House of COMMONS
MINUTES OF EVIDENCE
COMMITTEE ON ISSUE OF PRIVILEGE
(POLICE SEARCHES ON THE PARLIAMENTARY ESTATE)
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Taken before the Committee on Issue of Privilege (Police Searches on the Parliamentary Estate)
Sir Menzies Campbell, in the Chair
Sir Alan Beith
Mr David Blunkett
Mr Doug Henderson
Sir Malcolm Rifkind
Memorandum submitted by Dr Malcolm Jack
Witness: Dr Malcolm Jack, Clerk of the House, House of Commons, gave evidence.
Chairman: Dr Jack, thank you very much for coming to see us today. This of course was by arrangement because when you gave evidence previously before the Committee it was agreed that you would come back towards the end of our evidence sessions in order that we might get the benefit of your advice about any of the implications for the issue of privilege which the evidence from other witnesses might raise. It is on that that we would like to concentrate today. Sir Malcolm Rifkind?
Q1012 Sir Malcolm Rifkind: Just one question if I may put it to you, Dr Jack. Damian Green has expressed concern that neither Parliament nor any of its committees had an opportunity to consider whether certain papers or documents might be privileged before the police themselves had access to them. Can you share with us your view as to whether it would either have been possible or satisfactory to have such a procedure in play at that time?
Dr Jack: Thank you very much and thank you for calling me back. I think this goes right to the crux of the matter raised in the Attorney General's memorandum as well and that is the question of admissibility of evidence in the court and whether the House should have some prior role in this. It is not easy to give a short answer to this because I think what it goes to really is the relationship between these two parts of the constitution, between Parliament and the courts, and there is a long history to this, a long struggle if you like, to define these boundaries. As the Committee knows very well, originally of course privilege was a struggle between Parliament and the executive.
Q1013 Chairman: Parliament and the King.
Dr Jack: The King, yes. The King did not like certain Members and he wanted to lock them up. That is still the case in some emerging jurisdictions with presidents and so on. Then the boundary dispute, if you like, shifted to Parliament and the courts, and of course the Bill of Rights of 1689 is a statute and the courts therefore presume to interpret the statute like any other statute. There is another part of privilege of course that is not statutory, and that is in some senses what this Committee has been concerned with and that is this area of exclusive cognisance, control of the precincts, control of standing orders and those kinds of things. However, trying to come specifically to Sir Malcolm's question, I think it is difficult to envisage how the House in a criminal case, and I think it is important to emphasise that, and whether the criminal case is sensible or not is not a matter that concerns me at all, but in a criminal investigation, leading to a possible charge and a criminal trial, could interrupt that process without in some way prejudicing it. I think that is the crux of the problem really. I think that preliminary steps can be taken which fall short of actually taking on the courts, and that is really what the Speaker's Protocol is trying to deal with, but if you are asking my opinion I would say that it is very difficult to envisage how the House could do this without interfering in the process of the courts.
Q1014 Sir Malcolm Rifkind: If you are correct and if the Attorney General is correct that the courts must have the last word, what then would be the benefit of the proposal that even if a warrant has been issued relating to the arrest of a Member and permitting the search of his or her property that the police should have in their presence officers of the House to exercise some view as to whether the documents might or might not come under the privileged category because if officers of the House were to say, "We think that is a privileged document," and the police therefore say "We had better not touch it," are you not then taking on the responsibilities of the court and effectively preventing them from considering it, because your judgment might be right or wrong?
Dr Jack: I think that would always push up that problem because, as you know, in this particular case of course there was such a preliminary inspection. That would not be the end of the matter and it would not bind the court.
Q1015 Sir Malcolm Rifkind: It might have come from the court. The police might already have been prevented from acquiring the material in the first place.
Dr Jack: Yes, sure. I think if the parties actually agreed not to submit evidence then that evidence would not go to the court, but what I am saying is I think the inspection per se is not something that would necessarily remove the matter from the court.
Q1016 Chairman: Criminal proceedings are adversarial in nature but the House of course is not an adversary of the police in a process of this kind, so Sir Malcolm raised a very interesting question as to whether the House is in a position to enter into any kind of agreement with the police about what can and cannot be recovered.
Dr Jack: I think there are certain preliminary actions that can be taken with the police. In fact, the Committee has before it some examples from Commonwealth countries where the Australians, for example, have a Police Code on how to conduct themselves when they are coming with a search warrant and so on, and I am sure that those things can be worked out with the police. I think that in the end we would be talking about the scope of the warrant and the relevance of evidence and so on which would remain in the hands of the court.
Q1017 Sir Malcolm Rifkind: Are we not in fact reaching a view that unless some document self-evidently came under the category of "privileged" that in reality it would not only be not possible but unwise to prevent the police having access to any other document, even when there was serious doubt as to whether privilege was relevant or not, because otherwise we would be impeding what might at the end of the day be determined by the courts as something that should never have been subject to privilege in the first place?
Dr Jack: I think that is probably right, yes.
Q1018 Chairman: What then about the sift in this case?
Dr Jack: I think the sift was an attempt to give a preliminary view about what matter was or was not privileged, but it was not conclusive, and I do not think we ever pretended that it was.
Q1019 Ann Coffey: The interesting thing about this was of course in the end it was an investigation about this offence of misconduct in public life.
Dr Jack: Yes.
Q1020 Ann Coffey: And of course that related to a series of interchanges, information coming from Chris Galley to Damian Green, and letters Damian Green may have written to other people, which is actually a very ordinary part of an MP's job. That is what MPs do all the time. They receive information. So in fact a definition of what was privileged before that search was conducted is key to deciding what the police could and could not take away in terms of documents, but we do not yet have that definition, do we?
Dr Jack: No, we do not have that definition, but I do not think that the police actually looked at the material before the sift. They simply seized all the material and then the sift took place.
Ann Coffey: But whoever did the sift, the notion of a sift is looking for material, presumably in this case material that was privileged and material that was not. I am perplexed particularly as this was the offence that was being investigated how could they possibly even start on such a sift as nobody seemed to have any idea what could be considered privileged material and what was not because there is no definition?
Q1021 Chairman: If I might just add to that, they must have taken a view. Copies of the menu of the Adjournment for example might have been lying about, so someone must have taken a view that that does not matter. There must have been some kind of preliminary view about relevance if not about privilege.
Dr Jack: Yes, certainly, Chairman. The relevance would be closeness to proceedings of the House and whether the document related to proceedings of the House.
Chairman: I had more in mind relevance in relation to the allegations than relevance in relation to the proceedings of the House.
Q1022 Sir Alan Beith: These are two potentially conflicting lines: relevance to privilege and relevance to the matter under discussion?
Dr Jack: The sift was certainly conducted with a view to establishing how close particular documents were to proceedings. In some cases it is very obvious: questions that have been asked and answered in the House, Hansard entries. Those are perfectly obvious things. There is nothing mysterious about saying they are privileged.
Q1023 Ann Coffey: So the police could not have those?
Dr Jack: They all had the documents but we were simply identifying those which we believed to be privileged and if the parties between them had agreed then those would not have been proceeded with in the case, but the court in the end could still determine them.
Q1024 Chairman: Supposing a dispute arises between the House authorities and the police about a particular document. The only place that can be resolved is at the court.
Dr Jack: In the court, yes.
Q1025 Chairman: And then the court would have to ask itself, firstly, were they covered by a warrant and, secondly, were they entitled to any kind of right of exclusion because of privilege.
Dr Jack: Yes, that is absolutely right, Chairman. That is the case.
