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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