“His duty was to contact the Attorney General immediately..”

Over at CommentisFree Geoffrey Robertson QC gives his legal opinion on the House of Commons Speaker’s statement today. From the Guardian post.

The Speaker admits that he was told the night before of the impending arrest of an MP. His duty was to contact the Attorney General immediately and to take legal advice from the Clerk of the House, and in the meantime to instruct his Serjeant at Arms to refer all police inquiries to himself. Today he used parliamentary privilege to defame the police, who may have a very different version of events (they usually do). The real criticism of the police is that they barged in without taking the advice of the Director of Public Prosecutions, who would have been aware, amongst other authorities, of the decision in 1986 of the High Court. It refused police demands to stop the screening in parliamentary precincts of Duncan Campbell’s “Zircon” (pdf) film, allegedly containing official secrets, on the basis that this was a matter for parliament and specifically for the speaker.

The parliamentary committee should now seek and publish the DPP’s opinion. If the police acted as Michael Martin alleges, then Green, like John Wilkes MP famously before him, should sue for unlawful search and seizure and receive heavy damages. But most importantly, the DPP should disclaim any attempt in future to use this dragnet conspiracy charge against MPs – or journalists or editors – who receive leaked documents from civil servants.

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  • Duncan Shipley Dalton

    This raises some interesting questions. I must admit my first thought was that PACE s.18 allowed for a search without warrant so the discussion about a warrant was odd but on further reading it seems R. v. Graham-Campbell; Ex parte Herbert, [1935] 1 K.B. 594 that statutes do not apply to the precincts of Parliament unless they are specifically stated so to do. PACE does not appear to make this stipulation.

    So if the search was not lawful as a PACE search it would need a warrant or consent. Can a lower court issue a warrant to search the precincts of the court of Parliament? A good question. Of course if there is consent then no warrant is needed but who could give consent to search Parliament? Is the Serjeant at Arms able to grant consent on behalf of parliament? The Speaker in his statement says he did not authorise it and the SAA signed the consent form. Obviously the police acted in good faith if they relied on the SAA consent but the underlying search may nonetheless be unlawful. The person giving consent has to have the underlying legal authority to do so. I wonder if the SAA has that?

    Mind you a part of me is wondering why some of the MP’s who are so outraged at the actions of the police were not so worried about the idea of the kind of warrantless searches that working class people who enjoy a more active relationship with the police often have to enjoy when they voted through PACE in 1984. This is the point of retaining the need for warrants and other legal protections it is not for the scum bags but because one day it will be your house that plod is searching.

  • Duncan

    Excellent point but as I am sure you are aware, the freeloading scum-bags who sit in parliament believe there is one law for them, and no law for us.

    They have supported the weakening of our legal and democratic rights time and again and it is only when one of their own who has a taste for pilfered documents get arrested, are they awakened from their slumbers.

    It really is difficult to think of a more useless bunch.

  • Harry Flashman

    “Excellent point but as I am sure you are aware, the freeloading scum-bags who sit in parliament believe there is one law for them, and no law for us.”

    The reason that they have extra privileges is that they are after all supposed to be our representatives in the high court of parliament, stop sniggering there at the back, but I do agree with you that one of the benefits that might come out of this affair is a rowing back of the police powers that they seem to have accumulated over the recent past.

    I speak as a former lawnorder hang ’em and flog ’em type who has been growing increasingly concerned over the last few years about the police and the road they are currently going down.

  • Greg

    With regard to the Herbert case, would a PACE search “fall within the internal affairs of the House”? I think that case has been interpreted as referring to things done by Officers of the House in the discharge of their duties, not by anyone on the parliamentary premises.

  • Duncan Shipley Dalton

    Not sure Greg. I don’t think its so narrowly interpreted though. The issue in the case was of selling liquor without a licence so the parliamentary authorities were clearly in breach of the relevant legislation that would have required a licence. My understanding of it is that its a blanket assumption that no Act applies to the precincts unless specifically stated to do so. So for instance the various Health and Safety laws don’t apply and the Data Protection Act doesn’t apply to Parliament although it does voluntary abide by them (much like the Queen voluntarily pays taxes but she doesn’t have to).

  • Duncan Shipley Dalton

    Harry, Quite right. MP’s are not ordinary people because they have a particular role and function as our representatives. The nonsense line about MP’s being above the law is spin and drivel.

    I have been sceptical of police powers for a long time. My time at the bar doing criminal defence work reinforced my suspicions. Nice to see you are converting slowly to a bit of scepticism.

  • Jimmy Sands

    Robertson’s article seems deeply confused. He seems to think the AG is legal adviser to Parliament rather than the government. Elsewhere he seems to posit that a police force can be defamed. And apparently “judge-made” common law as opposed to statute should be dispensed with. That’s murder done away with then.

    The warrants are puzzling. They were issued in respect of all searches except that of parliament. I’m not convinced Herbert is the answer. The only explanation I can think of is that they did not originally intend to arrest Green but were refused a warrant for the House. It’s not going to go down well if that was the case.

  • Harry

    Brown is still at it, NL believes they could solve all of societies ills by passing a law, lie detector tests for benefit claimants being the latest wheeze. As I understand it lie detectors are not legal here in a court of law because they are far from fool proof, but hey why worry about that when it is only members of the underclass who will be outed.

    Perhaps MPs should be made to take a lie detector test before giving a speech in parliament, or maybe we should ask Mr Green to step up to the plate, I am sure he could have no objections as the tories have let it me known they support lie detector tests for benefit claimants.

  • frustrated democrat


    ‘the freeloading scum-bags who sit in parliament believe there is one law for them, and no law for us.’

    MP’s should not be personalised – Mike I think this is case of men not ball. There are some excellent MP’s in all parties. It is the role that matters here not the people who are in the role.

    MP’s are law makers and must as a group be treated in a different way, not above the law but subject to a different level of treatment that is not in the hands of the police. A high court judge should examine the police evidence and take the decision on arrests or searches. The number will be very small and will not therefore be onerous.

    We elect them and exect them to be accountable if they break the law, but we must be able to deal with them in a way in which we have confidence in our confidential communications with them and not poured over by some junior plod, who we already know from past experience can leak to the press.

  • Harry Flashman

    “Nice to see you are converting slowly to a bit of scepticism.”

    And the news that the massive DNA database of innocent citizens that the rozzers have been building up has just been dealt a severe blow cheers me up enormously, common sense seems to be breaking out all over the place.

  • frustrated democrat

    I fear this whole kerfuffle is about the evidence not being put in front of a judge, especially with Mr Green sitting in the dock. It seems to me that Cameron’s tactics on this were designed to get the police to drop the case. That the speaker, on sight of a Tory fist seems to have deserted the rule of law whilst negating his own responsibility makes me feel this whole thing will be lost in the mists of parliamentary etiquette. How did the predecessors of this bunch ever manage to cut a kings head off?


    Good news indeed about the DNA judgment.

    Of course there are some decent fellows in parliament