proceedings in Parliament" are easy to recognise—speeches in the Chamber or committee, tabling Questions, and voting, for example—but when courts have come to look more closely against particular facts at exactly what might constitute "impeaching" or "questioning", or to determine where the boundaries of "proceedings" lie—the hard cases—the results have sometimes been unexpected.

  14. Certain common activities of Members have been considered by the House—not directly by the courts, though it is hardly conceivable that they would so far reverse the trend of modern judgements as to disagree—as lying beyond the frontier of privilege. In particular, however sensitive it may be, constituency correspondence (to and from Members) does not enjoy parliamentary privilege unless it is closely linked with a proceeding, though in the absence of malice it may enjoy privilege at common law. Logically, it may be assumed that exchanges between Members and persons who are not constituents on matters of national political interest also do not enjoy parliamentary privilege in the absence of an imminent connection with a proceeding.

  15. But when does an intended proceeding become sufficiently overt to be entitled to the protection of the Bill of Rights? Correspondence from constituents which a Member has invited with a view to tabling a Question to a minister, but has not yet done so would probably stand a good chance of being protected. The same may be true of uninvited information, or even information irregularly obtained if a connection with a proceeding can be established. Everything will depend on the court's view of the facts of an individual case—of which there have been none. The only light cast on this issue is in the report of the select committee on the Official Secrets Acts of 1938-39 which suggested (and the House agreed) that the working definition of "proceedings" should be extended to communications between one Member and another or between a Member and a minister so closely related to some matter pending in or expected to be brought before the House that, although they do not take place in the Chamber or a committee-room, they form part of the business of the House, as for example where a Member sends to a minister the draft of a question he is thinking of putting down, or shows it to another Member with a view to obtaining advice as to the propriety of putting it down or as to the manner in which it should be framed. 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. The committee may wish to take the opportunity to elaborate on the thinking of the 1938-39 committee. Such comments would not carry legal effect, but they might be helpful to a court which in future faced a problem in this area.

  16. The second question is harder than the first—

    should the police be permitted to seize and to inspect (at the time or later) all paper and electronic material in the Member's office, unsorted and therefore inclusive of that which falls within or may be reasonably believed to fall within the definition of `proceedings in Parliament?

  17. In some Commonwealth jurisdictions where the Bill of Rights is law, it has been held that seizure of Members' papers and records by investigating officers of police is itself illegal, because in certain circumstances it may amount to "impeaching or questioning" such portion of the material (as yet unidentified) as may turn out to be part of "proceedings in Parliament". In consequence, separation of what is protected from what is not should precede seizure: until that determination is made, the papers and records must remain in parliamentary custody. (An American court has come to the same conclusion, though on different grounds: see paragraphs 24 to 29).

  18. I am unconvinced by the reasoning and there is no decided UK case to help resolve the matter. It seems to me that the prohibition in the Bill of Rights on "impeach[ing] or question[ing]" is directed at argument in the courts—that is, at the use made of protected material which, if admitted, might open the way to judgements inhibiting Members' right of free speech. It does not confer a sacrosanct status on the documents themselves on which an absolute denial of police access may be based. Subject in part to what is said in paragraph 22, I am driven to the conclusion that there are no grounds to prevent papers and records passing into police custody before being sorted into sheep and goats.

  19. It cannot be denied that allowing the police access to a Member's correspondence at large may give rise to embarrassment—Mr Green mentioned in evidence at Q64 the example of papers coming to light in which constituents complain about the police. At the same time, if it is admitted first that Parliament is not exempt from the criminal law other than through article IX of the Bill of Rights, and secondly that such papers are not within that protection, would it not be wrong to allow that embarrassment to play a dominant part in a solution to the problem before the committee?

  20. The provision in the Speaker's protocol of December 2008 demanding an undertaking from the police that potentially privileged material impounded should be subject to an undertaking of confidentiality seems wise.

  21. The third question is—

    is it possible, before a court is asked to make a final decision on whether any particular impounded document is subject to the Bill of Rights, for agreement to be reached informally between the House, the Member and the police that it should not be produced in court; and if so, how should that be arranged?

