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Parliamentarians are less privileged than they had hoped

14 June 2010

In a much anticipated decision Mr Justice Saunders has ruled that three former Labour MPs and a Conservative peer are not entitled to protection from prosecution by parliamentary privilege against charges brought in the wake of the expenses scandal.

Elliot Morley, David Chaytor, Jim Devine and Lord Hanningfield are all charged with false accounting under the Theft Act, and if found guilty could each face up to seven years in prison.

The charges represented the culmination of a nine month police investigation during which it was alleged that the men each claimed thousands of pounds in parliamentary expenses to which they were not entitled.

Mr Justice Saunders, sitting in Southwark Crown Court, found that although the processing of an expenses claim form is part of parliamentary procedure, the decision to submit one is not. The Judge drew an analogy with a slot machine, noting that the coin put in the slot does not form part of the machinery, but does however set the machinery in motion; such is the case with an expense form, which when submitted sets part of the parliamentary machine in motion.

The decision was summed up by the judge’s declaration that he could see ‘no logical, practical or moral justification for a claim for expenses being covered by privilege’, further noting: “I can see no legal justification for it either.”

Shoosmiths associate Linda Mattingly says this is an instance where few lawyers will be decrying the judge’s refusal to extend privilege: “This is one case where the legal profession is going to be broadly in line with public opinion.” The suggestion that a law so closely associated with protecting free speech should be extended to cover the kind of behaviour alleged in these cases has caused a great deal of consternation.

Mattingly adds: “Many lawyers decry the erosion of privilege, but in this case I do not foresee that many will be complaining of a miscarriage of justice.”Despite outcry over the attempted invocation of parliamentary privilege, the judge noted that even if it had not been raised, he would have initiated an investigation into the matter himself, as the privilege attaches to Parliament collectively and cannot be waived by any individual member even if they wish to.

The judge stated that: “The extreme suggestion in some quarters that the fact that the defendants have raised this issue is some indication of guilt is not only misconceived, but also unfair.”

On handing down his decision, the judge also granted leave for the case to go before the Court of Appeal. Even if the ruling is upheld it is likely to be some months before the four men appear in what Mr Justice Saunders believes most people accused of criminal behaviour would wish for - ‘a fair trial before an impartial jury’.

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Linda Mattingly

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T: 03700 86 8390
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E: linda.mattingly@shoosmiths.co.uk