Q1026 Mr Henderson: Just on that issue, do you think there should be some sort of procedure which is agreed in advance with which both the Speaker and the police would comply where there was a dispute about whether or not something was privileged or would it be left to either the Speaker or the police to go back to the court?
Dr Jack: I think it would be left to the court in the end and the Speaker would intervene in the normal way in the case or, as you have heard from the Attorney herself, the Attorney would intervene as amicus curiae for the House to argue that this was indeed a privileged document.
Q1027 Chairman: Doug Henderson's question implies some kind of protocol but what about statute, does this need a statute?
Dr Jack: Sorry?
Q1028 Chairman: Does this whole area that we are now in require some statutory provision?
Dr Jack: It could. It does not but it could.
Q1029 Chairman: Would you like to explain the difference?
Dr Jack: I have with me the Australian Privileges Act and the Australian Privileges Act does have a provision, this is section 16(4): "A court or tribunal shall not require to be produced or admitted as evidence a document that has been prepared for the purpose of submission, and submitted, to a House or a committee", so here is an example of statutory removal from the courts.
Q1030 Chairman: Sir Alan Beith wants to ask you some questions about other jurisdictions, but as a matter of principle do you have any objection to codification in statute rather than codification by way of protocol or agreement?
Dr Jack: I think it would depend how far this went. The Australian example that I have just read out is again pretty obvious - "documents submitted to a House or a committee" so it would be evidence, that sort of thing, but I think in principle, a Sir William McKay has told you, if you have a statute you can put in it what you want.
Q1031 Sir Alan Beith: Does the benefit of a statute not get outweighed if it leads to further litigation and therefore the calling into question of the boundary between courts and Parliament, because it is in the nature of a statute that it can be the subject of litigation?
Dr Jack: Yes, I think that is the great danger of having a statute that you could have challenges to it, but I think the Australian example, this Act passed in 1987 (so it has been there quite a long time) seems to have worked reasonably well. They do not seem to have had endless litigation about privilege matters under the statute.
Q1032 Sir Alan Beith: The Australian example attempts to make a definition around submissions to the House. If you take the American case, Congressman Jefferson's office being raided, he was able to argue before the court that the documents that were sought related to "legislative activity" or the "legislative process". Is that a useful definition which could be imported into our system or would it not work in our system?
I think it probably would not work. One of the great distinctions is under the
American system the American Constitution vests the privilege in the individual
whereas that is not the case here, so the Congressman himself is vested with
this right in the Constitution and therefore the
Q1033 Sir Alan Beith: The question that was in my mind is whether legislative activity is in any way a useful definition or whether it is such a broad definition you could put almost anything in it, because the Congressman might say, "I was considering whether this might be considered by a new private Member's bill I might introduce," or whether it gives appropriate focus perhaps thereby offering some guidance to the police as to what might be privileged, or is it an unhelpful term?
Dr Jack: I think it depends very much on what the legislation was. One would have to look at it but, as I said at the beginning, the Bill of Rights is a statute so privilege is already subject to the sort of thing you are saying, to examination in the courts. It would not be a new departure.
Q1034 Sir Alan Beith: What are you saying is if you were the person taking part in the sift and you say to a police officer, "That is a privileged document," you are actually saying that it cannot be used in court. It may of course be a perfectly public document, in which case the police officer can take it away and do what he likes with it, but what he cannot do with it is use it in the court. Also in respect of some documents you are saying, "You cannot take that document away from here. You cannot take it from the Member because it is a privileged document." It is slightly confusing as to what the purpose and outcome of the exercise is because for some documents they are public anyway. Others are not public and you may be trying to protect them from being made public by the use of privilege but that is not its primary purpose, is it?
Dr Jack: It really comes to what the purpose of the use was, even in the court. Parliamentary documents can be used in the court for certain purposes to establish for example a historic fact, that a Bill was passed or that something happened. Similarly, in a famous case the courts even have the ability to look into ambiguities in statutes by reference to words spoken in the House, so there are qualifications to it.
Q1035 Chairman: Pepper v Hart.
Dr Jack: Pepper v Hart, exactly, that is right.
Mr Henderson: Is there a distinction between a published document and a public document?
Q1036 Sir Alan Beith: You might have a document that was not public but that somebody had published and it was leaked.
Dr Jack: Again coming back to this provision in the Australian Act, it is quite interesting, "prepared for the purpose of submission", so it envisages documents which are not public but which are still parliamentary for this purpose.
Q1037 Ann Coffey: As a Member of Parliament I have this belief that I can stand up on the floor of the House and say what I like about anybody I like and not be sued or taken through the courts if I do that. I take it that this is the right that is enshrined in the Bill of Rights. If Damian Green had said what he wanted to say on the floor of the House in terms of the issues that he was raising, as a result of information he got from Chris Galley, he would have been able to do that, and that would have been able to be reported, and that would have been seen as a perfectly proper thing for an MP to be doing. It occurs me that part of the difficulty and the confusion is that the part which related to the proceedings of the House, which did not take place on the floor of the House but would have been seen in his correspondence, is the defining of that because it is not as easy to define that as when somebody actually speaks in the House? Do you think that that is the difficult part of it? The part of it that is enshrined by the Bill of Rights is easy. It is very straightforward because it is vocal. It is the substantiating document to that which is problematic?
Dr Jack: Yes, I would absolutely agree with that. There is this background grey area: is a note in preparation for a question part of a proceeding or not? If it can be shown to be linked closely to the asking of the question then it is but, no, you are absolutely right, you identify a whole range of grey areas.
Q1038 Ann Coffey: How do we proceed with that to make them less grey?
Dr Jack: One thing that is also difficult in all these discussions is that privilege, like the general law, is a case-by-case matter and although obviously you lay down principles, the actual application to a case has to be measured each time, so it is very difficult to generalise.
Q1039 Ann Coffey: But it is not difficult. The principle and what you do about it is very clear if they speak in the House.
Dr Jack: Yes, that principle is absolutely clear.
Q1040 Ann Coffey: That is not a grey area at all.
Dr Jack: No, that is not a grey area. It is this phrase in the Australian Act "incidental to" which is used, incidental to proceedings, and that is where the problem is. I think in his evidence to you Sir William said that was your problem.
Q1041 Mr Blunkett: So if these matters had not been presented in newspapers and he had not yet presented them on the floor of the House, but there was a suspicion that he had received material from Christopher Galley and the raid had taken place - let us call it a raid - if Damian Green had been able to say, "I got this material and I was putting it together for speaking in the House", as Ann Coffey has described, that might well in the Australian Code fall into privilege?
Dr Jack: Yes, I think that is right, Mr Blunkett, provided that the link was clear and there was some clear evidence of this link, yes.
Q1042 Chairman: It would be quite difficult if a Member said on oath, or not even on oath, "This document was one that I was preparing because I was going to apply for an adjournment debate," or "I had applied for an adjournment debate and this was therefore prepared from material which had reached me by a circuitous route in order to put in front of Parliament," for anyone, the police or a court, to challenge that?
Dr Jack: Yes, I think that is right.
Ann Coffey: Because we collect lots of material some of which is used and some of which is not.
Chairman: We also collect material which we keep against the possibility that we might use it in future or sometimes that we might read it in the future! Sir Alan Beith?
Q1043 Sir Alan Beith: Are we not trying in some of this from very good motive to use privilege to protect a wider public benefit, namely that Members of Parliament should be able to accumulate and receive material which may involve very serious criticism of people in public office, including perhaps the police, and should be free from interference from this process or indeed from disclosure of the source of some of the material, and privilege is not drafted to meet that objective, is it?
