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

Examination of Witnesses (Question Numbers 600-618)


23 NOVEMBER 2009

  Q600  Mr Howard: This is not the police setting out the parameters; it is Mr Wright.

  Assistant Commissioner Yates: I think it is unfortunate wording in the letter. I would be absolutely clear that it is the police who are setting the parameters of the investigation, who are delivering the investigation. The important thing that we do is that we review our progress occasionally in dialogue with the victim at regular intervals to make sure the investigation is progressing in the way that you would want. The decision making is ours.

  Q601  Chairman: Even if that is right, Mr Wright should not be writing letters of that kind.

  Mr O'Connor: I think we can all agree the letter was unwise.

  Sir Alan Beith: That was the second of Mr Wright's letters which had things wrong with it, because the first one made an assertion which proved not to be true, the assertion about the damage to national security which had arisen from the leaks referred to in the case.

  Q602  Ann Coffey: Just coming back to this serious interference with the functions of government, what does that mean? Is that a basis on which investigations can take place? Is it guidance? What does it actually mean?

  Mr O'Connor: There are two documents that were in existence as I stepped into this. One was a protocol between the police and the Cabinet Office to look at leaks. Underneath that was the second document, which was guidance for investigators. That was the document that had this two-way process in which the police could become involved. It was relatively open-ended. That is the point of it. If there was evidence of any criminal activity that was associated with serious inference with the function of government, then the police could become involved. There was some kind of a rationale for that, I suppose, if you take it in terms of a leak about the economy or something like this that is going on for a period of time that involves all sorts of other problems. I thought it was so open-ended that it could allow the police to become involved on relatively minor matters or where, frankly, what was happening was very unclear.

  Q603  Ann Coffey: Or very political.

  Mr O'Connor: Indeed, and I thought that it was probably in everybody's interests for the separation between the police and the state to be clearer and the rationale around their use to be more precise.

  Q604  Ann Coffey: This is a serious intertwining of the state and the police, is it not? To understand what is a serious interference with the function of government would be very difficult to define anyway, would it not? It could only be a definition by the government.

  Mr O'Connor: It is potentially quite subjective and phrases that have been used around it include the smooth running of government, the interference with ministerial business and confidence. All of those issues apply within the Civil Service and they apply to Ministers but there are other routes to deal with that, including having a proper security system and having a decent investigative capacity yourselves.

  Q605  Ann Coffey: Does not the problem, as you rightly say, become a serious problem when around that definition the police are involved?

  Mr O'Connor: I think there is too much room for mischief around that. I think the police are part of the state but they are not an instrument of the state and having that clarity is hugely important.

  Q606  Ann Coffey: Do you think this guidance should be looked at again?

  Mr O'Connor: This guidance, I understand, has been looked at and has been removed and new guidance as a result of this report and what has been learned has now been issued, which changes it.

  Q607  Mr Howard: The cardinal principle to be borne in mind is, is it not, that impeding the effective conduct of government is not and should not be a criminal offence?

  Mr O'Connor: It is not, sir.

  Chairman: As I said rather flippantly a little earlier, it is part of the job of Opposition.

  Q608  Sir Alan Beith: Nobody has mentioned—I presume someone thought it relevant—the possibility of a criminal offence around whether any kind of inducement had been offered to Mr Galley to leak information. I am slightly puzzled that nobody has mentioned that.

  Sir Ian Johnston: The Met put together a fair amount of material to make that case but I have to say, my own assessment of the evidence was that the relationship between the two was, if you like, at its worst equal but probably was driven more by Galley than by Mr Green. I do that really on a very quantitative basis of an assessment of who instigated communications and how many items of the material that I saw. This I have to accept is a limited amount of material because I only saw material up to the 14 days. There was more material being instigated by Mr Galley than by Mr Green. Could I just say on the letter from Mr Wright, I think we would all agree that this was not a clever letter to have written. I read it as setting out an agreement following a discussion rather than, if you like, a diktat to the Met about the scope of the inquiry. Neither of those are a good position to be in but one is a slightly better position to be in than the other, and I saw it as the slightly better position, or the slightly less worse position.

  Q609  Chairman: You may have given us a title for our report by saying "too much room for mischief." Mr Yates, you have to take these matters forward, and perhaps we might just explore with you for a little while how you see the way forward. You will be aware that the Speaker issued a memorandum on 8 December 2008.

  Assistant Commissioner Yates: Yes.

  Q610  Chairman: In your view, would that be apt to deal with circumstances such as we are presently investigating and avoid the difficulties which have arisen?

  Assistant Commissioner Yates: A lot of this is in the detail. The devil is in the detail, as ever. I think for the most part, we would be understanding and content around it. There are issues around number 6 in the protocol, around his role in testing the validity of warrants, which we would probably say had been tested by a judge or a district judge or a magistrate. What we would seek to do if we could, sir, is to provide you with some detailed written feedback on this. Ninety or ninety five percent it is there.

  Q611  Chairman: That would be very helpful. I do not think the House of Commons has ever had any detailed response from the Metropolitan Police about the contents of the protocol.

  Assistant Commissioner Yates: It is envisioned that there would be some confidentiality arrangements, for example. That might prevent us from sharing some material with the DPP or the CPS which might prevent them taking matters forward. There is just some level of detail on which we would like, through lawyers, to provide you with some feedback.

  Q612  Sir Alan Beith: In relation to the protocol, and also of course the same condition would apply in actually applying for a warrant, ought not the police to take full responsibility for a decision as to what the nature of the offence being investigated was rather than taking it on trust from the Cabinet Office, without reference to the documents allegedly leaked, that these constituted Official Secrets Act offences?

