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.

The Death of Senator Byrd

At the start of hearings for the confirmation of Elena Kagan, Senator Patrick Leahy paid tribute to Senator Byrd - the longest serving member of Congress in history - whose Congressional career began in 1953. He was a Senator from 1959 - and was an authority on Senate history and procedure.

Introduction of New Peers

There is a special ceremony to mark the intoduction of new peers into the House of Lords. A video of last weeks introduction of Lord Knight of Weymouth is accessible here.

The ceremony is outlined in the "Companion to the Standing Orders"

The Lord Speaker sits on the Woolsack, wearing court dress and a black gown. In the absence of the Lord Speaker, a Deputy Speaker in his parliamentary robe occupies the Woolsack.

The newly created peer and his two supporters, all in their Parliament robes, with Garter Principal King of Arms and Black Rod, assemble in the Peers' Lobby. Garter and Black Rod are sometimes represented by deputies. A procession is formed, which enters the Chamber in the following order:

1. Black Rod
2. Garter, carrying the peer's Letters Patent
3. junior supporter
4. new peer, carrying his writ of summons
5. senior supporter.
 

At the Bar each member of the procession bows in turn to the Cloth of Estate. They enter the House on the temporal side and proceed towards the Table.

 Black Rod passes in front of the Cross Benches, goes behind the Clerks' seats and stands on the spiritual side. Garter hands the new peer's Letters Patent to the Reading Clerk who has taken up a position by the first gangway on the temporal side. Garter then proceeds behind the Clerks' seats and stands next to Black Rod.

The junior supporter moves down the temporal side to a position beyond the Table by the second gangway. The Reading Clerk, the new peer and the senior supporter follow the junior supporter. On arrival at the Table, when the Reading Clerk has reached the Despatch Box, the procession halts and turns inwards. The new peer hands his writ of summons to the Reading Clerk.

The Reading Clerk reads the Letters Patent and administers the oath of allegiance or the solemn affirmation to the new peer, who then signs the Test Roll upon the Table. The new peer then signs an undertaking to abide by the House of Lords Code of Conduct.
 

The new peer and the supporters then process in front of the Cross Benches and turn to face the Woolsack: the senior supporter on the spiritual side, the new peer in the centre and the junior supporter on the temporal side. Meanwhile, Black Rod and Garter have moved to the spiritual side of the House between the Table and the Government front bench, facing the three peers. Together, the new peer and the supporters bow to the Cloth of Estate.

The procession then moves up the spiritual side of the House towards the Woolsack, with Black Rod leading, followed by Garter, the senior supporter, the new peer and the junior supporter. On reaching the Woolsack, the new peer shakes hands with the Lord Speaker. The procession passes into the Prince's Chamber through the door on the spiritual side of the House.

The new peer and the two supporters, without robes, then return to the Chamber, and the new peer sits for the first time in that part of the House where he intends to sit in the future.

Fifty Six new peerages were announced on 28th May - and it is hoped to have all of them introduced by the summer recess. The Procedure Committee in the Lords proposed that the number of daily introductions be increased to permit this to happen. The report is available here. It was agreed to by the House of lords last Thursday.

Today Roy Kennedy, who was a colleague on the European Parliament East Midlands Labour List during the 2009 election will be introduced as a Baron. I offer him my congratulations - and will be watching his introduction from the gallery.

Supporting Crossbenchers

“Cranborne” money has been provided to opposition parties since 1996. It provides financial assistance to opposition parties, enabling them to employ administrative and research staff. The crossbenchers are not a party, but individuals who sit in the House of Lords. There is a "Convenor" who represents this diverse group of peers in discussions with other parties about he arrangement of business and in other matters. There is a website about Crossbenchers accessible here. They obviously have less need for administrative support than the parties - but a sterling job has been done by a series of Convenors - and some assistance has been given since 1999.

On Thursday a short debate followed the introduction of a motion concerning the Cranborne money. An excellent speech was made by Baroness Boothroyd which can be viewed here (from 48 min 14 secs into the recording).

She said

My Lords, this is an important resolution. It is cloaked in technical terms and it affects the way in which opposition parties are funded in this House to help them perform their parliamentary duties. Sadly, no one would know that without recourse to Hansard and to the resolution of 2002 that the Government seek to amend. I regret that. Where public funds and parliamentary accountability are involved, the Government need to be more transparent.

I believe that the Motion before us is more than a tidying-up operation. Rightly, it recognises the changed fortunes of the Liberal Democrats; wrongly—unless I am corrected—it implies a severe cut in the distribution of Cranborne money to the opposition parties in this House by no less than 30 per cent. At the same time, it does less than justice to Cross-Benchers, whose independence will always disbar them from office and who operate on a shoestring.