Dr Jack: No, I think that is right. This is a theme that has come up quite often that in some senses, if I can put it this way, the modern function of a Member has changed and correspondence with constituents is a very big part of that and that is not covered by parliamentary privilege unless it relates to some proceeding. The Joint Committee in 1999 looked at this and they came to the conclusion that correspondence should still not be covered by privilege, which is the general Commonwealth position. I think their reasons were that it would be very difficult to define what this correspondence was. They said one would not know what material one was dealing with. They reckoned that absolute privilege should be limited to matters closely related to proceedings and that the common law protection of qualified privilege in the courts had worked sufficiently well, but the Committee may not feel that is any longer the case. I recognise that a lot of Members have talked to me about this and said that in modern circumstances this just is not sufficient.
Q1044 Sir Alan Beith: It is not a new problem, is it? Churchill must have been in that position when people supplied him with information about our failure to rearm, which he had every intention of using in the House without disclosing its source. When the Speaker has to consider whether to allow a search to take place without a warrant or whether in some way to try to resist the execution of a warrant, which of course in the Canadian case he can do, what question is he really asking himself? Is he taking a definition of parliamentary privilege and saying, "I do not want this search to take place because it would interfere with parliamentary privilege," or is he actually saying, "It is in the general public interest that Members' offices should not be raided and correspondence removed unless there is very clear and overriding public interest in the particular case for this to be done," because these are quite different exercises, are they not?
Dr Jack: I think the Canadian system and the Protocol system which is before you, if I can call it that, envisages, if I can put it that way, a set of technical requirements about the warrant, its specificity, notice of it and all these kinds of things. I think this has come up in evidence to you already. It is quite hard to imagine the police arriving with a warrant that actually interfered with proceedings of the House and therefore raised a matter of privilege matter that the Speaker would have to consider at that point. It really is quite hard to imagine a judge acting as King Charles, which is what he would be doing. He would be signing a warrant saying, "Go to the House of Commons and arrest Mr So-and-so or Madam So-and-so because they have spoken these words in Parliament." It is very hard to imagine a warrant which would say such a thing. I think the Speaker's involvement in the warrant is really mainly to ascertain whether these technical requirements have been met.
Q1045 Sir Alan Beith: It is that judgment. It is a judgment about the technical requirements of whether it meets the conditions that are dictated by the existence of parliamentary privilege, not some wider public interest.
Dr Jack: That is absolutely correct, although may I add, Chairman, I think you have had evidence from the police as well about a plea for greater clarity. I think the House should respond to that. I see no reason why we could not develop a better dialogue with the police on these matters by having a Code, again like the Australian one, which guides the police, because the police want an operational set of things to tick off so they know they are complying.
Chairman: I want to ask you some questions about that myself but Ann Coffey?
Q1046 Ann Coffey: Is it not interesting that in fact if the police had applied for a warrant then actually you would probably have had the King Charles situation because they would have applied for a warrant because of misconduct in public life, the charge under which Damian Green was arrested, yet in fact the misconduct was simply raising issues that had been drawn to his attention, albeit by a civil servant and not by a constituent?
Dr Jack: We would go back again to how closely those real actions related to a proceeding, what was this related to, questions he was asking of the House, was this ---
Ann Coffey: My point is that if Damian Green had stood up in the House of Commons and said all that he would not be subject to any charge at all because he has a perfect right to stand up on the floor of the House of Commons and talk about the issues that Christopher Galley raised with him. The fact was he did not do that, although he continued to be involved in it. Because of that he was arrested for this offence of misconduct in public life and his office searched. It seems a bit curious that if he had said it in the House of Commons nothing would have happened to him, but ---
Mr Blunkett: It might under our present system.
Ann Coffey: Might it?
Q1047 Mr Blunkett: Yes, because his papers would have still been subject to scrutiny in terms of whether and how he received them.
Dr Jack: Yes, I think that is right. The misconduct was procuring the confidential information.
Q1048 Chairman: There were questions as to whether or not that had been induced.
Dr Jack: Yes, that is right.
Q1049 Chairman: Or whether it had been at the instigation of the civil servant.
Dr Jack: The case would have become more complicated if the circumstances that you mentioned were part of it.
Mr Blunkett: Which is why the Australian Code is difficult to adopt because it then gets into the situation of why and how and under what circumstances somebody has acquired that information, which is why it is taking us so long to get through this.
Q1050 Chairman: Can I take you back to Protocol, and to some extent you have dealt with this in your evidence. Would it be fair to characterise your evidence as saying that you are supportive of a Protocol but it really goes to matters of practicality and not to matters of substance?
Dr Jack: Yes, I think that is correct, Chairman. As I say, apart from the unthinkable situation where it actually impinged on proceedings, but it is so hard to imagine such a warrant.
Q1051 Chairman: Those practicalities would recognise - I do not want to put words into your mouth - the primacy of the courts in determining in the end the extent of privilege?
Dr Jack: Yes, I think that is right, but some of the practicalities are very important. For example, I think you will have heard evidence from Lord Martin that the lack of prior notice of these matters might have made a great difference in this case. One of the conditions of Protocol is that the police must come early and tell the Speaker what is going on, not turn up on the evening before they are contemplating some action, that sort of thing. The practicalities can be quite important.
Q1052 Chairman: You use the word "Speaker", I guess, advisedly?
Dr Jack: Yes.
Q1053 Chairman: "Speaker" rather than "Serjeant at Arms"?
Dr Jack: Speaker, yes.
Q1054 Chairman: Supposing the steps set out in the December Speaker's Protocol had been in place, would they have met these practical tests that you have been describing?
Dr Jack: Well, that depends what was in the warrant.
Q1055 Chairman: Who drafted the Speaker's Protocol? Was that something you had a hand in?
Dr Jack: I had a hand in, and Speaker's Counsel, who is in the gallery here. I should not refer to people in the gallery. Yes, he did.
Q1056 Chairman: You say the relationship between that and the warrant would be of significance?
Dr Jack: Yes, I think so. It would depend on the exact terms of the warrant.
Q1057 Chairman: Is there any difference between sitting and non-sitting days of the House in this context? Does it matter if the House is sitting or not sitting?
Dr Jack: It matters in terms of arrest, yes. A Member cannot be arrested while the House is sitting because that would interfere with his first duty which is to attend upon the House. I think you know the famous example of Lord Cochrane at the beginning of the 19th Century who was arrested while sitting on the benches in the House, but the House was not yet sitting. They swooped in and took him away. You can get pretty close to the sitting.
Q1058 Chairman: At 2.25 it is okay but at 2.35 it is not.
Dr Jack: At 2.25 it is okay, yes. It is actually contempt to serve a notice on a Member when the House is sitting.
Q1059 Chairman: Have you considered whether there are circumstances in which the Speaker would have any legal right to refuse the execution of a warrant? You are probably aware that Sir William McKay did consider that in some extreme circumstances the Speaker might have the right to refuse the execution of a warrant. Have you given any consideration to that?
Dr Jack: I find it very difficult to imagine what those circumstances could be, I really do, as I said, other than interfering with the proceedings. He is not really acting in legal capacity; he is acting in a capacity of guardian of privilege, which is another matter.
Q1060 Mr Blunkett: Dr Jack, this afternoon we have been using you in the traditional role of the Clerk, have we not? We have been taking your advice and reflections properly and you have been responding properly in the way that a traditional Clerk would do. I am just wondering whether in the revised role, which is new in terms of you effectively being a chief exec, reflecting on what has happened over the last year or two, you think there is a more proactive role for what is currently the Clerk of the House rather than a passive one. I get the impression we have a coming to the Oracle situation, as we have this afternoon.
