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 warrantone would hope the very rarest of casesconsent
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 statutearticle IX of the Bill
of Rights 1689papers 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 recognisespeeches in the Chamber or committee,
tabling Questions, and voting, for examplebut 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"
liethe hard casesthe results have sometimes been
unexpected.
14. Certain common activities of Members have
been considered by the Housenot directly by the courts,
though it is hardly conceivable that they would so far reverse
the trend of modern judgements as to disagreeas 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 caseof 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 courtsthat
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
embarrassmentMr 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 narrowone might hope,
eliminateany 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 proceedingthe
tabling of a Question, or an intervention in debateeven
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 Circuitthe
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 abovedid 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 20515. Back
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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