Police Searches on the Parliamentary Estate - Committee on Issue of Privilege Contents

4  Search of a Member's office in Parliament

The Serjeant and the Police

79.  The Metropolitan Police decided it was necessary to search the parliamentary office of Damian Green. In order to allow the search of Christopher Galley's workplace, the responsible official in the Home Office had signed a Form 101 consent form.[149] How the Metropolitan Police secured a similar consent in respect of Damian Green's office in Portcullis House in the House of Commons lies at the heart of what this Committee has to consider.

80.  At 5.00 pm on Thursday 20 November, an SO15 detective sergeant came to Portcullis House to meet Chief Superintendent Ed Bateman, who is both Head of Parliamentary Security and the senior police officer based in the Palace of Westminster.[150] The conversation covered hypothetical questions about the arrest of an MP, and specifically the likely view of Jill Pay, the Serjeant at Arms, if she were to be requested to give consent to the police for a search of a Member's office on the Parliamentary Estate.[151]

The Police and the Palace of Westminster

81.  The Metropolitan Police Service Security Force, headed by Chief Superintendent Ed Bateman, works with the Serjeant at Arms (representing the House of Commons), Black Rod (representing the House of Lords) and the Parliamentary Security Co-ordinator to provide a safe and secure environment within Parliament.[152] The special service agreement with the Metropolitan Police Service is a major charge on the budgets of the House of Commons and the House of Lords,[153] reflecting the scale of the task: to protect the democratic process; to keep secure a world heritage site which is open to the public; and at the same time to protect the nation's leaders and all who work in or visit the premises. We take this opportunity to commend the professionalism and dedication of the police staff who serve at the Palace of Westminster. Jill Pay told us she "owned" the House's contract with the police, and she characterised her work with the police as "a very good working relationship, good information, regular meetings, a formal weekly meeting but interaction virtually every day on various aspects of the operation".[154]

The responsibilities of the Serjeant at Arms

82.  The Serjeant at Arms is appointed by royal patent "to attend upon the Speaker of the House of Commons". The origins of this ancient office stretch back to medieval times, and the Mace carried by the Serjeant at Arms in the Speaker's procession before each day's sitting and on other occasions is an expression of the authority of the Crown being exercised by and on behalf of the House of Commons. Since 1962 the Speaker has in practice had the final say in recommending the appointment of a Serjeant at Arms. While security and ceremonial remain at the core of the Serjeant's function, extra responsibilities of the post have waxed and waned over time. In the 1990s, following the Ibbs Report, the Serjeant's role was extended to include additional responsibilities including the works programme, the physical fabric of the Parliamentary Estate, office furniture, telephones and computers and cleaning among a host of other responsibilities.[155] Following the Tebbit review in 2007, a new Department of Facilities was created, leaving a slimmed-down Serjeant at Arms' Directorate as part of the new Department of Chamber and Committee Services, with the Serjeant at Arms reporting directly to the Clerk Assistant.[156] In a succinct submission to this Committee, Peter Bottomley, the Member for West Worthing, suggested that the Office of Serjeant at Arms should be re-graded again, to give the holder of the Office direct access to the Speaker and to the Commons Clerk, rather than being brigaded lower.[157]

83.  After an open competition, two candidates were presented to the then Speaker, Rt Hon Michael J. Martin MP, now Rt Hon Lord Martin of Springburn. He selected Jill Pay, who became the first woman Serjeant at Arms when she took up the post in January 2008.[158] Having worked in the Serjeant at Arms' Department for thirteen years, Jill Pay's parliamentary experience on taking up her post was greater than many of her predecessors.[159] Despite her lengthy experience in the House, Jill Pay had never been aware of the memorandum written in July 2000 by the then Clerk of the House (now Sir) William McKay, copied to the Serjeant at Arms at the time, setting out the procedure to be followed in the event of a request by the police to search a Member's office, nor had anyone drawn it to her attention as part of her induction when she took up her present post.[160] This absence of knowledge on her part was significant.


Serjeant at Arms

Speaker's Secretary

Speaker's Counsel

cc Mr Vaux

Clerk Assistant

Principal Clerk, Table Office

Clerk of the Journals

  As you may know, it is likely that, some time in September, the ——— police will wish to obtain a warrant to enter and search a Member's office within the precincts, in connection with a criminal charge.

  We have no real precedent for how such a request should be met. This paper tries to suggest what the reaction might be, resting on first principles and on Canadian practice. To that end, I have enclosed the relevant pages in The Practice and Procedure of the House of Commons [of Canada]. This authoritative Canadian work on procedure, though at this point not wholly on all fours with our situation, is very helpful.

  The basic considerations seem to me to be these. Control of the premises occupied by the House is vested in the Speaker, who - subject to the House itself - is also the guardian of the House's privileges. The Speaker will not however wish to impede the course of justice. Secondly, care must be taken that the House's privileges are not infringed, and that its proper proceedings, or Members taking part in them, are not impeded. But privilege does not afford protection from a proper search or imply that the Palace is in any way a sanctuary. All that is done ought to be measured against these principles.

