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Notification of the arrest of Members Contents

Appendix 2: Memorandum to the Procedure Committee from the Clerk of the House

Notification of arrests of Members of Parliament

1)The practice of reporting the arrest of a Member to the House rests principally on the statement in Erskine May that “In all cases in which Members of either House are arrested on criminal charges, the House must be informed of the cause for which they are detained from their service in Parliament.”1 The phrase “arrested on criminal charges” does not conform to current practice, since a person is arrested on suspicion of having committed an offence and is now rarely if ever charged at the moment of his arrest and indeed may not be charged at all. Nor does the reference later in the same passage to communicating “the cause of committal of a Member after his arrest” make any sense in the light of modern practice, given that cases are now ‘sent’ to the Crown Court for trial and committal proceedings have been abolished since 2013.

2)The statement quoted in para 1 above has survived unaltered from the first edition of Erskine May published in 1844.2 Hatsell, May’s predecessor in describing the procedure and practice of the House, set out a number of cases of the arrest, imprisonment and conviction of Members of the House and concluded–

“We may collect from these instances, that whenever the King, or any of his Ministers, or persons employed by him, find it necessary, for the public service, to put a Member of the House of Commons under arrest, or that, in any public enquiry, matter comes out, which may lead to affect the person of a Member; or, as in the case of Mr Montagu, to seize his papers; it has been the uniform practice, immediately to acquaint the House of Commons, that they may know the reasons for such a proceeding, and take such steps as they think proper.—As there is no privilege, of which the House of Commons have always been, and indeed, ought to be, more jealous, than the security of the persons of the Members, “that they shall be under no undue restraint from being able to attend their duty in Parliament”, it is highly expedient, that, whenever the public necessity appears to the Ministers of the Crown to justify any breach of this privilege, they should as soon as possible acquaint the House with the steps they have taken, and the grounds and reasons which induced them to it”.3

3)This confirms that the origins of the practice of notification to the House of the detention or arrest of its Members lie in the now almost wholly discarded claim of the House to the privilege of freedom from arrest, claimed from the Sovereign and implicitly directed to the Sovereign.4 It is one of the privileges specified by the Speaker as amongst the “ancient and undoubted” privileges for which he seeks confirmation from the Lords Commissioners, after he has received the royal approbation from them, on the day following his election. May, however, describes it as being of “symbolic importance rather than of practical effect”.5 The 1967 Select Committee on Parliamentary Privilege recommended its abandonment.6 The Joint Committee on Parliamentary Privilege in 1999 agreed.7 The 2013 Joint Committee concurred with its two predecessors, but noting that legislation was unlikely and perhaps undesirable, but would be required, saw little need for any urgency in dealing with the anomaly.8 All these committees concurred in the conclusion that Members are subject to the normal course of criminal justice.9 Each also noted that with the abolition of imprisonment for civil debt in 1870, the last vestige of a requirement for this privilege had evaporated. May considers whether the privilege might apply in the case of a contempt of court of a “civil” rather than “criminal” nature, but the House has in the past generally declined to intervene in favour of a Member imprisoned for contempt of court.10

4)There is a parallel regime of notification to the House of imprisonment of a Member following conviction or remanded in custody. The automatic disqualification of, and consequent vacation of the seat held by, a Member imprisoned for more than one year necessarily means that the House be informed.11 Section 4 of the Recall of MPs Act 2015 obliges a court to notify the Speaker of any sentence of imprisonment passed on an MP, in effect putting on a statutory footing what has long been the practice of notification of short sentences (such as those passed on Ulster Unionist Members in 1987/88).

5)A non-custodial sentence may also be formally announced to the House where it directly affects the House and its membership. The principal examples are of a conviction for an illegal or corrupt practice at a parliamentary election, which disqualifies the Member and vacates the seat12, and the making of a bankruptcy restrictions order in respect of a Member.13 The Recall of MPs Act 2015 provides for the Speaker to transmit to the petition officer notice of a conviction for an offence under s.10 of the Parliamentary Standards Act 2009: although such a conviction would not normally fall to be announced to the House, it seems likely that the Speaker would want the House to be aware of the notification he had received and the action taken.

