Memorandum from the Rt Hon the Lord Martin
of Springburn
EVIDENCE OF
DR MALCOLM
JACK THE
CLERK OF
THE HOUSE
From the observations made by Committee members
during the Clerk of the House Dr Jack's examination, it is apparent
the two key issues I feel compelled to comment on have already
been grasped by the Committee. Nonetheless, I consider it appropriate
that I formally submit a rebuttal (a) to the suggestion that it
was my desire or direction for the search to be conducted (answer
to Q371) and (b) there was no opportunity or authority for the
Clerk to attempt to stop the search (answer to Q352).
Placing the matter in context, I support the Clerk's
pragmatic colloquialism that his key duty and professional responsibility
was to `protect' the Office of Speaker through proactive advice
(Q221) which may include a proposal to convene meetings of relevant
senior officers (Q246). I am also comforted to note the unreserved
apology tendered by the Clerk (Q216) that matters were not better
handled on this occasion.
Support for Search
As the Committee is aware, on the Wednesday
I had been alerted to the planned arrest of an unnamed Member
by police officers who investigate terrorism, but it was only
on the Thursday that I learned from the Serjeant which Member
was involved and that his Parliamentary office was to be searched
that day. This was the first time the subject of search had been
raised in any context. I stress the Serjeant advised me of these
factsshe did not seek my support or authorisation. She
added that she was actually speaking in the presence of a police
officer.
On receiving this short briefing, I was mindful
that if there was any likelihood of potential risk of harm to
the reputation of the Office of Speaker, it was the Clerk's duty
to discharge his responsibilities as articulated by him to the
Committee and noted above.
It was my reasonable expectation that the Sergeant
would have liaised with her senior manager Dr Jack and that he
would have taken the level of responsibility commensurate with
his role. I reasonably expected the ongoing or proposed police
action would have been confirmed by the Serjeant and Clerk as
legal, proportionate and necessary. This would have included confirmation
that the search was to be conducted under authority of a warrant
issued by the competent legal authority.
Had I been requested or invited to formally
support or authorize the search, which I was not, I believe I
would have sought formal confirmation of these reasonable expectations.
Had I received such confirmation, and in the
absence of any contrary advice from the Clerk, only then might
I have very reluctantly acquiesced to the police action.
As the Committee is well aware, from the time
of my statement to the House on 3 December 2008 till today I have
been unable to envisage any circumstances in which I would or
could have supported or encouraged any Officer of the House to
consent to a search being conducted within the precincts of Parliament
without a warrant.
As this was my unequivocal position during November
2008, I consider it beyond reason for anyone to suggest there
had existed any credible belief that my desire or direction was
for this search to be conducted.
Stopping the Search
The Clerk suggests (Q352) there was no authority
whatsoever for him to stop the search. He appears to substantially
base this on his interpretation of the extent of delegated authority
existing within the Office of Speaker.
I have some difficulty with this assertion particularly
when the Clerk had already utilised his own initiative and influence
to pause the search, no matter how briefly, and cause an amendment
to be inserted in the paperwork supporting the search activity.
Even in its widest sense, provision of consent
will rarely be binding for all time. The person providing consent
surely has the basic legal right to review their decision and
amend it, particularly in the event of changing circumstances.
Therefore once the Clerk was aware that the
search was being conducted without warrant, I suggest at the very
least he had the ability and authority, in consultation with the
Serjeant who had signed the consent form, to request the police
pause their actions until the decision to consent was urgently
reviewed by a wider forum, including myself. Such action would
have been wholly in keeping with the Clerk's comments at Q221
and Q246.
I accept the police officers involved may have
concluded the search must continue, however, faced with formal
withdrawal of consent, it would have been their responsibility
to then obtain a search warrant or articulate the alternative
legal authority under which they were now operating.
In addition to these points I would like to
briefly make reference to two Questions with regard to the Clerk's
evidence:
Q278 I fully expected the Serjeant as
the officer who approached me to have kept the Clerk and the Clerk
Assistant fully informed.
Q308 I put the question to the Serjeant
and the Clerk chose to intervene. My question related to the whole
serious situation and was not restricted to the narrow definition
of the PACE code.
15 January 2010
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