  The question is therefore how best to balance these unresolved imperatives. The following paragraphs attempt to strike that balance.

  In the first place, the consent of the Speaker must be obtained before there is any action in the Palace. The Speaker should see the search warrant or a draft, in advance, and satisfy herself, on advice of her Counsel (or her Counsel-designate), that she may consent to the search. Among the considerations relevant to that decision are, in my view, the formal validity of the warrant, the precision with which it specifies the material being sought, the relevance of the material to the charge brought, and the possibility that the material might be found elsewhere. Counsel will no doubt conduct a more thorough scrutiny of the warrant.

  It is assumed that the search warrant will follow and not precede the formal making of a charge against the Member in question. If this is not so, I believe the police ought to be asked specially to justify this element in their request. The Canadian text deals with this aspect of the matter at pages 116-117.

  It will be important that neither the warrant nor the exercise of the powers it confers run in any way contrary to the privileges of the House and individual Members. It would be wrong if the conduct of Members who have not been charged were in some way to be called into question as a result of the search.

  In the same way, if any material is taken, the Speaker ought to be able to be assured that it was that which was mentioned in or relevant to the warrant and no other. For this reason, and for the reason in the preceding paragraph, Madam Speaker has already indicated that she would like the police officers who undertake any search to be personally accompanied by the Serjeant, from their arrival in the precincts to their departure, and of course particularly during the search.

  The Member charged ought not to be warned of an impending search warrant, but it seems only right to see that the police let him have a copy at the time of the search or as soon thereafter as practicable.

  Please let me know if I can do anything further to clarify this paper, or help in the practicalities.


28th July 2000              W R McK

Between 20 and 26 November: the Police and the Serjeant

84.  When Chief Superintendent Ed Bateman first mentioned the possible arrest of an MP to the Serjeant at Arms on the evening of Thursday 20 November, he had not been told who the MP was or the nature of the allegation.[161] He told us that Jill Pay provided a "provisional" opinion that she would have the authority to grant consent to search a Member's office were they being investigated for a criminal offence.[162] According to Jill Pay's recollection of that conversation about the possible arrest of an MP, there was no mention of a search being carried out in the precincts.[163] Chief Superintendent Ed Bateman's evidence to us stated that he reported Jill Pay's "provisional" view back to the investigating officer.[164]

85.  In his evidence to us, Chief Superintendent Ed Bateman said that he had a detailed conversation with the Serjeant at Arms between 20 and 26 November at which they discussed the readiness of the Metropolitan Police Service to seek a magistrate's search warrant if the House of Commons declined to consent to the search.[165] Jill Pay's evidence to us was that she was told on the afternoon of Tuesday 25 November by Chief Superintendent Ed Bateman that the matter concerned Home Office leaks, that the suspect was a senior Conservative MP, and that the Counter Terrorism Command would arrest the Member as early as the following day and would want to search all of his premises including his parliamentary office.[166] She was told that she must keep this information confidential—

Chief Superintendent Bateman again told me on this occasion that all this was very confidential and that I could not tell anyone. I insisted that I had to tell the Speaker to which Chief Superintendent Bateman said, 'Okay, but as long as it is only the Speaker you are telling.' Chief Superintendent Bateman made it clear that this whole case was being kept very confidential and that the more people who knew about it from outside the police the greater the risk of prejudicing the criminal investigation.[167]

Wednesday 26 November: the Serjeant and the Speaker (1)

86.  According to Lord Martin of Springburn, the Speaker's Secretary told him on Wednesday 26 November 2008 a few minutes before his routine daily conference with senior House officials, which the Serjeant at Arms attends, that the Serjeant wished to see him alone on an urgent matter.[168] The Serjeant at Arms asked Mr Speaker Martin into an adjoining room and closed the door so that they could speak privately.[169] The Serjeant at Arms told Mr Speaker Martin that "counter terrorism officers from the Metropolitan Police were investigating a Member and might wish shortly to arrest that individual for conspiring to commit misconduct in public office".[170] At that stage the Serjeant at Arms did not know the Member's name. It was agreed that Mr Speaker Martin would be contacted when the Serjeant at Arms knew more. In her evidence to us Jill Pay said: "I told the Speaker that the police had informed me that officers from the Counter Terrorism Command were going to arrest a senior Member of Parliament, a Conservative, possibly that afternoon, and that they would want to search his Westminster Office, his constituency office and his two home addresses immediately after the arrest".[171] Lord Martin of Springburn's recollection of that meeting is different: "no reference was made to a search of the Member's office within the precincts".[172] In his supplementary written evidence, Lord Martin of Springburn asserted that the Serjeant at Arms evidence to us was incorrect and that she did not tell him at that meeting of the Member's party affiliation or his seniority, nor that there was to be a search.[173]


