Analysis: Supreme Court asserts its constitutional power in expenses scandal appeal

2 December 2010 by Adam Wagner

Cromwell looks on

Chaytor & Ors, R v (Rev 2) [2010] UKSC 52 (01 December 2010) – Read judgment

Updated | The Supreme Court has dismissed the appeal of four men accused of fiddling their Parliamentary expenses. In doing so, it has provided a powerful statement of the limits of Parliamentary privilege against court interference, and of its own powers in our separation of powers system.

The background to the case is set out in my post on the Court of Appeal case. The basic summary is that three ex-MPs, Morley, Chaytor and Devine, and one member of the House of Lords, Lord Hanningfield, are charged with false accounting relating to their parliamentary expenses claims.

The parliamentary expenses scandal was triggered by accounts leaked to the Telegraph Group, caused huge problems for the last government in the summer of 2009, and the effects are still being felt today. These criminal prosecutions represent the worst offenders, whose expenses fiddling was allegedly so bad that they amounted to theft. Their cases have been committed to trial at the Crown Court.

The Glorious Revolution returns

The four men argued that the ordinary criminal courts simply do not have jurisdiction to try their cases. This is because the charges would infringe parliamentary privilege, on two grounds. First, article 9 of the 1689 Bill of Rights, which provides

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

First, a little history. the 1689 Bill of Rights was enacted directly following the so-called Glorious Revolution of 1688, when the Dutch stadtholder  William III (William of Orange) overthrew King James II with the help of  union of Parliamentarians and an invading army (contrary to what you learned in school, 1066 was not the last time England was successfully invaded by a foreign army). The House of Commons said that it would not answer to the new king without declaring “what are the rights invaded”. Parliament had become used to some level of autonomy following the overthrow and then restoration of the monarchy, and wanted this independence formalised. The declaration of rights was enacted as the Bill of Rights.

The Bill of Rights 1689 became a key bulwark between Parliament and the monarchy, ensuring that the monarch could not interfere Parliament’s “proceedings”. The Bill marked the beginning of a process which eventually led to the constitutional monarchy which we have today, where the monarch has practically no power to set the law of the land.

“Proceedings” of Parliament

How do you define the “proceedings” of Parliament? This was the nub of case under article 9, as it sets the limits of Parliamentary privilege, which is the right of parliamentarians to go about their business without fear of their actions being challenged by the courts. The Supreme Court approached the question as any court would when faced by a potentially ambiguous law: by examining what previous courts had decided on the issue, what Parliament intended when enacting the law and, finally, what the common sense (known as “policy”) justifications are for the preferred interpretation.

Lord Phillips, giving the leading judgment, examined previous case-law reaching back hundreds of years and spanning different jurisdictions where the courts had sought to define the correct limits in cases of bribery and defamation. Ultimately, he concluded:

… the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament. (para 47)

So, freedom of speech is the starting point, and this reflects the historical context. Lord Phillips went on to examine various reports and recommendations of Parliament itself as to the limits of the privilege, and found that this backed up his conclusions based on the case-law:

None of these expressions of Parliamentary views lends support to the suggestion that submitting claims for allowances and expenses constitutes proceedings in Parliament for the purposes of article 9. On the contrary they all suggest, either expressly or by implication, that the submission of such claims falls outside the protection of that article. (para 59)

As to policy (also known as common sense) reasons, there are “good reasons” for giving article 9 a narrow ambit ” because the privilege it guarantees is so powerful a weapon that it should be strictly limited:

The protection of article 9 is absolute. It is capable of variation by primary legislation, but not capable of waiver, even by Parliamentary resolution. Its effect where it applies is to prevent those injured by civil wrongdoing from obtaining redress and to prevent the prosecution of Members for conduct which is criminal. (para 61)

Ultimately, submitting claims for allowances and expenses “does not form part of, nor is it incidental to, the core or essential business of Parliament, which consists of collective deliberation and decision making”. So no privilege arises under the Bill of Rights.

Exclusive cognisance

The second ground upon which the four men asserted privilege was “exclusive cognisance”, a clunky phrase (sometimes referred to as “exclusive jurisdiction”) which describes the right of each House to manage its own affairs without interference from the other or from outside Parliament. This was initially managed through the special laws of the High Court of Parliament, by which it internally managed its own affairs.

Unlike the absolute privilege imposed by article 9, Parliament can decide to limit what falls under exclusive cognisance. For example, in 1980 Parliament agreed to a resolution which permitted reference to be made in court to certain Parliamentary papers which, up to then, had been subject to a claim of exclusive cognisance.

