'The principle is simple enough: Parliament doesn't interfere with the courts, the courts don't interfere with Parliament. But it's not unlimited'
It was, perhaps, a rash promise to make. In my Standpoint blog on April 29, I noted that lawyers for three former MPs and one peer accused of making false expenses claims would try to persuade Mr Justice Saunders that the Crown Court had no jurisdiction to try them. Each has subsequently entered a plea of not guilty and all four deny any dishonesty.
I explained that — ahead of any jury trial — the defence of parliamentary privilege would be considered at a preparatory hearing and that this would normally be covered by reporting restrictions. “If necessary,” I wrote, “I shall ask the judge to make an order…permitting the proceedings to be reported.”
And that is how I found myself on my feet in Number One Court at the Old Bailey, putting my arguments to Mr Justice Saunders. It is perhaps fortunate that reporting restrictions still ban coverage of that hearing and some of what followed. The most famous criminal court in the world is perhaps not the best place for teach-yourself advocacy. It was even more fortunate that several news organisations had briefed Andrew Caldecott QC to make a similar application. But I feel I may claim some of the credit, not only for the fact that we can report the judgment delivered on June 11 but also because I can tell you I had a hand in it.
The judgment itself is very wise. By deciding that parliamentary privilege should be narrowly construed, Mr Justice Saunders kept the ball in play and avoided the media furore that would have followed a finding that the expenses allegations were matters solely for Parliament. Such a decision might have subsequently been overturned on appeal, just as the defendants might now persuade the Court of Appeal that they were protected by privilege after all — an application that I shall also seek to cover. Incidentally, and mysteriously, there is currently an order in force preventing us from reporting the date when David Chaytor, Jim Devine and Elliot Morley will stand trial if their appeals are unsuccessful. The order does not apply to the fourth defendant, Lord Hanningfield, whose trial — unless he wins his appeal — is set for November.
Mr Justice Saunders began by confirming that parliamentary privilege belongs to Parliament and not to its members. So the defendants could not have waived it even if they had wanted to. If they had not raised the issue, the judge would have considered it himself. As I explained in my column here in March, article 9 of the Bill of Rights 1688/89 protects members of both Houses from legal action over what they say in Parliament. But Mr Justice Saunders pointed out that this was only part of a much broader privilege, which was to be found in judge-made common law. It derives from the separation of powers and is now referred to as Parliament’s “exclusive jurisdiction”.
The principle is simple enough: Parliament doesn’t interfere with the courts and the courts don’t interfere with Parliament. But it is not unlimited: a member who stole money from another member’s room could expect to be tried in the ordinary courts. The question for Mr Justice Saunders was how far privilege extended to matters that were ancillary to the main work of Parliament.
Not very far, was his answer. Lord Pannick QC, for the prosecution, conceded that the expenses scheme itself was covered by privilege. So, perhaps, was the administration of that scheme by officials. But privilege did not cover the submission of a claim form by an MP or peer. “The fact that it is the submission of the claim form that sets the machinery of Parliament in motion does not make it part of that machinery just as putting a coin in a slot machine does not make the coin part of the mechanism of the slot machine,” Mr Justice Saunders said.
On this point, the judge’s ruling was pragmatic rather than principled (“there has to be a line drawn and it has to be drawn somewhere”). His response to the defendants’ second main argument was equally pragmatic, though more convincing.
That argument was “that in order to exercise freedom of speech in Parliament, it is necessary to be able to attend; and therefore expenses are ancillary to the exercise of freedom of speech and are included within the definition of proceedings in Parliament within article 9”.
Following recent legislation, freedom of speech in Parliament extends to the preparation of documents “incidental to” business before Parliament. But the judge said it would be stretching the meaning of “incidental” too far for it to cover a claim for expenses.
Let’s see if the appeal judges agree.