Charles Walker outlines new proposals governing protocols following the arrest of an MP
As Chairman of the House of Commons Procedure Committee, Charles Walker outlines the Committee’s findings on the protocols governing the publication of details when a Member of Parliament is arrested by the police. The Committee recommends that the law of the land is applied equally to Members of Parliament as it is to the rest of the country and that in future details should only be made public when the MP is charged with an offence.
Mr Charles Walker (Broxbourne) (Con): 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 presently 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.
Mr Stewart Jackson (Peterborough) (Con): 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.
Mr Walker: 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 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.
Jim Shannon (Strangford) (DUP): 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?
Mr Walker: 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.
Mr Jacob Rees-Mogg (North East Somerset) (Con): 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?
Mr Walker: 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.
Mr Rees-Mogg: 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?
Mr Walker: 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.
In reply, at the end of the debate
Mr Charles Walker: 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”
“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.
Sir Edward Leigh (Gainsborough) (Con): 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.
Mr Walker: 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.