Phil Larkin and Alexander Horne: report on October’s parliamentary privilege seminar

A seminar on parliamentary privilege, held jointly by the Study of Parliament Group and the UK Constitutional Law Group, took place in Parliament on 12 October, with talks given by three noted authorities: David Howarth (Department of Law, University of Cambridge, and former MP), Anthony Bradley QC (Emeritus Professor of Law, Edinburgh), and Nigel Pleming QC. The session was chaired by Sebastian Payne of the UK Constitutional Law Group and was kindly sponsored by Sir Alan Beith MP, the Chairman of the Justice Select Committee. The talks focussed on the place of parliamentary privilege in recent controversies, including the prosecution of MPs for fraudulent expenses claims and the arrest of Damian Green MP in 2008.

David Howarth spoke on the case of R v Chaytor, which saw three former MPs, including David Chaytor, prosecuted for false expenses claims. As a preliminary issue, the defendants claimed that the criminal proceedings were inappropriate as the expenses system was covered by parliamentary privilege. Parliamentary privilege, Howarth argued, had three different meanings: contempt of Parliament; the sphere of Parliament’s exclusive cognisance or jurisdiction; and Parliamentarians’ statutory immunities. In terms of contempt of Parliament, the purpose of privilege is to protect the House from matters that might obstruct it in the performance of its functions or damages its authority (set out in chapter eight of Erskine May) and it protects parliamentarians from undue outside pressure. The purpose of privilege (in terms of Parliament’s jurisdiction) is to safeguard its operations from incursion by the courts in areas where they are not qualified or democratically authorised to judge upon (this raises the question of who is authorised to speak for the House: in the Chaytor case, the “view of the House” was taken as, at various points, the Speaker, the Clerk, the Standards and Privileges Committee or vague references to “House authorities”). The purpose of privilege as statutory immunity is as set out in article 9 of the Bill of Rights and cannot be waived by the House. In David Howarth’s opinion, the Supreme Court concentrated on the final component of privilege without sufficient regard for the other two. In particular, he suggested that there had been an incursion by the Court into the scope of Parliament’s exclusive jurisdiction with its claims that pay and expenses were not a matter that was in the exclusive cognisance of the House. In support of its view, the Supreme Court made reference to the absence of a view from Parliament itself that the expenses system was within its exclusive jurisdiction. In Mr Howarth’s view, this exploited Parliament’s lack of political capital in the face of the widespread anger the case generated to make a grab for jurisdictional territory. He said, “a constitutionally literate Crown team would have referred the matter to the House for a decision”. This would not necessarily have got the Members off the hook, but Parliament could have (explicitly) formed the view that this was a matter that ought to have been dealt with through the criminal courts.

Anthony Bradley QC spoke on the Damian Green affair, which raised questions about the interface between parliamentary privilege and the criminal law that were not before the Supreme Court in the Chaytor case. In 2008, Mr Damian Green MP, then Shadow Immigration Minister, was arrested over leaks of official Home Office material highlighting shortcomings in existing immigration policy. Police raided Green’s office on the parliamentary estate, having been admitted by the then Serjeant at Arms. Professor Bradley commended the excellent account of the whole affair given in the report by the Menzies Campbell committee. He said that the affair was too serious to be regarded as a “comedy of errors” and noted some ambiguities in the way the Police and Criminal Evidence Act 1984 (PACE) related to Parliament and material which might be subject to privilege. It seemed that the police were far from clear about the scope of parliamentary privilege in this case, and it was now accepted that errors had been made by the Cabinet Office, the police, the Serjeant at Arms (who admitted the police to the Parliamentary estate and permitted the search of Green’s office), the Clerk of the House, and Speaker Michael Martin. Bradley argued that there remain serious doubts about the extent to which warrants under PACE apply on the Parliamentary estate. Ultimately, he contended, there is a worrying lack of clarity surrounding the Speaker’s jurisdiction and authority, despite the Speaker’s protocol of 8 December 2008. He suggested that legislation should be considered to clarify the situation. He commented that in most of Europe elected representatives receive some degree of protection from the criminal law – the UK would not for a moment wish to confer a general immunity from the criminal law, but we could well consider, for example, provisions in the German Basic Law that make clear the authority of the President of the Bundestag and give protection to members regarding information and documents given in confidence to them in their capacity as members of the Bundestag.

Nigel Pleming QC also reviewed the Chaytor case. It was, he said, “regrettable” that the voice of Parliament was absent in the matter. Article 9 of the Bill of Rights states that “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”. Yet should the “proceedings” of Parliament be taken to include more general business as well as proceedings in the chamber? The Register of Members’ Interests, for example? Decisions of the Speaker? Or claims to the Fees Office? The case advanced on behalf of the MPs was that the pay and allowances scheme was entirely a creation of the respective Houses of Parliament and, on that basis, a fraudulent expenses claim would constitute (and should be treated as a case of) lying to the House, made in the course of proceedings in Parliament.

All three speakers were agreed that the scope of parliamentary privilege and authority of its scope is unclear at the moment. But all were uneasy with the decision and justification in the Chaytor case, which had failed to deal properly with the intent and spirit of parliamentary privilege.

Dr Phil Larkin and Alexander Horne