Dr Jack: I think so far as these matters are concerned which we are talking about, which are matters of privilege, it really comes back to the Speaker's authority. He is the custodian of the House's privilege and the Clerk of the House merely advises the Speaker on those matters. In this area the Speaker's pre-eminence, whatever you want to call it, is essential. I have plenty of other duties as chief executive that keep me busy.
Q1061 Mr Blunkett: Without over-egging this, Chairman, I just want to get a reflection from Dr Jack about the lessons to be learnt in this, because this is what it is all about really, the future in terms of the role and the relationship of those like the Serjeant at Arms within that structure so that we can help individuals who fulfil the role they are given to be able to deal with circumstances that are moving rapidly. We are taking a forward look.
Dr Jack: Absolutely. I think Ann Coffey has touched on this subject in previous sessions. First of all there is the Protocol, so at least it makes it much clearer what the respective responsibilities are of people. On the line management issue, the Serjeant's line manager is the Clerk Assistant and I think he needs to be more involved and aware in this kind of situation. We must collectively support the Serjeant perhaps more than has been the case, not assume an independence which I think was a little bit assumed in this circumstance partly because of the traditions of that office. There has always been a very direct line between the Serjeant and the Speaker on these kinds of matters, on security matters. I think the management lesson is that the whole team has got to be much more apprised of these matters and make sure that everyone is properly supported.
Q1062 Chairman: One of the things that occurred to me with the benefit of hindsight, obviously, was that as soon as the words "arrest" and "Member of Parliament" were used the balloon had gone up. The first thing that would occur to me now would be "This is a potential crisis and, therefore, the four or five people who have got a direct input in this must meet as a matter of urgency - the Speaker, the Clerk, Clerk Assistant, the Serjeant and Speaker's Counsel".
Dr Jack: Yes, absolutely. I think that lesson has been absolutely learnt and such an occurrence will not happen again.
Q1063 Chairman: Without over blowing the parallel, it is a bit like a COBRA, there is a crisis and we need a mechanism for analysing the crisis and determining what steps should be taken.
Dr Jack: It is rather curious, Chairman, that in other areas, in the executive area, we are already very advanced in this direction. For example, the heads of the various departments of the House, the directors-general, are all on a rota, a sort of COBRA rota, and if there is a physical disaster there is a whole set of actions that are put in place as an incident management drill but it is never applied in this sort of area.
Q1064 Ann Coffey: There have been other crises recently as well that have tested and challenged the House of Commons, both Members and staff.
Dr Jack: Yes, that is absolutely true.
Q1065 Chairman: If people are being introduced to new positions, accepting all the while that this was part of Tebbit and the whole world was, as it were, in flux, then there has to be some kind of procedure to acquaint them not only with what happens on a day-to-day or even month-to-month basis but the thing which might come out of a clear blue sky for which they are responsible.
Dr Jack: Yes, that is right, Chairman. That is a lesson that has been learnt.
Q1066 Ann Coffey: The institution of the House of Commons itself is changing and if some of the recommendations of Tony Wright's Committee are accepted it will change even more. Of necessity that means how the institution itself is supported through staff and the administration also has to change. Do you think there are sufficient mechanisms in place for enabling that change to be made?
Dr Jack: Yes.
Q1067 Ann Coffey: Or do you think, which seems to me to be very clear, that the confusion between how the House operated in the past and the changes did contribute to the issues around Damian Green's arrest?
Dr Jack: I think in a more general context what you are saying is absolutely right. The Tebbit Review gave the opportunity to make changes and, if I may say so, I took them myself. I pushed quite hard to get the Tebbit reforms through. The result of that really is a much more streamlined organisation that can deal with strategic matters which we could not deal with before. In this area we come back to a relic of history and I think that is one of the problems, that we are dealing with a very specific area that has a long history to it and has been traditionally handled in this way.
Q1068 Chairman: And this is a unique institution.
Dr Jack: And this is a unique institution.
Q1069 Chairman: In his memorandum Sir William McKay set out
what he called some unresolved imperatives.
I just want to put them to you to ask if you consider that these are
still relevant. You have mentioned some
of them in the course of your evidence.
I will just read them out: "Control of the premises is vested in the
Speaker. The Speaker is the guardian of
the House's privileges subject to the House itself. The House's privileges must not be infringed. Proceedings, and Members taking part in them,
must not be impeded. Privilege does not
afford protection from a proper search.
Dr Jack: Yes, I would.
Q1070 Chairman: Would you add anything to them?
Dr Jack: Yes. I had a thought while I had been thinking about all of this, and that is perhaps to consider that the Speaker himself, or herself if there was a Madam Speaker, is rather isolated. As the Committee knows, when the House intervenes in court cases to establish whether privilege applies or not, to documents or whatever it is that are being used, the Speaker advised by the House authorities has to take that decision. I wondered whether it might be quite useful to have a panel for the Speaker, a panel of some senior Members, perhaps some Members of this Committee, whom the Speaker could consult. There is a parallel in the case of the Parliament Act when the Speaker looks at money provisions of Bills to establish whether Bills are money Bills or not. There is a small panel he can consult. When I was Clerk of Legislation the Members he consulted were very assiduous about responding to that. It could be that in this sort of way he could have a bit more support because I think the Speaker is quite isolated in a certain way in performing this function.
Q1071 Chairman: And by the way in which we elect our Speakers they might have no direct or indirect experience of the issues that we are discussing?
Dr Jack: Yes. That is one possible thought.
Q1072 Ann Coffey: At the moment there is no way that MPs can feed in the changing nature of their correspondence with constituents because our job is also changing as well.
Dr Jack: Yes, absolutely.
Ann Coffey: We are doing the job in a
different way than even I did when I first came to
Q1073 Mr Blunkett: It would entail clarity that the police cannot say to the Clerk, the Clerk Assistant or the Serjeant at Arms, "You cannot refer to anyone else in this matter".
Dr Jack: That is right, Mr Blunkett. That has to be ruled out entirely.
Q1074 Chairman: One technical point, Dr Jack. If, for example, a decision was taken that the proper course was for some kind of protocol between the Metropolitan Police and the House, using the term generally, who on behalf of the House would be a signatory to that? Would that be something which the Speaker, because of these principles we have discussed, would be required to be a signatory to or would you perhaps be in a position to be able to do that?
Dr Jack: Yes. I think eventually that would be the case, it would be the Speaker who would have to approve that. I am just looking to see who signs the Australian document and there is no signature on it! Certainly he would have to be content with it but we, the authorities of the House, would ---
Q1075 Chairman: Would it require a resolution of the House?
Dr Jack: I do not think so.
Q1076 Chairman: That panel that you described might, of course, be an obvious source of advice as to whether this is something he should sign?
Dr Jack: Yes, exactly. That is right.
Q1077 Ann Coffey: You did mention earlier on, I think, that you had had conversations with several Members about their concerns in terms of what might be privileged correspondence and what might not be, is that right?
Dr Jack: Yes, that is correct. It is the two things really. It is correspondence and the burden now of constituency work on Members which has completely changed in the period certainly that I have been here.
Q1078 Ann Coffey: Yes, it has.
Dr Jack: A lot of Members feel that there is a lack of connection and recognition of that change. The correspondence is one area where recognition has not been given.
Q1079 Ann Coffey: One of the things that has changed is that there is an increased expectation for Members to take up local cases, local injustices on the floor of the House.
Dr Jack: Yes, that is right. Another subject which I do not think we perhaps have time to go into would be if there were to be a Privileges Act whether you would want to introduce some notion of redress. I am thinking particularly I was involved in the case of A before the European Court of Human Rights and although the European Court came out in favour of Parliament, and the UK was supported by a number of Member States, there were rumblings from the bench about the fact that there seemed to be no redress, no opportunity for anyone to say anything about a damaging matter that had been said about them in the House or something like that. I think that is another area of modernity which might be looked at.
