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.