Executive Privilege in Response to a Demand for Documents by the Legislature in Germany

18 Pages Posted: 11 Oct 2011

See all articles by Greg Taylor

Greg Taylor

University of Adelaide - School of Law; University of Marburg; RMIT University - Graduate School of Business and Law

Date Written: 2010

Abstract

In June 2009, the German Federal Constitutional Court published a decision on the question of executive privilege in response to a demand by the legislature for information connected with anti-terrorism measures in the Middle East and elsewhere. Investigatory committees of the Bundestag have, under German law, a right to call for documents and witnesses as similar committees would in common-law countries. Unlike in common-law countries, however, the exercise of the right is not complicated by interference from concepts of privilege in litigation. Nevertheless, there are exemptions, partly borrowed from the law of criminal procedure, for state secrets and the like, and also a further exemption covering internal government decision-making. This article explains how those exemptions applied in the particular case. It also analyses a significant legal innovation emerging from the case under discussion: the duty on the executive, implied by the Court, to justify in detail the claiming of an exception. This would be a useful innovation in common-law countries, too.

Keywords: executive privilege, anti-terrorism measures, common law counties, privilege in litigation, state secrets, duty on executive

JEL Classification: K00, K10, K19, K20, K23, K29, K30, K33, K39

Suggested Citation

Taylor, Greg, Executive Privilege in Response to a Demand for Documents by the Legislature in Germany (2010). King's Law Journal, Vol. 21, p. 399, 2010, Monash University Faculty of Law Legal Studies Research Paper No. 2010/48, Available at SSRN: https://ssrn.com/abstract=1942003

Greg Taylor (Contact Author)

University of Adelaide - School of Law ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia

University of Marburg ( email )

Universitätsstrasse 24
Marburg, D-35032
Germany

RMIT University - Graduate School of Business and Law ( email )

Melbourne
Australia

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