Q1080 Chairman: I think the Committee has satisfied itself and has no further questions. Is there anything you wish to add?
Dr Jack: No, I do not think so, Chairman. Thank you very much for asking me here.
Chairman: Thank you very much indeed. Thank you for your help.
Memorandum submitted by Assistant Commissioner Dick
Witness: Assistant Commissioner Cressida Dick QPM, Metropolitan Police Service, gave evidence.
Q1081 Chairman: Assistant Commissioner, thank you very much for attending on the Committee to give evidence. We are very grateful.
Assistant Commissioner Dick: Thank you, Sir.
Q1082 Chairman: I believe you have just come back from holiday. I hope you were a little warmer than we were in this country. We should offer our congratulations on your appearance in the New Year Honours List.
Dick: Thank you very much, Sir. The north
Q1083 Chairman: You have been good enough to provide us with a statement. I do not think it is necessary for us to ask you to read that, but that statement will be published, as you are probably aware, as part of the proceedings of the Committee.
Assistant Commissioner Dick: Yes.
Q1084 Sir Malcolm Rifkind: Assistant Commissioner, can you begin by advising us before the events of October 2008 what experience did you personally have with regard to the investigation of either leaks or possible breaches of the Official Secrets Act?
Assistant Commissioner Dick: I had some considerable experience of leaks generally, sad to say including in my own organisation, and had dealt with a number of leak investigations. In terms of the Official Secrets Act, you will see perhaps that I had only been in Specialist Operations for about 18 months at that time and we had had some Official Secrets Act cases and I had, indeed, attended a couple of times at the Cabinet Office for what would be called case conferences in relation to Official Secrets Act matters, but I had not personally led an Official Secrets Act investigation. I had dealt with leaks really quite a lot, I am sorry to say.
Q1085 Sir Malcolm Rifkind: Thank you. In your memorandum on page two, paragraph 11, you say that in relation to the five identified leaks the initial view from the Crown Prosecution Service was that Official Secrets Act offences might not have been made out and that what they might be concerned with was more the possible offence of misconduct in a public office.
Assistant Commissioner Dick: Absolutely.
Q1086 Sir Malcolm Rifkind: This was in October and, therefore, presumably even at that early stage you and your colleagues were aware that it was unlikely - not impossible but unlikely - that you were dealing with an Official Secrets question?
Assistant Commissioner Dick: In relation to the five offences which at that stage had been linked, had been identified as potentially linked, and, indeed, therefore gave us some investigative opportunities, yes it appeared, and as we now know of course, they were not Official Secrets Act offences. However, as I think you know and I say in my statement, we were initially dealing with 31 and we had not ruled out that whoever the suspect might be for those five linked they could have been involved in others of the 31, including those which might pertain to the Official Secrets Act.
Q1087 Sir Malcolm Rifkind: Would it also be fair to assume that although the part of the police operation which you were part of in the Metropolitan Police was known as the Counter Terrorism Command, there was never any question in your mind or that of your colleagues that there were terrorism or terrorist related offences that were involved in the inquiries you were being asked to scope and to help take forward?
Assistant Commissioner Dick: Firstly, just to say I was not actually in the Counter Terrorism Command - that is a slightly semantic point - I was in Specialist Operations and when Mr Quick was away I was his deputy, so I stepped up for him, and his role, of course, sits above the Counter Terrorism Command and also Security and Protection Commands which were mine. I was quite clear that although we might be dealing with Official Secrets Act offences we were not dealing with any Terrorism Act offences yet.
Q1088 Sir Malcolm Rifkind: I think it is almost an accident of administrative history that because the Specialist Operations Branch which used to undertake leak inquiries had been merged with the Anti-Terrorist Branch they were both under the umbrella of an organisation in the Metropolitan Police that was known as the Counter Terrorism Command.
Assistant Commissioner Dick: Yes. It was a very definite decision to bring the two sides together. I have no doubt that was a good decision and it has improved our effectiveness. One part of the responsibilities of the old SO12 Branch was to deal with Official Secrets Act matters and leak investigations relating to potential Official Secrets Act cases because they quite simply had, first of all, the required vetting levels to deal with such sensitive things and, secondly, the experience of working with, for example, the intelligence agencies and others, which as you know is quite a specialist world. That was why they dealt with these sorts of things.
Q1089 Sir Malcolm Rifkind: I understand these considerations but I want to put to you for your view what could be said to be the consequences of those decisions that were taken, not so much the merger but the title of Counter Terrorism Command that was chosen for the whole operation. In her memorandum to the Committee the Serjeant at Arms, when she was explaining what happened, how she became first aware of the possibility of a Member of Parliament being arrested, said at paragraph three that when Chief Superintendent Bateman asked to see her he said, "Police officers from the Metropolitan Police Counter Terrorism Command would arrest a Member". Then she went on to say at paragraph six of her memorandum that when she first saw the Speaker she said: "I told the Speaker that the police had informed me that officers from the Counter Terrorism Command were going to arrest a senior Member of Parliament". The former Speaker in his memorandum to us at paragraph five of his memorandum said, and this was his first awareness of there being anything likely to happen: "The Serjeant told me that Counter-Terrorism officers from the Metropolitan Police were investigating a Member and might wish shortly to arrest that individual for conspiring to commit misconduct in public office". He then said at paragraph six: "I was extremely concerned that a Member was being investigated by anti-terrorist police. In my mind I had an idea of Islamist or Irish terrorism. I had no idea at the time of the very different type of offence with which Mr Green would be accused". Given the two quotations that I have given from the Serjeant at Arms and the former Speaker, in your experience, and you are obviously a very experienced police officer, do you think it was reasonable or wise that the police officers who spoke to the Serjeant at Arms did not make clear that although they were from the Counter Terrorism Command what they were investigating, as far as they knew, had absolutely nothing whatsoever to do with terrorism or terrorist related offences?
Assistant Commissioner Dick: I think it is very important, whoever the officers are who attend in any circumstances, that they make it clear who they are, where they are from and what it is they are investigating, absolutely. You know I was not present for those conversations.
Q1090 Sir Malcolm Rifkind: I know.
Assistant Commissioner Dick: I do take your broader point. I think it is very regrettable if anybody became confused by the title. I have to say I have not heard of it before. It was something that I remember we debated when we were bringing the two units together and we talked about the title. There are a number of issues that officers from SO15 deal with which are not strictly speaking terrorism matters. It is not unusual for them to go into other environments and say, "We are from the Counter Terrorism Command, but we are here dealing with X, Y or Z". If on this occasion, as it appears, as you have read out to me, that the parties were confused by that then I think that is regrettable.
Q1091 Sir Malcolm Rifkind: They were not so much confused as misled surely? It was not that they misunderstood what they were being told, it was what they were told implied to them, and to any reasonable person, that this was likely to have something to do with terrorism related offences. They were not confused; they were misinformed. I am not suggesting deliberately but as a result of the words used by the police officers in question.
Assistant Commissioner Dick: Again, I was not there for the conversation.
Q1092 Sir Malcolm Rifkind: I understand that. There are two quite separate issues involved. There is the question of whether it is wise for the organisation within the MPS to call itself the Counter Terrorism Command when it clearly covers other matters which have got nothing to do with terrorism. There is the separate but equally important question that, given that title, the police officer on this occasion did not make clear that despite the command from which he came, the inquiry which he was relating to the Serjeant at Arms, and which she then went on to inform the Speaker, had nothing to do with terrorism. That may be part of the explanation for some of the consequences that flowed from that, which is why you are here today.
