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House of Commons Hansard
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Notification of Arrest of Members
10 February 2016
Volume 605

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I beg to move,

That Members of the House shall be under no undue restraint from being able to attend the House, and that this principle has been, and continues to be, encompassed in the privileges of the House claimed at the beginning of each Parliament;

That this House accordingly:

(1) endorses the Second Report of the Procedure Committee, Session 2015-16, Notification of the arrest of Members, HC 649;

(2) directs the Clerk of the House and the Speaker to follow the protocol on notification of arrest of Members set out in Annex 2 to that Report; and

(3) directs each chief officer of police in the United Kingdom, immediately upon the arrest of any Member by the police force under that officer’s command, to notify the Clerk of the House in accordance with the provisions of that protocol.

The motion stands in my name and that of my right hon. Friend the Leader of the House and the Chairman of the Procedure Committee, my hon. Friend the Member for Broxbourne (Mr Walker). I do not intend to detain the House for long. Although I would describe myself and my hon. Friend the Member for Finchley and Golders Green (Mike Freer) as conviction politicians, I want the record to show that the motion before the House results from the publication of the report from the Procedure Committee on 15 December on the notification of arrest of hon. Members.

The report followed detailed consideration by the Procedure Committee, at the request of Mr Speaker, and the House is being asked to endorse that report and the protocol contained in it. A word of caution to hon. Members: the Government are facilitating the discussion and the decision of the House on this matter, but it is for the House to decide, and I will leave it to my hon. Friend the Chair of the Committee to set out the proposals in the report and to answer any queries and issues that have arisen since publication. I thank the members of the Committee for their diligent efforts, and I know that my hon. Friend the Chair is highly respected and will do his best to help hon. Members in this debate and beyond. As such, I present the motion to the House.

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In the previous Parliament, the Procedure Committee was asked to look into the existing protocols around the arrest of Members of Parliament. We started preliminary inquiries in early 2015, and this work laid the foundation for the inquiry we launched shortly after the general election.

The findings of the inquiry were unanimously endorsed by the Committee, which reported to the House in December. I know that our moderate and proportionate recommendations relating to the arrest of Members have created a great deal of faux sound and fury in various quarters. On Monday morning, I had to smile at the assertion by Kevin O’Sullivan, a Mirror journalist, on Sky Television, that

“they should very much be named because everyone else is… that’s always been the system. Once you are arrested, you can be named”.

That was an enlightening observation for two reasons: first, because it was completely wrong, and secondly and more interestingly, because it gave a revealing insight into the conduct of too many national newsrooms and their own morality when it comes to obtaining information from public officials.

I accept that the media have a job to do, and that includes making our lives difficult, so my greatest disappointment in the reporting on the Committee’s proposals is reserved for Sir Alistair Graham, the former chair of the Committee on Standards in Public Life. From his pejorative comments about our report, it is clear either that he has not read it or, if he has read it, that he has no appreciation of, or regard for, the law. I know that Sir Alistair’s time in the chair from 2004 to 2007 was not a happy one. During his three years in office, he felt deeply aggrieved that at no stage did the then Prime Minister, Tony Blair, agree to his repeated requests for a meeting. I accept that the then PM was perhaps churlish in his refusal to meet him, but I gently ask Sir Alistair to pursue his grievance with the former Prime Minister, as opposed to taking his frustrations out on the House of Commons, which had no hand in his disappointment. On a personal note, it is sad to see a distinguished former public servant and knight of the realm allowing himself to be turned into little more than a misinformed talking head.

Let me be absolutely clear: the Procedure Committee is not asking for Members of Parliament to receive special treatment in the eyes of the law. Such a request, if made, would be alien to the values of our Committee and to the wishes of our constituents. All of us on the Committee believe that the law should be applied equally to all citizens of the United Kingdom, but currently that is not the case in this House, where, in matters of policing and public order, the point of public notification occurs not at the point of charge, as is the case with our constituents, but at the point of arrest.

That process of notification puts the police and the House at odds with the Data Protection Act and, potentially, article 8 of the European convention on human rights. Regardless of how people feel about the application of data protection and ECHR laws, that exposes both this House and the police to legal challenge by a named Member of Parliament.

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Is it not the truth that this practice is an historical anachronism arising from the period of the titanic struggle between the monarchy and the legislature, when, at a time when the King would arbitrarily arrest Members of Parliament, it was quite proper for Parliament to be so advised of that happening? It has no place in a modern Parliament and a modern democracy.

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My hon. Friend makes a valid point, which I shall now go on to answer.

