Police Searches on the Parliamentary Estate - Committee on the Issue of Privilege Contents


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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