I beg to move,
That, following the search of a Member’s office in the Parliamentary Estate by the police and the seizure of material therein, a committee be appointed to review the internal processes of the House administration for granting permission for such action, and to make recommendations for the future;
That the committee must not in any way prejudice any police inquiry or potential criminal proceedings and that therefore it will be adjourned immediately after choosing a chairman until the completion of any relevant inquiry or proceedings that may follow;
That the committee have power to send for persons, papers and records; to report from time to time; to sit notwithstanding any adjournment of the House; and
That the committee consist of seven members appointed by the Speaker reflecting the composition of the House.
Mr. Speaker, in your statement last Wednesday, you asked for a motion to set up a Committee to review the matter of the seizure by the police of material belonging to the hon. Member for Ashford (Damian Green). The motion before the House sets up such a Committee, which would have all the powers of a Committee of the House to get papers and evidence, and would adjourn, after choosing a Chair, until after the completion of the police investigation or any court proceedings in this particular case.
A number of issues are involved. The first is the immediate one of whether the papers and data of hon. Members are properly protected as of now. The second is what led up to the search of the hon. Gentleman’s office. The third is whether the important constitutional principles at stake were properly protected in this particular case and whether they are protected for the future.
I shall be giving way, but I wish to develop my argument for a few moments.
I know that hon. Members want the issue of the search of Parliament to be sorted out now; they do not wish to wait until after the police have finished their investigation. Last Wednesday, Mr. Speaker, in your statement, you told the House that you have reviewed the handling of this matter. You said:
“From now on, a warrant will always be required…when a search of a Member’s office, or access to a Member’s parliamentary papers, is sought. Every case must be referred for my personal decision, as it is my responsibility. All this will be made clear in a protocol issued under my name to all hon. Members.”—[Official Report, 3 December 2008; Vol. 485, c. 3.]
That should provide immediate reassurance about the future to those hon. Members who have criticised the consent to the search.
I shall give way in a moment, because I know that hon. Members wish to intervene.
We should remember that at the time consent was given it appears that a magistrates court had issued a warrant to search the hon. Gentleman’s home and constituency office. But further to your statement, Mr. Speaker, I can tell the House that I have asked that we consider at our next House of Commons Commission meeting two further matters that should provide even further reassurance to hon. Members: first, whether it should not be a magistrate, but only a High Court judge who would have the power to grant a warrant to carry out a search in Parliament, and, secondly, whether, through the Speaker’s counsel, there could be an opportunity for representations to be made to a court considering an application for a warrant to search in the House about the high test that should be applied before a warrant is granted for a search within Parliament.
Indeed, Mr. Speaker, the Commission could consider a further question: if hon. Members’ data and papers are to be protected when they are on the parliamentary estate, should they attract the same level of protection when they are in the Member’s home or in his or her constituency office? It is, of course, the material that is at issue here, not the building. This is something that the Commission could consider as you take forward the changes in search procedure that you announced last Wednesday.
I thank the Leader of the House for giving way. She said at the outset of her remarks that she accepted that hon. Members would be concerned that there should be no delay in following up the Speaker’s recommendations for an internal inquiry, but does she not realise that by tying it to the police investigation, that is exactly what will happen? Does she not also recollect that, in the case of cash for honours for example, it was up to the Committee to receive representations from the police, if the police believed that there was a reason why the Committee should not pursue its inquiries? It was not the role of this House to fetter the way in which the Committee conducted its business. Why cannot we do that in this instance?
As I develop my line, I will answer the points made by the hon. and learned Gentleman, as they also lie behind several of the amendments tabled to the motion that I have put before the House.
I just want to make one further point that I hope will provide reassurance to hon. Members. Mr. Speaker, you also provided immediate reassurance for Members concerned about police access to the parliamentary computer network, saying that it was your serious responsibility and that you had already taken action and would look further into the matter. So the House should be reassured on that point too.
I shall give way later, when I have developed my argument.
The motion before the House establishes a Committee to start its work as soon as the police investigation is concluded. Mr. Speaker, in your statement on Wednesday, you said that you had decided to refer the matter to a Committee that would report for debate by the House as soon as possible. But let me explain to the House why that must mean not before the police have completed their investigation.
If the Committee were to be responsible for looking at the process for any search in the immediate future, or at the current protection of data of hon. Members, they could and would need to do that now, but—as I have said—you, Mr. Speaker, have already acted on that. So what remains for the Committee are questions which fall four-square on the same territory as the current police investigation, and the issue for the House is whether the Committee should be conducting an investigation into police action at the same time as the police inquiry of which that action formed a part.
Could the Leader of the House confirm that when the motion states that
“the committee must not in any way prejudice any police inquiry or potential criminal proceedings”,
it is simply a question of embarrassment, rather than of contempt of court? As she will know, contempt of court does not apply until someone is charged before magistrates or summonsed before the Crown court.
Let me set out my answer to the hon. and learned Gentleman’s point.
There are two problems here. The first is the need for the House to avoid the accusation or perception that we are in any way interfering with the police or breathing down their necks. The second is the need for the House to avoid any inadvertent potential prejudice to any future proceedings in court. What is said and done in Parliament is important. That is why there is concern about the search and seizure. By the same token, anything that we say is influential in criminal cases. We have to look ahead to any future criminal trial. We have to avoid doing or saying anything that could hinder justice—either for the prosecution or the defence.
I will press on with my argument because I hope that it is helpful to the House.
That is why Prime Ministers and Home Secretaries have to be very careful about what they say. Leaders of the Opposition and shadow Home Secretaries have to be careful about what they say too. It is for neither Government nor Opposition to pronounce what the evidence is and whether a crime has been committed.
I think that I am showing a proper understanding that justice in this country is a matter for police investigation and decision by the courts. When I was a lawyer at the National Council for Civil Liberties, I never misunderstood the difference between the roles of Parliament and the courts, and neither should the hon. Gentleman. The courts are rightly very vigilant about this matter.
The precedent of the Select Committee inquiry into the so-called cash-for-honours affair has been cited, but we did not have to set that inquiry aside for the duration because the police told us to do so. We did so because we took an independent legal opinion from leading counsel, who said that the danger was that any prosecution would be compromised by anything that happened in Parliament. That was the danger that needed to be avoided.
I come back to my point: there is no necessity for the House to fetter the Committee because it can take the advice of leading counsel and make up its own mind. One of the issues that will undoubtedly arise when the Committee comes to consider the matter is whether on any showing there is any possibility of a prosecution being brought against anybody. I have always found it very difficult in this matter to see how the law can possibly operate to do that at all.
It is not for anyone to substitute their view for the judgment of the Crown Prosecution Service about whether there should be a charge. It will be helpful for the police to recognise that the House will not be breathing down their necks and that we will adjourn the proceedings of the Committee. We are making a strong statement that this matter is one for the police and that the House of Commons will leave them to get on with the job. I know that the shadow Home Secretary, who is also shadow Attorney-General, and the right hon. and learned Member for North-East Fife (Sir Menzies Campbell) understand the importance of this argument and I urge them to acknowledge it and to act in accordance with it.
In conclusion, I want to set out the four principles that all Members of this House—Government and Opposition, Back Benchers and Front Benchers—should be mindful of and vigilant to protect.
I would like some light to be shed on the legal advice that, according to Assistant Commissioner Quick, the Serjeant at Arms took before granting permission for the search of the offices of the hon. Member for Ashford (Damian Green). Is my right hon. and learned Friend aware of any reason why that legal advice should not be published? Is she aware of the contents of that legal advice? As Leader of the House, has she obtained legal advice on the same matter herself?
If a search was undertaken as part of an ongoing police investigation, it is important that we should not comment on it in this House. [Hon. Members: “Ridiculous.”] Hon. Members think that it is ridiculous that we should not comment on an ongoing police investigation, but I shall proceed to say why I think—
The first principle that I urge the House to be vigilant to protect is that it is essential for the freedom of our democracy that as Members of this House we are able to get on with our work without looking over our shoulders. Secondly, in respect of the rule of law no one, not Ministers, nor Members of this House, is above the law. Thirdly, we need a professional and impartial civil service, and civil servants who feel in conscience that they have to divulge information should be able to do so without falling foul of the criminal law. It was to protect whistleblowers that we introduced the Public Interest Disclosure Act 1998. Fourthly, there is the principle of separation of the Executive and the legislature on the one hand, from the operation of the criminal justice system on the other. No one in this country wants politicians—whether Government or Opposition—telling the police who to investigate or who not to investigate. In any individual case the police are accountable to the courts and to the independent complaints system.
