Wednesday 1 December 2010

Key Points from R v Chaytor

PARA 27 - Much of the jurisprudence in relation to article 9 relates to what constitutes impeaching or questioning proceedings in Parliament – most notably Pepper v Hart [1993] AC 593. The meaning of those words is not in issue in the present case and so I shall not refer to authority dealing with that question. What is at issue is the reach of the phrase “proceedings in Parliament”

PARA 28 - worth reading, key comments on what Art 9 covers  .. but  ... (para 29) "One of the problems when considering the scope of article 9 is that decisions on parliamentary privilege frequently make no mention of the Bill of Rights."

cases referred to -

Bradlaugh v Gossett
Pepper v Hart [1993] AC 593
Prebble v Television New Zealand Ltd [1995] 1 AC 321 at p 334
Attorney General of Ceylon v de Livera [1963] AC 103 at p 120
Ex p Wason
R v Greenway (???) [1998] PL 357Rao v State (1998) 1 SCJ 529 - Indian case
R v Bunting (1885) 7 OR 524 - Canadian case
United States v Johnson (1966) 383 US 169 - US case
United States v Brewster (1972) 408 US 501 - US case
Buchanan v Jennings (Attorney General of New Zealand intervening) [2005] 1 AC 115

PARAS 47-48 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.

If this approach is adopted, the submission of claim forms for allowances and expenses does not qualify for the protection of privilege...

PARA 61 There are good reasons of policy for giving article 9 a narrow ambit that

 restricts it to the important purpose for which it was enacted – freedom for Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown’s judges. 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. As to the latter, Parliament has no criminal jurisdiction. It has limited penal powers to treat criminal conduct as contempt.

PARA 78 In summary, extensive inroads have been made into areas that previously
fell within the exclusive cognisance of Parliament. Following Ex p Herbert there appears to have been a presumption in Parliament that statutes do not apply to activities within the Palace of Westminster unless they expressly provide to the contrary. That presumption is open to question. In 1984 three Law Lords, Lord Diplock, Lord Scarman and Lord Bridge of Harwich, on the Committee for Privileges expressed the view that sections 2-6 of the Mental Health Act 1983 applied to members of the House of Lords, although the Act did not expressly so state.

PARAS 80 & 81 Parliament has never challenged, in general, 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. In May 1812 John Bellingham was indicted, tried and convicted of the murder of the Prime Minister, Spencer Percival, at the entrance to the lobby of the House of Commons. Bellingham was not a Member of Parliament, but it would have made no difference had he been.

Where a crime is committed within the House of Commons, this may well also constitute a contempt of Parliament. The courts and Parliament have different, overlapping, jurisdictions. The House can take disciplinary proceedings for contempt and a court can try the offender for the crime. Where a prosecution is brought Parliament will suspend any disciplinary proceedings. Conversely, if a Member of Parliament were disciplined by the House, consideration would be given by the Crown Prosecution Service as to whether a prosecution would be in the public interest. In 1988 Mr Ron Brown MP damaged the mace in the course of a heated debate and declined to apologise. The House exercised its penal powers in relation to both the damage to the mace and the lack of respect for the authority of the Chair. The Director of Public Prosecutions subsequently halted an attempt to bring a private prosecution.


89. Parliament by legislation and by administrative changes has to a large extent relinquished any claim to have exclusive cognisance of the administrative business of the two Houses. Decisions in relation to matters of administration are taken by parliamentary committees and it has been common ground before the Court that these decisions are protected by privilege from attack in the courts. The 1999 Report distinguishes, however, between such decisions and their implementation, expressing the view that the latter is not subject to privilege. I consider that view to be correct.

90. Where the House becomes aware of the possibility that criminal offences may have been committed by a Member in relation to the administration of the business of Parliament in circumstances that fall outside the absolute privilege conferred by article 9, the considerations of policy to which I have referred at para 61 above require that the House should be able to refer the matter to the police for consideration of criminal proceedings, or to cooperate with the police in an inquiry into the relevant facts. That is what the House has done in relation to the proceedings brought against the three defendants.

91. The area of activity to which these prosecutions relate is administrative. The payment of allowances and expenses had until recently been entrusted to the Fees Office by the Commission, a body set up for the purposes of administration – see paras 9 to 11 above. These administrative tasks are now performed by the Independent Parliamentary Standards Authority, set up under the Parliamentary Standards Act 2009. The House has asserted a disciplinary jurisdiction over claims that have been made for allowances and expenses and, to that end, the Members Estimate Committee set up a review of such claims under Sir Thomas Legg. The House has not, however, asserted exclusive cognisance, or jurisdiction, in respect of such claims. On the contrary, on 20 July 2009 the Committee excluded from the claims referred to Sir Thomas any that were under investigation by the police.

92. 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. It was not suggested that Members have a contractual entitlement to allowances and expenses, but if they were to have such contractual rights, I see no reason why they should not sue for them. If a
question were raised as to whether allowances and expenses were taxable, the court would be entitled to examine the circumstances in which they were paid. Equally there is no bar in principle to the Crown Court considering whether the claims made by the defendants were fraudulent. 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 having regard to the particulars of the charges in the cases before us.

93. For these reasons I am satisfied that neither article 9 nor the exclusive cognisance of the House of Commons poses any bar to the jurisdiction of the Crown Court to try these defendants. That is why I decided that each appeal should be dismissed.

(1869) LR 4 QB 573
(1884) 12 QBD 271.