Assistant Commissioner Dick: If I could just correct one thing. I would not want you to think that officers from the Counter Terrorism Command are routinely dealing with traffic offences or anything like that. They are dealing with a variety of things, all of which have some link back to their terrorist training and their skills.
Q1093 Sir Malcolm Rifkind: Forgive me for interrupting you, but what has a leak with regard to a possible offence of misconduct in a public office necessarily got to do with terrorism?
Assistant Commissioner Dick: What I am trying to say is that they had the skills to deal with something which at that stage might well have included national security matters. They had the confidence of the intelligence agencies. That was why in those times we deployed those kinds of people. Sir, I do not want to fall out with you about this. I absolutely accept that if people were, I say confused, you say misled by the presence of counter-terrorism officers then that is very regrettable. I have not heard of it in other situations and we must seek to avoid it in the future.
Q1094 Sir Malcolm Rifkind: You mentioned national security and Official Secrets considerations. I am sure you will agree that there are many aspects which do involve national security and which might involve a breach of the Official Secrets Act but which nevertheless also have nothing to do with terrorism.
Assistant Commissioner Dick: Exactly, that is my point as well.
Q1095 Sir Malcolm Rifkind: In any event, can I leave with you at least the suggestion that you might, as a very senior member of the Metropolitan Police, discuss with your colleagues in the Metropolitan Police whether it might be appropriate to consider some new nomenclature at the very least for that particular part of the Metropolitan Police's responsibilities. It is not the first time that members of the public as well as Members of Parliament have been confused, because journalists, when they are told that police officers from the Counter Terrorism or Anti-Terrorist Branch are investing something or other, not unreasonably assume, as did I, and I suspect many other MPs when we heard about Damian Green being arrested by counter-terrorism officers, that this is even more serious than the police officers thought it was likely to be.
Assistant Commissioner Dick: I absolutely do take your point. We will go away and think about it.
Sir Malcolm Rifkind: I am most grateful.
Q1096 Chairman: It had some practical application in this case
in relation to the Speaker because Sir Malcolm has followed this issue on a
number of occasions and he asked now Lord Martin a question on
Assistant Commissioner Dick: Yes.
Q1097 Chairman: Lord Martin's reply was very interesting. He said: "I feel my responsibility was that I was dealing with an anti-terrorism squad. I did not know all the facts and I felt that I could not interfere with an anti-terrorism squad". There is an illustration of the fact that this description, as Sir Malcolm pointed out by way of his question, had a practical outcome in this particular case.
Assistant Commissioner Dick: I understand that. The solution is unlikely to be for us to say that inquiries will always be dealt with in another part or, indeed, not in the Counter Terrorism Command, but the solution may be around how we articulate what we are doing and the branding we give it at that stage. This is fine detail perhaps.
Q1098 Sir Malcolm Rifkind: You have tempted me to come back once more, if I may. I appreciate that it may mean police officers are much more careful about clarifying that it has got nothing to do with terrorism, but there is still the problem that when it is announced that someone has been arrested or something has happened which involves police from the counter-terrorist department, our friends in the media will not unreasonably assume and report on television, on the radio, in newspapers, because it makes it a much more interesting story and then there is maximum confusion and gross unfairness to the members of the public involved. I do seriously suggest that either the name of your department should be changed so that they are not described as counter-terrorist officers, or matters which cannot possibly be linked to terrorism, such as leak inquiries and misconduct in a public office, are not dealt with by police officers who are described in those terms.
Assistant Commissioner Dick: I will take that back, Sir.
Q1099 Chairman: Can I ask you about scoping. What was the nature of your involvement in scoping in this matter?
Assistant Commissioner Dick: You will have seen from my statement, Sir, that I was not aware of this matter at all until 9 October. That was when Mr Quick was due to go abroad, so he briefed me for the first time about the matter. As I understand it, he had already identified the senior investigating officer, he had already had a case conference with officials from the Cabinet Officer, and he had already indicated that we would not go straight into an investigation, we would want to get clear what it was that we were dealing with, ie a scoping. This is a process that I am very familiar with. He asked me to sit in in his absence and manage the scoping at my senior level on behalf of the Commissioner and also to manage the relationship with the Cabinet Office as the people who were making the referral. For the period that Mr Quick was away that was exactly what I did. I never had a meeting at the Cabinet Office - I know that is something that has been asked before - but I did speak very early on to Mr Wright.
Q1100 Chairman: On how many occasions did you speak to him, can you recall?
Assistant Commissioner Dick: It is slightly difficult for me to remember precisely because I was also, curiously, dealing with Mr Wright on another matter in that time period, actually an Official Secrets matter and another leak matter. I spoke to him, I know, on at least three occasions over that couple of week period and I think I spoke to him on each occasion about this matter. Initially I spoke to him about the scoping and what we would intend to do.
Q1101 Chairman: You were also familiar, I take it, with the terms of the letter dated 8 September but which, in fact, should have been 8 October which was addressed to Mr Quick?
Assistant Commissioner Dick: Yes. I saw that letter shortly after Mr Quick went abroad.
Q1102 Chairman: You are familiar too, I think, with the letter of 29 October written by Mr Wright on this occasion to yourself?
Assistant Commissioner Dick: Yes, that is right.
Q1103 Chairman: He says: "Further to my letter of 8 September", which should have been 8 October, "addressed to AC Bob Quick and his agreement to undertake an investigation, I am happy to confirm the following investigation terms of reference for the investigation..." then there are some redactions for good reason "...that X and Y from the Cabinet Office have drafted together. The terms of reference are written against the background of a number of serious unauthorised disclosures". How common is it for the complainant to provide terms of reference?
Assistant Commissioner Dick: He did not provide the terms of reference, Sir. The terms of reference were actually drafted in the first instance by X, who was the senior investigating officer, a Metropolitan Police officer. I was very keen, as was Mr Quick and, indeed, the Deputy Commissioner that (a) the scoping would be complete and we would be very clear about that, as in we would not go into an investigation until we were certain that criminal offences had been committed, and (b) ---
Q1104 Sir Alan Beith: Sorry, could you repeat what you just said.
Assistant Commissioner Dick: A criminal investigation would not go ahead until we were sure that it appeared that criminal offences may have been committed. I should have been more careful with my language, Sir. Not just, "Yes, okay, we will investigate this on the basis of the first letter", but we would do a proper scoping exercise. In my statement I lay out some of the things that were going to take place in the scoping exercise. Secondly, all three of us felt it was important that the Cabinet Office were aware of the terms of reference if we did go into in an investigation. They are carefully drafted. They are the SIO's terms of reference, although I did make a couple of changes in them. I wanted and, indeed, Mr Quick and the Deputy Commissioner wanted the Cabinet Office to be aware of those and to let us know they understood what they were, and that was why he said in the next paragraph: "We understand that the Metropolitan Police intend to..." There are terms of reference agreed with the Cabinet Office.
Q1105 Chairman: This seems to have all the appearance of a negotiation, Assistant Commissioner.
Assistant Commissioner Dick: I would not describe it as a negotiation. They saw them, they knew they were ours, they understood them, and I did ask Mr Wright to send this letter back to me. Looking back on it, because I have followed your transcripts, I can see that has caused some confusion in itself. It might have been better if I had written to him in the first instance and said formally, "These are the terms of reference" and then he had written back to say, "Yes, I understand them". How common is it? Quite often we would formally agree with the complainant, "These are the terms of reference and, yes, you do understand them, don't you?" On every single occasion when we are dealing with a complex or sensitive crime, or a series of crimes, we will have a conversation with the complainant about what we appear to be dealing with and what we are now going to do about that. There is a conversation that goes on.