I am moving on to make one further point.
While the police are accountable, too, to police authorities and the Home Secretary, where anyone who is the subject of an investigation is known to the Home Secretary it is imperative that she makes it clear that she is standing right back from the inquiry, and that is what she has done. I hope that all Members will support all those four principles and will support the motion to establish the Speaker’s Committee, which will look into all these matters and make recommendations for the future. I commend the motion to the House. [Interruption.]
This debate is about one thing and one thing only: to put into practice the wish expressed by you, Mr. Speaker, in your statement to the House on 3 December to refer
“the matter of the seizure by police of material belonging to the hon. Member for Ashford to a Committee of seven senior and experienced Members, nominated by me, to report as soon as possible. I expect the motion necessary to establish this Committee to be tabled by the Government for debate on Monday. I also expect a report of the Committee to be debated by this House as soon as possible thereafter.”—[Official Report, 3 December 2008; Vol. 485, c. 3.]
That is the motion that we are debating.
Any motion agreed by the House today must put into practice the wishes of Mr. Speaker expressed in his statement last week, and to do so it must include three points. First, the Committee must be able to look into the seizure of material from the office of my hon. Friend the Member for Ashford (Damian Green). Secondly, the membership should be chosen by Mr. Speaker and Mr. Speaker alone. Thirdly, the Committee should meet now and its report should be debated by the House as soon as possible.
Will the right hon. Lady give way?
No, I want to make some progress before I take interventions.
I should have thought that it would be simple for the Government to put those points into a motion for the House. Sadly, they have singularly failed to do so. The motion from the Government bears no resemblance at all to Mr. Speaker’s statement and the Leader of the House has singularly failed in her defence of the Government’s motion.
Would not my right hon. Friend agree that not to carry through in precise measure what Mr. Speaker has asked shows that the Government do not have confidence in Mr. Speaker, and is therefore an unacceptable position for the Government in the House?
May I make a suggestion for the right hon. Lady to consider while we are holding the debate and before we come to a vote? If the Opposition are genuine in wanting to uphold the sentiments that Mr. Speaker expressed, does she believe that the best way for the House to come to a mind on that would be for all of us to support the motion tabled by the right hon. and learned Member for North-East Fife (Sir Menzies Campbell)?
Absolutely. I entirely agree with the right hon. Gentleman, and I will make that same point towards the end of my remarks. On the three points that I mentioned and the motion that the Government have put forward—[Interruption.] It sounds as though a lot of hurried reading of the amendment is taking place. Far from looking into the police’s seizure of material belonging to my hon. Friend, the Committee proposed by the Government is merely to review the narrow issue of the internal processes of House administration for granting permission for such action.
I ask the House to note that the Government’s motion makes the immediate assumption that they were right to grant permission for an hon. Member’s office to be searched and for material to be seized. What the Government want to discuss is merely the internal processes for granting that permission. The Government propose that the Committee’s membership should reflect the composition of the House—in other words, that the Committee should have a Government majority. Can the Leader of the House not understand that, for the Government’s own sake, there should be nothing that could suggest that they were trying in any way to rig the Committee’s outcomes? The Leader of the House should be in no doubt: if the Committee were set up with a Government majority, it would not have the support of the Opposition.
Perhaps most serious of all is the Government’s attempt to delay the work of the Committee and effectively kick the issue into the long grass. The Committee is to be allowed to meet only to elect a chairman; then it must immediately adjourn, not just until the police inquiry is over, but until any proceedings—that is, criminal proceedings—are over. That could mean that the Committee would not start its work for many months, and possibly not until autumn next year.
I will complete this point before I take any interventions. The motion in the name of the Leader of the House flies in the face of Mr. Speaker’s statement. It is not only a gross discourtesy to Mr. Speaker, but a flagrant abuse of the power of the Executive, in view of the wishes and interests of this House. It is a blatant attempt by the Government to pack the Committee, stymie its debate and delay its work until the controversy has blown over. I tell the Leader of the House that this simply will not do. This House—and Parliament—deserves better from its Leader.
I should like to mention one of the reasons why it is important that the Committee should be able to do its work. My right hon. Friend and I asked the Leader of the House a question at business questions last week, but it has not been adequately answered. We asked whether last week the police were granted access to data belonging to other hon. Members. That has not been properly answered. [Interruption.] No, it has not been properly answered, and the Leader of the House needs to answer it properly for the House.
I entirely agree with my hon. Friend. The Leader of the House referred to the fact that Mr. Speaker said that the issue would be looked into, but—I am very happy for the Leader of the House to intervene on me and confirm this—she did not confirm that the police had not had access to the shared drive or the servers. If they had, they would have had the ability to access every Member’s correspondence and e-mails. I invite the Leader of the House to intervene on me and confirm that that was not the case. Her silence suggests either that she does not know, or that she is not able to give the House the assurance that it requires, and that is of concern to each and every Member of the House.
I thank my right hon. Friend for being so generous in giving way. Notably, the same cannot be said of the Leader of the House. Will my right hon. Friend comment on the pertinent question asked by the hon. Member for Birmingham, Selly Oak (Lynne Jones) about the nature of the legal advice sought? Mr. Speaker, from your statement last week, I understood that the whole purpose of today’s proceedings and the Committee work that you are instigating was to find out what processes were in place. Who knows who might be the next right hon. or hon. Member to face similar proceedings? I wish to be satisfied today that we know the nature of the process in place. Will my right hon. Friend give us an answer on that point?
I entirely agree that that is a matter of concern to all hon. Members. Indeed, the point made by the hon. Member for Birmingham, Selly Oak (Lynne Jones) was entirely appropriate, which is exactly why the review should take place and the Committee should be able to meet and start work immediately, so that Members can be satisfied about the processes that are in place and can ensure that they can do their job and carry on with their work.
I do not know how much, Mr. Speaker, you enjoy the right hon. Lady acting as your interpreter: “This is what the Speaker wants; this is what the Speaker means”. I am not sure that that is a helpful way in which to continue the debate. But on the narrow question of the idea that any Committee set-up reflecting the broad composition of the House would be unacceptable to the Opposition, is it not true also that any Committee set-up representing principally just the Opposition may not be acceptable to the Government? Does the right hon. Lady not understand that there are many right hon. Members here who would be quite independent of the Government and quite critical of them, and that Mr. Speaker will decide, not her?
The right hon. Gentleman referred to the fact that I appeared to be interpreting Mr. Speaker’s wishes, but I was quoting Hansard. It is perfectly clear: Mr. Speaker said that the members would be nominated by him
“to report as soon as possible.”—[Official Report, 3 December 2008; Vol. 485, c. 3.]
He said, too, that they would look into “the seizure…of material” from my hon. Friend’s office. That is the issue for debate today, and that is what the House should put into practice, but the Government motion singularly fails to do so. Let me be clear about what the debate is not about.
I will make a little more progress before I accept any more interventions.
This whole affair raises a number of questions relating to matters outside the workings of this House: the relationship between the Executive and the police; the responsibilities of the Home Secretary; and the relationship between the Home Office and the Cabinet Office. Those are not matters for this debate. Today, it is for this House to exert its authority and for each and every one of us to consider how we can ensure that the rights of Parliament and of our constituents can be upheld. There will be some people who will ask why we should bother with this—surely no MP is above the law. Of course, that is the case—no Member of Parliament is above the law, and parliamentary privilege has never protected MPs against criminal proceedings.
There are, however, two key issues at stake. First, MPs must be able to do their job, both in representing their constituents and in holding the Government to account. What we are talking about today is the search of an MP’s office and the seizure of material that was fundamental to the ability of my hon. Friend to do his job. Crucially, material held by an MP which is going to be used or is capable of being used in parliamentary proceedings is indeed subject to parliamentary privilege, which we hold not for ourselves on our behalf but for our constituents.
