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Mr Green's arrest is an affront to democracy: Michael Martin must go
Geoffrey Robertson01.12.08
The arrest of Damian Green on a dragnet conspiracy charge and the invasion of his office in the Palace of Westminster demands immediate action, not just a long-distance inquiry.
When Parliament returns this week, MPs of all parties must unite to restore both their own liberties and the rule of law.
No MP is immune from prosecution: insurance fraud (John Stonehouse), spying (Will Owen) and perjury (Jonathan Aitken) are examples of criminal charges that have been brought against less-than-honourable members.
Equally, there can be no objection to a government department - especially the Home Office - with its crime and security concerns, calling in police to investigate disloyal employees who may be "leaking", even to MPs, for corrupt, selfish or mercenary motives.
But police investigations must in such cases be conducted strictly in accordance with the law and with constitutional conventions that require respect for an MP's public duty to receive confidential, even secret, information.
This was settled by Parliament in 1938, when Duncan Sandys MP was threatened with prosecution during Chamberlain's government for obtaining and then divulging military secrets about the lack of defence preparation for war.
A select committee criticised the Attorney-General for preventing Sandys from doing his duty. Later, in 1970, the Attorney-General refused to prosecute Sir Hugh Fraser MP, despite his demand to be placed in the dock, when Official Secrets Act charges were brought against others who had obtained for him secret documents about the Biafran war.
If Speaker Michael Martin authorised the raid on Green's parliamentary offices - and it should only have been ordered by the Speaker - he betrayed our constitutional history.
On 3 January 1642, Charles I and 400 armed troops entered Parliament to demand the surrender of Pym and Hampden, only to be told by Speaker Lenthall: "I have neither eyes to see nor tongue to speak in this place, but as the House is pleased to direct me whose servant I am here and humbly beg your Majesty's pardon that I cannot give any answer other than this."
Speaker Martin should not have let the police in unless he had assurance from the Attorney-General or the DPP that this was a case of necessity and that evidence of serious criminality would be found in Green's office and might otherwise disappear.
Lenthall's defiance of the King is the foundation of parliamentarians' rights to meet and do their public duty without molestation. If Speaker Martin did indeed permit the police to ransack Green's office, he should resign - or Parliament should remove him from office. Otherwise, his decision will stand as a precedent for the harassment of MPs in the future.
Who signed the search warrant? Did the police seek permission from a magistrate as they should have done, or did they authorise themselves under anti-terror provisions - which would amount to a serious circumvention of due process?
Ironically, if the offices sought to be raided in a leak inquiry were those of a journalist or a newspaper editor, the police would have to apply to a circuit judge - an extra safeguard for public watchdogs. MPs forgot to extend the same safeguard to themselves when they passed the Police & Criminal Evidence Act back in 1984: they should swiftly amend it so as to protect their own sources of information.
The first principle of the rule of criminal law is that it must be "prescribed" - ie clear and well established. Why, then, was Green searched and arrested for "conspiracy to commit misconduct in public office", an offence which is hopelessly lacking in clarity and never before used against an MP?
It has occasionally been charged against police officers who fail in their duty to protect civilians and it can also serve to indict police and civil servants who supply confidential information to criminals. But a conspiracy charge based on this judge-made offence (maximum sentence - life imprisonment) is not a satisfactory basis for searching or arresting an MP who has received confidential information.
If Green is alleged to have paid for it, then he should have been charged with specific bribery or corruption offences; if it is alleged that he induced a Crown servant to remove documents, then he can be charged with theft. If he has procured and published sensitive information about security or details relevant to fighting crime, he can be charged under Section 5 of the Official Secrets Act (1989). That would entitle him to a public interest defence.
If, however, the police evidence goes no further than to show that Green - like any opposition MP, journalist or editor - was merely the enthusiastic recipient of newsworthy information outside these categories, then he has committed no crime and should receive heavy damages for wrongful search and arrest. Just like John Wilkes, a liberty hero whose victories for freedom should be celebrated in a British bill of rights.
Much of the debate over the police action has missed the point. Police have operational independence, and it would have been wrong for them to have told their plans to the Prime Minister or Home Secretary. But the police must act according to law and obtain the approval of the DPP before beginning any operation against MPs.
This was what went wrong with the "cash for peerages" wild goose chase which cost a fortune and caused a number of people to suffer much-publicised dawn arrests, all on a mistaken legal premise. The police ceased as soon as a leading counsel was brought in to tell them the law - 15 months afterwards. The moral of that waste of public time and money was that every such operation should be sanctioned at the outset by the DPP.
