A privileged position?

June 24, 2010

Nicholas Dobson looks at the background to and implications of the recent decision to prosecute three MPs and a member of the House of Lords for false accounting despite the claim of Parliamentary privilege.

Parliamentary privilege is the prerogative of Parliament and not of individual members. Such was clear from the judgment on 11 June 2010 of Mr. Justice Saunders in Southwark Crown Court in which he had to decide whether the Crown Court had jurisdiction to try four Defendants for offences of false accounting (see R v. Morley and others [2010] EW Misc 9 (EWCC)). This was because at the time of the alleged offences three of the Defendants had been serving MPs and one a member of the House of Lords. And should the conduct of a trial infringe parliamentary privilege, the Crown Court would have no jurisdiction.

The Court also made clear that since Parliamentary privilege attached to Parliament rather than to individual members (and it would therefore not be open to individual members to waive it in applicable cases even if they wished to do so) it was important to clarify the issue. As the Judge pointed out, if ‘the Defence had decided not to make submissions to the Court in support of the existence of privilege, then I would have asked for the assistance of independent Counsel instructed at public expense to ensure that the issue was properly argued’.

Innocent unless and until proved guilty

Saunders J also pointed out that each Defendant had entered a plea of not guilty to the charges in question and he reminded ‘those that may report this decision that each of them is not guilty of that charge unless and until he is proved to be guilty’. The Judge in particular indicated that all the Defendants ‘deny that they acted dishonestly and that, along with any other issue in the case will, dependent on my decision on this matter and that of any higher court, be tried by an impartial jury’.

Nature of Parliamentary Privilege

Nineteenth century constitutional theorist, Thomas Erskine May, pointed out in his seminal Treatise on the Law, Privileges, Proceedings and Usage of Parliament: 'Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions.’

As the Court in the instant case indicated, Article 9 of the Bill of Rights 1689 is the best-known example of parliamentary privilege. This embodies in statute the privilege of Parliamentary freedom of speech in providing that: ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. However, Saunders J also indicated that this is ‘part only of a much broader privilege which is found in the common law’. He referred to the summary given by Stanley Burnton J (as he then was) in Office of Government Commerce v. Information Commissioner [2008] EWHC 737 (Admin) who had said that relevant authorities had demonstrated that the law of Parliamentary privilege is essentially based on two principles:

1.‘. . . the need to avoid any risk of interference with free speech in Parliament’.
2.‘. . .the principle of the separation of powers, which in our Constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature’
Stanley Burnton J went on to say that these ‘basic principles lead to the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the courts’.

Extent of Privilege

Saunders J was ‘entirely satisfied that an ‘ordinary crime’, that is one that happens to be committed within the Palace of Westminster but is unconnected with any Parliamentary activity is not covered by privilege’. He noted that the false accounting charges alleged that the Defendants supplied false information to Parliamentary officers. For it is for members to certify that the expenses claimed are incurred in carrying out their duties as members and that they are entitled to the allowances or expenses claimed. The indictments preferred in the case therefore concern the submission of these forms. Both defence and prosecution accepted that, if the forms were covered by parliamentary privilege, any examination by a Court of their accuracy would be prohibited since a Court cannot question the contents of any document so protected.

The Judge said that at the centre of the argument was how far Parliamentary privilege extends to matters ancillary to the main work of Parliament. For there was a dispute between the prosecution and defence as to whether there should be a broad or narrow construction on the issue of whether the privilege covered submission of an expenses claim form. On this Saunders J was satisfied that ‘in the context of criminal charges Parliamentary privilege should be narrowly construed’. For the ‘principle that all men are equal before the law is an important one and should be observed unless there is good reason why it should not apply’. And to do otherwise would ‘risk bringing both the Courts and Parliament into disrepute and diminish confidence in the criminal justice system’. Moreover, ‘Parliament does not have an effective procedure for investigating and deciding whether a member is guilty or not guilty of criminal charges’.

Issues

Before identifying the two key issues to be addressed, Saunders J pointed out that, although it was a matter for his decision, it is nevertheless a fact that ‘that neither House has sought to assert that these proceedings come within the jurisdiction of Parliament’. And bearing in mind that the privilege ‘if it exists, belongs to Parliament and not the individual members’ this was of ‘particular significance’.

However, the two issues identified were whether the submission of the expenses claim form was covered by privilege in one of two alternative ways, i.e. because:
‘(i) It is part of the expenses scheme and as such is part of the business of Parliament and comes under its exclusive jurisdiction (the wider privilege) or under Article 9, or;
(ii) It comes within the ambit of proceedings in parliament as part of the member’s core activity or is so closely associated with it that it is covered by Article 9’.

As to (i), while the Judge accepted (on the basis of a Prosecution concession) that the processing of expenses forms is part of the workings of Parliament and therefore covered by privilege, he saw no reason to extend the privilege to cover the submission of the form. For in his view, the claiming of expenses ‘is an individual activity for the benefit of the individual and any benefit to Parliament as a whole is not a direct one’. In addition, ‘it is not part of a Member’s duty to claim his expenses or allowances’. For a member ‘could not be criticised for failing to carry out his duties as an MP if he did not claim his allowances and his expenses’ and this would ‘not be an interference with the workings of Parliament or obstruct the carrying out of their business’. Consequently, Saunders J considered that the submission of the expenses claim form ‘does not come within the scope of the ‘exclusive jurisdiction of Parliament’ on any sensible construction of that privilege’.

Regarding the second issue, the Judge could ‘see no logical, practical or moral justification for a claim for expenses being covered by privilege’ and he could ‘see no legal justification for it either’. In his view: ‘properly construed the submission of the form is not part of ‘proceedings in Parliament’.

In the circumstances, the Court concluded that the conduct alleged is not protected by Parliamentary privilege and is therefore triable in the Crown Court. Therefore, as Saunders J pointed out, unless ‘this decision is reversed on appeal, it clears the way for what most people accused of criminal behaviour would wish for: a fair trial before an impartial jury’.
Saunders J concluded his judgment by warning against any prejudice to the Defendants’ receiving a fair trial before an impartial jury and he particularly asked: ‘those who choose to report and comment on this judgment, whether favourably or unfavourably. . .[to]. . . do so responsibly and refrain from making any comment which might prejudice this fundamental right’. In that context he copied his judgment to the Attorney-General ‘so that he can ensure that his guidance is followed’.

Comment

This judgment is something of a haven of calm amidst what was (in particular before the May 2010 election) a perfect media and public storm surrounding some of the workings of Parliament and the behaviour of many of its members. In particular the judgment makes the resonant point that Parliamentary privilege belongs to Parliament itself. And, as Erskine May, points out, the privilege exists to enable members to ‘discharge their functions’. So, contrary to some press reporting, the privilege is not for the personal benefit of individual members but to facilitate public service. In that sense it constitutes a privilege to serve.

Dr. Nicholas Dobson is a lawyer specialising in local and public law and is also Communications Officer for the Association of Council Secretaries and Solicitors.