87.  Lord Martin of Springburn told us that the Serjeant at Arms had explained to him at their morning meeting on Wednesday 26 November that the matter was strictly confidential, but that it was not unusual for senior officers to approach him on confidential matters.[174] Malcolm Jack told us that he had no knowledge on that day of Jill Pay's conversation with Mr Speaker Martin and he agreed that, in retrospect, "it would certainly have been better if I had been informed by the Serjeant".[175] He told us that if he had been informed, he would have suggested to Mr Speaker Martin that all the senior officers involved in this business, including Speaker's Counsel, should meet and discuss the matter and consider all the aspects of it.[176] The Clerk of the House ascribed Jill Pay's "uncharacteristic" behaviour to the duty of confidentiality imposed upon her.[177] In his analysis, "she felt constrained by this confidentiality because she thought that the matter she was dealing with was something that really should not be discussed with anyone and therefore she did not discuss it with anyone".[178] Looking back on that morning meeting on Wednesday 26 November, Lord Martin of Springburn told us that it was his understanding that such matters would always be discussed with senior officers as necessary before he was informed.[179] Jill Pay, the Serjeant at Arms, told us that "with hindsight, I would prefer to have gone and spoken to the Clerk of the House at that stage [the evening of Wednesday 26 November]".[180]


88.  As we have previously indicated, the traditional function of the Special Branch in investigating serious leaks has been inherited by SO15, the Counter Terrorism Command.[181] Assistant Commissioner Cressida Dick thought it was "very regrettable" if anybody became confused by the title of the Command which had been debated when Special Branch was merged with the Anti-Terrorism Branch in 2006.[182] When it was put to Assistant Commissioner Cressida Dick that some new nomenclature should be considered for that particular part of the Metropolitan Police's responsibilities, she said that the Metropolitan Police Service would "go away and think about it".[183] We recommend that SO15 either be re-named or that it be stripped of any role in dealing with non-terrorist offences.

89.  It appears that the Serjeant at Arms did not make clear to Mr Speaker Martin that the involvement of the Counter Terrorism Command in this case did not mean that terrorist offences were being investigated, although she had been told by Chief Superintendent Ed Bateman on Tuesday 25 November that terrorist offences were not involved.[184] Lord Martin of Springburn told us "I was extremely concerned that a Member was being investigated by anti-terrorist police. In my mind I had an idea of Islamic or Irish terrorism".[185] This hint of terrorism may well have swayed his judgement: "I feel my responsibility was that I was dealing with an anti-terrorism squad. I did not know all the facts and I felt that I could not interfere with an anti-terrorism squad."[186] We would expect the House authorities to co-operate fully with police operations genuinely directed against a possible terrorist threat, but they ought not to allow a mistaken perception that alleged offences might be linked to terrorism to over-ride their better judgement.

Wednesday 26 November: the Serjeant and the Police (1)

90.  At 4.00 pm on Wednesday 26 November Chief Superintendent Ed Bateman and three other police officers met Jill Pay in the Serjeant at Arms' office. The investigating officers, who were still withholding the name of the MP and the nature of the offences, wanted confirmation that the Serjeant at Arms could give the police authority to search an MP's office. During the meeting with the police officers, Jill Pay left the room to seek advice, going first to her line manager the Clerk Assistant, who referred her to the Clerk of the House, Malcolm Jack, as the expert in that area.[187]

Wednesday 26 November: the Serjeant and the Clerk

91.  The Clerk of the House told the Serjeant at Arms that she had the authority to consent to a search, but that if a search concerned a Member's office she must consult the Speaker.[188] Jill Pay told us that "I know that the Speaker is responsible for the precincts and everything that happens, but the terminology that is generally used in terms of security is that the Speaker delegates executive authority to the Serjeant".[189] In an encounter which lasted only three or four minutes, the Serjeant at Arms asked the Clerk of the House a hypothetical question: whether she had authority to permit the search of offices in the precincts. The Clerk of the House told us that he had said that "the authority was delegated in her" and asked whether she was hypothesising about a Member's office; when she said that she was, the Clerk of the House said that if there were such a circumstance, then the Speaker would have to be consulted because that would go back to his authority.[190] Jill Pay told us that she did not recollect the Clerk of the House referring to the Speaker's authority.[191] Malcolm Jack told us that, with the benefit of hindsight, he wished that he had been more curious and that the Serjeant at Arms' question was posed to him "in a complete vacuum" and "so hypothetically that there was no context to it"—

the alarm bells might have rung if I had known a little bit more that this was a serious and imminent business. I had no idea that there was any context to this. I had no idea that the Serjeant was actually talking to the police.[192]

92.  Sir William McKay, the Clerk of the House from 1998 to 2002, explained that "Once you have the Speaker's okay, then the Serjeant or any other senior officer, having been instructed by the Speaker, would be at liberty to say yes or no, not on his or her own authority, but as a means of conveying the Speaker's decision".[193]

93.  Jill Pay, the Serjeant at Arms, agreed in her evidence to us that at her meeting with the Clerk of the House there had been a "misunderstanding" as to the meaning of the word "consult".[194] The conversation between the Clerk of the House and the Serjeant at Arms on the afternoon of Wednesday 26 November was a missed opportunity to recognise and forestall the storm which broke over Parliament when Damian Green's office was searched. In that short exchange the information not given, the questions not asked, the assumptions made and the misunderstandings caused led to confusion which could and should have been avoided. We remain perplexed that the seriousness of what was being discussed did not alert either of the two protagonists to enquire further of each other.