Is it not right that the protection that MPs have is that there should be due process of law? Is it not the complaint that, on the basis of Mr. Speaker’s statement, there was not a proper warrant when there should have been, and the processes did not work, which is why we must have the inquiry now so that those lessons are learned?
Does my right hon. Friend think that the Leader of the House has started out on a completely false premise, because the operational independence of the police in this context depends on the application of the Police and Criminal Evidence Act 1984? It is a question of law, but does she not agree, too, that under article 9 in relation to proceedings in Parliament, it is well established that the law and custom of Parliament are the first question to be considered, so there is a conflict between the two, and the courts would undoubtedly have decided that this was a matter of parliamentary privilege, and they would never have let the police in the first place if that had been put to them?
The Public Administration Committee, which is so ably chaired by my friend the Member for Cannock Chase (Dr. Wright), met in private a number of times during the police investigation into the cash for honours affair. Why cannot the Speaker’s Committee meet in camera?
I said that we held parliamentary privilege not on our own behalf, but on behalf of our constituents. The second issue at stake is the relationship of trust between an MP and their constituents—trust that means that constituents feel able to share information with a Member on the basis of confidentiality. Constituents do not give information to their Member of Parliament on the basis that one day it might be pored over by police officers. Parliamentary privilege is not our privilege; it is the people’s privilege.
There is also a practical issue at stake. The House authorities do indeed have responsibility for the House estate, including offices, but the contents of an office—the papers and information in electronic form—do not belong to the House. They belong to the Member, so it was not for the House authorities to consent to the search of my hon. Friend’s papers and electronic information. We need to know not just why a search took place without a warrant, but in the absence of a warrant, why it took place without my hon. Friend’s consent.
The work of the Committee is not to decide who should have spoken to whom. It is about these fundamental questions of privilege, an MP’s ability to do their job, and constituents’ rights to confidentiality.
No. I listened carefully to the arguments advanced by the Leader of the House. She said, as she has done on previous occasions, that the Committee cannot meet because the House cannot run an inquiry concurrent with the police investigation, as the inquiry could prejudice any police inquiry or any criminal proceedings.
On a point of order, Mr. Speaker. Will you reflect on the observations that the right hon. Lady has just made? They are starting to border on being prejudicial to any future inquiry.
Thank you, Mr. Speaker.
I was going on to say that of course it would be wrong for the House to prejudice a police investigation, but the Government’s argument on this point is false for three reasons. First, I point out the simple practical fact that the Metropolitan police themselves are running an inquiry concurrent with a police investigation. They have an inquiry into the handling of the case, which is due to report in a week.
However, the more important point is that the Government are wrong to claim that the work of the Committee would prejudice the police inquiry, because the two will be looking into completely different issues. The investigation of the source of the leaks and whether any action should be taken against a civil servant or against a Member is a different issue from the investigation of the rights of MPs over information and resources in their parliamentary offices, the identification of what is needed to do their job, and the consideration of the meaning of parliamentary privilege.
I am conscious that a large number of Members want to speak in the debate, so I wish to make progress.
Either the Leader of the House is unable to understand the distinction that I have outlined, or she understands it but chooses to ignore it because it is inconvenient for the Government. I refer to the point made by my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) in his intervention on the Leader of the House. Should it not be for the Committee to decide what it does and when? Its hands should not be tied by the House. If the police were concerned that the Committee’s work prejudiced their inquiry, it would be for them to go to the Committee to explain, and for the Committee to decide whether to continue, just as has been mentioned in relation to decisions taken by the Public Administration Committee. I therefore believe that there is no reason why the House cannot undertake the necessary inquiry without prejudicing the police investigation.
Does the right hon. Lady agree that it seems rather strange that we should be discussing the whole idea of prejudicing the inquiry, given that the Government tried to force through the 42-day measure on the premise that we were all going to discuss issues to do with individuals?
The hon. Gentleman has made an interesting intervention.
I now move on to the issue of why the inquiry needs to be held now. That is because we need to clarify the meaning of parliamentary privilege, who can and cannot grant access to an MP’s office and effects and—crucially—where constituents stand on the information given to their Member of Parliament in the expectation of confidentiality. Those questions need to be resolved; they cannot be left hanging in the air until the Government deem it convenient to have a debate.
In business questions last week, the Leader of the House referred to her four principles on parliamentary privilege; she has referred to them again today. I have to say to her that the four principles that she set out in the piece of paper attached to the note that tried to set up a meeting between her, Government Ministers and Officers of the House last week were not actually about parliamentary privilege—they are general principles. However, the Leader of the House has challenged us to agree with them, so I will take each one in turn.
I agree that MPs must be able to do their work, that the Opposition must be able to hold the Government to account and that the law and processes must support that—but where was that principle when police seized material from the office of my hon. Friend the Member for Ashford? I agree that MPs are not above the law, but no one has ever suggested that they are. I agree that no one should seek to undermine the impartiality and professionalism of the civil service or the operation of the civil service code, but where was that principle when Alastair Campbell was given authority over civil servants? I agree that no one should seek to undermine the operational independence of the police, but there is a difference between operational independence and proper accountability.
Will the right hon. Lady give way?
No. I am not going to give way any more.
Last week, the Leader of the House implied that operational independence for the police meant that politicians could not direct them in their actions. I am not suggesting that they be directed. But they will not think any the worse of a Home Secretary who asks them awkward questions about what they are doing—questions such as, “Is that a proportionate response?”, “Have you consulted the Director of Public Prosecutions?” and “Have you applied for a warrant?” Asking such questions is not improper interference with the operational independence of the police, but the proper exercise of scrutiny by the person responsible to the public for ensuring that the police are doing their job and keeping within the law in doing so.
No. I am not going to give way any more.
Mr. Speaker, I set out earlier why I believe that the Government’s motion does not meet the requirements set out in your statement last week. The amendment in the name of the right hon. and learned Member for North-East Fife (Sir Menzies Campbell), which is signed by a number of my hon. Friends and other hon. Members, addresses those issues and clearly sets out a proposal that I believe meets Mr. Speaker’s statement. For that reason, I will support that amendment if it is moved, and I urge other hon. Members to do so.
As it has been proposed by the Government, the Committee would be stymied in its remit, packed with a Government majority and silenced when it was needed most. I urge hon. Members to reject the Government’s motion and treat it with the degree of contempt with which the Government have treated the House.
The situation that we are debating today is serious, and the issues that it raises need to be seriously addressed. If we want parliamentary privilege to be taken seriously by others, we need to address the problems that this case has thrown up. We will not do that if we pursue the course of action taken by Tory Front Benchers—to sidetrack all the debate into scapegoating, finger pointing and blame. The truth is that what happened does not reflect much credit on most of those involved. I suspect that most of them are now feeling, “If only I’d thought that at the time, I would have done something different.” However, that does not mean that we will get anywhere by singling out any particular individual for blame. The whole set-up in this place is at fault. We are responsible for the set-up, and therefore responsible for the faults.
After the Home Secretary, rightly, got sick and tired of persistent leaks from her private office, she asked for a leak inquiry. Cabinet Office officials rightly set up such an inquiry, and then called in the police. There are clearly plenty of precedents for that.
No, I shall not.
The police proceeded with their investigation and arrested a civil servant, who has made it clear that he was the source of the leaks. That took them to the hon. Member for Ashford (Damian Green), who has never denied that he had a sort of standing order with this civil servant to get a continuing—
I have seen the legal representative of the civil servant on television, and his lawyer in effect admitting it, and I understand from what has been said on behalf of the hon. Member for Ashford that he admits that this young man had tried to get a job with him, that he had supplied him with information, and that he had met him several times. I do not know what I am supposed to withdraw. The hon. Gentleman—[Hon. Members: “Withdraw!”]
On a point of order, Mr. Speaker. If a right hon. or hon. Member were going to make an attack of a personal nature on another right hon. or hon. Member, it would be in order for him to notify that Member in advance. No such notice has been given.