  Assistant Commissioner Yates: In summary, yes, but I think the important thing is that one of the lessons from this inquiry is we, the police, engage with the CPS, who will eventually have conduct of any case that they take forward at the earliest possible opportunity, and then with the CPS, who are the experts in these matters in terms of the legal position, decide what we think the offences committed have been.

  Q613  Chairman: Has there been any consideration by the Metropolitan Police about issues of privilege which may arise in relation to incidents of this kind?

  Assistant Commissioner Yates: Yes, sir, there has been a considerable deliberation about these matters, through this case and many other cases as well. Again, I would seek your willingness to accept some feedback around that as well in terms of our position. It is an immensely complex matter that I do not even begin to think I could understand or explain in this Committee. Better minds than mine can, I hope, put something cogent together to help you.

  Q614  Chairman: Can I put an example to you from my own personal experience? I had a constituent who came to me to complain on behalf of her son about the conduct of a police officer. Without the details, the allegation was that, because the son had fallen out with the police officer's daughter, with whom he had had a relationship, there was now some kind of persecution taking place. Obviously, an allegation of that kind is very serious. As a Member of Parliament to whom it is made, you have to be very sensitive in the way in which you handle it. On the other hand, you have a duty to your constituent. Therefore, on my files in my office—a long way from here, in Fife- there were documents of that kind. You can understand my sensitivity if someone arrived with a warrant and said, "This information is not privileged and therefore we are entitled to take it all because it may or may not bear on some allegation made against you." Can you see any solution to that?

  Assistant Commissioner Yates: My understanding of privilege is that it is not the possession of it that is the issue; it is how you use it. In terms of taking possession of it and putting it in the hands of a third party prior to it being examined by special counsel, whatever, I think that is probably the way those sorts of matters should be taken forward. Again, it is an incredibly complex matter that I do not think there is any easy path through.

  Q615  Chairman: I think our constituents believe that when they write us a letter that is confidential. In fact, we now say so at the bottom of our stationery, that it is only confidential to a limited extent, and that if there is any allegation of criminal behaviour and a warrant is issued, the confidentiality flies off. That potentially could be quite embarrassing, not just for us but for the police.

  Assistant Commissioner Yates: I have read the Australian protocols, which are pretty clear in the way matters should be handled when there is the hint of a suspicion that privileged material might be seized. It is those clear, transparent protocols that we need to have to ensure that it is dealt with appropriately and that other embarrassing or worse situations do not arise.

  Q616  Chairman: One of the suggestions that has been made to us from other quarters is that there ought to be a Parliamentary Privileges Act, so that all of this is set down in statute. Is that something that, arising out of this case, the Metropolitan Police have given any consideration to?

  Assistant Commissioner Yates: We have been giving consideration to it. What we would seek is the clearest and most transparent method of dealing with that matter. If that has to be enacted, it needs to be enacted. It is just the clarity around how we should behave and the protocols we should adopt to ensure that we deal with such sensitive material appropriately.

  Q617  Sir Alan Beith: You and I have discussed these matters in all sorts of interesting circumstances but I wanted to put to you the question which I put earlier, given the responsibility you now have, which is the confusion that arises from the amalgamation of Special Branch and the Counter-Terrorism operation, which is extremely important work, as said by earlier witnesses, from which they are distracted by deep engagement that maybe we can argue they should not have had to be involved with in the first place. That confusion, which is not unlike the confusion the Chancellor got into in relation to the government of Iceland recently, does actually have consequences. In this case we know—and we have received evidence from the Speaker—that he was significantly influenced, and thought that other officials had been, by the belief that a counter-terrorism investigation was taking place. Do you have any idea of how this can best be dealt with? Will it require splitting up the functions again or could it be done in some other way while retaining whatever advantage there is in running them together?

  Assistant Commissioner Yates: On the initial thing in terms of who they are and what they do, whilst they are from the Counter-Terrorism Command, I would expect the officers to tell the individual that they were on this business as opposed to counter-terrorism business and make it clear. That is the first point. On the second point, I think Mr O'Connor's report in terms of the protocols to be adopted makes it clear that issues of this sensitivity go to the Deputy Commissioner's purview first, as opposed to mine, and then the Deputy Commissioner will have a conversation with me, my opposite number in the Serious Organised Crime, to say "Where is this best investigated?" and whether there are issues, just as you have described, that could influence people in terms of the presentation issues around it and cause some alarm. It goes to the Deputy Commissioner now and then there is a conversations at the appropriate level to say "Yes, it's best, John, for you and your teams to do it," because of sensitivity around vetting, for example, because I have a lot of vetted people that work for me, or "No, Cressida, in your Serious Organised Crime bit now I think that is the most appropriate place for it to be investigated." It is that balancing issue that I think we have to set about right now, going in at very senior level to decide where it should go.

  Q618  Sir Alan Beith: It is difficult to avoid the impression being created when someone walks through the door and announces that his role is Co-ordinator of Counter-Terrorism functions that ...

  Assistant Commissioner Yates: I absolutely accept the point you are making. Sometimes it is the skills and competencies and vetting levels of people which will dictate where the matter can be best investigated.

  Chairman: Gentlemen, thank you very much indeed. We are most grateful to you. Sir Ian and Mr O'Connor, we have derived a great deal of benefit from your reports, which have been very helpful to us in setting the scene for our investigation. Once again, thank you very much for your attendance and for your evidence.

previous page contents

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2010
Prepared 22 March 2010