Q1106 Chairman: But does it lie within the power of the complainant to confirm those terms of reference?
Assistant Commissioner Dick: I simply think he is confirming that he understands them. I really do think that.
Q1107 Chairman: That is not what he says.
Assistant Commissioner Dick: All I can tell you is what happened, which was that they were our terms of reference that X wrote, who was the SIO, with some input from me.
Q1108 Chairman: And that blank from the Cabinet Office ---
Assistant Commissioner Dick: Blank is Mr Wright's deputy, so they had had a conversation about the terms of reference. This is us at the most senior levels agreeing that this is what the Met is now going to do.
Q1109 Chairman: It is not just they had a conversation but "had drafted together". That is what it says at the end of the sentence.
Assistant Commissioner Dick: What I have said in my statement, which I stand by, is that I have got no reason to think at all that the Cabinet Office officials at any stage tried to influence the terms of reference. They were aware of what we were intending to do and, as I said, we all thought that was very important. If you look at the terms of reference they are carefully drafted and make it clear, for example, that we are not going to deal with all 31 of these, we are going to start with the one on 1 September, which was the one which appeared to be going to give us the best initial leverage, and we were going to identify the chain of that disclosure and any other related ones. Then it also makes the point that we will only go to proactive measures, by which I mean covert measures, if it is necessary, appropriate and authorised. It was really a matter of trying to get clear with them what we would and would not be doing.
Q1110 Chairman: I appreciate you did not write this letter.
Assistant Commissioner Dick: Yes.
Q1111 Chairman: But use of words like "confirm" and "drafted together" suggest something rather different from what you have just described.
Assistant Commissioner Dick: As you say, I did not write the letter and knowing you were calling me I have not discussed this letter with Mr Wright, in fact I have never discussed these issues with Mr Wright since November 2008, but I am quite confident that these were our terms of reference and at no stage did they try to influence them at all. They simply made available to us all the material that they had, told us about the investigations that they had done and assisted us as we were trying to work out whether this was an appropriate thing for us to take on as an investigation or not. My view is that having this on the record was in support of the senior investigating officer and was designed in part to ensure that he did not come under any improper influence or pressure. I saw no sign of it.
Q1112 Chairman: From what source might that have been?
Assistant Commissioner Dick: I have been an ACPO officer for nine years and have on occasions seen government departments forget that the police are independent. I have on occasions seen politicians forget that the police are independent.
Q1113 Chairman: That is exactly what we are really concerned about here.
Assistant Commissioner Dick: I did not see any sign of it here whatsoever. This letter and those terms of reference were designed to ensure that as we went forward the SIO would be given a direction where everybody could say, "Yes, that's what we agreed".
Q1114 Chairman: If the matter had been as independent as you say then it would have been for the police to determine the terms of reference and say, "These are our terms of reference, we are proceeding in accordance with them".
Assistant Commissioner Dick: Yes.
Q1115 Chairman: There would not have been any need for confirming or drafting together.
Assistant Commissioner Dick: I do not agree, Sir. I agree that the phraseology "drafting together" may be slightly clumsy but ---
Q1116 Chairman: Or even wrong.
Assistant Commissioner Dick: I think it was important for me, for the record, that the Cabinet Office understood what our terms of reference were and what we were going to do, and they wrote to tell us so.
Q1117 Chairman: Did you speak to anyone else in the Cabinet Office about these matters or meet anyone else in the Cabinet Office on which these matters formed the subject of a conversation?
Assistant Commissioner Dick: I did not, no, Sir, but my senior investigating officer and, indeed, his detective chief superintendent did. During the time period that we are talking about, ie the scoping exercise, there were several meetings involving Cabinet Office officials at various levels and my senior investigating officer, and on occasion the detective chief superintendent, which is the normal level at which we would engage in this sort of matter.
Q1118 Chairman: Do you have a view about the use of the offence of misconduct in public office being used in circumstances of the kind we are considering where the high threshold for using the Official Secrets Act has not been obtained?
Assistant Commissioner Dick: I am quite familiar with misconduct in public office and it is an offence which is not regularly like theft, for example, but quite regularly used in matters of what you might call professional standards in a variety of circumstances, certainly in policing but also I am familiar with this in the Prison Service and in various government departments. I am familiar with it also in cases of unauthorised disclosure of information of one sort or another. I checked the figures before I came and in the Metropolitan Police district in the 18 months leading up to December last year we had about 58 people arrested and about 31 people charged with it. It is not a particularly obscure offence. It is one that I think is useful and important. There have been at least two cases that you will probably be familiar with recently where the Official Secrets Act prosecution has failed for one reason or another and the misconduct has succeeded; one being in relation to an interpreter in Iraq and another relating to a member of police staff who leaked top secret material, and on that occasion it was not that the prosecution failed but the CPS chose not to use it because they felt that the threshold was not reached for Official Secrets. I think there are occasions, and they may be limited, when it is an entirely proper and respectable, if I can put it that way, offence to use, including in unauthorised disclosure cases where there has been a gross abuse of trust.
Q1119 Sir Alan Beith: Is it useful because it allows you to defeat the intention of the reform of the Official Secrets Act which included that leaks which did not involve matters of national security should be treated as disciplinary offences and investigated and proceeded with on a disciplinary basis and use of the Act should be confined to matters of national security?
Assistant Commissioner Dick: That is not why I think it is useful. There is simply a gap without it. Where one does need to be very cautious, of course, and the Director has made it abundantly clear in his decision in this case, is where we are talking about disclosure to the media, which may be argued to be in the public interest or may quite clearly be in the public interest, and we need to be extremely cautious in cases which are political. There are lots and lots of other cases where it might be Official Secrets and end up being charged potentially with misconduct, and I think that is entirely reasonable.
Q1120 Sir Alan Beith: Am I right in assuming that if you had not had a steer from the CPS that a charge of misconduct in public office might run then you would have had to turn to the Cabinet Office and say, "There's no likelihood of a successful Official Secrets Act prosecution, this is clearly a conduct and discipline matter and it goes back to you"?
Assistant Commissioner Dick: We were interested in has a crime been committed and is it a relatively serious crime. That is a big part of any scoping and a big part of my decision making about whether we go forward into investigation. If there had not been, on the advice of the CPS, any realistic prospect of at that stage a crime being made out then, of course, we would have said to the Cabinet Office, "This is not territory for us".
Q1121 Sir Alan Beith: Can I be sure about that, that in essence the Cabinet Office had not pressed a button starting a process which is very difficult to stop?
Assistant Commissioner Dick: I think you can be sure on the basis that you have probably picked up that there have been a number of worrying - for the Home Office - leaks in the relevant period which have not resulted in extensive or long investigations. If we get a referral like this we will look to see has a crime been committed as far as we can tell, how serious is that, what are the prospects of finding out what happened, who has done it, what is the likelihood of a successful prosecution, where does this sit in terms of our priorities, how intrusive will it be for us to carry on, all those sorts of questions. Frequently we will say, and I can certainly imagine in these cases, "I am sorry, there's no reasonable prospect of us getting anywhere here. This is not a matter for the police". I know that is a position that has been taken and I know it is a position that the Commissioner would want us to take.
Q1122 Sir Alan Beith: This case did ring some of those bells, did it not, like the bell about how seriously intrusive would it be, in this case exercising the whole issue of parliamentary privilege?
Assistant Commissioner Dick: At a later stage, yes, absolutely.
Q1123 Sir Alan Beith: It must have been fairly obvious to you that it was going to lead you in that direction.
