Why the Speaker was right

It's not what the Tories want to hear, and I'm wearing my tin hat, but Michael Martin had no powers to stop the police entering Damian Green's office in the House of Commons. Jill Pay, the Searjant at Arms, could not have turned the police away

The chest swelling arguments about parliamentary privilege are - deep breath- rubbish.

Much has been talked about the sanctity of Parliament, but overnight research by the House of Commons library has been unable to find any laws, statutes, sessional orders or precedents to suggest Parliamentary privilege gives MPs or their offices additional protection from the law within the precincts of the Palace of Westminster.

Parliamentary privilege is a narrow beast. Article IX of the 1689 Bill of Rights guarantees that "Parliamentary proceedings" - anything said on the floor of the Chamber or published in Hansard - cannot be used in evidence against MPs during a prosecution. But, citing a 1999 committee report, it says  Parliamentary privilege "does not embrace and protect the activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament."

The report cites the precedent of Lord Cochrane, who was arrested in 1815 while sitting on the Government front bench in the Chamber, having escaped from prison. The arrest took place before the sitting of the of the House, and the Committee of Privileges concluded that no breach of privilege had taken place.

Full report here

It's absolutely right to question whether the police response was proportionate. But the arguments over the Parliamentary privilege look like going nowhere.

Comments

[Peter Harrington]

Sam,

I agree about the legal aspect, but the deeper issue is whether Mr Green was receiving anything other than that which countless journalists, aides, politicians and lobbyists receive on a daily basis.

The double standard at work here is the key argument. We've all seen the video of Gordon Brown admitting to receiving leaks whilst he was in opposition, but the most ridiculous element is Peter Mandelson's interjection today. He is obviously incredibly good at lying to himself, or has a grotesquely distorted self image if he thinks he can take the moral high ground on this one.

From the party that takes spin over policy, spin over reasoned argument, and spin over facts, this is just too much to take.

The Tories are right on this one, they should be hammering the Labour to the point of brutality. If this isn't creeping Orwellianism then I don't know what is.

[paul02]

Its a trifling point,I know, but if police are permitted to enter Parliament why is it that no MP is arrested for smoking? After all a van driver faced proceedings due to smoking in his van.

[WOOFY]

Paul02 Nulabour policy do as you are told not
as we do.

[Nigel]

It seems now that the Cabinet Office actually lied to the police, telling them that the leaks were a matter of national security.

[Kris, London]

Now that the "genie is out of the bottle" so to speak and it is clear that members of the government can be held to account by the police (legal system), let's now arrest those that are suspected of wrongdoing:

Tony Blair - Iraq War and Cash for Honours
Lord Mandelson - Mortgage Fraud
Alistair Campbell, with others - Harassment of Dr David Kelly
John Prescott - Assault and Abuse of Office

To name just a few

Justice served not party politics should prevail.

[martin]

Financial crash leading to economic crash leading to political and social crashes. Theres a whole lotta fun to come.

[news]

Good article in the Standard...by a QC http://www.thisislondon.co.uk/standard/article-23595009-details/Mr+Green%27s+arrest+is+an+affront+to+democracy%3A+Michael+Martin+must+go/article.do

Speaker Martin should not have let the police in unless he had assurance from the Attorney-General or the DPP that this was a case of necessity and that evidence of serious criminality would be found in Green's office and might otherwise disappear.

Lenthall's defiance of the King is the foundation of parliamentarians' rights to meet and do their public duty without molestation. If Speaker Martin did indeed permit the police to ransack Green's office, he should resign - or Parliament should remove him from office. Otherwise, his decision will stand as a precedent for the harassment of MPs in the future.

Who signed the search warrant? Did the police seek permission from a magistrate as they should have done, or did they authorise themselves under anti-terror provisions - which would amount to a serious circumvention of due process?

Ironically, if the offices sought to be raided in a leak inquiry were those of a journalist or a newspaper editor, the police would have to apply to a circuit judge - an extra safeguard for public watchdogs. MPs forgot to extend the same safeguard to themselves when they passed the Police & Criminal Evidence Act back in 1984: they should swiftly amend it so as to protect their own sources of information.

The first principle of the rule of criminal law is that it must be "prescribed" - ie clear and well established. Why, then, was Green searched and arrested for "conspiracy to commit misconduct in public office", an offence which is hopelessly lacking in clarity and never before used against an MP?

It has occasionally been charged against police officers who fail in their duty to protect civilians and it can also serve to indict police and civil servants who supply confidential information to criminals. But a conspiracy charge based on this judge-made offence (maximum sentence - life imprisonment) is not a satisfactory basis for searching or arresting an MP who has received confidential information.

If Green is alleged to have paid for it, then he should have been charged with specific bribery or corruption offences; if it is alleged that he induced a Crown servant to remove documents, then he can be charged with theft. If he has procured and published sensitive information about security or details relevant to fighting crime, he can be charged under Section 5 of the Official Secrets Act (1989). That would entitle him to a public interest defence.