In brief, the House has five choices. Option 1, as set out in our report, is to ensure that the law of the land is applied equally to Members of Parliament as it is to our constituents. Option 2 is for the House to retain the status quo, thereby knowingly putting itself and the police on the wrong side of the law. Option 3 is for the Home Secretary to amend schedule 3 of the Data Protection Act 1998 to specifically exempt Members of Parliament from its universal protections, which in itself would create a precedent for a two-tier system tier of justice—the very thing our constituents do not want.

Option 4 is to amend primary legislation, so that the names of all suspects are released by the police at the point of arrest, not at the point of charge. Of course, that would be welcomed by the press, as it would aid it in its pursuit of celebrities and other people of interest, but it would be devastating for those tens of thousands of people who are arrested but never charged with any crime.

Option 5 is for the House to abandon privilege in respect of our parliamentary duties in the hope that no future despot would want to detain us from them on trumped-up political charges. Of course, if we follow that route, tonight’s entire debate would be a dead letter.

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When the Anglo-Irish agreement was signed by Margaret Thatcher in 1985, Unionists were enraged because it totally ignored them. Unionists at all levels, including then Members of this House—this was before my time—were involved in a campaign of civil disobedience and a then MP was arrested in that campaign. Was any consideration given to those examples of civil disobedience?

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When people engage in civil disobedience, they tend to want to have it reported, so that would not be covered. They would be charged, and of course, at the point of charge, it becomes public information. Of the people who took part in those protests, I think that 10 individuals—on 13 separate occasions—were imprisoned.

Of the five options I have outlined, the Procedure Committee opted for option 1, as we generally think it is a good idea for the laws of the land to be obeyed by the Parliament that creates them. Indeed, that is the minimum expectation that our constituents have of us, so I am amazed that some colleagues are tying themselves up in knots about this modest proposal.

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In the unlikely circumstance that a Government less benign than the current one were to have a Member arrested on a trumped-up charge, would that Member have the right to insist that Mr Speaker brought it to the attention of the House?

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My hon. Friend makes a very good point. That Member would have the right, but if it were judged to be a matter of privilege, the Clerk would advise the Speaker and the arrest would be placed in the public domain. That is what would happen.

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I am grateful for a second go. Is my hon. Friend saying that if the House has a chance to ascertain whether it is a breach of privilege, the Member concerned will also have the right to insist on it being made public by Mr Speaker?

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All Members, if arrested, will continue to have the right to have their names made public if that is what they choose to do, but it will not be automatic. I hope that answers my hon. Friend’s question.

If adopted, the proposed changes will mean that Members of Parliament subject to arrest will not automatically have details of that arrest published by the House. This change gives them only the same rights to privacy as are enjoyed by any other citizen—not enhanced rights, but equal rights. In accordance with standard police practice and privacy laws, the names of arrested Members will not be put into the public domain by the House unless the Member consents. The exception will be in cases where you, Mr Speaker, have been advised by the Clerk of the House that a Member has been detained for reasons connected to his or her role as a Member of Parliament. A recent example was the arrest of the right hon. Member for Ashford (Damian Green) when his parliamentary office and home office were raided by the police in 2008.

The Committee’s report sets out the ambition that the arrest of a Member of Parliament still be notified to the Police Chief Superintendent of this House within 24 hours. However, we recognise that in circumstances where there is a live investigation, the police will not be in a position always to meet this ambition. In those circumstances, we hope that the details of an arrest will be provided as soon as operationally possible. For the avoidance of all doubt, should an arrested Member subsequently be charged with an offence, it is expected that in line with existing police practice, details of the name and charge would be published by the police force responsible at the time of charge.

In conclusion, the new arrangements detailed in the Committee’s report and outlined here this evening do not, of course, affect the duties of police forces to notify relevant authorities of safeguarding risks under the common law police disclosure scheme, which was introduced in August 2015.

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No Member of this House or the other place is above the law—nor should they ever consider themselves to be so. The reach of the law extends within the House, and Parliament would not seek to interfere with due process of a criminal investigation. Similarly, as the law applies to us all equally, so does the right to privacy.

Given that we are public servants, it is right that notification to the House would still take place in respect of matters such as imprisonment or remanding in custody; sentence of imprisonment; conviction of illegal or corrupt practice at a parliamentary election; and conviction of an offence relating to an MP’s expenses.

