Examination of Witnesses (Questin Numbers
80-99)
DAMIAN GREEN
MP
19 OCTOBER 2009
Q80 Ms Hewitt: You indicated that
if the matter had proceeded you would have handed over to the
police the bits and pieces, the correspondence between yourself
and Mr Galley that you put aside after Mr Galley was arrested.
Would you have taken a different view if Mr Galley had been your
constituent?
Damian Green: I think I would
have taken the view on the individual documents in that if it
had been a sensitive or even a non-sensitive constituency case,
I would have wanted some kind of definitive ruling about where
does privilege adhere to normal correspondence between a constituent
and an MP. My instinct would be no, that is private and you need
to jump several hurdles before you can look at that, one of which
I would think would be the judgment of at least the Standards
and Privileges Committee of this House or a definitive ruling
as to what is privileged or not. At the time I had not addressed
that issue because (a) he was not a constituent and (b) I had
not thought through what ought to be privileged. It is a subject
that has exercised me more since last November than it had done
before, I confess.
Q81 Chairman: With a constituent
the data protection legislation might possibly have arisen too?
Damian Green: Does that apply
to the police?
Chairman: Perhaps it is something we
can explore.
Q82 Ann Coffey: I am just interested
because obviously defining a constituent is easy in terms of the
relationship because they reside within a particular geographical
area but in a sense the relationship between you and Christopher
Galley was a private relationship. In what way did you not think
that was protected? Why did you not think that was protected in
the same way as one of your constituents?
Damian Green: There was one very
significant difference in that he had given two interviews to
the police lasting many, many hours and the police had access
to all his records so, as it happened, the police need not have
looked at anything I had. He had two or three letters from me.
They had access to his computer and indeed servers so far as I
could see because they had the full email exchanges between us,
which again were not very extensive at all. He told me that he
had told them everything he knew so I had no fear of breaching
his privacy, as it were, because he had breached it himself. Indeed,
I think I am right in saying he told me that he had given his
first interview to the police without even a solicitor present,
so it was clear that there was nothing I could do that would breach
his privacy.
Q83 Sir Malcolm Rifkind: On one or
two occasions you have used the term "private correspondence"
and "privileged material" as if there is not much difference
between the two but we are advised, and it seems to be well established,
that private correspondence between an MP and his constituent
is not privileged in the sense of inadmissible in court and has
never been considered to be privileged. Do you accept that distinction?
Damian Green: Absolutely and I
apologise if I have been misleading the Committee.
Q84 Sir Malcolm Rifkind: No, it is
just for clarity.
Damian Green: Indeed I accept
that distinction that privilege does not just adhere to anything
that an MP has got hold of.
Q85 Sir Malcolm Rifkind: In the opening
statement which you prepared for us and which indeed you read
out today, one of your main concerns appears to have been that
because of the procedure that was adopted and the preliminary
view that the Clerk came to, material in due course was handed
over to the police and they were allowed to look at it before
there was an opportunity given to the Standards and Privileges
Committee to consider whether it might be privileged or not. Do
you accept that if any alternative procedure had been adopted,
and if for example the Standards and Privileges Committee had
come to the view that some of this material was privileged, then
that would have been excluded from any investigation or any even
preliminary judgment by the Crown Prosecution Service as to whether
there was sufficient material to justify a prosecution being brought
in your case?
Damian Green: That is certainly
what Professor Bradley argues. I am conscious I am being led into
territory where I simply do not have an authoritative view. I
am not a constitutional lawyer but Professor Bradley is and I
have read what he has to say. That is clearly one of the implications
of what he says.
Q86 Sir Malcolm Rifkind: Because
the advice that we have been given, and I can only give my own
understanding of the advice that we have been given, is that it
is accepted practice—this is the view of the Attorney General—that
Parliament does not seek to interfere with the investigation of
a possible criminal offence and therefore it allows the Prosecution
Service to look at wide ranges of material. If they wish to use
such material in an actual prosecution then the person accused
or Parliament can bring forward the argument that this is privileged
and if the court decides that it is privileged then it cannot
be included in evidence. That would have been prevented if the
process you were recommending had been adopted.
