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:
With all of the talk of the Conservative Party’s proposed new Bill of Rights, it is easy to forget that we have had one on the statute books since 1688. This will now be brought into sharp focus through the Parliamentary expenses scandal, where three ex-MPs are planning to use the 322-year old Act to argue that their prosecutions should be dropped as they have Parliamentary privilege.
The 1688 Bill of Rights (passed by Parliament in 1689) established many of the democratic rights which now find form in the European Convention on Human Rights (ECHR) and other similar sources, such as the First Amendment of the United States Constitution. Some of the language is familiar, such as the provision against “cruel and unusual punishments”, which foreshadows Article 3 of the ECHR.
The intention of 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. The Sovereign was restricted, for example, from establishing new courts or act as judge.
The key provision in respect of the three ex-MPs is:
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 1688 act is still in force, and there is no doubt that it protects MPs and peers from legal action over what they say in parliament. But what is meant by ‘proceedings’? Does it cover a claim for parliamentary expenses? The defendants say it does.
And who should decide such a question? The former MPs are expected to argue that leaving it to the courts would interfere with separation of the powers, a fundamental constitutional principle under which the judges do not question the way in which parliament conducts its affairs.
The Bill of Rights is still occasionally cited in court. One notable example was during the “cash for questions” affair in the 1990s. Neil Hamilton, then a member of Parliament, brought an action in libel against The Guardian newspaper. The trial was stopped, as Mr Justice May considered that the prohibition on courts questioning Parliamentary proceedings would prevent The Guardian obtaining a fair trial. This led directly to the drafting of s.13 of the Defamation Act 1996 which allows someone being sued for defamation to waive “the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.”
In his article, Rozenberg goes on to discuss what he considers to be the comparative case of Les Huckfield, a Member of the European Parliament who was accused of dishonestly obtaining expenses of over £2,500 by deception.
Old and new
Clearly the battle lines are now being drawn in what will be interesting and potentially important litigation from a perspective of constitutional law. It is also an odd coincidence that three ex-MPs may save themselves from prison by citing a 322-year-old bill of rights at the same time that their Parliamentary ex-colleagues are attempting to enact a brand new one.
Article 6(3)(c) of the Human Rights Convention says that everyone charged with a criminal offence has the right to defend himself through legal assistance of his own chosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
The second important point is that from June, the right to legal aid in serious criminal prosecutions will be limited by the introduction of means testing.
The scheme is undergoing significant changes primarily in order save costs. In 2008/9 £2.186 billion was spent on legal aid, with 53% spent in the criminal courts, amounting to 1/630 of government expenditure. In order to reduce that figure, from June 28 this year criminal legal aid in the Crown Court, where more serious criminal offences are tried, will become means tested. Legal aid in the Magistrates’ Courts, where less serious offences are tried, is already subject to means testing. The Legal Services Commission now hopes to save a further £35m per year.
From June, anyone with a net (i.e. after tax) disposable income of more than £3,398 per year and with capital of over £10,000 will have to contribute to their own legal expenses when prosecuted in the Crown Court. As such, the three MPs would probably not receive full legal aid under the new scheme.
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