Ex-MPs lose parliamentary privilege expenses appeal – full judgment

1 December 2010 by Adam Wagner

R v Chaytor and others (Appellants) [2010] UKSC 52 – Read judgment / press summary

The Supreme Court has dismissed an appeal by ex-MPs who argued that the courts do not have jurisdiction to try a Member of Parliament in relation to the submission of an allegedly dishonest claim for Parliamentary expenses or allowances.

The court was unanimous in its judgment. Lord Phillips (President) and Lord Rodger give the lead judgments. The Court held that neither Article 9 of the 1688 Bill of Rights nor the exclusive jurisdiction of the House of Commons poses any bar to the jurisdiction of the Crown Court to try the Appellants.

The men had each been committed for trial in the Crown Court on charges of false accounting contrary to s 17(1) Theft Act 1968 arising from their parliamentary expenses claim at a time when each appellant was a sitting Member of Parliament (see previous post).  The four 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.

As expected, the Supreme Court rejected this wholeheartedly, stressing that the point of the 1688 Bill of Rights, which was enacted to prevent the monarch from interfering in Parliamentary proceedings, was to protect freedom of speech and debate in Parliament. The plain fact was that the submission of expenses claims has nothing to do with free speech. There were also good policy reasons for giving Article 9 a narrow ambit, as if it were construed more widely it could protect MPs from any criminal prosecution and even prevent them from suing for negligence (for example, if they tripped on the way into the chamber).

On the question of who has jurisdiction over Parliament – which could either be the courts or the Parliament itself – the court said that Parliament had to a large extent relinquished its claim to have exclusive jurisdiction over administrative business. The expenses scheme is purely administrative, and therefore not within the core activities of Parliament, namely the legislative and deliberative processes.

Press summary

The court’s press summary (reproduced below) explains its reasoning.

The issue under Article 9 was whether making claims for parliamentary expenses fell within the phrase “proceedings in Parliament”. The Court held that conduct of a Member is not privileged merely because it occurs within the House of Commons. The principal matter to which Article 9 is directed is freedom of speech and debate in the Houses of Parliament and parliamentary committees. 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. On this basis, submission of expenses claims does not qualify for the protection of privilege. Scrutiny of claims by the courts will not inhibit freedom of speech or debate. The only thing that it will inhibit is the making of dishonest claims: [48].

Parliament has expressed the same conclusion and although the extent of parliamentary privilege is ultimately a matter for the courts, it is one on which the courts will pay careful regard to the views of Parliament: [16]; [59]. There are also good policy reasons for giving Article 9 a narrow ambit, namely that its protection is absolute and, where it applies, it denies redress to those injured by civil wrongdoing and prevents Members being prosecuted for conduct which is criminal, despite the fact that Parliament has only limited penal powers of its own: [61].

On the exclusive jurisdiction issue, Parliament has to a large extent relinquished any claim to have exclusive jurisdiction over the administrative business of the two Houses. Nor does Parliament assert an exclusive jurisdiction to deal with criminal conduct within the walls of Parliament, even where it relates to or interferes with proceedings in committee or the Houses. The courts and Parliament have different, overlapping, jurisdictions. Parliament can hear proceedings for contempt of Parliament and a court can try the offender for the crime.

The area of activity to which the present prosecutions relate is administrative: it concerns the implementation of the expenses scheme, not the decisions of parliamentary committees in respect of the scheme itself. The expenses scheme merely provides the setting for the alleged offences and there is nothing in the allegations against the Appellants which relates to the core activities of Parliament, namely the legislative and deliberative processes, however widely construed. The House of Commons has asserted a disciplinary jurisdiction over expenses claims and has set up a review of such claims under Sir Thomas Legg. It has not, however, asserted exclusive jurisdiction. On the contrary, it has co- operated with the police investigation and excluded from the claims referred to Sir Thomas Legg any that are under investigation by the police: [89]-[92]; [122]-[123].

Read more

• Parliamentary four lose expenses scandal appeal
• 1688 Bill of Rights privilege may protect parliamentary expenses three