If, however, the police evidence goes no further than to show that Green - like any opposition MP, journalist or editor - was merely the enthusiastic recipient of newsworthy information outside these categories, then he has committed no crime and should receive heavy damages for wrongful search and arrest. Just like John Wilkes, a liberty hero whose victories for freedom should be celebrated in a British bill of rights.

Much of the debate over the police action has missed the point. Police have operational independence, and it would have been wrong for them to have told their plans to the Prime Minister or Home Secretary. But the police must act according to law and obtain the approval of the DPP before beginning any operation against MPs.

This was what went wrong with the "cash for peerages" wild goose chase which cost a fortune and caused a number of people to suffer much-publicised dawn arrests, all on a mistaken legal premise. The police ceased as soon as a leading counsel was brought in to tell them the law - 15 months afterwards. The moral of that waste of public time and money was that every such operation should be sanctioned at the outset by the DPP.

For all the overblown rhetoric about police states, the reality is more like police mistakes. While a full inquiry must await Mr Green's trial - or the dropping of all charges - parliament can and should act immediately to ensure that henceforth, no MP is searched or arrested without the prior approval of the DPP.

Most important, an all-party committee should be established to work out how to replace the Human Rights Act with a proper written constitution, featuring a British bill of rights that sets forth the liberties that were so hard-won and - as last week's events showed - so easily forgotten.

Geoffrey Robertson QC is author of The Tyrannicide Brief (Vintage) and The Levellers - the Putney Debates (Verso).

[Dave Clemo]

Welcome to Prison GB.
As Old Holborn commented last week

If NuLab ordered the arrest then we live in a totalitarian state
If the Police ordered it the we live in a Police state.
Bye bye freedom

[rob]

As a layman as far as I am concerned the video speaks volumes.No proffering of warrants or explanation of invasion of privacy and ransacking a Parliamentary Office and stealing documents and computers containing possible client sensitive privileged information.Just a thug masquerading as a copper giving the questioner what the americans called the bums rush.Its bloody outrageous!

[Martin McDonald]

Sam - and so it should be. Only what is fully open to scrutiny (by being uttered in session) should receive privileged status in law.

I find the lack of interest in the legality of the leak itself amazing. It appears to be taken as a given that the law around leaks has broken down and need not be obeyed. This cannot be acceptable.

Leaking by civil servants is selective; they leak what suits their own political position. For everything that needs to be released in one unelected person's view of the national interest how many other documents do we never see. They abuse their offices in order to influence public debate, but we the people cannot hold them to account.

There may be hypocrisy at work between the parties, but that doesn't remove the need to enforce the law.

[Wilfred]

Peter Harrington, I hadn't seen the famous Brown clip admitting to receiving leaks, but have now looked at it after reading your post. There's been a lot made in the blogs recently about Brown's "admission", but when you cut through the spin, all the video shows is an admission that Brown had received a leak. Countless politicians and journalists have done that. But Brown wasn't admitting to what Green is alleged to have done - actively inducing someone to work undercover in the Civil Service with the expressed aim of regularly stealing information and feeding it to a political group. I stress that these are only allegations, and Green is innocent of these charges until proven guilty, but the accusations are in the public domain.

The fact that many of Galley's alleged leaks were not matters of great public interest but were merely embarrassments to Labour (for example information about MPs' likely voting intentions over the 42 day bill) paradoxically makes Galley's alleged illegality and Green's alleged inducement of that illegality even more venal. Galley can't claim to be a true whistle-blower with high principles. His alleged actions appear to be designed to undermine a Labour government and give advantage to the Conservatives.

On the other hand Brown's admission seems only to be that (a) he received one unsolicited leak and (b) it was a matter of importance for the public interest. The fact that it was also embarrassing for the government was a by-product of this.

[machiavelli]

Sorry Sam but you're being spun.

Sessional Orders have always, until 2006, stated:

"That the Commissioner of the Police of the Metropolis do take care that... no obstruction be permitted... to hinder Members by any means in the pursuit of their Parliamentary duties in the Parliamentary Estate; and that the Serjeant at Arms attending this House do communicate this Order to the Commissioner."

Labour abolished these Sessional Orders when the Serious Organised Crime and Police Act 2005 supposedly provided the same protections; it didn't, and Labour's abolition of the Sessional Order allowed the raid to occur.

Focussing on whether the Speaker should or shouldn't have let the police in is a red herring; the blame lies with the Government who abolished MPs' rights.

[christina Speight]

Sam Coates - You're talking rubbish with spades on - and you must know it! The Palace of Westminster makes its own laws for itself. National laws are secondary. You know that so why fudge it ?

[blankeg]

SAM hope they dont come through your door at 5am.. the press are next.
Having spent most of the am reading the media on here and to be fair most of the media cant help themselves giving excuses for Labour on this matter.SKY well its borders on embarrassing.

[Sdemnips]

Nonsense! According to your logic I assume you regard the courageous Speaker who protected the House and MP's by deliberately lying to the King himself in the 17th century as a disgrace to his office for obstructing the Crown, and guilty of "misconduct in a public office"?

Given your narrow view of matters I anticipate you'll try to excuse him on the grounds that he wasn't in an "office" he was in a "House"?

In my view the corect thing for the Speaker/ Sergeant at Arms to do was to refuse entry to the MP's office in order to assert the sanctity of the House, but seal off the office and place a guard outside forbidding entry by anyone until all interested parties had an opportunity to become aware of the position and voice their opinions before an informed and measured decision was made.

[Dontmakemelaugh]

Well done Sam. Excellent piece. Nice to know that you stll possess your fine Conservative principles. Such hipocrisy by all parties, Your word "rubbish" describes it.

MP's are not above the law and cannot be allowed to be obstructed from doing there duty.

Sorry Sam but you're being spun.

Sessional Orders have always, until 2006, stated:

"That the Commissioner of the Police of the Metropolis do take care that... no obstruction be permitted... to hinder Members by any means in the pursuit of their Parliamentary duties in the Parliamentary Estate; and that the Serjeant at Arms attending this House do communicate this Order to the Commissioner."

Sorry Sam but you're being spun.

Sessional Orders have always, until 2006, stated:

"That the Commissioner of the Police of the Metropolis do take care that... no obstruction be permitted... to hinder Members by any means in the pursuit of their Parliamentary duties in the Parliamentary Estate; and that the Serjeant at Arms attending this House do communicate this Order to the Commissioner." machiavelli | 3 Dec 2008 13:05:00

Wrong: the Sessional Orders only apply to the areas on the approach to Parliament prevent the impediment of MP's entering Parliament. They are not designed to prevent police interviewing politicians suspected of committing an arrestable offence.

Good on yer, Sam.

[Dontmakemelaugh]

Apologies for the apparent double type posting - not sure how it happened?

[nimrod]

Brown has saved his backside ....if this went any further it would mean his OWN ARREST for admitting on TV the same "HEINOUS" crime(On MANY occasions)or confirming that we DO live in a police state..either way HE is the loser.....
Damned if you DO and damned if you DONT
More important is WHO set it all in motion?
And did THEY understand the protocols?
As for "actively inducing"...isnt that exactly what POLITICIANS do when they try to pull the wool over the electorates eyes?

[andrew]

Absolutely right. MPs passed the current Official Secrets Act and they are also bound by it. This is a total storm in a teacup. They need to get on with their job and work within the law like the rest of us!

[Bill Rees]

Cameron is using this issue as a decoy,he wants to get away from debating the Credit Crunch and the economy.Brown has dominated the agenda and Cameron and Osborne have no answers to the problem.

[Missingthepoint]

I think you're missing the point. Apart from a few anoraks, the public don't care so much about what the law does say (suitably interpreted by some self-serving elite) but what it should say!

Why should this supposedly democratic country ever permit a law that can be interpreted to say, that an MP should be arrested for doing his job (in this case pointing out that the Home Office is lying to the public and knowingly breaking its own laws).

The government makes the law and, without constitutional checks, it can craft it to suit itself, to hide any abuse or any corruption from the public and suppress any opposition (as they are trying to do here). If we let them do this, the days of our democracy are numbered.

Quite frankly, if the law says that an MP can be arrested for revealing information that the public has a moral right to know, then the law is an enemy of democracy and the people should treat it and the government who wield it accordingly.

[Paul]

Sam, you are right out to lunch mate.

Sorry Wilfred, but the Youtube video was only part of Brown's admission into using leaks. He is on record as admitting he knows the source, knows he should not have the information. The fact that he is stating that he did it for the public interest is his interpretation as it was Green's. If Green was wrong for assuming public interest why was Brown right? Any ninny would know that Brown was using to serve his own interest first and the public interest second. It is not that he is better or worse than other politicians in this regard but the downright hypocricy of allowing his government to accuse others.

The fact is Brown issued far more leaks than Green has ever done.

[Benjamin Wrench]

Sam

If you, and the 1999 committe report are right that Parliamentary privilege "does not embrace and protect the activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament" what is the position of the Whips Office?

We can all imagine the criminal offences that Whips commit in their blind obedience to the Party machine, let us submit them to the bright light of police investigation.

Zanu-Labour can't have it both ways, if Damian Green's office in the Palace of Westminster can be ransacked by PC Plod then the Whips Offices can be searched too.

[Jamie Gilmour]

I'd be very concerned to live in a country where it was illegal to publicise something that embarrassed the government because it was the result of a leak.

In a sane world this information would not have been secret. The government is paid with and spends our money, except for things that literally impact the security of the nation, everything they think and do in office should be public.

[Erol Masterson]

Mandy has an enviable reputation, I believe him, Gordon Mugabe made him a Lord so he must be honest !!