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


Examination of Witnesses (Questin Numbers 60-79)

DAMIAN GREEN MP

19 OCTOBER 2009

  Q60  Chairman: What on earth were they asking you for nine hours?

  Damian Green: Most of the time they were just sitting there. They got me there at about 4 o'clock in the afternoon. They did not let my solicitor in until about six. They kept him waiting for an hour. They were taking my DNA and fingerprints. It is a long process when you get arrested. Then we had an interview and then they let me sit in there for three hours and then they did another interview.

  Q61  Chairman: They left you on your own for three hours?

  Damian Green: No, they left me with my solicitor.

  Q62  Mr Howard: Was that because you needed a three-hour break or because they needed a three-hour break?

  Damian Green: I was not going to answer any detailed questions so I assume they went away to take instructions from their superiors as to what they should do next.

  Q63  Ann Coffey: You said that if the police had asked you to come along for an interview you would have agreed. If they had asked if they could search your parliamentary or constituency office, would you have agreed to that?

  Damian Green: No because both offices are full of private correspondence. I think my constituents are entitled to expect that when they write to or indeed email their MP that that is private correspondence. I think that is one of the more interesting aspects of modern privilege as to what privilege can adhere to electronic communications which may be opened anywhere in the world. I would have said no. That is why they apply for search warrants so that they can explain to a judge why they can override anyone's normal desire that their correspondence should be kept private.

  Q64  Sir Alan Beith: It would have been possible theoretically, would it not, for there to have been amongst your papers correspondence relating to parliamentary proceedings that you intended to initiate about some misbehaviour by police officers in relation to a demonstration or something like that? I am not saying there was but that is the kind of material which a general fishing expedition could have exposed to officers who might even have been the subject of an inquiry?

  Damian Green: It is absolutely the case, as I am sure it is with many colleagues, that anyone with access to all my emails and correspondence going back a number of years will find letters complaining about the police. I have a regular trickle of them as I am sure we all do.

  Q65  Sir Alan Beith: When you told the police, as the Johnston report indicates, that the files they were looking for were in your desk at Parliament, did you do so believing that that meant that they would not be able to gain access to them or were you directing them to where they should go and find them?

  Damian Green: I was directing them. I had nine policeman about to tear my home apart and although I did not know it at the time also doing the same with our house in London. Partly because I was still thinking okay, let us have a conversation about this, and that this was not going to go as far as it did, if I told them where what they were looking for was then I could save all of us a lot of time and grief.

  Q66  Sir Alan Beith: The district judge granted warrants for your arrest and the search of your homes in Kent and London and your constituency office. Was there really ever any doubt therefore that the district judge would have granted a warrant to search your office in the House of Commons?

  Damian Green: I think that is an extremely good question which I simply do not know the answer to. I assume the sensitivity will be precisely that it was the House of Commons and policemen coming into the House of Commons are more sensitive than police going into houses or other offices.

  Q67  Sir Alan Beith: Are you are assuming that the district judge would have not only been aware of the sensitivity of that but would have had an opinion that he could not grant a warrant in those circumstances?

  Damian Green: I just do not know. There are distinguished lawyers on this Committee and I am not one of them.

  Q68  Sir Alan Beith: If the warrant had been sought and granted would it have been lawful for the parliamentary authorities then to refuse to allow the police to exercise it?

  Damian Green: I do not know.

  Q69  Sir Alan Beith: And you obviously did not know at the time?

  Damian Green: No.

  Q70  Sir Alan Beith: Is it your belief that asking the Serjeant at Arms for consent was simply the police trying to be sensitive or were they trying to bypass a warrant altogether?

  Damian Green: I suppose the suspicious circumstance is that the police, according to the Johnston report, did not tell the Serjeant at Arms that she need not grant consent, they slid round that particular rock without informing her. What I hope the proceedings of this Committee can discover is what happened next. That is what I do not know. We know now the police approached the Serjeant, the Serjeant apparently went to consult the Clerk and said she was going to consult the Speaker, and at that point I assume all those discussions were had within the parliamentary authorities. What we do not know, other than what the Speaker told the House on 3 December, is what happened at those meetings and what decisions were taken and who took them. I think that is central.

  Q71  Sir Alan Beith: The Johnston report concludes that the manner of your arrest was not proportionate because it could all have been done on an appointment basis by prior agreement. Would you have co-operated with such a request?

  Damian Green: Yes, absolutely.

  Q72  Sir Alan Beith: Should the Speaker or the Serjeant ever be allowed to consent to the search of a Member's personal office on the Parliamentary Estate without the Member's agreement?

  Damian Green: If there is evidence of genuine criminal activity, if somebody was running a drugs ring using their parliamentary email and phone, I can envisage circumstances where a crime could take place based in this building where that would be acceptable. The previous Speaker made a Protocol saying there has to be a warrant and, indeed, I discover for the first time from the evidence given to this Committee, that there was in existence a Protocol from the year 2000 of what should happen in precisely these circumstances and that was not followed in these circumstance, which I find completely extraordinary.

  Q73  Sir Alan Beith: I conclude from some of the things that you have said in your paper and in answer to questions that you envisaged the House coming to a decision collectively about whether permission should be granted to gain access.