And, as with article 9, the boundaries of the privilege are unclear. Lord Phillips doubted, for example, that it could be used if a parliamentarian sought to sue in contract or tort, for example for slipping on the parliamentary steps.

But what about crime? The position, Lord Phillips ruled, is fairly straightforward. Parliament can decide to prosecute internal crimes as contempt, but this is not an exclusive right. Parliament has “never challenged” the “application of criminal law within the precincts of Parliament” and has “accepted that the mere fact that a crime has been committed within these precincts is no bar to the jurisdiction of the criminal courts“. Although whena crime happens within Parliament its prosecution will require the cooperation of Parliament, this is not to say that its cooperation is required, constitutionally speaking:

Even if the House were not co-operating with the prosecuting authorities in these cases, I do not consider that the court would be prevented from exercising jurisdiction on the ground that they relate to matters within the exclusive cognisance of Parliament. If an applicant sought to attack by judicial review the scheme under which allowances and expenses are paid the court would no doubt refuse the application on the ground that this was a matter for the House. Examination of the manner in which the scheme is being implemented is not, however, a matter exclusively for Parliament… This is not to exclude the possibility that, in the course of a criminal prosecution, issues might arise involving areas of inquiry precluded by parliamentary privilege, although that seems unlikely… (para 92)

So, no privilege against criminal prosecution of this kind under the exclusive cognisance principle either.

Belt and braces

Although the decision was unanimous, Lords Rodger and Clarke added their own reasoning. Lord Rodger sought to emphasise the reasoning of Lord Phillips, stating that “ordinary crimes” are not protected by privilege. The only question, therefore “is whether there is any aspect of the offences which takes them out of the category of “ordinary crime” and into the narrower category of conduct in respect of which the House would claim a privilege of exclusive cognizance.” Lord Clarke supported Lord Phillips wholeheartedly.

Conclusion: A history lesson

Although our unwritten constitution is a notoriously slippery non-document, this decision was an easy one for the Supreme Court. It would have been highly surprising if the men had been protected from criminal prosecution by virtue of a centuries-old law which was designed to protect freedom of speech. The implication would have been that Parliamentarians are above the criminal law, and surely that cannot be right. The parliamentary expenses scandal has reduced public confidence in Parliament’s ability to manage its own affairs and there would be no public appetite for Parliament self-regulating its own criminal activity too.

The Supreme Court’s decision provides a fascinating insight into how our constitutional setup has evolved over the centuries to the slightly obscure but finely balanced separation of powers system apparent today. Whereas just over four centuries ago the monarch had absolute power, she now has practically none. Parliament has taken the sovereign’s place, but with checks and balances provided by regular elections but also by the courts.

The modern power struggle is between the Parliament and the courts. The underlying current in the Supreme Court’s decision is that any limits placed on Parliament’s right to privilege must result in a corresponding increase in the powers of the courts. The cases of the four men accused of fiddling their expenses was sufficiently unattractive that it allowed the Supreme Court a free run to not only set the limits of Parliamentary privilege but also assert its own power. This power has been bolstered in recent years by the great increase in judicial review claims against public bodies, as well as claims under the Human Rights Act, which have arguably allowed the courts to stray into sensitive and sometimes political areas once considered the exclusive jurisdiction of elected politicians.

This decision may have been unsurprising, but it does set down a marker that the courts are able and willing to act as a balance to the power of Parliament. This is nothing new: the courts have often (but not always) acted as a bulwark against overweening parliamentary and executive powers. But it is likely that a case arises in the coming years where the Supreme Court sees to assert its own power more forcefully, perhaps in the context of its jurisdiction under the Human Rights Act: for example, if the government seeks to limit or exclude secret evidence from court proceedings or carries out its plans to increase its own powers by way of the Public Bodies Bill. This case is unlikely to apply specifically to those situations, but it does provide another example of the courts’ willingness and enthusiasm to act as a check on and balance to the activities of Parliament.

Update, 3 December 2010 – One of the defendants, David Chaytor, has pleaded guilty to the charges against him. His trial was supposed to begin on Monday, following the Supreme Court’s rejection of his and the other defendants’ challenge to the criminal courts’ jurisdiction to hear the case.

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Read more

• Ex-MPs lose parliamentary privilege expenses appeal – full judgment
• Parliamentary four lose expenses scandal appeal
• 1688 Bill of Rights privilege may protect parliamentary expenses three