I would, however, like to ask about the practicality of the proposed measures, and I shall direct my questions to the hon. Member for Broxbourne (Mr Walker) as Chairman of the Procedure Committee. I believe that to be the correct process. Does the Committee believe that the event of a Member of Parliament being arrested will be kept from the public domain as a direct result of these procedural changes? Does the hon. Gentleman agree that in the modern era of social media, it is increasingly likely that such information would quickly reach the public domain?

On the effect of social media, rumours very often take on a life of their own and become widely accepted truth before the interested party has a chance to respond. Does the hon. Gentleman consider that, with the removal of the duty to notify of the arrest of Members to the House, that it could be more difficult for an individual to counter rumours of such an arrest?

I was interested to see that no notifications of arrest were made to the House for 30 years—from 1978 until 2008. Were no Members arrested during that time, or is there already a system available that allows the Speaker or Clerk to exercise discretion in these matters?

Under these proposals, it is specified that Members who are arrested are not to be prevented from notifying the House of their detention. Can the hon. Gentleman say how this can be ensured?

It is intended that police forces will be required to notify the Chief Superintendent at Parliament of the arrest of any Member within 24 hours. How will information about that new procedure be circulated to police forces, and how will it be enforceable?

Can the hon. Gentleman provide examples of what he considers would fall within parliamentary privilege, or would be of constitutional significance, that would require the House to be automatically notified of a Member’s arrest, and can he explain how parliamentary privilege or constitutional significance would have affected the notification of arrests made in the past 10 years?

The recommendations in the Procedure Committee’s report rely on protections enshrined in the Human Rights Act 1998, which I thought the Government wanted to repeal. Why are they more than happy to employ the Act to protect their own rights, while wishing to remove it from the British people?

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Order. In due course, with the leave with the House, the Chairman of the Procedure Committee may well have the chance—and, I rather anticipate, will have the chance—to speak again. Meanwhile, I call Mr Patrick Grady.

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I note that, according to the Order Paper, the debate can continue until any hour. I am surprised that my hon. Friends have decided to go to the Burns supper rather than taking this opportunity to explain their thinking on a range of matters. However, Mr Speaker, I thank you for calling me, and I congratulate the hon. Member for Broxbourne (Mr Walker) on his work in chairing the Procedure Committee, of which I am a member. I also acknowledge the work of the predecessor Committee, which did much of the heavy lifting. We inherited that hard work, and it has led to the report that we are discussing this evening.

The inquiry and the report—which proposes a small but fairly important modernisation of the House’s proceedings—were instigated by you, Mr Speaker. This morning, there was a debate in Westminster Hall about other aspects of modernisation of our procedure, led by the hon. Member for Hackney South and Shoreditch (Meg Hillier). I hope that in due course the Committee will be able to consider some of the issues that were raised then, not least that of electronic voting.

It is clear from the report that this reform of our procedure is overdue. I agree with what the hon. Member for Broxbourne said about, in particular, the European convention on human rights and his suggestion that Members should be given no special or differential treatment. The report seeks to strike a balance between the historic rights and privileges accorded to the House and the understood modern rights of individuals, especially the right to privacy. The procedure respects both by requiring the Clerk of the House to be notified, while requiring the details of an arrest not to be made public without good reason or without the consent of the Member involved. I note in particular provision 11, which states:

“There will be no notification under any of these provisions without previous contact with the Member concerned or his or her legal representative.”

The report elaborates on that thinking by giving a bit more detail, explaining, for instance, why the practice of notification should not be abandoned entirely. That is connected largely with the historic claim of the House on the attendance of Members, but the report notes that it has never been allowed to interfere with the administration of justice.

This is a comprehensive report, which has arrived at clear conclusions. It is the work of two generations of parliamentarians, and I pay tribute again to the predecessor Committee. This Committee has reached a clear and simple consensus, and I hope that, notwithstanding some of the questions that we have just heard, the House will be able to do so as well.

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I have been listening to the debate on the telly, and I do not know what all the fuss is about. I suppose I have been on nearly every picket line that has ever existed. I have been on one today, with the hospital doctors, and there was a tremendous turnout. But I remember being on one when the second eleven of the gang of four took over TV-am. Well, it was like a gang of four. They were very big and important people. One was a Member of Parliament, who later ran into some trouble. I think he got arrested, but I am not sure.

Anyway, I was on that picket line, and I do not remember there being any fuss and bother about the fact that a policeman came up and decided that he was going to arrest me. He put me inside—I think it was somewhere near Islington, not far from the TV-am picket line. After three hours, just as I was thinking, “I’m going to miss Prime Minister’s Question Time”, a man with all these pips on his shoulder came in and said, “Is there anything I can do for you, sir?” I said, “Yes, I’m trying to get out so that I can get to Prime Minister’s Question Time. I’m also struggling with 13 across in The Guardian crossword, but as a reader of The Sun, you probably don’t understand what I’m talking about.” So he kept me in another two hours, and I did miss Prime Minister’s Question Time.

