Britannia Radio

TELEGRAPH   8.12.08
David Davis: Damian Green affair must never be repeated
Sometimes vindication can be a bitter pill. Despite the intensity of 
my belief that this government was systematically undermining our 
historic freedoms, even l was shocked by the senseless and 
insensitive behaviour of our police force in arresting my close 
friend and colleague, Damian Green.

By David Davis MP for the Daily Telegraph


Whether it was chaotic mishandling of the first order by the police, 
the Home Office, and the House of Commons authorities, or the 
inevitable consequence of a weakened Commons and over mighty 
Executive, or something even more sinister, we may never know. 
Whatever the cause, it must never, ever, happen again.

If it is allowed to stand it will fatally undermine the last vestiges 
of power in the Commons, intimidate legitimate whistleblowers from 
highlighting misdeeds and cover-ups in government, and suppress free 
speech.
We also hear a lot of bogus talk about threats to national security. 
When this is challenged we are told "we don't know all the facts." 
Well, yes we do, as far as this case goes anyway.

Remember, we are not talking about leaks to the Russians here. We are 
talking about information that appeared in newspapers, all of which 
by definition we know about.

That is why this investigation was launched: it has nothing to do 
with the security of the nation, and everything to do with the 
psychological insecurity of the Home Office.

The answer lies in making the shield of parliamentary privilege-or 
democratic protection as it would be better named - a far more robust 
device.

"The privilege of freedom of speech enjoyed by Members of Parliament 
is in truth the privilege of their constituents. It is secured to 
Members not for their personal benefit but to enable them to 
discharge the functions of their office without fear of prosecution, 
civil or criminal."

Those are the words of the House of Commons Privileges Committee, 
ruling in 1939 that the government would not be allowed to prosecute 
Duncan Sandys, who had effectively disclosed Britain's weakness in 
defence against the looming Nazi threat.

Duncan Sandys had been threatened with prosecution, not for saying 
what he said, but for refusing to disclose to the government which 
Civil Servant had given him the information, or help them in their 
subsequent witch-hunt.

The protections we have as elected representatives should not be 
absolute - but they should be clear. A few are currently codified, 
essentially in the Bill of Rights. The rest is governed by the House 
of Commons itself in a combination of convention, consensus and 
common sense. Last week that combination came apart at the seams.

Members of Parliament do a number of jobs, and each has its 
implications for privilege. In dealing with their constituents, they 
deal in matters of extreme personal trust and confidentiality.

In exposing failings in government, and the associated cover ups, 
they act more like journalists.

What this all means is that the House of Commons should apply some 
fairly straightforward tests before allowing the police to ransack 
the files of an MP and breach the confidentiality of his constituents 
and informants.

Firstly, the crime involved should be serious and specific. Neither 
should it be a widely cast vague charge as "conspiring to commit 
misconduct in a public office" very much is.

Secondly, there should be solid evidence. If the MP has not been 
charged - as Damian Green has not, then this almost certainly means 
obtaining explicit approval from a Law Officer.

Thirdly, the charge should not relate to the MP's legitimate 
parliamentary activity. The Duncan Sandys case was serious - 
disclosure of official secrets about military preparedness -yet it 
was ruled as appropriate Parliamentary action. History proved that 
judgement right.

Finally, the intrusion on constituents' privacy must be absolutely 
necessary, not some further fishing expedition.

Amid a classic who-said-what-to-whom farrago, the Speaker has been 
contradicted by the police, who have in turn been contradicted by 
eminent lawyers. Even more deplorably, the committee of seven senior 
MPs proposed to resolve the affair will not even start work until the 
police (and possibly the courts) have completed their work.

The truth is that the protections we assumed we had for our 
constituents and whistleblowers are either not believed in, or are 
not upheld, by the authorities.

Convention has broken down. The only route left to us is to codify 
the protections, either in the standing orders of the House, or law, 
or both.