I go on to say, then—I hope that the hon. Member for Ashford will agree with me—that I am astonished that the police chose to arrest him in these circumstances. I cannot understand why they did not question him or, if they wanted to take it one step further, question him under caution. The police seem these days to be a bit arrest-happy with quite a lot of people, including members of the Labour party and Labour Members in the House of Lords.
The police then wanted to search the MP’s home and his constituency office. I wonder whether they asked him if it would be okay to do so or just proceeded to a warrant. They then decided that they wanted to search his House of Commons office. I do not know whether they asked his permission—in quite recent times Labour Members have given their permission to police who wanted to search their offices—but it appears that they did not and that they did not get a warrant.
I think that the right hon. Gentleman will know that my predecessor was treated by the police in exactly the way that he is explaining. First, he was asked whether he wished to meet them to discuss a matter that was of national security level. Secondly, he was asked to come to the police station if he wished to discuss that matter. Thirdly, he was asked if he minded if his office was searched. Will the right hon. Gentleman tell me why he thinks that the process this time was so different from that of 2004?
I have already said that I am surprised that the procedure was different in the case of the hon. Member for Ashford.
The police then approached the Serjeant at Arms. I point out to everybody, including commentators outside this place, that the Serjeant at Arms is responsible for the safety and security of Members of this House, and that the mainstay of that safety and security is the Metropolitan police. She therefore has frequent meetings with the Metropolitan police—specifically, the people who used to be the special branch, and are now the anti-terrorism unit. She discusses our safety and the deployment of the police, including armed police, in this place. She is out there to protect us.
No, I have given way already.
It has to be said that the Serjeant at Arms is unlikely to see the Metropolitan police as jackbooted storm-troopers of the police state; she sees them as working colleagues. They may very well have exploited that in their relations with her by not making clear that she was entitled to ask them for a warrant. The police got the consent of the Serjeant at Arms, and went to the offices of the hon. Member for Ashford, where they were challenged by a representative of the Leader of the Opposition, who again, does not seem to have asked whether they had a warrant. The whole situation is a mess, and we are responsible for it.
Contrary to a lot of the media coverage that seems to suggest that the Speaker makes the rules, the Speaker does not make the rules—we make them, and the Speaker is there to carry them out. The big problem is that the rules are not clear. We all agree that there is something called parliamentary privilege, but hardly anybody agrees exactly what it amounts to. It is apparent from reading articles by apparently learned academics in the news media that they do not agree either on the boundaries of our parliamentary privilege.
If we are serious about parliamentary privilege, we need to clarify what we mean by it. We should turn it into statute law to show that we take it seriously and that anyone who breaches it will be dealt with seriously. I would also include in such a law the Wilson doctrine that prohibits our phones being tapped. It was not very long ago that the previous Prime Minister was going to undermine that doctrine, and he was only prevented from doing so by a Cabinet revolt. Conventions should not be set aside at the behest of a Prime Minister or any individual, which is why we need to shift the rules on parliamentary privilege to statute law.
Once we have done that, and only after we have done that, the Speaker, the Clerk of the Commons and the Serjeant at Arms can work out clear procedures for following the rules that we have laid down. Once we have made the rules clear, we will be entitled in conscience to complain if those rules are not followed, but as we do not have a clear definition of parliamentary privilege or a clear explanation of what will be done when parliamentary privilege is threatened, we had better keep quiet until we have done our job, and we should stop criticising the people who have tried to do theirs.
On a point of order, Mr. Speaker. Today I returned to my office in the House of Commons, on the Upper Committee corridor, after an absence of some days. I found a letter sitting on my computer keyboard, in my office that had been locked. It is from the hon. Member for South Norfolk (Mr. Bacon), it is politically partial, it parrots the Conservative line on the matters before the House today and it contains implicit criticism of Ministers, the House authorities, the police and yourself, Mr. Speaker.
Given the subject of today’s debate, I hope that the House will understand that I have some concerns about returning to my office, and opening the door with my key to find such a letter sitting on my computer keyboard. I do not wish to accuse anyone. I would not want to end up with egg on my face—or indeed, bacon—but I would like to ask you, Mr. Speaker, whether it was a House official or a Conservative party researcher who left the letter on my computer, or whether it was something far more innocent. Given the debate, I have every reason to ask how it got into my office.
This debate is about an important matter for the House, as everybody acknowledges, hence the large turnout. That is not because we are precious about our rights and liberties for ourselves, but because we hold them on trust for our constituents, as we have all agreed.
Today, the Leader of the House has come—I have to say this to her—arrogantly and disrespectfully to seek to change what you, Mr. Speaker, asked the House to do in the interests of Parliament, to what she wants the House to do in the interests of the Government. That is not the job of the Leader of the House. She could have tabled the motion without realising the implications and how much it deviated from your wish, but that is unlikely. If it was not unlikely when she tabled the motion last Thursday and then re-tabled it, it must be unlikely today.
You have indicated, Mr. Speaker, that you have selected all the amendments tabled, including the amendment that my right hon. and learned Friend the Member for North-East Fife (Sir Menzies Campbell) has tabled, which is not on today’s Order Paper and which is available outside. I wonder whether, perhaps at the end of my speech, you might arrange for that amendment to be passed round, as statements are, so that everybody has it before them.
One of the things that I think all colleagues point out when we show friends and visitors around the House of Commons is the picture of Speaker Lenthall, one of your predecessors, Mr. Speaker, robustly standing up to the people whom King Charles I sent here in 1642 to arrest colleagues. The colleagues were not here—the birds had flown. Of course, it is not quite the same when police officers come to the door, but the issue is the same: does this place have a right to protect its activities and what are those rights?
Your great city, Mr. Speaker, and this great city have many citizens who understand the law very well. If the police knocked on the door of one of my constituents in Southwark or Bermondsey, everybody inside would know two basic things. First, they do not have to let the police in unless they have a warrant. Secondly, that applies not only in respect of a warrant for the person in question, but if the police are looking for somebody upstairs.
By your statement’s admission and by the helpful protocol that you have issued today, Mr. Speaker, you have accepted that something went badly wrong in the House of Commons on 27 November. For whatever reason, the authorities did not, as it were, stand up to the police investigation as they should have. You asked us to set up a group of senior colleagues as quickly as possible, to find out what went wrong and to make recommendations. That is what we want to do. Some of us believe that the issue is important enough to allow the colleagues whom you choose from across the parties in the House, with the experience in the House and with the House’s rights and privileges, to get on with that job now and not to wait for weeks, months or years, which is potentially the implication of the Leader of the House’s motion today.
Although I entirely agree with everything that the hon. Gentleman has said, does he not believe that the House is entitled to know from whom legal advice was requested before the police were allowed to invade the office of my hon. Friend the Member for Ashford (Damian Green)? That is a basic question, the answer to which we should be entitled to know in this debate.
I would say the following to the hon. Gentleman. You have made it clear, Mr. Speaker, that various people have responsibility for these issues: yourself, the Serjeant at Arms, in some respects the Leader of the House, the Clerk of the House and those who advise them—Mr. Speaker has counsel and there are Law Officers who are available to be consulted. The hon. Gentleman raises questions that should be answered. If they cannot be answered today, potentially because nobody who can speak in this debate knows the answers, they could be answered quickly and with no prejudice to any inquiry about the hon. Member for Ashford or anybody else.
Just before I give way to my right hon. Friend, I should say that you have been very clear, Mr. Speaker, that there are times when we cannot discuss matters before the courts because they are sub judice, but that does not apply if nobody has been charged. It is very clear that we are able to have that debate—albeit subject, of course, to proper wisdom and guidance on what is right and wrong, what might be a matter of prejudice, and so forth.
I put it to my hon. Friend that there is an even more compelling reason for urgency. When I asked the Prime Minister last Wednesday whether he supported Mr. Speaker’s decision as set out in his statement—that the police would not be admitted without a warrant—the Prime Minister said that he was waiting for the results of the inquiry. If that is the case—it does not seem to have been embodied in the words used by the Leader of the House, but this was the Prime Minister speaking—Mr. Speaker’s decision does not have the support of the Government until the Committee has been able to inquire into these matters, which the motion does not allow until the police inquiries are over.
