Observations on the Speaker's protocol
made on behalf of the Metropolitan Police Service
1. The Metropolitan Police Service (MPS)
welcomes the opportunity to make observations on the Speaker's
protocol on the execution of a search warrant in the precincts
of the House of Commons (Appendix 1).[52]
2. The introduction of a protocol is welcomed
in order to provide a framework to ensure that search warrants
are properly executed without interfering with the functions of
the House and to enable Members and staff an opportunity to raise
issues of parliamentary privilege. The MPS does not believe that
it is necessary for legislation to be enacted if a full and comprehensive
protocol can be agreed.
3. The Speaker's protocol is currently a
unilateral protocol to Members of the House and therefore has
no binding effect on the MPS or its operations. The MPS would
prefer, where possible, to be party to an agreed protocol which
will need input and discussion.
4. It is noted that paragraph 1 of the Speaker's
protocol makes it clear that, in future, a search warrant will
be required for a search of a Member's office. The MPS accepts
that this is the prerogative of the occupier of the premises and
in future this will be used as confirmation that consent to a
search will not be given—thereby fulfilling the requirements
of section 8(3) of the Police and Criminal Evidence Act 1984 (PACE).
However, nothing in the protocol should impede the ability of
the police to search premises in cases where there is an imminent
threat to life or to the safety of the House or its Members, staff,
and occupants.
5. Paragraph 5 of the protocol states that
any decision regarding the execution of a search warrant must
be referred to the Speaker. The MPS accepts that in most cases
the decisions regarding execution of the warrant can and should
be referred to the Speaker. There may be exceptional circumstances
when it is not appropriate or where it is not appropriate for
all officials to be informed. This would be in exceptional cases
where informing the Speaker or an official would frustrate or
seriously prejudice the search and criminal investigation. Nevertheless
it is accepted that a search warrant should not be executed over
premises in Parliament on a Parliamentary sitting day without
the express concurrence of the Speaker (or his Deputy if the Speaker
is not in Parliament).
6. Paragraph 6 of the Speaker's protocol
seeks to take on powers that are normally reserved to the court
granting the warrant such as whether information is relevant to
a charge or offence and whether material might be found elsewhere.
It is respectfully submitted that any decision relating the sought
material to the relevance of the charge or whether such material
may be found elsewhere is not a proper function of the Speaker
when deciding matters related to the execution of a properly granted
and valid search warrant. These matters will already have been
judicially determined upon the grant of the warrant.
7. The attachment of conditions (paragraph
7) to the handling of any parliamentary material and confidential
material (paragraph 8) discovered in a search are proper and reasonable.
The requirement for police to sign an undertaking of confidentiality
outside the normal implied undertaking of confidentiality will
require further consideration. Material subject to Public Interest
Immunity is never disclosed without leave of the court. All material
not used as evidence is automatically subject to confidentiality
rules and statutory provision under the Criminal Procedure and
Investigations Act 1996.
8. Matters relating to the execution of
search warrants on Members' premises have been carefully considered
by the parliament of New South Wales, Australia and guidelines
have been produced by the Australian Federal Police. These documents
are attached (at Appendix 2 and Appendix 3)[53]
and the MPS respectfully suggests that a similar protocol would
be a suitable and appropriate model for consideration of the committee.
9. The Australian position does, however,
differ from the legal position in this jurisdiction. Section 16
(4)(a) of the Australian Parliamentary Privileges Act 1987 specifically
prohibits the admission into evidence of material subject to parliamentary
privilege. This differs from the common law position here. The
committee is referred to the Attorney General's Memorandum dated
3 April 2009 (Appendix 4)[54]
where she points out that the mere fact that material attracts
parliamentary privilege does not necessarily affect its admissibility
in court proceedings—that decision remains a matter for
the courts to decide.
10. The mere fact that material is subject
to parliamentary privilege because it relates to "proceedings
in parliament" does not prevent use as evidence in court
in the United Kingdom. This was made clear in Prebble v Television
New Zealand Ltd [1995] 1 A.C. 321, at 337 "For these
reasons (which are in substance those of the courts below) their
Lordships are of the view that parties to litigation, by whomsoever
commenced, cannot bring into question anything said or done in
the House by suggesting (whether by direct evidence, cross-examination,
inference or submission) that the actions or words were inspired
by improper motives or were untrue or misleading. ... However,
their Lordships wish to make it clear that this principle does
not exclude all references in court proceedings to what has taken
place in the House... Since there can no longer be any objection
to the production of Hansard, the Attorney General accepted
(in their Lordships' view rightly) that there could be no objection
to the use of Hansard to prove what was done and said in
parliament as a matter of history. Similarly, he accepted that
the fact that a statute had been passed is admissible in court
proceedings. Thus, in the present action, there cannot be any
objection to it being proved what the plaintiff or the Prime Minister
said in the House".
