The power of Parliamentary Privilege – but not so for Scottish MPs

One rule for one, and one for another is fitting when comparing Parliamentary privilege between Westminster and Holroyd, for as it stands, Scottish MPs are very much unprivileged.

This week in Parliament, MP David Davis spoke about the Holyrood inquiry investigating how the Scottish Government handled sexual harassment complaints against former First Minister Alex Salmon.  David Davis MP revealed he had been handed worrying information from a whistleblower over the Holyrood inquiry.

But he also raised the very real problem of the lack of Parliamentary Privilege for Scottish MPs and how this impacts on MSPs to raise whistleblowing concerns, and said: ‘Scottish parliamentarians were not given the same powers and privileges that Members of this House enjoy. That means that evidence relevant to the Holyrood inquiry can be freely discussed here today using parliamentary privilege, but if an MSP in Holyrood were to do the same, they would likely find themselves facing down prosecution.

Indeed, the Crown Office has been making such threats to Mr Salmond’s lawyers, various journalists and even the Holyrood inquiry itself. It made it clear that it would deem disclosure of evidence to a Committee of elected representatives to be a criminal offence. We have, in effect, given the Holyrood inquiry the right to summon evidence but not to use it.’

Outside the rights and wrongs and the serious allegations swirling around Alex Salmond is a key point that David Davis is able to use Parliamentary Privilege to release into the public domain information that Scottish politicians are unable to.  Privilege in a whistleblowing context is an odd phrase as it can, when used responsibly, be a powerful weapon to expose wrongdoing and corruption.

The point was confirmed by a Government Whip who responded for the Government in the debate stating that MSP were protected from defamation but did not enjoy the full privilege MPs.  The Minister also confirmed that these issues were for the Parliaments in Westminister and Scotland to monitor and reform if needed.

In using such privilege caution needs to be applied by MPs so as not to pre-empt or damage investigations or court proceedings.  In some ways the use of MPs in this way can be seen as a last resort, an option when employers, regulators and law enforcement have failed to deal with a whistleblowing concern.  In the hands of a skilled and experienced Parliamentarian, good can come from such an intervention for both the whistleblower, but more importantly for the public interest.

Another angle beyond matching the privilege that MSP have to those MPs in Westminster  is to make MSPs prescribed under whistleblowing law  the Public Interest Disclosure Act 1998 (PIDA).  This is a list of regulators, professional bodies, law enforcement bodies and others who are external independent places whisteblowers can approach with concerns.  These bodies often have the power and the resources to investigate issues and concerns that have not been investigated or dealt with by employers .  MPs are powerful either individually or through the Select Committee system in alerting wider public interests failings via whistleblowers.

Being on the Prescribed Persons list means that whistleblowers have a far easier time getting protection through the Employment tribunal compared to reaching out to a newspaper or any other media outlet. MSPs are absent from the list and should be included, as should Welsh Assembly Members and Members of the Legislative Assembly in Northern Ireland, they perform a similar whistleblowing functions to MPs.  This would give a bit more protection to whistleblowers and wouldn’t require a rethinking of Parliamentary Privilege more generally.