6)The House is not informed in all cases where a Member is unable to attend due to legal processes, such as jury service or appearance as a witness. The House is not now informed of the detention of a Member under the Mental Health Act. Nor of course is it formally notified in the myriad other circumstances of more or less involuntary absence, such as service away from Westminster on parliamentary duties, military service as a reservist, illness, maternity or paternity or other caring responsibilities.

7)There will of course be cases where a Member may fall foul of the law in various ways, leading to non-custodial sentences such as fines, or to a caution, without at any stage in the process being arrested or detained: and cases where a Member may be charged with offences without being first arrested or detained. None of these would give rise to formal notification to the House, although as some would be matters of public record they might become widely known. But a Member would have the same rights to privacy or protection of his sensitive personal data as any other citizen.

8)It is therefore neither (a) the mere inability of a Member to attend nor (b) the belief that any alleged or potential “criminality” of a Member in itself needs to be reported to the House as a whole that has led to the current regime on notification of arrests, but the insistence in past years by the House that it should be in a position to enforce its claim to freedom from arrest for its Members.

9)The attached historical table indicates some variation in recent practice. We cannot know on what occasions an arrest went unreported. For almost exactly thirty years, between the arrests of Jeremy Thorpe for conspiracy to murder and that of Damian Green for conspiracy to commit misconduct in public office, no reports were made to the House. It is hard to believe that there were no arrests of Members in that period.

10)The concerns surrounding the conduct of the police in relation to the Damian Green case led to a stricter application of the rules. The police were instructed (though they cannot be compelled) to report each and every arrest in a letter to the Speaker, and the practice has been to report each such letter to the House (“lay it on the Table”) and for the fact of that laying to be recorded in the Appendix to the Votes and Proceedings amongst other papers laid on that day. The entry names the Member concerned but does not give the other details included in the letter.

11)The level of detail given by the police in the letters of notification has varied. In some cases the details of the cause of arrest has been given, in other cases not. In the most recent example (Mr Mark Pritchard) no such details were disclosed, but the coincidence of the laying of the letter and the Metropolitan Police’s anonymised press release in which reference was made to the reasons for the arrest meant that the nature of the allegations against the Member were easily deduced by the media.

12)Mr David Ruffley’s arrest and caution in March 2014 came to public attention through the press several months after it occurred. The police were invited to report it retrospectively, and the letter was treated in the same way as others have been since the start of this Parliament. It contained brief details of the allegations and the caution delivered. These were by then already public knowledge.

13)On receiving notification of arrest, under the current practice Mr Speaker is in effect obliged to inform the House, either in an oral statement to the House or by laying the letter before the House.

14)“Laying” a document on the Table is an action which makes that document available to every Member of the House. Every such document is placed in the Library, and any such document can be inspected by any member of the public on application to the Records Office in Parliamentary Archives. In practice, modern technology means it would be impossible (and indeed pointless) to prevent the circulation of copies of such documents by other means. They are thus immediately available to the press, and if a member of the public requested a copy we would provide it. In other words, they are treated exactly as any other laid paper would be.

15)If the Speaker were in some or all cases to keep the letter of notification to himself, without prior authorisation from the House, he could be open to charges of improper protection of the reputation of the Member concerned by withholding damaging information from the House. That applies no matter what protective privacy marking the police may put on the letter, since it is plainly addressed to him under current conventions not in a personal capacity but as representing the House.

16)Publication of the fact of a Member’s arrest and of the grounds for the arrest has inevitable reputational impact. All other citizens benefit from privacy in this respect. The police inevitably do arrest people who turn out to be innocent of any wrongdoing. Some arrests may even be voluntary arrangements between the individual and the police. Since information about the commission or alleged commission of an offence is ‘sensitive personal data’ for the purposes of the Data Protection Act 1998, the police do not officially announce the name of an arrested person, but use some such formula as ‘a 54 year old male’. Thus most citizens can be assured that the fact of their arrest and the grounds for that arrest will not be published.