Fortunately, there had been a cameraman on the picket line who had his own camera and he managed to prove, in all the further and better particulars, that I had not done anything at all. I had not hit the policeman; I had not been anywhere near him. The net result was that, when they saw the film, the police had to withdraw the charge. I turned up at Islington court expecting to get a hefty fine, and God knows what else, on this trumped-up charge, and suddenly the press came rushing out and stuck all these mics in front of my nose and said, “What have you got to say, Mr Skinner? The case has been dropped!” Now that is the story of an arrest.

I do not want anybody to get the daft impression that you cannot get arrested if you are an MP. A lot of my colleagues got arrested on picket lines in other strikes, and it is a load of nonsense when people assume that it is impossible to arrest Members of Parliament. The only charge I finished up with was a hefty bill for the barrister I had employed. He looked like one of those West Indian cricket fast bowlers, but he cost a lot of money. I was given the chance by the union concerned to have the money paid back, but as a matter of principle I said, “I’m okay, I’m a member of Parliament and I can foot the bill myself.” That is the story of an arrest.

I have been watching on telly as all this fuss and bother have emerged. Believe me, if some policeman had wanted to arrest me on the picket line with the hospital doctors this morning, he could have done it. But of course, we were doing “Singing in the Rain” and all the rest of it. It was a wonderful experience. The hospital doctors are in good spirits, and I will tell you this is a matter of importance. The Secretary of State for Health wants to be careful what he is doing. If he thinks he can impose a settlement on those hospital doctors—[Hon. Members: “Out of order!”] Yes, but this is only one little errant move, so don’t get excited, Mr Speaker! I think I have a duty to report back. The hospital doctors are not in a mood to give in. They have a right to win this battle. That is my report from the trenches today. Thank you very much for listening.

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I hate to break the consensus, but we have been here before when it comes to House business. I recall moving a resolution—but not getting a seconder—to stop the flipping of homes, some 18 months before the expenses scandal. If I had been listened to then, some Members might not be here today because others might well have survived; I suppose that outcome was rather double-edged. The reputation of Parliament might also have been partly salvaged if that resolution had been listened to, but it was not.

On this motion, I listened to the non-answer given to the hon. Member for North East Somerset (Mr Rees-Mogg). I have a question about the impact on the British overseas territories if this goes through. Plenty of Parliaments across the world, not least those in the Commonwealth, listen to and watch what we do, and they copy and emulate it. We are not just talking about a possibility in some future stage of less democratic times under this Government. Plenty of Members of Parliament have been arrested and disappear, and it still happens to this day. They are taken by regimes citing the law, and therefore decisions we make have to be thought through for their consequences.

Ironically, the first name on the motion is that of the Leader of the House of Commons, the right hon. Member for Epsom and Ewell (Chris Grayling). He is citing the human rights law here, but he is the man in Cabinet demanding we get rid of the human rights law. It seems that the rest of the country, including my constituents, can have no human rights, but we will create some extra ones tonight for Members of Parliament—exclusively. That is precisely what this proposal does. It says that MPs will give themselves some special rights in law that do not apply to everybody else, and that is wrong. That principle is wrong and that practice is wrong. Until the question, theoretical though it may be, is properly answered, which it has not been, this becomes a double-edged sword in law for us as well. If people wish to change the law in relation to what happens when people are arrested, they should change the law. There is plenty of time in the parliamentary agenda for people to change the law. There are plenty of opportunities for the Government to change the law. This is not the way to change it for Members of Parliament, and therefore we should oppose this proposal.

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With the leave of the House, Madam Deputy Speaker, I shall respond to the debate. I think the hon. Member for Bassetlaw (John Mann) missed my speech, because I think I did answer most of the questions he raised. I hope I answered the one put by my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), as I tried to do so twice.

The hon. Gentleman talks about creating another law for Members of Parliament. No, what we are doing is bringing Members of Parliament in line with the law—the law that governs our constituents. I greatly enjoyed the speech made by the hon. Member for Bolsover (Mr Skinner). He is a fantastic orator, and whatever he has to say, I always enjoy listening to it, so I thank him for being here this evening.

