Greengate, Jill Pays, Speaker Martin and the Police

The Speaker of the House of Commons, Michael Martin made a statement in the house of commons today which as Iain Dale notes tends to lead to more questions than it gives answers.

Lets look at the arguments.

No body is above the law!

Rubbish. How is the archery practice going, and how many hackney carriages carry a bale of hay? Further more the police and other emergency services get away with speeding when on an emergency.

Clearly there are circumstances where the law is not applied because it is ridiculous or overlooked in the public interest.

Firstly many parliamentarians, and indeed many journalists and commentators have cited parliamentary privilege, and its breach in this case. This is not some antiquated old rule that allows members of parliament to do what ever they want, it is a protection that parliament has so that it can do its job of protecting people and their liberties from an over mighty state. The following resolution is passed before each session of parliament:

Any action taken by either a Member of Parliament or a stranger which obstructs or impedes either Parliament in the performance of its functions, or its Members or staff in the performance of their duties, is a contempt of Parliament. Examples of contempt include giving false evidence to a parliamentary committee, threatening a Member of Parliament, forgery of documents and attempting to bribe members.

This law clearly protects parliament and its members, not in all circumstances but where they are carrying out their duty. The main duties of an MP are to represent their constituents and to hold the government to account. The later is what concerns us here, and that is what Damian Green was doing. Alas it is frequently the case that a department that is not fit for purpose, such as the Home Office does not try to fix it self but hide its failings instead. This is where leaks come in.

The crime it is alleged has been committed is that of misconduct in public office, or aiding abetting conspiring to cause misconduct in public office, defined in CPS guidance as:

a) A public officer acting as such.

b) Wilfully neglects to perform his duty and/or wilfully misconducts himself.

c) To such a degree as to amount to an abuse of the public's trust in the office holder.

d) Without reasonable excuse or justification.

Now where do we start? If you read this article on the subject here on wikicrimeline and this case here where the Attorney general sought the advice of the court, it is clear that no crime has been committed, further more that the police would have established such by merely asking what had been leaked and where it had turned up.

In order for the crime to be committed it has to in effect injure the public interest as well as falling well below the standards of the office holder. Rather obviously the leaks which are complained about are in the public interest and in fact have caused to government to fix things which it knew were broken but sought to hide.

Even if you could accuse Chris Galley of the offence (which you can't because you can't show he injured the public interest) then we have the question of parliamentary privilege. This protects an MP from interference in his job as an MP amongst other things, and in this case the job of holding the government to account. Clearly if the government is trying to hide its failings then the only way to get hold of information is via leaks. It is the legitimate business of parliament and there have been leaks for as long as there has been government.

It gets worse for the government because the cases involving leaks to the press have all either been lost by the Crown on appeal or thrown out before the jury trial started.

Some say "Ah but that does not put him above the law!" well, I say cobblers. It does not put him above the law as in he can ignore it, but laws apply differently to different classes of people. The order which states parliamentary privilege gets passed every year by parliament and so one would have thought it superseded the common law offence which we are talking about.

Then some even cite the case of Lord Cochrane who they say was arrested whilst sitting on the government benches supposedly to prove that parliamentary privilege does not make you immune from the law. The argument is sophistry at its very best. Lord Cochrane was arrested after having escaped from prison having been found guilty of fraud. It can't be said that the criminal act of which he was accused was part of the legitimate business of a parliamentarian so obviously the question of parliamentary privilege did not arise for it to be put aside.