  22. If it could be arranged, a preliminary sift might well the best way of seeing that the House's rights, though capable of being vindicated only at a later stage, were recognised at the outset. This clearing of the ground might be carried out jointly by officers of the House, the Member concerned or his or her representative, and representatives of the police. Such a preliminary sift would serve to narrow—one might hope, eliminate—any gap on admissibility between the parties, avoiding disputes in court; but it cannot settle the matter. The Member accused of wrongdoing may argue for example that a particular document should not be taken by the police because it was intended to be or had been used as the basis for a proceeding—the tabling of a Question, or an intervention in debate—even though it did not on its face appear to relate to proceedings. The police might be convinced or they might not. It would have to be clearly understood that the sift was not authorised to come to any final conclusions on disputed items. Those papers or records agreed by all concerned to be covered by article IX should be immediately returned to the Member by the police, without copies being taken. In all other cases, the police should be able to retain relevant papers or records in order to decide whether or not to forward a case to the Crown Prosecution Service. If then the prosecution seeks to introduce such a disputed paper in evidence, it will be for the judge to decide on its admissibility.

THE OIREACHTAS AND THE US CONGRESS

  23. Article 15.10 of the Irish Constitution[47] makes clear provision against Gardai searches in offices of the Seanad or the Dáil:

    Each House shall make its own rules and Standing Orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its Members, and to protect itself and its Members against any person or persons interfering with, molesting or attempting to corrupt its Members in the exercise of their duties.

      24. The only litigated case raising issues of search of a US Congressman's office arose in 2006.[48] The following paragraphs do not attempt to be a narrative of the case but simply draw attention to an aspect of it which parallels one before the Committee but where the court came to conclusions different from those suggested here.

      25. Proceedings in the United States Congress[49] are protected by the "speech or debate" clause in the US Constitution, which is modelled on Article IX of the Bill of Rights but drafted slightly differently. The clause (Article 1, section 6) reads:

    ... for any speech or debate in either House, they [the Senators and Representatives] shall not be questioned in any other place.

  26. The US Court of Appeals, DC Circuit—the second highest court in the United States[50]—was asked to consider whether the search of Congressman William J Jefferson's paper files in his Capitol Hill office by agents of the FBI, in the context of allegations of corruption, violated the speech or debate clause because he was not permitted to assert the privilege prior to the "scouring" of his records by the Executive branch. The FBI had anticipated the problem and taken steps to ensure that those who conducted the search were not to play any part in the investigation and were not to reveal any sensitive material inadvertently discovered by them in the course of the search. The search team were to turn over material to a filter team of Department of Justice attorneys and an FBI agent, who were to submit potentially privileged documents to the District Court for review.

  27. The warrant granted by the District Court excluded materials outside the "legitimate legislative sphere" but when Congressman Jefferson claimed that he should have been able to remove documents he believed to be privileged before the search, the District Court in effect ruled that the precautions taken by the FBI were adequate to protect his constitutional rights. This was appealed, and the higher court ordered the seized documents to be returned to the Congressman so that he could make claims that specific documents were legislative in nature, on which the lower court would pronounce, sitting in camera.

  28. What lay between the parties was the issue discussed in paragraphs 17 to 19 above—did the Congressman have the right to remove material he believed to be privileged before the contents of his office were searched? In finding for the Congressman, the Court of Appeals relied on an earlier judgement that "a key purpose of the privilege is to prevent intrusions in the legislative process and that the legislative process is disrupted by the disclosure of legislative material, regardless of the use to which the disclosed materials are put." The possibility of compelled disclosure "may ... chill the exchange of views on legislative activity" between Congressmen and between individual Congressmen and their staff. There was no reason, in the view of the Court of Appeals, why the speech or debate privilege could not be asserted at the outset of a search in some other manner that protected the interests of law enforcement.

  29. If I may tentatively defend the view expressed in this paper, which is at odds with the judgement of the Court of Appeals notwithstanding that the basic expressions of the rights of the two legislatures are very similar, I would argue that neither the comments of the 1938-39 committee nor any interpretation of "proceedings in Parliament" in a British court have spread a protective Article IX/speech or debate mantle over Members as widely as the Court of Appeals' view of "the legislative process" or "legislative activity".

3 November 2009





47   I am grateful to Kieran Coughlan, Secretary General of the Oireachtas, for drawing my attention to this provision. The italics are mine. Back

48   497 F.3d 654, 378 U.S.App.D.C.139, US v Rayburn House Office Building, Room 2113, Washington DC 20515Back

49   My thanks are also due to Kerry Kircher, Deputy General Counsel to the House of Representatives and Charles W Johnson, formerly Parliamentarian of the House for providing me with the information on which these paragraphs concerning Congress are based. Any errors or misconceptions are mine. Back

50   The Department of Justice subsequently failed to persuade the Supreme Court to review the decision. Back


 
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