Let me deal specifically with my right hon. Friend’s absolutely accurate point. The motion in the name of the Leader of the House is, in case anyone is in any doubt, extraordinary in that respect, as it says
“That the committee must not in any way prejudice any police inquiry or potential criminal proceedings”—
of course, we are all agreed on that—
“and that therefore it will be adjourned immediately after choosing a chairman until the completion of any relevant inquiry or proceedings that may follow”.
The Leader of the House knows perfectly well what “any relevant inquiry” means; the meaning is clear and it could be weeks, months or years. She knows that. Things might not just be thrown into long grass; they could be put off until the other side of the next general election. This is a ridiculous proposal.
The hon. Member for Cannock Chase (Dr. Wright), who chairs the Public Administration Committee with great respect and authority, referred to what you, Mr. Speaker, wanted us to do and to what the amendment wants us to do, which is to give the Committee appointed by Mr. Speaker the right to take its own advice and to follow it. If we are talking about senior and experienced colleagues, it is beyond comprehension that they will be unable to take advice, follow it and act appropriately.
Is it not also unfair on individuals such as the Serjeant at Arms and the Clerk for these matters to be left hanging in the air unanswered? Is it not in their interest that legal advice be made available so that everyone can see straight away exactly what happened and how those decisions were made?
That is a good argument, demonstrating exactly how we should proceed.
I said last week that I hoped Members across the House had affection and respect for you and your post, Mr. Speaker, just as much as they do for the Serjeant at Arms and others, but it is quite wrong to leave this matter in the air. My hon. Friend the Member for North Norfolk (Norman Lamb) is absolutely right that we need to resolve this matter. If a Committee is set up this week as appointed by you, Sir, it can start work this week and do so because it understands the rights and interests of the individuals concerned.
Will the hon. Gentleman clarify whether he as Front-Bench spokesman for the Liberal Democrats shares the position advanced from further down the Opposition Benches, which I found absolutely extraordinary, that if the relevant amendment were adopted tonight, this Committee should meet in secret?
Let me make it clear that the amendments that we are talking about—amendments (b), (c) and (d) are not in the names of any Front Bencher of any political party. The amendment that I am speaking to is supported by Back Benchers of the three major parties. I should hope that that would give it some authority, although senior colleagues in all the parties are also involved, which I hope provides even more authority. People with great experience of the House and of the relevant issues are also involved. I support that, which is why my hon. Friends and I will support the amendments at the end of the day. [Interruption.] As to the secrecy issue, that is a matter for the Committee, as the right hon. Member for Maidenhead (Mrs. May) said. Committees of this House, including a Committee appointed by Mr. Speaker, would take the decision. The instinct would not be to meet in secret, of course, but the Intelligence and Security Committee, for example, meets in secret. Clerks are here, and people to advise us, and it is nonsense to imagine that seven senior colleagues cannot get on with the job and deal immediately with those matters that can be so dealt with, and matters that become sub judice—
I have dealt with secrecy. The answer is that all Committees have the power to meet in secret for some of the time. Nobody—including the right hon. Member for Maidenhead—has suggested that the Committee should meet in secret all the time. If we are holding the police to account, we will want them to put their argument in public, because some of us believe that they might not have acted appropriately either. They are not above the law, just as we are not, but the activities, communications and possessions of those elected to represent the citizens of Britain need to be protected.
No, I must make progress.
None of us wants to send out the message that there is never a time or place for the police to come into this building and carry out their activities. That is not our argument. However, you, Mr. Speaker, above all, are the guardian of processes and procedures, which safeguard people’s rights and liberties. Whether it is the European convention on human rights, which some people support, or the traditional rights and liberties, they are governed by process as well as substance. Process matters, and it seems to many of us that the process failed.
The Government have done some good things—and have understood, at some stage, how to defend the rights and liberties of the public—but their regular fault is not being able to let go of power being transferred to Parliament. They persistently seek to manipulate what might be the broader interests of Parliament. The other day, in relation to Select Committees, which could have been more representative of the regions of England, they insisted that the Government had to have their majority and their way. I hope that Labour Back Benchers—I listened to the speech of the right hon. Member for Holborn and St. Pancras (Frank Dobson)—realise that the question is whether we stand up for Parliament and the right of the Speaker of the House of Commons to have people deliberating independently of Government influence, or give in yet again to the Government having their way over all our procedures. We were elected to stand for the independence of this place. I hope that colleagues on both sides of the Chamber will support the amendment and say to the Government, “I’m afraid that this is not your business. Hands off.”
After a chance conversation last week with a respected Conservative Member of the House, I have followed this issue with special care. After studying what I believe to be all relevant material, I have concluded that both the motion and the controversy are unnecessary, and that the motion is a waste of the House’s time.
The situation is as follows. A civil servant, Christopher Galley, has been arrested for persistent leaking of information from the Home Office. He has admitted that on television, and says that what he did was the right thing to do. The shadow Home Secretary has accepted what Mr. Galley says, and says that he should be dismissed from his post. But part of what Mr. Galley did was to communicate information to the hon. Member for Ashford (Damian Green), and it was on that basis that the police arrested him. As far as I can tell, the right hon. Member for Maidenhead (Mrs. May) said—I quote her words this afternoon—that, within that situation, the hon. Member for Ashford was “doing his job”. Therefore, many of the allegations that have been made about the situation seem to have been accepted on all sides. It is a question of what is done as a result of them.
Will the hon. Gentleman allow me to continue for a moment?
If it is true that the civil servant did that—as he said that he did, as the right hon. Member for Maidenhead said that he did, and as the shadow Home Secretary said that he did—it was incumbent on the police to arrest Christopher Galley, and there is a case—
May I be allowed to develop my argument? There is consequently a case for the police having arrested the hon. Member for Ashford. The hon. Gentleman’s party, and sections of the press, have caused a ludicrous furore about this arrest and its consequences—
I will certainly give way to the hon. and learned Gentleman in a moment.
The hon. Gentleman’s party and sections of the press seem to be seeking to create a new privilege for Members of Parliament, which has never existed before and ought not to exist now—namely that it is in some way a breach of parliamentary privilege for the police to search the office of a Member of Parliament without a warrant, and that a Member of Parliament’s correspondence with his or her constituents has some special privilege which the police have violated. All that is nonsense.
I am grateful to the right hon. Gentleman.
Since the passage of the Official Secrets Act 1989, the leaking of material not concerning national security has ceased to be a criminal offence. On what basis, therefore, is a civil servant arrested for that, and on what conceivable basis is my hon. Friend the Member for Ashford (Damian Green) arrested? If the right hon. Gentleman starts by asking himself that question—which relates to a gift to civil liberty from the last Conservative Government—he will start to conclude very quickly that the basis for the police’s erupting into this place and searching a Member of Parliament’s offices is shaky in the extreme. That is why he should be very concerned about what has happened, particularly because all the normal processes and protections that should have operated—including the consulting of the Director of Public Prosecutions—never occurred.
The hon. and learned Gentleman has been widely quoted by the press as having said that the man should be sacked—[Interruption.] He was quoted by the Tory press, and I see no reason for that denial.
All the parliamentary documents that I have been able to examine, including “Erskine May” and Standing Orders, contain nothing relevant to this controversy, and confirm no privilege of any kind in such circumstances. The nearest we can come to anything relevant to this huge unwarranted fuss is contained in the excellent briefing for this debate prepared by the House of Commons Library. A statement by one Professor Bradley—
I will see how the timing goes.
Professor Bradley, professor of constitutional law at Edinburgh university, says that there is, effectively, protection for MPs’ correspondence in certain circumstances, but this is no more than a common-law right based on case law. In fact, the police had a perfect right to search the hon. Gentleman’s correspondence without a warrant, and indeed without anyone’s permission.
The shadow Home Secretary spoke of a statute that was “a gift from the Conservative party”. Let me quote from another statute that was a gift from the Conservative party, the Police and Criminal Evidence Act 1984. Section 18(1) states that, following arrest,
“a constable may enter and search any premises occupied or controlled by a person who is under arrest for an arrestable offence, if he has reasonable grounds for suspecting”—[Interruption.]
This is a Tory law. Let me continue.
Let me finish my sentence, for God’s sake.