17)The Committee may therefore wish to consider—

a)to what extent there is any remaining rationale for the House being informed whenever one of its Members has been detained on suspicion of having committed an offence;

b)if so, how each Member’s right to privacy should be balanced against any need for the House to be informed of the arrest of one of its Members; and

c)whether allowance should be made for circumstances where an arrested or detained Member positively seeks the formal process of notification to the House, such as where the arrest or similar action was seen as unjust or oppressive, or closely connected with a political cause.

18)Whatever conclusion the Committee may draw on the right balance to be struck, it may consider that some means should be found of informal notification to the House authorities of arrests of Members, without necessarily triggering publication to the House or the wider world. As noted above, the Speaker cannot keep these matters from the House by his own decision, once they have been formally reported to him in writing. But an informal and clearly confidential communication to the House authorities (e.g. to the Clerk of the House, the Serjeant at Arms or Speaker’s Counsel) of the arrest of any Member by the police could be established in a protocol, as a protection against abuse.

19)The Committee should be aware that broadly similar procedures apply in the Lords. While there is no absolute requirement to stay in step, it would be useful to test any suggested changes with the authorities there. It is clear from a very limited paper search that the practice in sister legislatures varies.

David Natzler

Clerk of the House

July 2015

Annex: notifications of arrests and imprisonments of Members since 1945

House notified of Members arrested:

Date of arrest

Sitting day?

Member

House informed

Offence

Outcome

Tuesday

02.12.2014

Yes

Mark Pritchard

Wednesday 03.12.2014

Not specified

Investigation dropped

Friday

17.10.2014

Yes

Eric Joyce

Thursday

23.10.2014

Assault

Charged and committed for trial

Saturday 15.03.2014

No

David Ruffley

Thursday 26.06.2014

Assault

Cautioned

Monday

19.08.2013

No

Caroline Lucas

Thursday

29.08.2013

Obstruction, &c.

Acquitted

Sunday

19.05.2013

No

Eric Joyce

Monday 03.06.2013

Threatening or abusive behaviour, &c.

Fined

Saturday 04.05.2013

Wednesday 19.06.2013

Tuesday 10.09.2013

House prorogued

Yes

Yes

Nigel Evans

Tuesday 14.05.2013

Wednesday 19.06.2013

Thursday 17.10.2013

Sexual offences

Acquitted

Friday 15.03.2013

No

Eric Joyce

Monday

18.05.2013

Assault

Not charged

Tuesday 21.02.2012

Yes

Eric Joyce

Wednesday 22.02.2012

(Speaker’s Statement);

Monday

27.02.2012 (letter laid on the Table)

Assault

Fined, &c.

Thursday 09.06.2011

Yes

Andrew Bridgen

Thursday

09.06.2011

Sexual assault

Not charged

Thursday

27.11 2008

(during prorogation)

House prorogued

Damian Green

Monday

01.12.2008

Conspiracy to commit misconduct in a public office

Not charged

Friday 04.08.1978

No

Jeremy Thorpe

Tuesday 24.10.1978

Conspiracy to murder

Acquitted

Wednesday 21.06.1977

Yes

Audrey Wise

Wednesday 21.06.1977

Obstruction

Fined

Saturday 19.07.1975

No

John Stonehouse

Monday

21.07.1975

Fraud, theft, forgery, conspiracy to defraud, wasting police time, &c.

Remanded

in custody; took the Chiltern Hundreds

Thursday 15.01.1970

Friday 16.01.1970

Monday 19.01.1970

No

No

Yes

Will Owen

Monday 19.01.1970

Monday 19.01.1970

Thursday 22.01.1970

Breach of the Official Secrets Act

Remanded in custody; acquitted

House notified of Members imprisoned:

Date of imprisonment

Sitting day?