  Damian Green: It is not so much that. What I wanted to happen and, remember, a lot of this was happening in the period between my arrest and my being cleared by the DPP, so the bulk of the correspondence I have given to the Committee has to be seen in that context, I was still at the point of having to potentially argue a case in court and what I was seeking to do was to get a definitive account of which of the various myriad documents the police had taken attracted privilege and therefore might not be admissible in court. There are legal arguments about everything I have just said which I am not competent to decide on. What was particularly frustrating during that period was that every attempt my legal advisers and I made to get some kind of ruling on privilege by the Standards and Privileges Committee, and through them the House, was blocked. The Speaker refused to refer it. Some version of this Committee was set up but then instantly adjourned until after the criminal investigations. The Attorney General was giving advice that it was for the courts to decide and Parliament cannot decide, so there appeared to be no route forward. Eventually what happened is that officials of this House decided what they thought clearly attracted privilege, which my legal advisers and I disagreed with, and the police took that as the definitive ruling of Parliament, so without any committee of this House let alone the House itself deciding on matters of privilege, the police opened everything and looked at everything. In a sense, that means nobody can ever argue that I got off because some of the evidence was not presented. All the evidence was presented and we will never know what was privileged and what was not privileged. It seems to me what is most useful now is that this Committee can hopefully decide how to have a proceeding in future where Parliament can actually decide what is privileged and what is not privileged in a way that was prevented in my case.

  Q74  Sir Alan Beith: For Parliament to decide should it be for the House collectively to decide given that there might be circumstances in which to disclose all the material to all Members, as it would have to be if all Members were called upon to make a decision to vote as to whether to exercise privilege, would not be practical? It would be against either the prospects of conducting a court case satisfactorily from everyone's point of view or indeed against national security interests and therefore there have to be circumstances where officials of the House are entrusted with looking at material and deciding whether to put it under this heading.

  Damian Green: I quite take the point about publicity. It seems to me that the relevant body here is the Standards and Privileges Committee which could clearly be entrusted to take a private look and perhaps put a motion to the House. Again it is not necessarily for me to dictate what happens then but it seems to me quite important for the House, having set up a Privileges Committee, that that Privileges Committee is allowed to meet when an issue of privilege as sensitive as this comes up. What happened in my case was it simply never met. It was simply never called into operation for this.

  Q75  Mr Howard: Can I just take you back to the search of your house in Kent and ask a point of detail. Can you remind us were the nine police Metropolitan Police officers or Kent Police officers?

  Damian Green: Metropolitan police officers. I understand that Kent Police were not informed that this was happening until after it was happening.

  Q76  Chairman: I know it may be difficult to think back to your state of mind over the course of this period, Mr Green, but supposing those documents which you had collected together after the civil servant's arrest had been in your home and not in a drawer in your office in the House of Commons, would you have handed them over then?

  Damian Green: I would not have had any choice because they had warrants to search my home.

  Q77  Chairman: Because what I derived from your previous evidence was a willingness to co-operate and I just wondered whether that was just a general willingness or whether you had given any thought—and you have partly answered this in response to Sir Malcolm Rifkind but I just want to get it clear in my own mind—to holding any of these documents back because it was privileged?

  Damian Green: I did not think the documents I had when I looked at them were privileged. As I say, I am almost sure, but I will go away and check to help the Committee, that such documents as I still had were all just correspondence between me and Christopher Galley. The basic thing is that I would have been willing to co-operate. I am a law-abiding person, I co-operate with the police, so I would have done that.

  Q78  Sir Malcolm Rifkind: Can I clarify on this particular point, you said earlier that you had put aside the bits and pieces, as you described them, or the documents that you thought might be relevant to the inquiry. You said a few moments ago that you were however extremely concerned with a whole myriad of papers, I think was the phrase you used, that the police had taken away. When you sought to have these matters referred to the Standards and Privileges Committee or looked at at an early stage was that because you believed or feared or were concerned that some of these papers might be relevant to the inquiry that the police were carrying out, in which case why had you not yourself made them available to be handed to the police, or were you more concerned about the wider issue of principle regardless of whether it was relevant to the inquiry into this particular affair as to how these matters should be dealt with?

  Damian Green: Certainly the latter given the amount. When I say myriad this is the list of pages each of which have 18 or so documents listed on them so the police took dozens of documents as well of course as all my electronic records. As I say, that was every email I had written and received for however long I had owned the computers I had, so the police had access to more or less everything, both professional and private, that I had done through my parliamentary work for three or four years, so essentially the latter, I was sure what they had given themselves access to would include some things that, by my slightly simple understanding of parliamentary privilege, would attract privilege because they were central to activities that took place in Parliament.

  Q79  Sir Malcolm Rifkind: Just to be clear about this, your primary concern was the issue of principle as to what documents the police should be allowed to see and what you were not so concerned with (because you did not believe there would be any such documents) was whether any of these documents the police had taken away would be relevant to whether a prosecution should be brought against you?

  Damian Green: That was quite a significant concern as well as to what would be admissible in evidence. It is quite difficult to think back, but I imagine that idea clearly would have been uppermost in the minds of my solicitors. Until all this happened I had not particularly bent my mind to the criminal law to any great degree.



 
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