Let me try to answer the shadow Deputy Leader of the House’s questions. There were quite a lot of them and I am not very good at writing very quickly. If I fail to answer any of them, she can come back in. First, I wish to draw the House’s attention to “Erskine May’s” first edition. It records the case in 1815 of a Member

“convicted of a conspiracy”

and

“committed to the King’s Bench Prison.”

He escaped custody and took refuge in the Chamber of the old House of Commons, on the Government Front Bench, where the prison “marshal” found him and took him back into custody—rearrested him. Even though the marshal had come right into the House, albeit when it was not sitting, to take the Member into custody, the committee of privileges found that no breach of privilege had occurred. This measure is not to protect us; privilege has never protected us from being arrested for criminal activities, and it is a myth to suggest otherwise.

If a Member is arrested and chooses to tell the House of his or her arrest, or chooses to the tell the media of it, they are perfectly entitled to do that. What we are suggesting—what this report suggests and puts to the House—is that there is no automatic notification of the arrest of a Member, in line with the rights that extend to all of our constituents.

Let me just say something about social media. We cannot govern social media, but a lot of what appears on social media is hearsay and gossip. Let us also not forget that the media in this country have been very good at extracting information illegally, through the payment of cash to public officials, and some of those public officials have gone to prison for that. Both the Metropolitan Police Commissioner and the Home Secretary recently wrote to the College of Policing, reiterating the fact that police officers must not under any circumstances, unless it is to do with safeguarding, release the name of an individual on arrest. Details of their age can be given, but not their name.

Many people mistakenly believe that the point of arrest happens towards the end of an investigation. Actually, it does not. It happens very early on in an investigation. Indeed, someone could present themselves voluntarily to a police station to be arrested and then be released on bail. The Deputy Leader of the House asks where this would have made a difference in recent times. There were three arrests notified to the House between 2011 and 2014 where this would have made a difference. In reality, it probably would have made a difference in only two of the arrests, because one of the acts for which the individual was arrested was committed in public, in the precinct of this House, so it was seen and reported by many people.

There were two colleagues—one in 2011 and one in 2014—who were arrested. Their names appeared on the front of national newspapers and they suffered huge reputational damage. In both those cases no charges were brought. It would not make a huge difference to a lot of people, but it would certainly make a difference to some people in this House.

On circulating the procedures, there is a protocol attached to our report and that will be circulated by the Clerk of the House and those who work in his office to police constables across the country. That will happen only when—and if—this House approves the motion here this evening.

The hon. Lady asked when privilege would have applied, and I gave an example in my speech. There was clearly the case of my right hon. Friend the Member for Ashford (Damian Green) whose offices on the precinct of the House of Commons and at home were entered by the police. That would have been a matter of privilege, but it would not be for me to determine whether that encroached on privilege, but a matter for the Clerk, in discussion with the Speaker and the legal counsel. That is the best example.

The hon. Lady also asked why there were no reports for 30 years—between 1978 and 2008. It was probably because this process fell into disuse—it is nothing more sinister than that. The reason that more arrests were reported goes back to what happened in 2008 when the police entered the precinct of the House of Commons without any advance notification. The Serjeant at Arms at the time was rather taken by surprise. It was a bit of a procedural disaster. An edict then went from the Speaker’s Chair, saying that we need to be notified of action. The police being diligent then started notifying the Chair of all arrests and actions, and that is where the difficulty arose.

I have some scribbled notes here. I hope that I have answered most of the hon. Lady’s questions. There is still the ECHR question, and there has been some gentle chiding of the Leader of the House. I did say in my speech that, regardless of what we think about the ECHR—whether we like it or love it—regardless of what we think about data protection—whether we like it, love it, or tolerate it—the truth of the matter is that, as of today, they are the law of the land. As I said in my speech, we have a duty in this place to obey the law of the land. I know that some people have a great conscience and sometimes take part in demonstrations and get arrested. When they do get arrested, they want that to be in the public eye because that is part of their action. The hon. Member for Brighton, Pavilion (Caroline Lucas), for example, was recently arrested, but that was very much in the public eye. I hope that I have answered most of the questions put to me by the shadow Deputy Leader of the House.

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It is worth emphasising this point, because we had quite an incendiary speech from the hon. Member for Bassetlaw (John Mann), and we need to nail this argument on the head. As a member of the Procedure Committee, with its Chairman sitting next to me, I can say that no extra privilege of any sort is being given to any Member of Parliament. We are being put on exactly the same level as members of the public.

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I can assure my hon. Friend that that is the case. He is right—no Member of this House is above the law, but likewise no Member of this House is below the law. We have to be equal in the eyes of the law, and that is what this report tries to do.

Question put and agreed to.