“who is under arrest for an arrestable offence, if”—
Let me finish this sentence. [Interruption.] It continues that the constable may enter and search any premises if
“he has reasonable grounds for suspecting that there is on the premises”—[Interruption.]
The sentence continues:
“that there is on the premises evidence, other than items subject to legal privilege,”
relating to their offence or
“some other arrestable offence which is connected with…that offence”
or some other offence. That is a Tory law saying that once somebody has been arrested their premises can be searched without a warrant.
May I proceed for a moment?
The police did what they had a perfect right to do under a statute passed by the very party that is trying to con us all into believing that some impropriety has been committed when no impropriety has been committed by anyone, either in the police or with responsibilities in this House. Yes, both Mr. Speaker and the Serjeant at Arms have behaved with perfect propriety in this matter, and it is a scandal that they are being reviled. In particular, those who have always hated—
No, I will not give way, as I have only two minutes left. Those who have always hated the idea of the current Speaker occupying the Chair of this House have abused this situation to seek further to undermine him.
What I say to the House of Commons is this: the Tory party has created a bogus controversy about the abuse of privileges that do not exist and the need for a warrant that is not required. We are wasting this afternoon when it could have been used for this House to debate serious and relevant issues about which our constituents care deeply. They do not care in the slightest—[Interruption.] These interruptions show what the Tories believe about whistleblowing and free speech. They do not care about free speech. They want to divert the electorate’s attention from the real issues to this bogus issue of what the hon. Member for Ashford did or did not do, about which, frankly, our constituents do not give a damn.
I am grateful to see that amendment (e) stands not only in my name, but in the names of Members from all parts of the House.
I wish it had not been necessary to table this amendment. It is not just the recollection of the precise language that you, Mr. Speaker, used last Wednesday, but our recollection of the spirit in which your suggestion was received, that makes me believe that the motion before us does not properly reflect what you intended or what the House believed to be right.
I think we can agree that we are in unique and disturbing circumstances. Earlier, some Members were rather dismissive of the importance of the issues we are discussing, pointing to our overwhelming obligation to represent our constituents on issues such as economics and council housing, but I firmly believe the matters we are discussing are precisely what give us the power and the influence to deal with issues such as economics, council housing and the like. Our responsibilities involve both the scrutiny of Government and the redress of grievance. If we cannot be confident that our communications with our constituents are confidential, there is necessarily an inhibition in our ability to fulfil those responsibilities.
There has been much discussion about the operational independence of the police, but that cannot be interpreted as being a shield against accountability. The police are accountable for their actions to the Home Secretary, and the Home Secretary is, in turn, accountable to this House of Commons. It is also said—I have said it myself—that we are not above the law, but that does not mean that we can be subject to illegality. It does not mean that we can be treated differently from other citizens. Equality before the law is a matter not only of responsibility, but of right, duty and privilege.
It is profoundly disappointing that the motion does not meet what is required. The remit is far too narrow—this House is surely entitled to investigate the whole circumstances surrounding this unfortunate affair. The time scale it sets out is risible; can one imagine what the public’s response will be when we tell them that this important Committee, which is made up of seven wise men and women, has met and appointed a Chairman, but has then adjourned indefinitely? That is a real indication of hands-on government; we will be laughed out of court if that is how we proceed, but that is what the motion will impose upon us.
If the Committee chooses to sit in private, it will do so in exercise of its judgment. The whole point about your being encouraged—permitted, if you like—to pick seven experienced Members of the House, Mr. Speaker, is that they will have exactly the judgment and experience to know when it is necessary to meet in private. The amendment asserts that the Committee would be subject to our normal rule of sub judice.
The motion’s third defect is that it would restrict your discretion, Mr Speaker. What is the point of that? Why do the Government believe that they must have a majority in this matter? I never thought I would hear myself make this next point. When Opposition Members get concerned about civil liberties, the often repeated remark we hear is, “If you have nothing to hide, you have nothing to fear.” If the Government have nothing to hide, they have nothing to fear from seven independent Members of Parliament chosen by you, Mr. Speaker.
In this matter, the Leader of the House has special responsibilities. She is a Government Minister, but she also has responsibilities to the House, so I ask her to reflect on something. It is generally accepted that John Biffen and Robin Cook, both, sadly, no longer with us, were the epitome—the best examples—of Leader of the House in recent times. What would John Biffen and Robin Cook have done in similar circumstances? I believe that they would have asserted the independence of this House of Commons.
This motion’s purpose is to deal not only with the issues of remit, membership and the ludicrous imposition in relation to time, but to provide Members of this House of Commons with an opportunity to assert their independence and that of the House. They could, as an alternative, subordinate themselves to the Government, but we will give them the opportunity to vote for independence.
I shall not be giving way, because of the time constraints. I wish to kick off with some slightly controversial comments. First, I challenge people to reflect on the fact that if this had happened in Moscow or Minsk, there would have been one hell of a row and the British ambassadors would have been making representations. Secondly, leaks are food and drink to me as a Back-Bench Member of Parliament, and I do not want to stop them coming to me—I do not say that in a flip way, because it is very important. My only flip point is to ask people to send me this information on rice paper, so that I can eat it before the police get it. I am open all hours to leaks.
This is a serious matter. We need to support and endorse the office of Speaker, and ensure that it is properly facilitated over the next 10 or 20 years, because as part of the increasingly political role of the Speaker—it is not party political, but it is political—he or she must safeguard the rights and interests of this House and, I believe, of our democracy. I urge hon. Members to read the Speaker’s document that has been handed round, because the protocols set out new modalities for dealing with what are the ancient rights and duties of the Speaker to protect our interest. I commend it to the House. Some aspects may be new, but the principle is that the Speaker is the safeguard in respect of two things—first, the rights and independence of the House of Commons, and second, the idea that Members are not above the law. When I criticised something that a colleague—he is no longer in his place—had said earlier, he said, “Well, what about paedophilia?” I said that if an hon. Member were guilty of a serious crime, such as pushing drugs or being a member of the Mafia, the Speaker could take cognisance of a legitimate representation made to him by law enforcement officers and would say, “Yes, of course you must proceed forthwith.” The role of the Speaker is to be a safeguard, and that is what we must ensure. Let us kill the lie now: no one is asking for special privileges for Members of Parliament. We want any bad Member to be prosecuted with vigour, but we need to safeguard people from arbitrary action by the executive arm of Government.
I remember people laughing at me when I protested when we did away with Sessional Orders. That was treated with levity by Members, but those Sessional Orders reaffirmed the point that people must not interfere with this place. I hope that the House returns to the proposals made in 1999 that people who give evidence to this House and its Committees should not be influenced or leaned on by anyone else and should tell the truth, the whole truth and nothing but the truth, as happens in the Congress of the United States.
The Bill of Rights, which too few Members have studied, makes it clear that this place has comity with the courts. That is a very important principle. What is more, the logical interpretation of article 9, which says that no court shall be able to look into the deliberations of this House, must extend to our documents. In 1689, Members of Parliament did not have the same volume of documents or technology as we have now. As my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson) said, we should think about putting that protection into statute.
On 4 December, the Home Secretary read out in good faith what she understood to be the reasons for the arrest of the hon. Member for Ashford (Damian Green). He got up and said that those were not the reasons why he was arrested, and that he had the document giving those reasons, given to him by the Metropolitan police. The Home Secretary said that that was what she had been told by the police. What a cavalier approach from the police, in their disregard of Parliament and of the Home Secretary. I find it breathtaking that she did not think that she should be indignant about that. She got it wrong, through no fault of her own, but because of the complacent arrogance of the Metropolitan police.
The Metropolitan police told the Home Secretary, in a letter dated 3 December, that a warrant is not needed to search a parliamentary office. We now have the Speaker’s protocol, which says that in cases of the police wishing to search in Parliament, a warrant must be obtained. How does my Friend square those two statements?
Mr. Speaker is correct, and he has reaffirmed what must always have been the norm. He has restated the modalities and what will happen from now on—perhaps he should paint that on the eyelids of the Metropolitan police.