For all the overblown rhetoric about police states, the reality is more like police mistakes. While a full inquiry must await Mr Green's trial - or the dropping of all charges - parliament can and should act immediately to ensure that henceforth, no MP is searched or arrested without the prior approval of the DPP.
Most important, an all-party committee should be established to work out how to replace the Human Rights Act with a proper written constitution, featuring a British bill of rights that sets forth the liberties that were so hard-won and - as last week's events showed - so easily forgotten.
Geoffrey Robertson QC is author of The Tyrannicide Brief (Vintage) and The Levellers - the Putney Debates (Verso).
Reader views (12)
Congratulations to G Robertson QC for putting facts clear. I really don’t understand how senior police officers did not foresee those fundamental rules and instead carried out such a ghastly operation.
I am worry that is not just a mistake but an action to demonstrate that police powers are above MPs rights. Certain power hungry police officers decide that by selecting an MP for investigation, (s)he is by de-facto under the power of their authority. They did not even check thoroughly what the law requires as they haven’t check in the past, as Mr Robertson points out.
Never mind that since MPs have been elected by the public and therefore they have a public mandate, should be above any policeman even the police chef; the police officers here put themselves above the law and ignore the need of prior approval from the DPP.
I do not thing this is a general police attitude, nothing else is there to proof that effect, however I strongly believe the responsible individuals should be found and punished with the maximum penalty, to show that in this country, the state does not take lightly the abuses against democracy.
- Steve Andrew, London
David - "Another lone voice" - contradiction of terms there
- Andrew, Cambridge
I am perplexed and disturbed by the insouciance of the Home Secretary about this affair. Is this the same Home Secretary who asks to be trusted with ever more comprehensive centralised databases and increasing powers of unchecked surveillance?
- Blackstone Coke, London
Countries that have been through dictatorships have learnt the lessons. Article 47 of the German constitution explicitly prohibits the confiscation of documents obtained by MPs in confidence in the exercise of their duties and protects the confidentiality of all such information sources. To know the road ahead, ask those coming back. Maybe we can learn a thing or two from the Germans' bitter experience.
- Ian, London
The police, and particularly ACPO, have overstepped the mark in saying that MPs are not above the law (true) and that enquiries must continue in exactly the same way in every case (false). They misunderstand, probably because it has not been explained to them, the constitutional position. MPs are our elected representatives and should be treated as such, any police action against them must be disclosed in advance to the speaker and to the leaders of the government and the opposition and their advice taken into consideration.
- Peter Haldane, London
Members of Parliament of both parties had better grow some balls and quickly. If they do not raise unholy hell over this outrage, the Government will be free to do the same thing again and again.
Stirling
- Earl Of Stirling, Evansville, IN, USA and Stirling, Scotland, UK
Even if Martin goes-preferably immediately-England's Parliament is in my opinion irreparably damaged-by subservience to Brussels-and a seeming lack synergy with the views of the public at large-take one example-the so called debate and vote about UK participation in the illegal invasion of Iraq-Parliament could have prevented it-2 million marched against the invasion- but the toadies to Blair ensured that the House of Comm ons was a much use as a chocolate fireguard in preventing the Iraq disaster, which has done so much so cause our current economic crisis.
- Jon Kent, Hertford. UK
It's a sad and terrifying day when a faithful old freedom fighter like Geoffrey Robertson QC is calling for the head of a Labour speaker. He is absolutely right. Martin has to go. No distant inquiry or dithering procedure. Go now. Today. But go.
- Jilly, London
Trevor, Siuthend UK
INNOCENT until proven GUILTY, Trevor.
Another lone voice, helplessly trying to defend this sick and corrupt government, with sarcastic and irrelevant comments.
- David H, London
Now that the press has decided that Mr Green is completely innocent of any crime all investigation in the case should stop and compensation should be paid immediately. Are there any more cases/people that the press believe should not be investigated? Could we not have a justice system where the journalists decide innocence or guilt? would this not be cheaper and safer? after all they prove on an almost daily basis that they have perfect hindsight.
- Trevor, Siuthend UK
This affair raises many serious issues, but I am concerned about the ignorance shown, for example, by Andrew Marr's line of questioning of the Home Secretary yesterday morning as to the basic constitutional safeguard of the operational independence of the Police from the Executive. Imagine if this had been a Labour MP and the Government had tried to intervene to prevent an investigation? That is just the sort of thing that happens in Countries with high levels of corruption. If the Police exceeded their powers then Green such seek civil redress.If the law is wrong then Parliament should act.
- Alan, London
Th first question should be "What is the rank of the police officer who initially authorised the arrest of Mr. Green and what process did he go through before making such a momentous decision."
- Don Taylor, Clevedon