94.  In Mr Speaker Martin's subsequent statement to the House on Wednesday 3 December, he spoke of his "regret" that the Serjeant at Arms had signed the consent form without consulting the Clerk of the House.[195] While it is indeed the case that the consent form was not signed till the Thursday morning, with no further conversations on the matter having taken place between the Clerk of the House and the Serjeant at Arms, Damian Green suggested to us that the account in the Johnston Report of the Serjeant's encounter with the Clerk of the House on the Wednesday afternoon seemed to contradict Mr Speaker Martin's statement to the House.[196] Lord Martin of Springburn told us that his statement was given in good faith to the House, which we have no reason to doubt: "that was not proper consultation in my eyes, for someone to walk in and give a 'what if' scenario and then walk out the door again".[197] We agree that Mr Speaker Martin's Statement on 3 December 2008 was accurate, in that the conversation between the Clerk and the Serjeant was not a proper consultation, but we regret the opportunities missed on the afternoon of Wednesday 26 November, first, for the Serjeant to alert the Clerk to the intended police operation and, secondly, for the Clerk to make clear to the Serjeant the limits to her authority.

Wednesday 26 November: the Serjeant and the Police (2)

95.  Jill Pay returned to her office where the police officers were waiting and informed them at approximately 4.15 pm that she did have the authority to consent to a search. The police officers arranged to meet the Serjeant at Arms the following morning at 6.45 am to give her more information and to seek her formal consent to the search.[198]


96.  As pointed out by Speaker's Counsel at the meeting with Mr Speaker Martin on Tuesday 2 December, after the furore over the arrest of Damian Green and the search of his parliamentary office, the police had made a serious omission in not complying with the relevant PACE Code, which stipulates that "the person concerned must be clearly informed they are not obliged to consent and anything seized may be produced in evidence". [199] According to the relevant PACE Code—

Before seeking consent the officer in charge of the search shall state the purpose of the proposed search and its extent. This information must be as specific as possible, particularly regarding the articles or persons being sought and the parts of the premises to be searched. The person concerned must be clearly informed they are not obliged to consent and anything seized may be produced in evidence.[200]

97.  Chief Superintendent Ed Bateman told us that he did not recall advising the Serjeant at Arms that she did not have to consent: "because Jill Pay had understood the position that the Met would approach a magistrate and apply for a search warrant in the absence of consent, my presumption was that, knowing the alternative, she knew that she did not have to consent to the search".[201] As Damian Green put it to us, the police "slid round that particular rock without informing her".[202] Lord Martin of Springburn described the conduct of the police as "sleekit".[203]

98.  Sir Ian Johnston noted that the consent to search form in Book 101 does itself not make clear the PACE Code requirement that a person should be informed they are not obliged to consent, but he expressed the view that failure to comply with the Codes of Practice does not make the search unlawful.[204] We consider that the failure by any police officer expressly to advise the Serjeant at Arms of the right to refuse consent was symptomatic of the sloppy approach of the police in this case. It is true that failure to do so does not necessarily make a subsequent search unlawful but there was no excuse not to observe proper procedure.

Wednesday 26 November: the Serjeant and the Speaker (2)

99.  The Serjeant at Arms rang Mr Speaker Martin on his mobile at about 4.20 pm and told him that the arrest was not taking place that afternoon, but was likely to happen the next morning. She read out to Mr Speaker Martin the allegation against the Member — aiding and abetting misconduct in public office — but she could not tell the Speaker who the Member in question was, since the police were still withholding that information from her.[205] In his supplementary written evidence, Lord Martin of Springburn emphasised the very limited nature of the Serjeant at Arms' reports to him on Wednesday 26 November, and that he was not told until the following day that there was to be a search, nor was he informed before Thursday 27 November of the Member's party affiliation or his seniority.[206]

100.  Nothing was done by the House authorities on the evening of Wednesday 26 November, the final day of the Session, to take a comprehensive overview of the situation. In the circumstances we are surprised that no effort was made to convene a meeting of senior officers of the House and the Speaker on the evening of Wednesday 26 November to consider the significance of what was about to take place and the possible consequences to the House itself. It may be that nothing was done to discuss the problem because of the way the police had shrouded their investigation in confidentiality.