Member

House informed

Offence

Sentence

Thursday

11.07.1991

Yes

Terry Fields

Monday

15.07.1991

Non-payment of community charge

60 days

Wednesday 24.08.1988

No

Peter Robinson

Wednesday

19.10.1988

Unlawful procession

7 days for non-payment of fine

Wednesday 24.02.1988

Yes

Harold McCusker

Thursday

25.02.1988

Unlawful procession

7 days for non-payment of fine

Wednesday 24.02.1988

Yes

Martin Smyth

Thursday

25.02.1988

Unlawful procession

7 days for non-payment of fine

Wednesday 24.02.1988

Yes

Clifford Forsythe

Thursday

25.02.1988

Unlawful procession

7 days for non-payment of fine

Wednesday 17.02.1988

Yes

Peter Robinson

Monday

22.02.1988

Untaxed vehicle

30 (actually 7) days for non-payment of fine

Wednesday

10.02.1988

Yes

Roy Beggs

Monday

15.02.1988

Unlawful procession

7 days for non-payment of fine

Wednesday 27.01.1988

Yes

William McCrea

Monday

01.02.1988

Unlawful procession

7 days non-payment of fine

Wednesday 20.01.1988

Yes

Peter Robinson

Monday

25.01.1988

Unlawful procession (two offences)

7 days for non-payment of fines

Wednesday 06.01.1988

No

A. Cecil Walker

Monday

11.01.1988

Unlawful procession

7 days for non-payment of fine

Tuesday 22.09.1987

No

Peter Robinson

Wednesday

21.10.1987

Untaxed vehicle

7 days for non-payment of fine

Monday 15.06.1987

Parliament

dissolved

Ken Maginnis

Thursday

25.06.1987

Untaxed vehicle

7 days for non-payment of fine

Monday 26.01.1987

No

Harold McCusker

Wednesday 28.01.1987

Untaxed vehicle

7 days for non-payment of fine

Monday 17.04.1972

Yes

Frank McManus

Thursday

20.04.1972

Unlawful procession (three offences)

6 months

Monday 17.04.1972

Yes

Bernadette Devlin

Thursday

20.04.1972

Unlawful procession

6 months

Monday 18.01.1971

Yes

Frank McManus

Friday

22.01.1971

Unlawful procession (three offences)

6 months

Friday 26.06.1970

Parliament dissolved

Bernadette Devlin

Thursday

02.07.1970

Incitement to riot

6 months

Tuesday 30.11.1954

Yes

Peter Blaker

Wednesday

01.12.1954

Uttering forged documents

7 years (expelled from House)

Wednesday 29.10.1947

Yes

David Weitzmann

Thursday

30.10.1947

Unlawful supply of toilet preparations

12 months

(quashed 16.03.1948; House informed 17.03.1948)

1 May, 24th edition, p. 243.

2 May, 1st edition, p. 105.

3 Precedents of Proceedings in the House of Commons with Observations, John Hatsell, 1818, volume II, p 364.

4 For the authoritative account of this privilege, see May, 24th edition, pp 209–215.

5 May, 24th edition, p. 206.

6 Report from the Select Committee on Parliamentary Privilege, Session 1967–68, HC 34, para 98.

7 Report of the Joint Committee on Parliamentary Privilege, Session 1998–99, HC 214-I, para 327.

8 Report from the Joint Committee on Parliamentary Privilege, Session 2013–14, HC 100, para 257.

9 Hatsell observed, in his review of precedents up to 1628, that “there is not a single instance of a Member’s claiming the Privilege of Parliament, to withdraw himself from the criminal law of the land: they were contented with being substantially secured from any violence of the Crown, or its Ministers; but readily submitted themselves to the judicature of the King’s Bench …” (Hatsell, op cit, volume I, p. 206).

10 May, 24th edition, pp 246–7.

11 S.1 of the Representation of the People Act 1981.

12 May, 24th edition, pp 33–4.

13 May, 24th edition, p. 34.




© Parliamentary copyright 2015

Prepared 14 December 2015