Wednesday, 20 October 2010

A world apart from ordinary justice: almost a parallel universe

media video is available of Mr Nigel Pleming QC arguing in the Supreme Court of the U.K. that the men, charged under the Theft Act 1968 s.17 in relation to expenses claims submitted when they were Members of Parliament, may not be tried in the Crown Court.  Mr Pleming stated that it was not because the men claim to be "above the law" but they do claim that only "The High Court of Parliament" may deal with this matter.

From a purely historical perspective, Parliament certainly was the "High Court of Parliament."  Until the Criminal Justice Act 1948, a peer could claim a right to be tried there.  Furthermore, obsolete procedures such as impeachment and Bills of Attainder appear to remain as, albeit, remote and rather theoretical possibilities.  Of course, until the creation of the Supreme Court of the U.K., it was the Appellate Committee of the House of Lords which stood at the apex of British legal systems.  Interestingly, perhaps the principal argument for the creation of the Supreme Court was the separation of judicial functions from the legislature.

A modern Parliament fit for the 21st century should disclaim any jurisdiction in criminal matters and should confine itself to the proper role of a legislature: scrutinising proposed legislation, enacting well-considered new law and holding the executive to account through debate and the various committees.  The trial processes of the Crown Court are designed to ensure due process.  Parliament itself does not have similar procedures and rules of evidence etc.  Any "trial" before Parliament is unlikely to reach modern standards of due process required in criminal trials.

A further aspect of the expenses matter is the question of why have these particular men been singled out for prosecution?  The expenses scandal was widespread and affected (in different ways) members of both Houses of Parliament.  Members from all parties engaged in practices such as "flipping of homes" and these commonplace practices appear to have been generally accepted by the Parliamentary authorities at the time.  Of course, now that the men have been charged, they are perfectly entitled to advance any relevant legal argument in their defence.  That is their absolute right.  It matters not that they are praying in aid outdated and arcane law which really ought to be reformed.

When this costly case - (which has been heard by the Court of Appeal and now has nine Supreme Court justices sitting) - is viewed against the backdrop of massive cuts to legal aid and denial of access to justice for thousands of people it really does make one wonder just what sort of country we are living in.

Addendum 21st October: The Independent "Peers suspended from Lords over expenses claims"


  1. A lawyer expounding the idea that lawyers should only use available processes of law to do what is morally right? How surreal is that?

    Mind you I don’t know why they are doing it, Parliament has a wish to demonstrate distance from the behaviour being tried. Biased against I think.

  2. Yes it does indeed - especially as all of them are benefitting from Legal Aid. You couldn't make it up - but then we now have a group of elected hereditary peers - a difficult concept for many foreigners I suspect.

  3. Rolo - perhaps surprisngly, most lawyers have not lost sight of what "justice" is meant to be all about.

    What I find "surreal" is the idea that, in this day and age, there can even be a claim that alleged offences arising in connection with Parliamentary duties) cannot be tried outside of Parliament. I cannot imagine that the writers of the Bill of Rights 1689 intended such an outcome. Their intent was surely to protect the right of a member to act fearlessly in debate.

  4. I have spent many years hearing the argument that a lawyer’s job is to use the process in the best interest of the client, even when such use is clearly outrageous, and it is for society to rely on the system to bring a just end conclusion. Even expound it myself at times.

    A theme so often visited here that, to save time, we now refer to it as "argument 27" and move on. No one can remember where 27 came from.

    On the latter point I agree with the sentiment (although I could find several arguments to the contrary that to follow in order to demonstrate abuse of processes). The problem is efficiency of the process, huge savings achievable in many areas of litigation. Could even afford to buy some planes to go on those aircraft carriers.

  5. To follow your comments in your last paragraph: it has also been proposed that benefit claimants thought to have made false claims in some way be given an on-the-spot fine of £50, which leads to the following questions:

    a) how is this penalty going to be enforced and collected and by whom, assuming that fault can be proved, "on-the-spot"?

    b) what redress do claimants so accused and fined have against their accusers, given that legal aid would be severely restricted for a reactive response (that is, to such a fine) and denied for a proactive (that is, suing for, say, Malicious Prosecution)?

    c) how is this measure going to be enacted - as a part of an Act of Parliament or (more likely) an Order through Statutory Instrument?

    I must declare an interest as a claimant of Incapacity Benefit who has difficulties because of the 'incapacity" in representing himself and in getting adequate representation (you may like to look at The Resistible Rise Of The "Advocate" - or non-legally qualified adviser - that is being increasingly promoted, especially for those of us in the Lower Depths).