Thursday 27 November (morning): the Police and the Serjeant

101.  The police arrived by appointment at the Serjeant's official residence on the Parliamentary Estate at 6.45 am on Thursday 27 November 2008. Their apparent intention was to co-ordinate the search for Damian Green's parliamentary office with his arrest in Kent, where the Counter-Terrorism Command, dispensing with the assistance of the local police, had narrowed down the location of Damian Green's home to one or other of two adjacent properties.[207]

Thursday 27 November (morning): the Serjeant and the Speaker

102.  At the meeting in the Serjeant at Arms' residence, the police finally told her the name of the Member concerned, and asked her to sign the consent form in Book 101. Before doing so, she phoned Mr Speaker Martin in his official residence in Speaker's House, where he was preparing to leave at 7.30 am to return home to his constituency in Glasgow.[208] When Jill Pay told Mr Speaker Martin that Damian Green was the Member involved, the Speaker apparently commented that Damian Green was "a nice man".[209] This comment may well have reflected Mr Speaker Martin's lingering sense that the involvement of the Counter-Terrorism Command had suggested something far more sinister than he would readily associate with the hon Member for Ashford.

103.  The telephone call at 7.30 am on Thursday 27 November was probably the last opportunity to avert what later unfolded that day. Had Mr Speaker Martin questioned what he was being told, it might have been possible even at that stage to prevent the unprecedented search of a Member's parliamentary office, on what turned out to be such flimsy justification. Lord Martin of Springburn told us that he felt let down by the senior officials of the House.[210] He took it for granted that the person in charge of security would have consulted her immediate superior.[211] Both Malcolm Jack and Jill Pay have apologised for the way things were handled.[212] Lord Martin of Springburn wrote to tell us that he was "comforted to note the unreserved apology tendered by the Clerk".[213] Lord Martin of Springburn believes that the House through its Speaker was not as well served as it ought to have been; he told us that a Speaker is dependent on the expertise of those around him and that he had been "deeply disappointed" and "let down" in his expectation that his most senior officials would have kept each other informed.[214]

104.  Lord Martin of Springburn told us that with hindsight he wished he had asked the Serjeant at Arms whether there was a search warrant, but he took it to be the case that there was one—

When there is a search there is always a warrant. That was basic and that is what I expected to happen. At that stage I expected Speaker's Counsel to be involved and I expected the Clerk to be involved.[215]

105.  Jill Pay made clear to us in her evidence that she believed she had the authority to give consent to the search and that she was informing the Speaker, not seeking his authority.[216] Being informed is not the same as being consulted, and being consulted is not the same as giving authority. Lord Martin of Springburn submitted supplementary written evidence to emphasise that when the Serjeant at Arms advised him of the fact that Damian Green's office was to be searched, she did not seek his support or authorisation.[217] In a further written submission, Lord Martin underlined that in her three conversations with him the Serjeant at Arms had—

simply conveyed information to me. This was not consultation in any sense that a Member of Parliament would understand, that is to say seeking an opinion, advice or approval.[218]

106.  Mr Speaker Martin's public statement to the House on Wednesday 3 December was consistent with the evidence he gave to this Committee that he felt "deeply disappointed" and "let down".[219]

Thursday 27 November (late morning and early afternoon)

107.  Once the consent form had been signed, there then ensued a lull while Counter-Terrorism Command attempted to locate Damian Green, who was going about his business as a Member of Parliament in his own constituency. The Home Affairs Select Committee Report sets out the detailed sequence of events, culminating in Damian Green's arrest at Snodland in Kent and the flurry of phone calls afterwards to inform the Home Secretary, the Mayor of London, the Leader of the Opposition and several others of his arrest.[220] We need not repeat the Home Affairs Committee's account of those events here.

108.  Whenever a Member of Parliament is arrested on criminal charges, the House must be informed of the cause for which they are detained from their service in Parliament, though the ancient parliamentary privilege of freedom from arrest has never been allowed to interfere with the administration of criminal justice.[221] In his evidence to us, Lord Martin of Springburn described the delay in notifying the Speaker of Damian Green's arrest as "worrying".[222] Assistant Commissioner Quick wrote to Mr Speaker Martin after the weekend, on Monday 1 December, a letter which was received only on the afternoon of Tuesday 2 December.[223] As the House was prorogued at the time, no formal entry in the Journals of the House was required to note Damian Green's arrest.[224]

Thursday 27 November (afternoon): the Clerk and the Serjeant

109.  Malcolm Jack told us that he was "startled" by something he heard or saw on a television news channel at about 2.20pm on the afternoon of Thursday 27 November 2008. There is no dispute that at around that time something prompted the Clerk of the House to summon the Serjeant at Arms.[225] We find the Clerk's recollection perplexing since, as far as we can tell, the story did not appear on a television news channel, or in any form at all, until 7.30 pm when Sky News broke the news that Damian Green had been arrested and the other news outlets followed with their own reports.[226] When questioned again on this point, Malcolm Jack replied: "Well, I think we have reached a dead end, have we not? I can only tell you what my recollection is".[227] As the timeline in the Home Affairs Committee report shows, the number of people in the "Westminster village" who knew about the arrest had grown rapidly over lunchtime that Thursday.[228] Malcolm Jack accepted that it is possible that he learned of the arrest from a source other than the television.[229]