I support the amendments because of the need for urgency. I understand that the policeman in charge of this is called Quick. Well, I predict that there will never be a slower man. We need only look at the case of my right hon. Friend the Member for Neath (Mr. Hain). It took 14 or 15 months before he was told that there was no case against him. We all knew that, but it was dragged out, and these blighters will drag this case out too. They know that they can kick it into touch until after the next general election. In any event, I am absolutely certain that the hon. Member for Ashford will not be charged. I come back to article 9 of the Bill of Rights. It will be impossible for a prosecutor or defence counsel to deal with the matter without referring to intent. If individuals have certain information, it relates to their work as a Member of Parliament or to their deliberations in Parliament, so the case will not go anywhere. I know that, and the police know that, but they are failing to recognise that they have bitten off more than they can chew and that they have trespassed on our rights and independence.
It was put out that this was a matter of national security. Of course, it is not—everyone knows that—because if it was, there would be action under the Official Secrets Act. Under the clerkship of Mr. Bill McKay, there was an attempt by the Ministry of Defence police to come in here and get one of our Committee Clerks, who had received some unsolicited secret information. Mr. Bill McKay saw to it that it was made quite clear to the police how far they could go. I understand that our Clerk was questioned under caution. That was the end of the matter—they backed off—but they have tried it before and it is time that we asserted and reaffirmed our rights and duties.
I was very grateful when Roger Sands, the previous Clerk, made the importance of article 9 quite clear to Lord Justice Hutton. To Lord Justice Hutton’s credit, he acknowledged those rights and acknowledged that in his inquiry he could not trespass on the proceedings of Parliament. That was an important acknowledgment, generously given by the courts. They understand article 9, but the problem is that too many hon. Members do not understand the importance of article 9 and the Bill of Rights. We fought civil wars to create it and overturned a king. King Billy was not all bad; he had some redeeming features, and they need to be reaffirmed today.
I urge hon. Members to stand up for Parliament, to support the amendments and to ensure that full exposure and examination is given to the tawdry events of last week.
It is a privilege to follow the hon. Member for Thurrock (Andrew Mackinlay), and I entirely endorse what he said.
I hope to be brief and I want to make just two points. First, I endorse what was said by my right hon. Friend the shadow Leader of the House, by the hon. Member for North Southwark and Bermondsey (Simon Hughes) and most eloquently by the right hon. and learned Member for North-East Fife (Sir Menzies Campbell) about the differences between what Mr. Speaker said on Wednesday and what the Government motion provides for today. I do not need to go through the differences.
The Government are inviting the House to overrule Mr. Speaker. That is the long and the short of it. What Mr. Speaker said on Wednesday about the terms of reference of the inquiry, its composition and its length was right, whereas the provisions of the Government motion are wrong. They seek to overrule Mr. Speaker, and I cannot recall an occasion when the independence of the Speaker and the independence of this House have been drawn into sharper focus. The House has an opportunity this afternoon to stand up for its liberties and independence. I hope that it will do so by voting for the amendment proposed by the right hon. and learned Member for North-East Fife.
My second point is that in his statement to the London Assembly last Wednesday, acting commissioner Sir Paul Stephenson said that the Metropolitan Police Service was called in by the Cabinet Office
“to investigate suspected criminal offences in relation to a substantial series of leaks from the Home Office potentially involving national security and the impeding of the efficient and effective conduct of government.”
I particularly want to draw the House’s attention to that last phrase. So far as I am aware, it has never been a criminal offence to impede the efficient and effective conduct of government and nor should it be. I do not think that the police should have been called in to investigate on that basis, and they should not have agreed to do so.
I have written to Mr. Ian Johnston, the chief constable of the British Transport police who is carrying out an inquiry into the police’s handling of the matter, and asked him to consider this point in his inquiry. I have written to the Minister in charge at the Cabinet Office to ask who in the Cabinet Office called in the police on that extraordinary basis and whether the Minister authorised or knew of that action.
I do not want to distract my right hon. and learned Friend, but he has just made a point that is worth dwelling on for a second. He reminds us that the police themselves have started an inquiry. How is it that the House of Commons will not be allowed to inquire, because of a mistaken view of what is sub judice, yet at the same time the police can inquire into their actions without fear or favour?
My right hon. Friend makes an excellent point to which there is no answer.
What has happened over the past 10 days or so diminishes our democracy and the rights not of ourselves as Members of the House, but of our constituents who send us here.
I will give way to the hon. Gentleman before I come to the end of my remarks.
I am grateful to the right hon. and learned Gentleman for giving way, although usually Members resume their seat when another Member speaks—he has been here long enough to know that. [Hon. Members: “Get on with it.”] Excuse me.
If the principles that the right hon. and learned Gentleman has just applied to the leaking of information had applied when Sarah Tisdall and Clive Ponting were prosecuted, does he believe that those prosecutions would have gone ahead?
I am afraid that, as was only to be expected, the hon. Gentleman fails to understand the difference between the Official Secrets Act and what is under discussion in relation to my hon. Friend the Member for Ashford.
For the reasons given earlier in the debate, we need the Committee that Mr. Speaker proposed last Wednesday, not the feeble substitute for it that the Government are offering us today. That is why I urge Members to vote for the amendment proposed by the right hon. and learned Member for North-East Fife (Sir Menzies Campbell).
I am pleased to follow the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) and I promise to be even briefer than he was. I rise to support the motion tabled by the right hon. and learned Member for North-East Fife (Sir Menzies Campbell) for two reasons.
I do not think that the initial stages of the debate went as well as they should have done. We hope that our constituents have some interest in what we do in this place, but they would have found it impossible to understand the first three quarters of an hour of our deliberations. It was wholly proper for the Government to put a time limit on the debate and we should have accepted it and got on with the debate.
A consensus is emerging from the debate and I hope that my right hon. and learned Friend the Leader of the House is listening to it. If she responds to it, we may all come out of the debate with real credit. As my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson) pointed out, one of the problems is that many of our constituents, and at least some of us, are confused about what our privileges are and why we have them. It would not only be useful for them to be set out again but, as the shadow Leader of the House said, it might be good to see whether we should move to a statutory basis for those privileges. Their purpose is not to boost us and our egos but—we hope—to allow us to carry out our duties in a way that furthers the interests of our constituents.
My second point is that the motion tabled by the right hon. and learned Member for North-East Fife manages to divide the two issues that concern the Government. The first issue, with which I think my right hon. and learned Friend the Leader of the House agrees, is that we need to take note of what our privileges are, why we have them and how we should protect them.
Running alongside that, however, is the question of whether there was something different about the leak to the hon. Member for Ashford (Damian Green), and I hope I shall not cross the line in what I am about to say. I draw a distinction from my experience. I was not a Member of Parliament at the time but an outsider, so I should have been treated differently—as I was.
The previous Labour Government had a commitment to introduce child benefit. They decided to rat on the commitment, and papers were leaked to me showing that members of the Cabinet were not being totally truthful to one another. The Government threatened all sorts of things, through the Official Secrets Act and so on, but were far too sensible to go down that route. The Bill was not only introduced but became an Act. In addition, the Government spent huge resources on child benefit and, in the general election, said that it was one of their greatest achievements, so sometimes leaks can have a very good effect on Governments.
At some stage, the House needs to look at the circumstances of the leak relating to the hon. Member for Ashford, which I read about in the papers. My really good Friend the Member for Thurrock (Andrew Mackinlay) says that he would love everything to be put on rice paper. I must say that if I got a whole series of leaks from someone whom, it was alleged I had employed, and with whom I had contact, I as a Member of Parliament might question what was going on, particularly if I thought that that person might wish to further their career in the Opposition party. I beg Opposition Members to consider that point; it is not the usual suspects who are expressing concern about the issue. I do not usually regard myself as one of the usual suspects, and I am concerned about the matter. I make that point because I imagine that many outsiders following the debate will be concerned about the issue. It will not go away; it can come up in different circumstances. I think that it should be pursued.
I make the following plea to my right hon. and learned Friend the Leader of the House: the shadow Leader of the House has said that she is withdrawing the Opposition’s official amendment, so there is a chance for the House to come together on the amendment of the right hon. and learned Member for North-East Fife. If we did that, we might just scoop some credit from our constituents for this affair.
