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

2 December 2010 by

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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more


  1. Adam Wagner says:

    James – having had another thought about the final line of the post, I have amended it. I agree that this case will not apply specifically to those situations! But as you say, it was the right decision…

  2. ObiterJ says:

    Good post. However, it is only fair to say that these defendants have been chosen for prosecution on some basis or other which is not very clear – at least not to me. There were quite a few others who perhaps ought to have also been charged and some were of much higher political profile. One wonders just how a jury might see this if and when the case finally gets before one!

  3. James Wilson says:

    Good post, if I may offer the compliment, though I think that the case was so open and shut (imagine the public’s reaction if it had gone the other way) on the facts it probably hasn’t done a lot to define the boundaries between courts and Parliament, and wouldn’t help a lot in the other situations you mention. Still, at least they got the decision right!

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: