Tuesday, 9 February 2010

Parliamentary Privilege and the expenses claims

In the post Money, Money, Money (below) the possibility of using parliamentary privilege as a defence to charges under the Theft Act 1968 s.17 was mentioned.  [The CPS had referred to that possibility in their press release].  The concern is that Article IX of the Bill of Rights 1689 might afford a defence - "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."  

Interesting observations about this possibility have been posted on the following excellent blogs:

Administratively Constitutional Law, or What is Parliament's Privilege
where it is argued (persuasively) that Parliamentary privilege would not protect those who have been charged.

More on Parliamentary Privilege.
where the views in 1998 of the Crown Prosecution Service are referred to.   Those views were to the effect that Article IX could act as a serious impediment to the effective prosecution of corruption and that the phrase "proceedings in Parliament" was "far from clear."

In 1999, Parliament itself published "Parliamentary Privilege - First Report."  This contains a detailed discussion of Article IX of the Bill of Rights 1689.  The report also made a number of recommendations which do not seem to have been actioned.  They included a call for Parliament to clarify the scope of the prohibition in Article IX and that the term "proceeding in Parliament" should be defined as was the case, since 1987, in Australia.

Be that as it may, Chapter 1 paragraph 12 of the 1999 report states in connection with Article IX - " .... Proceedings are broadly interpreted to mean what is said or done in the formal proceedings of either House or the committees of either House, together with conversations, letters and other documentation directly connected with those proceedings."

Surely, if that statement accurately reflects the law then there would be no defence to a criminal action based on a false expenses claim.  The purpose of Article IX must clearly be to enable members to conduct the key business of Parliament openly and candidly without fear of prosecution or civil action.  Broadly, the key business of Parliament is the enactment of legislation and the process of monitoring the executive and holding it to account.  The dropping of a piece of litter within the Palace of Westminster could hardly be a proceeding in Parliament and neither could be an evening's discussion in one of the bars about the merits of various brands of Scotch Whisky.  However, an MP questioning a witness before a Select Committee would clearly be a proceeding in Parliament and so would the raising of serious concerns in a debate in the Chamber.

It is perhaps a pity that Parliament did not act on the recommendations in the 1999 report but a common sense view of the matter ought to prevail.

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