Damian Green: I have read the
Attorney General's opinion as well and Professor Bradley disagrees
with her and there appears to be a genuine disagreement between
lawyers here. One of the points worth considering is that it is
not simply whether the court would consider it. One of the reasons
why my legal team and I were so anxious to get this cleared up
beforehand was at some stage I was going to have to go through
another interview process, we thought, indeed I was bailed originally
until 27 February, so we were preparing for the possibility of
my doing another interview then, and before then I needed to know
what evidence was going to be admissible or not because if I refused
to comment on questions about certain specific material then,
as the lawyers on the Committee know, that in itself is admissible
in evidence, the prosecution can say I refused to talk about that,
and clearly that has implications for a court case. I was very
anxious to have the issues cleared up both of what is privileged
and also whether privilege means that something is not admissible
in evidence before I did the other police interview so that I
could, as it were, know what the ground rules were for that police
interview. One of the frustrations between December and April
was that we could never get to that stage. The actions of the
House authorities prevented us even reaching that conclusion,
whether Professor Bradley is right or the Attorney General is
right.
Q87 Sir Malcolm Rifkind: The Clerk
of the House has advised us that he wrote to you and I think somewhere
in these papers you gave us a copy of that letter in which he
says you would have been perfectly free in response to any police
questions to deal with matters and to express your own views regardless
of whether there was a view as to whether they were subject to
privilege or not. You would not have been precluded from any comments
you might wish to make in any subsequent interview.
Damian Green: That is his view.
That was not my lawyer's view.
Sir Malcolm Rifkind: Thank you, I understand.
Q88 Ms Hewitt: If I can just step
back a little bit because I want to explore the issues that Sir
Malcolm has just raised. Do you agree that this House should not
use parliamentary privilege to obstruct the criminal process or
make Parliament a "haven from the law" in the words
of the Select Committee on this some years ago?
Damian Green: I think Parliament
as a haven from the law is a slightly odd formulation. Clearly
individual politicians cannot be given a haven from the law. We
are all subject to the law of the land. As I say, my main frustration
through the early months of this year was that Parliament did
not appear to have a mechanism for deciding on these rather important
matters.
Q89 Ms Hewitt: Given the view that
Parliament traditionally has not obstructed the criminal investigation
process as distinct from intervening on a question of privilege
in a court case should a case arise, presumably when the Speaker
decided not to accept your request to refer the matter to the
Committee of Privileges what he was effectively doing was endorsing
the view that the House officials had taken on which documents
were privileged and which documents were not. That is why the
police in their letter to you said this matter is being determined
because a decision has been made by House officials and the Speaker
(at least implicitly) has upheld that decision?
Damian Green: That is certainly
the effect of the Speaker's decision and, as I said before in
a previous answer, that meant that officials of the House were
taking decisions which I felt quite strongly Members should take
through whatever mechanism we devised, not least because the practical
effect was they had hundreds of records to go through, and they
never went through the electronic records, but they had hundreds
of documents to go through and it was clearly pretty unsatisfactory.
To give one example of an exhibit that was not regarded as privileged.
It is described here as a fax message from me. I remember this
because I remember having an argument with the police about it
when they removed it from my briefcase at Belgravia Police Station.
It was actually three pieces of paper: the front page was indeed
a fax cover sheet from me to a journalist; the second page was
a parliamentary answer to me from a Minister; and the third page
was a newspaper cutting. This was a standard story of the type
that everyone around this Committee will recognise where there
was a quote from a minister in a newspaper cutting and a parliamentary
answer that appeared to contradict it, so I thought it might be
of interest to a journalist. All the other parliamentary answers
that were at the top of the piles were regarded as privileged
and were taken out. That one because it was lying behind a fax
cover sheet was not, so it seemed to me that the sift of what
was privileged and what was not was in practical terms pretty
unsatisfactory.
Q90 Ms Hewitt: Am I right that your
solicitors agreed to the sift taking place and observed it?
Damian Green: Yes.
Q91 Ms Hewitt: And as a result of
that some 20 documents were removed from police custody as being
the subject of privilege?
Damian Green: That is right. 21
documents were deemed privileged most of which are written answers
and, as I say, I know that hidden behind other things were other
written answers which makes me slightly doubt the efficacy of
the sift.
Q92 Ms Hewitt: As I understand your
position, you are saying that the claim of privilege for documents
should be determined before any charge is brought or any trial
undertaken, in other words during the police investigation? That
was in fact done in this case but in this rather limited procedure
which only exempted things like written answers and only on the
say-so of an officer of the House. You are saying, as I understand
it, that that claim of privilege should be determined by the House
itself, probably through the Committee on Privileges? Am I correct
in reflecting your view on that?
Damian Green: That is part of
it certainly.
Q93 Ms Hewitt: What I wondered was
how you would reconcile that proposal with the general proposition
that Parliament should not be using privilege to interfere with
the process of the police investigation before a decision is made
as to whether or not to bring a charge?