I want to raise two sets of points about the proposal. I support amendment (e), tabled by the right hon. and learned Member for North-East Fife (Sir Menzies Campbell), and I agree with everything he said in his excellent speech.
Everybody agrees that nobody is above the law—not Members of Parliament, the police or the Government. I will not spend long discussing the police; I just point out the coruscating comments made about them by Geoffrey Robertson ‘QC’ last week, which the hon. Member for Thurrock (Andrew Mackinlay) reiterated. As for Members of Parliament, I cannot find an example in the past century of a Member of Parliament who has escaped the law, or proper prosecution, as a result of privilege, and I do not expect that to change as a result of what we do today.
I come to the point made by the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman); I am sorry to say that he is not present. [Hon. Members: “He’s over there.”] Good; he may want to pay attention, because he said something that is completely wrong. When talking about the sequence of events that led to today’s debate, he said that it was incumbent on police to arrest Galley for what most of us would view as a disciplinary offence. Frankly, I find that use of the offence of misconduct in public office very worrying. I received an e-mail today—perfectly legally—from a recently retired senior police officer, who said the following about misconduct in public office:
“This is a catch-all or fall-back, flavour of the month, supposed offence that the Met, Thames Valley and at least one other police force”
often pursue. He continued:
“They have used it to contrive allegations of criminal conduct against a large number of public servants. Overwhelmingly, those investigated have faced years of debilitating investigation that has damaged their lives as well as their careers and the lives of their families but have faced no criminal charges of any kind or, even, disciplinary charges related to the supposed misconduct investigated.
In the vary rare convictions for the supposed serious criminal offence, the sentences have been the lightest tap on the wrist and all costs have had to be met by the Crown.”
He goes on to assert that more than 50 civil servants have faced that process.
I do not know whether or not that is true, but I must tell the Leader of the House that the Government should look at this carefully. If our Government or, more accurately, our police authorities are using that law as a weapon of intimidation that almost never comes to fruition, the country should be ashamed of that.
Does my right hon. Friend agree that if that is happening, it is entirely contrary to the intention expressed in Parliament in 1989, when the revised Official Secrets Act was enacted, that, save in cases of national security, it would be an internal disciplinary matter? The departure from those principles enunciated from the Dispatch Box by the then Home Secretary, Douglas Hurd, is an extraordinary development that undermines civil liberties in this country.
The right hon. Gentleman, in discussing the appropriateness of arrest, seems to be making a persuasive point, but it applies beyond the situation that has led to today’s debate. For example, what about the arrest of Ruth Turner, an aide at No. 10 Downing street, to whom the police went in the early hours of the morning? They took her away, and did not allow her to get dressed, except in the presence of a police officer, but then there were no charges against her at all.
There were Members on this side of the House who criticised that action at the time: two wrongs do not make a right.
Returning to the point that I was making, not only did we receive that piece of evidence from a retired police officer but, only two weeks ago, we heard about the case of the journalist, Ms Murrer. The judge dismissed the case against her, saying that vast amounts of legal writ from Britain and Europe state that it should never have been brought because of protection under articles 9 and 10. If a journalist can receive that protection, surely a Member of Parliament can do so. That point is of some note when we look at the interpretation of privilege by ourselves and by the authorities under two laws passed in the past couple of decades. The Police and Criminal Evidence Act 1984, for example, specifically protected editors and the files and records of editors and journalists. We did not give that protection to ourselves, because we thought that we already had it. Similarly, when the Public Interest Disclosure Act 1998, to which the Leader of the House referred, was passed, we gave protection to whistleblowers who approached journalists. There is no such protection for whistleblowers who approach Members of Parliament. That is an absolute flaw in our laws, and it must be put right. It cannot be put right by a Standing Order, but it must be put right at some point in future.
I wish to read a brief quotation to the House:
“The privilege of freedom of speech enjoyed by Members of Parliament is in truth the privilege of their constituents. It is secured to Members not for their personal benefit but to enable them to discharge the functions of their office without fear of prosecution, civil or criminal.”
Those are the words of the House of Commons Privileges Committee in 1939, ruling on the Duncan Sandys case. I remind the House that he was threatened with prosecution under the Official Secrets Act not simply because he had received highly sensitive information about military weaknesses in the country but because he refused to help the authorities to identify the source of the leak. The Privileges Committee ruled in his favour, and ruled that he could not be prosecuted.
We have to create a Committee today, hopefully under the amendment that I support, that will address that issue. Let us remind ourselves of what happens elsewhere in Europe. I am the last person to draw European analogies in the House of Commons, but the simple truth is that those countries that have had totalitarian Governments in the past invariably have absolute privilege, including protection from arrest. A German MP cannot be arrested without a motion from the Bundestag, and that arises from previous abuse and intimidation of German Members of Parliament. I am not recommending such privilege here, as that can in turn be abused. But what we have is one of the weakest sets of protections of democracy, as they should be called, in Europe.
What should we ask the Committee to do? What should allow the police to go through the files and data of a Member of Parliament and, therefore, of his constituents, and not just of his constituents, but of legitimate whistleblowers who come to the Member of Parliament in the public interest? First, the crime should be serious and specific. It should not be minor—we should not be followed to catch us on speeding offences so that the police can go through our files. The charge should not be “conspiring to commit misconduct in public office”, which is vague and a general catch-all. That should not be acceptable to the Speaker of the House of Commons.
Secondly, there should be solid evidence. If the MP has not been charged—my hon. Friend the Member for Ashford (Damian Green) still has not been charged, and I do not think the young man involved has been charged either—that almost certainly means obtaining explicit approval from a Law Officer: the Attorney-General or the Director of Public Prosecutions.
Thirdly, and very importantly—a point that we have not addressed before—the charge should not relate to the Member of Parliament’s legitimate parliamentary activity. The charge in the Duncan Sandys’ case was serious disclosure of official secrets about military preparedness, yet it was ruled an appropriate parliamentary action, risky though it was. History proved that judgment right. My hon. Friend the Member for Ashford did not disclose anything so sensitive, and everything he did disclose was entirely proper in pursuit of his duties in holding the Government to account.
Finally, the intrusion on the constituent’s privacy must be necessary, not some further fishing expedition to see what the police can find. What will be the feelings of every whistleblower who speaks to a Member of Parliament if there is a fishing expedition? Again, that can be assessed only by an appropriate Law Officer.
The assault on privileges that we are discussing today is serious and, if we are not careful, it will set a very serious precedent for the future. No intrusion for a minor offence should be allowed. If we allow that, it will turn out to be disastrous. It will fatally undermine the last vestiges of power in the House. It will lead to intimidation of decent whistleblowers who are standing up for what they see as the public interest. It may not quite make speaking the truth illegal, but it will make finding out the truth illegal.
This has been an important debate with some outstanding speeches, in particular those of the right hon. and learned Member for North-East Fife (Sir Menzies Campbell) and my hon. Friend the Member for Thurrock (Andrew Mackinlay). I spent most of the early 1980s touring unwinnable seats with my hon. Friend, trying to be selected. In those days there were only unwinnable seats to fight and he always won the contests. If he was on the form that he was on today, it is no wonder that he won on those occasions. I wish I had some documents to leak to him so that he could use them.
The Speaker has made it clear what his mind is in relation to the debate. He was right to wait until Parliament resumed last Wednesday before he made his announcement to the House. That is where such announcements ought to be made—first and foremost, to Members of the House. He was also right to suggest the creation of a Committee of wise persons. That is the right approach to take on a matter of such importance and seriousness. The Government’s motion concedes that, but it is different from what the Opposition and the right hon. and learned Member for North-East Fife want. The Government want the matter delayed until after the conclusion of proceedings, if any, against the hon. Member for Ashford (Damian Green).
The Government have nothing to fear from an inquiry. The Home Secretary, in her very good statement last Thursday, made it clear what information she had, what information she received and what action she took. In his intervention on her, the former Home Secretary made it clear that, if he was in that position, he would have expected to be told what was going on with the investigation. However, she made it very clear that she was not told what happened until after it had happened, and that she did not know the identity of the Member of Parliament concerned until after he had been arrested.