Letter to the Chairman of the Committee
from Rt Hon David Davis MP
At the end of the Committee's deliberations
on the "Damian Green affair" I am sure that it will
make some important recommendations on privilege. I would be grateful
if it could consider some observations I have to make on the operation
of Parliamentary Privilege as follows
1. Contrary to what I have heard of the Clerk's
advice, I view privilege as an assertion of a supralegal right
rather than a right based on legal precedent. If there is a precedent
it is the Duncan Sandys case, which has no statutory basis but
is nevertheless important.
2. Partly as a result of this, there is no protection
in the various pieces of whistleblower legislation if a public
servant brings information to a Member of Parliament, whereas
if they disclose the information to a journalist there is such
protection.
3. As a result, whistleblowers telling MP's about
failures of government are at risk of losing their jobs, and even
being prosecuted.
4. The only defence a Member of Parliament can
offer a whistleblower is keeping their involvement secret. This
was indeed the core of the Duncan Sandys case.
5. In the light of this, it is important that
the protection of confidential data under privilege is broad.
If it is too narrow, it could lead to perverse behaviour.
6. For example, if an MP is brought some data
that is properly secret, that MP would normally decide to keep
it secret. That is much more common than is generally supposed.
7. If privilege is only extended to something
that is used in Parliamentary debate, then such data would not
be covered by privilege. Ironically the only way the MP could
protect his source is by using the information in a question or
speech.
8. Clearly this outcome is perverse: the only
way to protect the source of a secret being to break the secret!
9. So whilst there may need to be circumstances
under which privilege may not apply to information held by an
MP (such as well evidenced criminal activity) I would suggest
that outside that, privilege relating to confidential information
is both broad and absolute.
10. If that is not the case, there needs to be
rapid and significant amendment of the whistleblower legislation.
I am very happy to elucidate these matters before
the Committee if you wish, but the main points of my argument
are pretty straightforward.
8 December 2009
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