Bill of Rights privilege plea fails parliamentary expenses four
14 June 2010
Morley & Ors, R. v  EW Misc 9 (EWCC) (11 June 2010) – Read judgment
Four former Members of Parliament have failed in their initial bid to claim parliamentary privilege in criminal proceedings arising from the parliamentary expenses scandal. The case has highlighted constitutional principles which reach back hundreds of years to the time of Oliver Cromwell, and raises questions of whether parliamentarians are above the criminal justice system.
This will not be the end of the affair, however, as leave to appeal has been granted with the case to be heard by the Court of Appeal as early as before the end of this month
Mr Justice Saunders sitting the Southwark Crown Court ruled that the parliamentary privilege enshrined in the 1688 Bill of Rights does not extend to protecting the four ex-MPs, Elliott Morley, David Chaytor, James Devine and Lord Hanningfield, from prosecutions for claiming inflated expenses.
He said that he could “see no logical, practical or moral justification for a claim for expenses being covered by privilege; and I can see no legal justification for it either.” He indicated that this may not be the end of the legal argument, however, as “It may be that, whatever my decision, it will be subject to review by a higher court and the sooner that procedure gets underway the better.”
332 years later
The four defendants attempted to shut down prosecutions against them by relying on Article 9 of the 1688 Bill of Rights, which states:
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.
The 1668 Act, as distinct from the bill of rights which the Coalition Government has proposed to supplement the Human Rights Act, established many of the protections which now find form in the European Convention on Human Rights (ECHR). Some of the language is familiar, such as the provision against “cruel and unusual punishments”, which foreshadowed Article 3 of the ECHR.
The intention behind the 1688 Act, which is still in force, was to establish rights seen as essential to restricting the power of the monarch, and bolstering the power and independence of Parliament (see our previous post). The courts, which in the seventeenth century were within the power of the monarch, were prevented from interfering with the proceedings of Parliament. The question before Mr Justice Saunders was whether the separation from powers enshrined by Article 9 extended to protecting modern parliamentarians from criminal prosecution in this context.
The key question for Mr Justice Saunders was how widely “Proceedings in Parlyament” should be construed, and whether the words should extend to the act of filling in parliamentary expenses forms. As to the central principles of parliamentary privilege under the Bill of Rights, as well as the “much broader privilege” found in the common law, he favoured the summary of Mr Justice Burnton in Office of Government Commerce v Information Commissioner  EWHC 737 (Admin):
These authorities demonstrate that the law of Parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is 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. 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’.
Not above the law
The first point that Mr Justice Saunders made clear, and which counsel for both sides agreed on, was that parliamentary privilege does not and is not intended to raise MPs above the criminal justice system. Any “ordinary criminal conduct” that “was not connected to the activities of the House” was not covered by privilege. For example “an assault in the corridors of the House, theft of another member’s money, or a sexual offence, none of which relate to parliamentary activity or proceedings in Parliament.”
However, as the public debate at the time demonstrated, it is at least questionable whether over-claiming expenses amounts to a criminal act. Even if it does, it is not exactly “ordinary” criminal conduct. As such, the crucial question would be whether the act of claiming the expenses, that is the act of filling in the form, would attract privilege.
The judge accepted that to some extent at least the administration of the expenses scheme was covered by privilege; for example, it would not be possible to judicially review the workings of the system itself, which is the sole jurisdiction of Parliament and not the courts, as would be the voting system in Parliamentary debates or the election of the speaker. Ultimately, however, he found that the filling in of the expenses form would not attract privilege, saying:
While I accept that the processing of the forms is part of the workings of Parliament … I see no reason to extend that privilege to cover the submission of the form. The point made by the Defence is a valid one but there has to be a line drawn and it has to be drawn somewhere. If the form were included it would then become arguable that there would be no form submitted unless there were actual expenses to claim. Is it therefore to be argued that incurring those expenses is also covered by privilege? Wherever a line is drawn there may be anomalies.
This amounts to a purposive interpretation of the law under the Bill of Rights as well as the common law principles. In other words, the judge accepted that logical arguments can be made on either side in respect of where to draw the line as to what acts fall within the “workings of Parliament” and to that end if filling in of the expenses form is part of the expenses scheme. But, ultimately, he applied the principles which he considered lie beneath Parliamentary privilege, which is probably not intended to protect MPs from underhand dealings as alleged here. To this end he concluded:
I am satisfied that in the context of criminal charges Parliamentary privilege should be narrowly construed. 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. To do otherwise would risk bringing both the Courts and Parliament into disrepute and diminish confidence in the criminal justice system
Now to the Court of Appeal
It is apparent from the decision that Mr Justice Saunders struggled with the conclusion he had to reach. He admitted that the decision had “not been easy” and that “very important constitutional principles are involved which must be respected, and that must be the case even if it leads to a result which is unpopular not only with the public but also with Members of Parliament.”
He also granted leave to appeal. When the matter does reach the Court of Appeal, which could be as soon as by the end of June, it may be that the judges there will follow Mr Justice Saunders’ purposive reading of the law, which is an entirely legitimate and often used principle of statutory interpretation, or they may take a more technical approach and find that the expenses scheme logically has to include the filling in of the expenses form.
But it does seem unlikely that the higher court would enforce a privilege, no matter how long it has been on the statute books, which would appear to place members of parliament beyond the reach of criminal justice.