Expenses scandal four lose parliamentary privilege appeal

30 July 2010 by

Morley & Ors v. R [2010] EWCA Crim 1910 – Read judgment

Four former Members of Parliament have failed in their appeal of a Crown Court ruling preventing them from claiming parliamentary privilege in criminal proceedings arising from the parliamentary expenses scandal.

The appeal was of Mr Justice Saunders’ ruling in the Southwark Crown Court 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 had 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.”

The Lord Chief Justice gave the judgment of the court, and made clear that Parliamentary privilege was simply not designed to protect these four men from the allegations currently against them:

It can confidently be stated that parliamentary privilege or immunity from criminal prosecution has never ever attached to ordinary criminal activities by members of Parliament. With the necessary exception in relation to the exercise of freedom of speech, it is difficult to envisage circumstances in which the performance of the core responsibilities of a member of Parliament might require or permit him or her to commit crime, or in which the commission of crime could form part of the proceedings in the House for the purposes of article 9 of the Bill of Rights. Equally we cannot discern from principle or authority that privilege or immunity in relation to such conduct may arise merely because the allegations are based on activities which have taken place “within the walls” of Parliament.

The court emphasised that parliamentarians could never expect to be protected from fiddling expenses:

The stark reality is that the defendants are alleged to have taken advantage of the allowances scheme designed to enable them to perform their important public duties as members of Parliament to commit crimes of dishonesty to which parliamentary immunity or privilege does not, has never, and, we believe, never would attach.

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).

It is hard to see how a court could have decided differently than the Court of Appeal did. Whilst the intention of Parliament in passing bills is only one factor which goes into the mix in interpreting legislation, it seems a far cry from the original intention of the 1688 Act’s drafters that parliamentary privilege – a protection of the independence of Parliament from the Crown – could be used to shield potentially dishonest MPs who are accused of fiddling their expenses claims. The case may well go to the Supreme Court next, but at present it seems that justice has been done and that the men will rightly face the charges against them as would any member of the public.

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