Assistant Commissioner Dick: No, I do not think that was true. If we go back to the terms of reference, I noticed, Sir, you had said in a previous hearing that these cases are notoriously difficult to investigate, and you are absolutely right, it is extremely rare after a leak for us to be able to effectively investigate what has happened. Often if we are convinced that there is a good suspect we will think about going to a proactive inquiry, a covert inquiry, if all the circumstances justify that. In these terms of reference I was being very clear that we were not going to proactivity at that stage. It was something that I discussed with the Deputy Commissioner at some length, that we did not want to go to intrusive methods given that at that stage we did have, unusually, five linked, it appeared, and some very good investigation already done by the Cabinet Office and that by moving forward in what we would call a reactive investigation I could see that we might end up arresting people. We could do that without going into all kinds of high-tech and covert methods.
Q1124 Sir Alan Beith: Are you quite clear in your mind that something which is quite important to the Cabinet Office, that is dealing with actions which impede the efficient conduct of government business, is not a matter for you at all?
Assistant Commissioner Dick: I think this is something that we have all reflected on considerably since this case. Again, I speak as somebody who has worked in a place where there have been leaks going on and I understand how incredibly difficult that can make the working environment and how strong the desire is to find whoever is doing this so that we can start having open conversations again and have confidence and trust in each other and, indeed, be trusted by the public.
Q1125 Sir Alan Beith: We are not discussing whether this is a good thing or a bad thing - I think from most points of history it is rather a bad thing - but whether it is the business of the Metropolitan Police to investigate such matters in the belief that this is a crime.
Assistant Commissioner Dick: I would say it is our business to investigate if we believe a crime and, indeed, a serious one has been committed. I think one of the bits of learning that has come out of this case is the new Protocol makes it very clear that we will only be dealing with the very serious end of crime. I stand by the decisions that we made. I do not think we will find ourselves in this position again, partly because the Director has made it so very clear in relation to press and political leaks just how high he sees the threshold. At that early stage, if we go back to October 2008, with the knowledge we now have, which I know is impossible but hypothetically, we would probably have said, "In relation to the misconduct issues not appropriate, this is unlikely to lead to prosecution".
Q1126 Sir Malcolm Rifkind: A few moments ago in answer to Sir Alan Beith you gave reasons why you thought it was appropriate to have an offence of misconduct in a public office.
Assistant Commissioner Dick: Yes.
Q1127 Sir Malcolm Rifkind: If we can assume that issues of Official Secrets or national security are not involved, can you tell us why you feel - if you feel - an employee in the public sector who leaks information which has nothing to do with national security or terrorism should be liable to the possibility of facing criminal charges when an employee in the private sector, who does exactly the same leaking information belonging to his own company which may cause equal chaos and problems, should not be subject to criminal prosecution? What is the public interest that justifies the one and not the other depending on who happens to employ you when national security is not involved?
Assistant Commissioner Dick: I think it is the essence of the common law offence of misconduct in a public office which is applied in a variety of different circumstances which is that the public do have an expectation of how their public officials, their paid public servants, should behave. If there is a gross abuse of that trust - I am almost talking as an ordinary citizen here - I do not see that it is unreasonable to suggest that should be subject to criminal sanction. However, it is clear that it is a high threshold and it will be used sparingly. If you look through some of the cases, and I do have lots of case studies which I could show you, I think you would agree that it is entirely proper given what these people have done that they should be prosecuted and in actual fact there is often not a suitable other criminal charge. I do think the position of a public servant is different from somebody working in a business.
Q1128 Chairman: Including being liable to life imprisonment?
Assistant Commissioner Dick: That is another matter. Certainly sometimes people who are charged with misconduct offences do end up in prison. I am not aware of very lengthy sentences, but I absolutely do understand that it is potentially life imprisonment. I am getting out of my territory. More of you are lawyers than I am. I think it is very unlikely that anybody would end up in prison for a very, very long term for a misconduct offence, they would be there for a different offence.
Q1129 Ann Coffey: The offence is misconduct in public office but, of course, an elected representative, ie Damian Green, was caught up in this so we are not simply talking about that applying to a civil servant. It is a very important area because people would say that elected representatives must be able to freely state what they think, what they believe in, and if they get information they should be entitled to pursue that. In many ways people look to Members of Parliament to take up cases of injustice. How do you think that the misconduct in public office offence applies to elected representatives?
Assistant Commissioner Dick: It is important to remember in this case that Mr Green was arrested for aiding and abetting, counselling or procuring, and conspiracy rather than for the substantive office of misconduct in public office. The lesson from this case is that clearly although the Director says that the investigation was thorough, the investigation was inevitable, and I agree with that, he also says that the threshold is very high and he makes it clear that such things should be used very sparingly. It is going to be extremely unusual in the future, I would have thought, for a politician who becomes engaged with somebody who is leaking in these sorts of circumstances to find themselves subject to arrest and criminal inquiry. This case has clarified lots of things for us. None of that is me saying that what we did was wrong, I stand by all the decisions that we made at that time, but I have also had to reflect on this and it is quite clear that the public do want politicians to be challenging, they want them to be using information, they want them to be accessing information, and the law around human rights is developing all the time and public interest favours more and more people getting access to information.
Q1130 Ann Coffey: It is very difficult for a politician to do their job without being given information and you could argue that in the wider public interest it is important that people feel able to give information to elected representatives who can raise it without being arrested and charged with conspiracy. Maybe the problem with this, and you talk about higher standards so clearly there has been a lot of reflection on what happened, is that it is important to separate out how people behave in their job, ie how civil servants do their job in a professional way, and not get into a situation in which because they may not do their job within their terms of reference it then becomes a criminal investigation. There may be a lot that went wrong with using this offence which was clearly used for all sorts of purposes because we heard evidence from people who came before that there was a certain amount of confusion about what, in fact, they were investigating and they might have been investigating misconduct in public office with a view to see if they could be getting some evidence for some other offence being committed.
Assistant Commissioner Dick: I think the key point that the Director focuses on is damage done. He makes it clear that there was an abuse of trust. He goes through a number of points that are proven in relation to this offence, but overall he feels that the damage done was not sufficient. I think that means politicians, if they are engaging in that kind of activity, have to be very careful. I know there has been discussion in this Committee that a politician will know when it is a matter of national security and when it is not, but I am not sure that is absolutely right. Actively encouraging someone to leak from a government department is always going to be a perilous activity.
Q1131 Sir Alan Beith: It is always going to be what?
Assistant Commissioner Dick: I think it is quite a perilous activity for a politician.
Q1132 Sir Alan Beith: It may be perilous but are you trying to change the definition of what constitutes an Official Secrets Act offence?
Assistant Commissioner Dick: No, not at all. Certainly not.
Ann Coffey: We have talked a lot about parliamentary privilege and the fact that one of the things we have as Members of Parliament is the ability to raise issues and go into waters that may be difficult for other people, but no Member of Parliament can make judgments about the information that they receive. Surely saying that this is a very dangerous activity for politicians is a way of silencing us, making us not take those kinds of risks or go into those kinds of areas, not take up those issues that people think we should take up without the police coming and accusing us of conspiracy.
Chairman: We may be taking you beyond your competence.
Ann Coffey: I was using it to make a statement, Chairman.
Q1133 Chairman: May I just remind everyone, of course, Mr Green was arrested, there was an investigation and no proceedings were taken against him.
Assistant Commissioner Dick: No.
Q1134 Chairman: He is innocent by our system.
Assistant Commissioner Dick: Absolutely.
Chairman: It is important to keep all of that in mind. Assistant Commissioner, thank you very much for your evidence, the Committee is very grateful. Perhaps I could just say for the benefit of the public that concludes the public hearings that the Committee will be holding. We hope to publish our report by the end of March.