The Cross-Benchers came late to the party when Cranborne money was distributed for the first time in 1997. They had to wait two years. By that time, the cake had been cut and they were handed the smallest slice—a meagre slice, some would say. Cross-Benchers received £10,000 out of a total allocation of £291,000. Our relative position has improved slightly, but it remains at a subsistence level. I am really quite shocked at the disproportionate way in which Cranborne money has been divided during the past 13 years. To some, the Cross-Bench share was almost a joke.

Eight years ago, when Lord Williams of Mostyn increased the Cross-Bench allocation to £35,000, he laughingly remarked:

“I stand amazed at our generosity”.—[Official Report, 30/7/02; col. 820.]

My colleagues were grateful all the same.

Last year, the Cross-Bench Convenor, the noble Baroness, Lady D’Souza, received the princely sum of £61,003—a substantial percentage increase, you might say, but that was only because the starting point was so low. Cross-Benchers had trailed so far behind they were almost out of sight.

The £60,000 a year allows our Convenor to employ one full-time and one part-time assistant to administer her office and respond to the needs of the 187 Cross-Bench Peers. She also represents us in consultations with the Government and other parties. She sits on some nine House committees. I pay tribute to her fortitude, but it is wrong that she should have to bear so heavy a burden without adequate support.

In contrast, the Conservatives and the Liberal Democrats last year shared the rest of the Cranborne money on a 2:1 ratio. In 12 months, they received £770,000. If that is not lop-sided, I do not know what is. Sinn Fein received more than the Cross-Benchers for its non-performance in the Commons. Despite the refusal of five Sinn Fein Members to take the oath of allegiance, Sinn Fein netted £96,000 to finance what the previous Government described as “representative business”, a term capable of many interpretations. I take these figures from an excellent research paper on the public funding of opposition parties produced by the Commons Library. The section on the way in which the Cranborne money operates makes eye-popping reading.

Sadly, unless the Leader of the House enlightens us otherwise, this Motion makes matters worse. In the absence of further information, the Government appear intent on returning to the Treasury the funds previously allocated to the Liberal Democrats. If that is right, the total amount of Cranborne money available to the Opposition will be reduced by nearly a third, all without reference or explanation to this House.

A clever lawyer might argue that the Cross-Benchers are entitled to all the Cranborne money that went to the Liberal Democrats—not that I would think such thoughts, of course. But the pecking order set out in the resolution of 2002 is clear. Then, the Cross-Benchers were in third place; now, they are in second place. It is a position that the Government choose to ignore to save money and—who knows?—perhaps to reassure their junior partner that its entitlement to Cranborne money is secure if the coalition fails. I do not challenge Labour’s entitlement to the £475,000 which the Conservatives received as the Official Opposition last year—that is, of course, on top of the salaries paid to their Leader and their Chief Whip. Nor do I begrudge Ministers the command of resources needed to formulate their policies, run their departments and present their case as persuasively as possible. I do, however, believe in fair play and hope that the Government do too.

As the House knows, we on these Benches belong to no party. We have no common platform or agreed policies, and no leader. We speak and vote according to judgment and conscience, without the discipline of Whips to guide us through the Lobbies, and we may be swept away if this House is replaced by an elected Chamber. However, while we are here Cross-Benchers will, I know, do their duty to Parliament and to the country. They need adequate resources to do so. We are not partisans but share the same principles and, I believe, perform a useful role.

These Benches do not need the hundreds of thousands of pounds that routinely go to opposition parties. Your Lordships may be surprised to know that during Labour’s period of office, the Conservatives received over £4 million in Cranborne money, the Liberal Democrats £2 million and the Cross-Benchers £400,000. I was a Whip in Harold Wilson’s Government when the first public funds were allocated to opposition parties in the Commons. The aim was to improve the parliamentary effectiveness of parties and groups not in government. I hope that the noble Lord the Leader of the House will agree that the need to do so has not changed. He is long experienced in the travails of opposition, and I hope that he will review the allocation of Cranborne money in the light of my unashamed appeal for a better deal for these Benches. I do not seek generosity; I seek fairness. Fairness will do for me.

Better Government Initiative

It is natural that much of the debate about "the running of the country" concerns issues of policy - what is the most appropriate economic policy (for an interesting article by Robert Skidelsky press here) or the best approach to the provision of education or health care. Yet it useful sometimes to reflect upon whether the practices of governing the country are themselves effective.

The Better Government Initiative "was formed as a response to widespread concerns about the practical difficulties which government today faces as it seeks to run the country against a background of rapid change." It is a private initiative by a number of individuals who have served in key positions within Whitehall and Westminster. A number of conferences have been held - and reports produced. Most helpfully a report entitled "Good Government: Reforming Parliament and the Executive" has been published.

It sets out some of the factors which have led to current malaise - and puts forward a number of recommendations. In coming weeks these proposals will be the subject of Washminster posts. I would urge you to take part in the debate.

BGI's website is accessible here.