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Bernard Jenkin MP: The issue at the heart of the Damian Green affair is privilege

Jenkinbernard Bernard Jenkin is MP for North Essex and a member of the Defence Select Committee.

The end of the Parliamentary term left the Damian Green affair hastily and shoddily shoved aside, but the important issue at stake remains, not the future of the Speaker, nor what the Home Secretary knew, nor even whether Damian Green is innocent or guilty.  The most important issue may seem arcane; it is parliamentary privilege. 

MPs hold privilege in trust for the people, so at all times, Parliament can protect them from an over zealous state.  It is not about protecting MPs for themselves.  It is vital protection for any democracy.  Every other constitution, whether modelled on ours or not, provides its legislators with a degree of immunity in some form.  But so far, Parliament has failed to act to protect its independence. 

This issue scares ‘modern’ politicians.  “People don’t understand what you mean,” they say, and in any case, “Do people care?” they ask.  “There are no votes in privilege,” some say; “The next election is about the economy.”  That may be so, but Parliamentary privilege breached without complaint sets a dangerous precedent – yet that is exactly what has happened.  It is clear that Damian’s arrest was used as the pretext for the search of his office without a warrant, probably more in pursuit of the whistleblower rather than Damian.  The real issue is whether Parliament should be asserting privilege in order to protect its ability to carry out its constitutional duty, rather than behaving as merely the elected branch of the executive. 

Breach of privilege may create only a minor political storm, but it is a major breach of the law.  In our uncodified constitution, privilege relies on the 1689 Bill of Rights, which is deemed to have special status, thereby remaining superior to other legislation.  However, Parliament’s failure to seek to have the law applied leaves it weakened.  As MPs left for the Christmas recess, Parliament appeared to be relegating itself to a subsidiary tier in the UK constitution.  It is bizarre that the Police have been holding their own inquiry, but Parliament has not.

Established procedure would by now have seen the Committee on Standards and Privileges start an inquiry into whether privilege has been breached and what action the House should take as a consequence.  As the Speaker acknowledged by his second Commons statement on the affair just before the recess, an increasing number of MPs have been daily pressing him to allow a vote to set the inquiry in motion.  This Committee is uniquely placed to do this.  It is the only committee not prisoner of the government’s majority; the Opposition chairman holds the casting vote.  It is also the only committee able to recommend action, or even punishment, to remedy breach of privilege.  This committee frightens ministers.  Their inquiry could expose not just the overbearing culture in the police, the civil service and the government, but that ministers have sought to promote this authoritarianism against the interests of Parliament in which they themselves sit.  It is hardly surprising therefore that the government is pleased to see such an inquiry forestalled.

The Speaker himself diverted the House from the usual procedure, which would have allowed a backbencher to table a motion to refer the matter straight to the Committee on Standards and Privileges.  It would be interesting to know exactly what took place at the meetings between the Speaker and the government, in the days after the arrest and search. On the last day of term, the Leader of the House, Harriet Harman, was given the opportunity to clear the entire government of any suspicion of covert pressure being applied, but all she could give was “an absolute categorical assurance that I (sic) made no attempt to influence the Speaker’s statement”.  The same question has now been tabled in written form for the prime minister to answer on behalf of the whole government when we get back.  Will he answer or prevaricate?

What will happen next?  The criminal investigation and any possible charges against Damian may be dropped.  In that case, ministers will try to revive the special committee they forced through, but which the Tories and the Lib Dems have said they will boycott, because of its inbuilt government majority.  Alternatively, the investigation may still be continuing.  Either way, demands for a proper referral to the Privileges Committee will mount, in order to re-establish Parliament’s ability to protect the British people from the ever more intrusive state apparatus.

Some commentators have expressed doubts that privilege applies in this matter, but Article IX of the Bill of Rights protects more than what is actually said in Parliament.  It protects "Proceedings in Parlyament". The 1939 Report from the Select Committee on the Official Secrets Acts explains that privilege, “extends to ... everything said or done in either House in the transaction of parliamentary business."  The then Attorney General went further, saying that “proceedings” could extend to matters outside the precincts if they were related to what is to happen in the House. 

While there may be doubt whether privilege extends to Damien’s arrest, the search of his office seems like a pretty open-and-shut beach of the privilege.  In 1987, Sir Michael Havers, as Attorney General, tried to get a court order to stop the screening in the Palace of Westminster of a BBC film about a secret spy satellite, which the government regarded as a breach of the Official Secrets Act (the ‘Zircon affair’).  It is highly relevant to today’s controversy that the court only took a few minutes to conclude that even this was a matter for Parliament alone, on grounds of Parliamentary privilege. 

There can be little doubt, therefore, that questions of privilege impinge upon the search of Damian’s office and the seizing of his computers and mobile phone.  If privilege has been breached, then the police have broken the law – and if they are using any seized material for their ongoing inquiries, they are continuing to do so.  On the first day back, Parliament must respond.

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