Damian Green: I agree that is
a central issue for this Committee to investigate and, as I say,
Professor Bradley, who I am told is the leading authority on this,
takes one view and the Attorney General takes another view. I
would not dream of taking sides between two such august legal
brains. I would simply point out that in the Duncan Sandys case,
which is one of the cases always quoted as precedent, it was pretty
well agreed that what he was doing broke the Official Secrets
Act at the time and yet Parliament decided that he could not be
prosecuted very directly so in that very famous controversial
case Parliament did precisely what the Attorney General is arguing
Parliament cannot do.
Q94 Ms Hewitt: As you say, that is
an absolutely central issue for this Committee, which is one reason
why I wanted to explore your own views on it. So that I am absolutely
clear about this, is it your view that when Parliament does come
to determine its view on a question of privilege, whether that
is during an investigation or once a case is in front of the courts,
should the Speaker be entitled to make that decision on the basis
of the advice he gets from House officials or should that be a
matter for the House on the basis of a recommendation or report
from the Committee on Privileges?
Damian Green: I think the lesson
I would draw from what happened to me is that there is a danger
of putting too much power in the hands of the Clerk and the Speaker
because inevitably any Speaker is going to rely very heavily on
the Clerk, and it may be that this Committee can devise protocols,
rules, guidelines, whatever, that mean that the Speaker/Clerk
does not have to take such controversial decisions early on in
the process that everything they do after that may well be seen
to be tainted, which I believe is what happened in this case,
in which case it would be reasonable perhaps to ask the Speaker,
but even then—and this is pure opinion—it seems to
me safer for the reputation of the House that something like the
Standards and Privileges Committee, which is cross-party and will
be occupied by distinguished senior Members and all of that, is
probably a safer repository of what will be hugely sensitive and
potentially case-deciding decisions than the individual Speaker.
Q95 Ms Hewitt: Just a final question
if I may Chairman. You referred to the 21 documents which were
almost entirely written answers that were agreed to be covered
by privilege and were therefore withdrawn from the police. From
the point of view of the police that did not really have any practical
effect because those are, by definition, in the public domain,
they can get them through a Hansard search. You also referred
to a written answer and the press cutting which sat behind a fax
cover sheet and were left with the police even though clearly
they should not have you been, or at least the answer should not
have been. Can you give us some idea of what other kinds of documents
were left with the police during the course of the investigation
but which in your view or your lawyer's view should have been
excluded on the grounds that they were privileged? Have you got
other examples?
Damian Green: I suppose I could
read out a long list of slightly dull pieces of paper. The essential
argument would be around the actual documents themselves because
inevitably the central documents, which were the things that were
the basis of the newspaper stories, were used as the basis for
asking parliamentary questions or indeed making speeches in debates
and so on and I and indeed others would have used them for parliamentary
proceedings.
Q96 Ms Hewitt: Sorry, you are referring
to the documents that Christopher Galley gave you?
Damian Green: Yes. Again a central
issue is what does the use of a background document in a parliamentary
proceeding mean in the case of privilege? Does that attract privilege
or not? Again Professor Bradley argues that yes, it does and indeed
that is what the tradition has been. We all agree if you say something
on the floor of the House of Commons then clearly it attracts
some type of privilege. There is something faintly perverse about
saying that the document that inspired you to ask that question
or make that speech does not attract privilege, so one can see
the force of the argument, and that would have been the central
point we were trying to argue.
Q97 Ms Hewitt: Were the documents
that Christopher Galley gave you included in the bundle of material
that you put aside after Mr Galley was arrested in anticipation
that the police would come knocking on your door asking for an
interview?
Damian Green: I do not think so
because I do not think I would have kept them. That is why I am
genuinely uncertain, I cannot remember what was in that and they
are not recorded on the list I have in front of me in any kind
of detail. In a sense it did not matter because—
Q98 Ms Hewitt: They had got them
from him?
Damian Green: They had got them
from him. I am not sure, he may have kept copies, I just do not
know but, either way, they knew perfectly well what they were
because they read them in the newspapers by definition. There
was no secret about what those documents were.
Q99 Chairman: You were at some pains
to tell us helpfully what your view was of the thinking of the
DPP in relation to whether the activities that were under review
by the police did indeed constitute such seriousness that they
could ever have supported a charge of committing misconduct in
public office and I do not think we need to explore that any further
with you, but you will also be aware that an essential element
is that of reasonable excuse or justification. In this matter
did you consider at the time or do you now with the benefit of
hindsight consider that any of your actions could be covered by
reasonable excuse or justification?
Damian Green: I think all the
material I put in the public domain was certainly justifiable
to put in the public domain.
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