11. In the case of Rost v Edwards and
Others [1990] 2 Q.B. 460 Popplewell J held that the appointment
of a chairman and membership of a committee of the House formed
part of the proceedings of parliament; that even though the plaintiff
merely wished to adduce evidence as evidence of fact without any
critical examination of the appointments, such evidence fell within
parliamentary privilege and could not be adduced without the authority
of parliament as they were matters that questioned proceedings
in parliament within the meaning of Article IX of the Bill of
Rights 1688. But this position was doubted by Lord Browne-Wilkinson
in Prebble where he said:
"A number of the authorities on the scope
of Article 9 betray some confusion between the right to prove
the occurrence of parliamentary events and the embargo on questioning
their propriety. In particular, it is questionable whether Rost
v Edwards [1990] 2 Q. 6. 460 was rightly decided".
12. It follows that if documents, words,
or acts connected with proceedings in parliament are not being
challenged or questioned but are there as a historic record of
what happened then Article IX of the Bill of Rights has no effect
on admissibility in court proceedings. In the Green/Galley case
the documents that Malcolm Jack provisionally indicated were covered
by parliamentary privilege included for example, written answers
and an extract of Hansard. It is far from certain, depending
on what their evidential purpose may have been, that they would
not be deemed admissible by the court if they were simply to be
relied upon as a historic or background fact.
13. It follows that, in the submission of
the MPS, the courts are entitled to determine whether a document
is capable of attracting parliamentary privilege. Integral to
this is the purpose for which it is being adduced. If the documents
seized are to prove the occurrence of parliamentary events they
are admissible; if they are adduced to question the propriety
of the parliamentary event then they are embargoed by Article
IX of the Bill of Rights. The court has jurisdiction to decide
this issue and decide the issue of any incidental questions relating
to parliamentary privilege. What the courts cannot do is make
a determination of parliamentary privilege itself.
14. For these reasons any protocol will
need to have a mechanism for dealing with documents where the
admissibility of such documents in court proceedings is in dispute.
15. It is suggested the procedure would
be along the following lines:
(i) The search warrant should be executed at
a time when the member, or a senior Member of his/her staff, will
be present; and the member, or a member of his/her staff, should
be given reasonable time to consult the Speaker, a lawyer or other
person before the warrant is executed.
(ii) If the Member, or a senior member of his/her
staff, is present when the search is conducted, the police officer
should ensure that the Member, or Member's staff, has a reasonable
opportunity to claim parliamentary privilege; confidentiality
or public interest immunity in respect of any documents or other
things that are on the search premises.
(iii) If the Member, or Member's staff, claims
parliamentary privilege; confidentiality or public interest immunity
in respect of any documents or other things that are on the search
premises the police officer should ask the Member, or member of
staff, to identify the basis for the claim and the same should
be recorded in writing.
(iv) Unless the claim is accepted by the police
officer conducting the search the relevant document or documents
should be placed in opaque sealed bags exhibit bags. A list of
the documents should be prepared by the police officer conducting
the search with assistance from the Member or member of staff.
The MPS will undertake to store the bags securely.
(v) Copies of any seized material will be given
to the Member or member of staff in accordance with the provisions
of the Police and Criminal Evidence Act 1984.
(vi) The MPS will deal with any materials where
confidentiality or public interest immunity is claimed in accordance
with the existing guidelines and statutory provisions in relation
to such documents.
(vii) The Member shall arrange within seven working
days for officials of the Houses of Parliament to inspect the
documents, in the presence of the MPS and the Member or his/her
representative. The House officials shall prepare a report in
writing on what items are in their opinion subject to parliamentary
privilege. If no such inspection is arranged and no extension
of time granted by the MPS the claims will be deemed to have been
waived.
(viii) The MPS will, in the light of the report
by the officials of the Houses of Parliament, decide whether to
return the items immediately or seek a ruling on their admissibility
as evidence from the court. If no such ruling is sought within
seven working days the MPS will be deemed to have accepted the
claim to parliamentary privilege and return the items in question.
(ix) The report of the officials of the Houses
of Parliament will be put before the court on any such application
and the Speaker or his representative will be invited to attend
the court to make such representations as he thinks fit.
December 2009
52 See Ev 128-9 above [Appendix I to memorandum from
the Clerk of the House]. Back
53
New South Wales Legislative Council Report 33 from the Privileges
committee (February 2006) on a Protocol for execution of search
warrants on members' offices [available on the internet at http://www.parliament.nsw.gov.au/Prod/parlment/committee.nsf/0/851DCBAD570A1D6ACA2571240003E4E6]
and Australian Federal Police Guideline for Execution of Search
Warrants where Parliamentary Privilege may be involved [available
on the internet from http://www.aph.gov.au/Senate/Committee/priv_ctte/tabled_docs/afp_guideline_search_warrants_parl_privilege.pdf] Back
54
See Ev 130-1 above [Appendix IV to Clerk of the House paper]. Back
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