Tuesday, 29 June 2010

Parliamentary Privilege

The Court of Appeal will today hear arguments in the case involving three former MPs and a Peer over the allegations of false accounting with regard to their expenses claims. The point is important because, as was stated in the judgement of Mr Justice Saunders "The Crown Court would not have jurisdiction if the conduct of a trial would infringe parliamentary privilege. If the Crown Court does not have jurisdiction, any determination of guilt or innocence, and if that determination is adverse to a Defendant, any punishment is for Parliament alone."

The original judgement can be read in full here.

At the heart of the argument is the question of what activities are covered by Parliamentary Privilege. It certainly covers words said in the Chamber - but how much further does it go?

"While the privilege is Parliament’s rather than the individual member’s, it is clear that it can and does attach to the activities of an MP in carrying out some of his Parliamentary functions. Although Article 9 of the Bill of Rights 1689 is the best-known example of parliamentary privilege and has enshrined in Statute the privilege of freedom of speech in Parliament, it is part only of a much broader privilege which is found in the common law. Article 9 provides that ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. The existence of a broader privilege, of which Article 9 is only a part, was accepted in a number of 19th century decisions. It is unnecessary to refer to them because they are encapsulated in the words of Lord Browne-Wilkinson in the Privy Council case of Prebble –v- Television New Zealand [1995] 1 AC 321 at p. 332D ‘In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 was merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what was said or done within the walls of Parliament in performance of its legislative function and protection of its established privileges’."

Mr Saunders further noted in his judgement "Very important constitutional principles are involved which must be respected, and that must be the case even if it leads to a result which is unpopular not only with the public but also with Members of Parliament."

In the ruling it was held that expenses claims do not come within the scope of privilege. That will be considered today. A House of Commons Library Paper sets out the issues and the background. It is available here.