Tuesday, 30 March 2010

The Parliamentary Four: The Expenses Case gets expensive

The Daily Mail (30th March 2010) has a report of the first Crown Court hearing in the "expenses" case against 3 M.P.s and one Member of the House of Lords.  An array of massive legal talent is being assembled both for the Crown (Lord Pannick QC, Peter Wright QC and two other barristers) and also for the defence.  It is reported that Edward Fitzgerald QC is representing two of the M.P.s and a further QC will be briefed to represent the third whilst Lord Hanningfield is being represented by Alun Jones QC.  The Daily Mail reports that the costs will run into "many millions".  Just who is paying is not clear and why so many "leaders" and "juniors" are required is also unclear.  The meaning of the Bill of Rights 1689 Article 9 is an important constitutional matter but does it really require three days of legal argument?

Please also see the earlier post on this blog.  Interestingly, the trial judge's ruling would apply during the trial but a legally binding precedent will require a decision of the appellate courts.

Point of historical interest: Until the Criminal Justice Act 1948, a member of the House of Lords was entitled to be tried by the House of Lords.  The origin of that right appears to have been Magna Carta Clause 39 which stated - "No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed--nor will we go upon or send upon him--save by the lawful judgment of his peers or by the law of the land".  The last time this right was exercised was at the trial of the 26th Baron de Clifford in 1935.

For the serious student:  See Research brief and First Report on Parliamentary Privilege.

6 comments:

  1. Ed (not Bystander)30 March 2010 at 22:02

    That's all very well. But what's the position under the Common Law? (!!??)

    (simply couldn't resist)

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  2. I suspect the Bill of Rights just MIGHT be a statute! So maybe it doesn't offer a defence?

    In any case did we HAVE a Parliament before 1066?

    (I couldn't resist either)

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  3. The common law is not relevant here. The defence argument is that Article 9 of the Bill of Rights 1689 offers the MPs and the Peer a privilege which prevents the case being dealt with by the ordinary criminal courts. Personally, I doubt that the Bill can be interpreted in that way but this impressive (and expensive) array of legal talent is clearly going to argue that the Bill gives them such a privilege.

    The Bill of Rights 1689 is regarded as a statute but where does the idea come from that a statute may not offer a defence? Whether or not a particular statute offers a defence is a matter for judicial interpretation and many statutes do offer defences to various criminal offences (e.g. Homicide Act 1957 etc).

    I think you know that we did not have a Parliament before 1066 (though there was a body known as the Witenagemot) but, in any event, 1066 is irrelevant. Parliament has existed since the early 14th century and has gradually developed and changed over the centuries. It was the English Civil War which resulted in Parliament being mightier than the King and the Bill of Rights 1689 is an assertion of the rights of parliament.

    Whilst I am very critical of the costs being incurred in this case, it will be extremely interesting to see how it pans out.

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  4. Just as, perhaps, the Common Law is not too relevant to the proceedings about Council Tax so disrupted by the Freeman - or whoever they are. As I'm sure you know (although your other readers may not) these persons make much of what they say is Common Law, contrast it with much high-falutin' drama to Statute Law, make all sorts of claims about the lack of parliamentary rights to make Law (and perhaps even the Sovereign too) and seem prepared to go back beyond 1066. I was tempted into my attempt at flippancy by the comment from Ed (not Bystander), who I think is also referring obliquely to the Freemen, but the fault is entirely mine for not restraining myself.

    Thanks for the history lesson.

    And - for what it's worth - I agree with you.
    , who I think was

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  6. If you look at the preamble to the Bill of rights, the crimes leveled against the king are directly comparable to the crimes of the MPs , the judiciary have to consider an act as a whole and it would be odd if they found the MPs innocent for purportrating one of the same crimes as the king that parliament beheaded

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