Examination of Witnesses (Question Numbers
320-339)
DR MALCOLM
JACK, MS
JACQY SHARPE,
MR MICHAEL
CARPENTER AND
MS VERONICA
DALY
9 NOVEMBER 2009
Q320 Chairman: Expressly following
the terms of the code.
Mr Carpenter: What were the words
which were said to her to say "You do not have to consent"?
I am afraid I do not find those words. Those words were not used
on that occasion. Again, this is a matter on which the best direct
evidence comes from the Serjeant herself.
Q321 Chairman: Of course, but just
to understand your evidence, you are saying that an understanding
is not sufficient in order to meet the requirements of the code.
The code is only met if in terms and expressly the person who
is being asked to give consent is told "You need not give
consent".
Mr Carpenter: I believe so; I
believe that is the force of the words "must be clearly informed".
Q322 Sir Malcolm Rifkind: If that
is the case, and clearly it must be the case, if that information
was not given to the Serjeant, it could only not have been given
either through incompetence or deliberately. You have indicated
that you do not think it was done deliberately. Do you have any
reason to know whether it was done deliberately or through incompetence?
Mr Carpenter: I have no reason
to know either way.
Q323 Sir Malcolm Rifkind: In his
evidence the Speaker has indicated by the language he has quoted
the Clerk of the House, rightly or wrongly, as having used that
he "bamboozled" the Serjeant and "tricked"
her into keeping the matter from her immediate superiors and that
is not an allegation of incompetence. If these words had been
used, and they are the Speaker's words and I accept Dr Jack did
not use those words, but the Speaker's recollection is that it
was being suggested that this was a deliberate decision by the
police, hence the subsequent comment that Chief Superintendent
Bateman had a duty to the House as well as to the Metropolitan
Police. Is the Speaker at variance with your recollection of what
was being alleged at that time?
Mr Carpenter: At that meeting
there was the feeling, as the Clerk has referred to, that the
Serjeant had been treated unfairly by the police and that unfair
pressure had been used.
Q324 Sir Malcolm Rifkind: I do not
understand the use of the word "unfairly", if one believes
it was simply through incompetence. If someone is acting unfairly,
that implies they are acting improperly, not through incompetence
but because they are putting unfair pressure as a conscious decision.
Mr Carpenter: I cannot really
speculate what their motivation was in not using those words.
All I can say is that I did not believe that those words had been
used and the Serjeant had told me that she had not been clearly
informed.
Q325 Chairman: Just one matter which
you may have dealt with but I was looking at my papers. You did
not hear the words "bamboozled" or "tricked"?
Mr Carpenter: No, I do not recall
those words being used.
Q326 Chairman: I understood your
evidence to be that there was an understanding. Is that correct?
Mr Carpenter: This passage of
the meeting followed where I had spoken about whether PACE Code
B had been followed or not. I think it is fair to say that produced
quite a degree of unhappiness in the meeting that this had happened.
Then it led to discussion of fairness.
Q327 Ann Coffey: Do you think the
police would have had difficulty getting a warrant to search a
Member of Parliament's offices?
Mr Carpenter: It is a difficult
hypothesis. All I can say is that it appears—
Chairman: You are the Speaker's
Counsel. It might happen tomorrow.
Q328 Ann Coffey: You must be asked
all the time for a difficult hypothesis.
Mr Carpenter: If one is asking
my opinion, I think it is probable, is it not, that a district
judge would look particularly closely at an application for a
warrant in respect of a Member's office? I think it is probable
that a district judge would.
Q329 Ann Coffey: Do you think the
police would have been aware of that?
Mr Carpenter: Are you asking for
my opinion again?
Q330 Ann Coffey: Your hypothetical
opinion on a hypothetical proposition.
Mr Carpenter: They might have
been; they might not. I do not know. It is such a degree of hypothesis
that it is difficult to give a real answer to that.
Q331 Chairman: May I ask a direct
question. If the police had turned up with a warrant to search
Mr Damian Green's office and the Speaker, having been appraised
of these circumstances, had said to you "Is this warrant
one which can lawfully be executed on the parliamentary estate?"
what answer would you have given?
Mr Carpenter: I think I would
have said yes. I would have had a look at the warrant, looked
at the degree of specificity and those formal things, but for
anyone to argue on the doorstep, as it were, to go behind the
warrant runs a very considerable risk. The proper course is for
the warrant to be executed and then for an application for judicial
review of the issue of the warrant afterwards. If you have a warrant,
you do have a decision by a person holding judicial office that
these things are so.
Q332 Chairman: If you had accepted
that warrant, or if your advice to the Speaker had been "Yes,
this warrant can be executed" you would have been operating
in accordance with the McKay memorandum.
Mr Carpenter: Yes; indeed.
Q333 Sir Malcolm Rifkind: If a warrant
has been granted for a search of a Member's office, does, in your
view, the Speaker still have authority to decline to allow that
search to take place, even if a warrant exists?
Mr Carpenter: I think probably
not, but there must be the possibility, a very narrow possibility,
that on one occasion there might be a warrant in respect of an
offence in respect of conduct which is protected by Article 9
of the Bill of Rights.
Dr Jack: Yes, interferes with
proceedings.
Mr Carpenter: If a warrant came
to say "I want to search a Member's office on grounds a speech
was incitement to racial hatred within the precincts, in the Chamber".
Q334 Chairman: That was Dr Jack's
advice as well.
Dr Jack: Yes; that is right.
Mr Carpenter: That is a very narrow
case.
Q335 Sir Malcolm Rifkind: So it is
not inconceivable that a Speaker could nevertheless decline but
it would have to be in very specific circumstances relating directly
to the privileges of the House.
Mr Carpenter: Yes; that is correct.
Dr Jack: Yes.
Q336 Sir Malcolm Rifkind: In an unambiguous
way; the Speaker's view was unambiguous.
Mr Carpenter: One would have to
be very certain of one's ground because otherwise I and other
officers of the House would be facing a charge of obstruction.
Q337 Sir Malcolm Rifkind: Just to
clarify, because this is quite an important point, if a warrant
were issued, the terms of which implied that the search was going
to include clearly privileged material, you as Speaker's Counsel
might advise the Speaker, even with such a warrant in existence,
not to permit the search to take place.
Mr Carpenter: It is not quite
like that. I was talking about the predicate offence itself relating
to conduct within the House. The question of whether material
might be taken that was privileged is of a different order and
in those circumstances the proper course is to accede to the execution
of a warrant, indeed one is under a legal duty to do so and then
apply in the first instance for judicial review of the issue of
a warrant.
Q338 Mr Henderson: So there are circumstances
where the Speaker can say "The warrant will not give the
authority. I am saying no, as the Speaker" in those circumstances
that you have outlined.
Mr Carpenter: There are in those
very narrow circumstances. It is a revisiting of the Speaker Lenthall
incident, is it not?
Mr Henderson: How would the Speaker
enforce that? Would he just say no, or would he have to go to
court or be represented in court?
Q339 Chairman: He would decline consent
to the execution.
Mr Carpenter: Then you might have
an undignified scuffle at the door. Either the police exercise
reasonable force or they do not. They might go away; probably
they would go away and they might consider charges of obstruction
against the officers who have prevented the search.
Dr Jack: The other matter to mention
is that it would be rather unusual if a judge were not apprised
of a matter which related so closely to proceedings in the House,
if he were approached to sign a warrant and saw that warrant involved
a gross contempt of the House.
Chairman: We would also get into
the territory which the Attorney General has explored by saying
that it is for Parliament to determine what it thinks its privilege
is and for the courts to determine the extent to which that can
be enforced.
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