110.  Whatever it was that prompted him to do so, it was at about 2.20pm that Malcolm Jack summoned the Serjeant at Arms to his office and was immediately able to retrieve the McKay Memorandum of July 2000, which was easily available in his office.[230] Jill Pay confirmed in evidence to us that the Clerk of the House had telephoned her office shortly after the search began at 2.08pm to say he wanted to see her immediately, but she had already left Damian Green's office to see the Clerk of the House.[231]

111.  It was only when the Clerk of the House asked the Serjeant at Arms at that meeting to show him a copy of the search warrant that he realised that the search was taking place on the basis of a consent form and that there was no warrant.[232] The Serjeant at Arms had brought with her the first draft of a letter from her to the investigating officer and a copy of the consent form she had signed. Malcolm Jack asked to see the warrant and the Serjeant at Arms told him that the police had convinced her that the consent form she had signed was lawful consent and was instead of a warrant.[233]

112.  The Serjeant at Arms told Malcolm Jack that she had "consulted" Mr Speaker Martin on three occasions, the last time at 7.30 that morning.[234] Malcolm Jack told us that Jill Pay may have misunderstood what he meant by "consult".[235] The Speaker had certainly been informed, but Lord Martin of Springburn confirmed to us in supplementary written evidence that he considers it "beyond reason for anyone to suggest there had existed any credible belief that my desire or direction was for this search to be conducted". He is "unable to envisage any circumstances in which I would or could have supported or encouraged any Officer of the House to consent to a search being conducted within the precincts of Parliament without a warrant".[236] In his evidence to us, Lord Martin emphasised that "it never occurred to me that the Serjeant would give consent to a police search of a Member's office in a police investigation without a warrant".[237] Malcolm Jack did not realise that the Speaker had not in fact given his approval to the search until two days later, when he spoke to Mr Speaker Martin on the phone on Saturday 29 November.[238]

113.  The Clerk of the House and the Serjeant at Arms agreed the content of her letter to the investigating officer should include the alleged charge, because it had not appeared on the consent form, and that the letter should be copied to Damian Green, the Clerk of the House, the Speaker's Secretary, the Head of Parliamentary Security and Speaker's Counsel.[239] This is the letter accompanying the consent form which Lord Martin of Springburn raised with us and which the Speaker's Secretary in his evidence to us referred to as a "restraining letter".[240]

114.  Malcolm Jack told us that he had no authority to stop the search.[241] Since the Clerk of the House had been told that the Speaker had been consulted, before the Serjeant signed the consent form, there was no basis for him to question the legality of the search.[242] A search warrant would have been necessary only if consent had been refused by the appropriate person — who in this case would have been the Serjeant at Arms, acting on the Speaker's authority. In his supplementary evidence to us, Lord Martin of Springburn suggests that the Clerk of the House could have at least requested the police to pause in their search while the decision to consent was reviewed.[243]

115.  We consider that seriously inadequate communication between these three key figures — Speaker, Clerk of the House and Serjeant at Arms — resulted in complete misunderstanding about the proper process for allowing a search of a Member's office. Had all three been more persistent in their questions and more forthcoming in their responses they must surely have appreciated the nature of events and their unfolding significance. We agree with Lord Martin of Springburn that the House officials should have served the Speaker better, and the Clerk of the House has rightly apologised that matters were not better handled; but it was inescapably Mr Speaker Martin's responsibility to make sure the right questions were asked. Mr Speaker Martin failed to exercise the ultimate responsibility, which was his alone, to take control and not merely to expect to be kept informed.

Thursday 27 November (afternoon): the film of the search

116.  Once the search was under way, Andrew Mackay MP, the Member for Bracknell, who was at the time senior parliamentary and political adviser to the Leader of the Opposition, entered Damian Green's office whilst it was being searched and filmed the scene. Chief Superintendent Ed Bateman was informed at New Scotland Yard and immediately asked Jill Pay by mobile phone to intervene. Jill Pay replied later by e-mail to say that she had formally asked the Member to return the tape from the camera, but she had been told that it had already left the Parliamentary Estate.[244] A version with police officers' identifying features pixillated, which was later released by the Conservative Party, was broadcast in news programmes and may still be found on the Internet.

Thursday 27 November (afternoon): the Clerk and the Speaker

117.  The Clerk of the House asked the Speaker's Secretary to pass a message to Mr Speaker Martin, who was away from home on a private family visit. Lord Martin of Springburn told us that the Speaker's Secretary phoned him at about 5.00 pm to say that that the police had come into the House and were searching Damian Green's office, that Damian Green had been arrested in his constituency, that the Clerk of the House wanted to convey to him that the search was underway and was being conducted properly, and that the Opposition Chief Whip wanted to speak to him.[245] Lord Martin told us "what I wanted to know at that stage is what does 'properly' mean?".[246] Mr Speaker Martin did not call the Clerk, however, and in evidence to us Lord Martin of Springburn said: "Why did the Clerk not come to me? The duty of the Clerk is to serve the Speaker, not the other way round; it is not for me to run around finding the Clerk".[247]

118.  Angus Sinclair, the Speaker's Secretary, told us that when he had been called to see the Clerk of the House at about 4.00 pm he had been told that "there had been a problem, that Damian Green's office was being searched and that the Serjeant had made a mistake by letting the police in with just a consent form".[248] Angus Sinclair told us that when he told Mr Speaker Martin there was a consent form and a 'restraining letter' but no warrant the Speaker was surprised and determined that he should see these pieces of papers for himself.[249] Lord Martin of Springburn asked for the paperwork, and on his way home he pulled over into a lay-by so that the Assistant Secretary to the Speaker, Peter Barratt, could read him the documents over the phone: "I realised then that there was no warrant".[250]

149   Johnston Report, page 40 Back

150   Ev 152 para 4 Back

151   Ev 152 para 4. There had been previous examples of police searches on the parliamentary estate, directed at Members' personal staff: for example, the 'Plane Stupid' demonstration in February 2008 led to a police search, with the consent of the Member concerned, of Emily Thornberry MP's office in Portcullis House for evidence of an offence allegedly committed by a researcher working for her -Johnston Report, page 46, Q 431, Ev 152 para 3. The Serjeant informed the Speaker on that occasion (Q 737). Another example of a Member allowing their office to be searched was referred to in the debate on 8 December 2008 (HC Deb vol 485 col 268) by Brian Binley: Leo O'Connor, who worked as research assistant for Tony Clarke, Mr Binley's predecessor as Member for Northampton South, was charged and later convicted in 2007 under the Official Secrets Act. His office in Portcullis House had been searched in 2005 when the investigation began into the leak by David Keogh, a Cabinet Office official, of a highly sensitive memorandum recording Oval Office talks on Iraq between President George W Bush and Prime Minister Tony Blair. Back

152   Qq 499 to 502 Back

153   The salary-related cost to the House of Commons in financial year 2008-09 of the 520 security staff provided by the Metropolitan Police Service under the special service agreement was £20.6 million (HC Deb 18 January 2010 vol 504 col 2-4W). Back

154   Qq 713 to 715 Back

155   Report on House of Commons Services by a team led by Sir Robin Ibbs, Session 1990-91, HC 38; Q 704 Back

156   House of Commons Commission Review of Management and Services of the House of Commons by Sir Kevin Tebbit KCB CMG, Session 2006-07, HC 685; Qq 239 to 240, 243, 1067 Back

157   Ev 132 Back

158   Qq 132, 697, 705 Back

159   Q 697 Back

160   Qq 709 to 710, 295. Lord Martin of Springburn was not aware of the McKay Memorandum, which had been drawn up a few months before he became Speaker (Qq 129 to 130). Angus Sinclair, the current Speaker's Secretary, told the Committee that the McKay Memorandum was not held in the Speaker's Office (Q 214). Back

161   Q 700; Ev 152 para 4 Back

162   Ev 152 para 5 Back

163   Q 700; Ev 154 para 1 Back

164   Ev 152 para 6 Back

165   Ev 153 para 7 Back

166   Ev 154 para 3 Back

167   Q 700 Back

168   Q 120; Ev 145 para 5 On Wednesdays the meeting normally starts promptly at 1030 am. Jill Pay had phoned Angus Sinclair, the Speaker's Secretary, at about 9.30 am to ask to speak to the Speaker as soon as possible on a very confidential subject. Angus Sinclair had suggested the Serjeant wait to see the Speaker before the daily conference at 1030 am (Q 700; Ev 154 para 6) Back

169   Q 120; Ev 145 para 5 Back

170   Q 120; Ev 145 para 6 Back

171   Q 700; Ev 154 para 6 Back

172   Q 120; Ev 145 para 6 Back

173   Ev 177 Back

174   Q 120; Ev 145 para 6 Back

175   Qq 244 to 245 Back

176   Q 246 Back

177   Q 293 Back

178   Q 301 Back

179   Q 120; Ev 145 para 6 Back

180   Q 721 Back

181   O'Connor Report, para 6.6 Back

182   Qq 1087 to 1098; Ev 162 para 2 Back

183   Q 1095 Back

184   Q 738; Qq 431, 531; Ev 153 para 8 Back

185   Qq 120, 137; Ev 145 para 6 Back

186   Q 152 Back

187   Qq 302 to 304, 701; Ev 155 para 14 At that time the Clerk Assistant and Director-General for Chamber and Committee Services was Douglas Millar CB, who has since retired. Back

188   Qq 701, 762, 813; Ev 155 para 15 Back

189   Q 734 Back

190   Qq 249, 275, 276,299, 767, 798 to 799 Back

191   Qq 811 to 812 Back

192   Qq 272, 275, 276 Back

193   Q 684 Back

194   Qq 769 to 770 Back

195   HC Deb 3 December 2008 vol 485 col 2, set out in this Report at Ev 129 to 130 Back

196   Q 4 Back

197   Q 150 Back

198   Q 701; Ev 155 para 16 Back

199   Qq 314, 315 to 321 Police and Criminal Evidence Act 1984 Code B: code of practice for search of premises by police officers and the seizure of property found by police officers on persons or premises, para 5.2 Back

200   Police and Criminal Evidence Act 1984 PACE Code B (Jan 2008) para 5.2  Back

201   Ev 153 para 10 Back

202   Q 70 Back

203   Q 182 Back

204   Johnston Report, page 36; Qq 577 to 583  Back

205   Q 701; Ev 156 para 21 Back

206   Ev 177 Back

207   Q 486 Back

208   Q 160 Back

209   Q 431; Ev 154 para 15 Back

210   Q 132 Back

211   Q 141; in supplementary written evidence, Lord Martin of Springburn pointed out that residences are provided on the parliamentary estate so that the Serjeant at Arms, the Clerk of the House and the Speaker's Secretary can be available when needed, whatever the hour (Ev 177). Lord Martin also told us that he found it "disturbing" that the Serjeant rehearsed what she planned to say to the Speaker with the four police officers; and that the officers were able to listen to her conversation with him: "this surely cannot be right" (Ev 177). Back

212   Qq 216, 699 Back

213   Ev 174 Back

214   Qq 120, 154, 174, 185 Back

215   Q 141, 142 Back

216   Qq 728, 751 to 756 Back

217   Ev 174 Back

218   Ev 177 Back

219   Qq 132, 163; Ev 146 paras 17, 19; Ev 147 paras 26, 28 Back

220   HAC Report: see the time line following para 29 Back

221   Erskine May, 23rd edition (2004), page 119. The Joint Committee on Parliamentary Privilege recommended in 1999 that the privilege of arrest in relation to civil matters, which had lost its importance when imprisonment for debt was abolished in the nineteenth century, should be abolished (Report from the Joint Committee on Parliamentary Privilege, Session 1998-99, HL Paper 43-I/HC 214-I para 327). Back

222   Q 120; Ev 147 para 30 Back

223   HAC Report, Annex page 24 Back

224   The last arrest of a Member noted in the Journal of the House of Commons was that of Audrey Wise, Member for Coventry South West, who had been arrested on 21 June 1977 in connection with the picketing of Grunwick in north London. During the 1980s there were several notifications to the House of Northern Ireland Members being imprisoned for short periods, mainly in connection with non-payment of fines; the most recent imprisonment noted in the Journals was that of Terry Fields, Member for Liverpool Broadgreen, for non-payment of the community charge, on 15 July 1991; see also Ev 122 paras 5 and 6. Back

225   Qq 285, 1139 Back

226   Q 1158. The Spectator Coffee House blog has the following entry by James Forsyth, timed at 6.29 pm on Thursday 27 November 2008: "The chatter in Westminster is that a big story is going to break tonight. Stay tuned."  Back

227   Q 1141. We have received letters from the Parliamentary Security Co-ordinator and from two Clerks in the Department of Chamber and Committee Services, who also recollect learning during that Thursday afternoon, from the television, of the search of a Member's office. Back

228   HAC Report, pages 12 to 15; Q 1155 Back

229   Q 1158 Back

230   Qq 281, 282, 344, 346; Ev 147 para 26; Qq 185, 196,198; Ev 172 Back

231   Qq 771 to 774; Ev 156 para 28 Back

232   Qq 345 to 347 Back

233   Ev 156 para 28 Back

234   Ev 156 para 28, Qq 354 to 357, 701 Back

235   Q 367 Back

236   Ev 175 Back

237   Q120; Ev 145-146 para 12 Back

238   Q 372 to 374 Back

239   Ev 156 para 30, Ev 158 Back

240   Qq115 to 118, 192 to 195; Johnston Report, page 45; Ev 177 Back

241   Q 352  Back

242   Under para 5.3 of PACE Code B "an officer cannot enter and search or continue to search premises under paragraph 5.1 if consent is given under duress or withdrawn before the search is completed" Back

243   Ev 175 Back

244   Ev 154 para 15 Back

245   Qq 120, 184; Ev 146 para 14 Back

246   Q 145 Back

247   Q 146 Back

248   Q 189 Back

249   Q 209 Back

250   Q 146 Back

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