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Parliamentary privilege should not mean criminal immunity
Posted by Sara Bedford (@sarabedford)
Friday, 5th February 2010
The news that the Messrs Chaytor, Devine, Morley and Lord Hanningfield make seek to utilise parliamentary privilege to escape prosecution under the Theft Act 1968 has dealt another blow against the reputation of Parliament. The thought that parliamentarians may try to use Article 9 of the Bill of Rights Act 1689 as a shield against the criminal law is enough to make most ordinary people feel even more angry and disappointed with their representatives.
This morning, Keir Starmer, the Director of Public Prosecutions said: "Lawyers representing those who have been charged have raised with us the question of parliamentary privilege. We have considered that question and concluded that the applicability and extent of any parliamentary privilege claimed should be tested in court.” Later, the three MPs issued a joint statement, insisting that the issue should have been dealt with by the parliamentary authorities, not the criminal courts.
Parliamentary privilege was introduced to allow members of parliament to speak freely, without interference from those with vested interests or other power. The privilege is asserted by the Speaker at the start of each new Parliament and means that proceedings in parliament cannot be impeached or questioned in the courts and members cannot be sued for anything they say or do in a sitting of either House or a parliamentary committee. However the protection of privilege applies only to the ‘proceedings’ of Parliament. It must seem obvious to those ordinary people who do not spend their lives looking for procedural excuses in Erskine May that this protection was not intended to protect MPs and parliamentarians from charges of theft and fraud.
What makes this proposed abuse of parliamentary abuse even worse is that since its amendment by Section 13(1) of the Defamation Act 1996, parliamentary privilege can be waived by MPs when it suits them, in order to allow them pursue legal action against others.. This change in the law, brought in by Conservative MPs to help their then colleague Neil Hamilton to sue the Guardian, is just a small part of the manner in which MPs have sought to make themselves above and beyond the law. And last summer, as MPs were dragged kicking and screaming through the lobbies to vote on the Parliamentary Standards Bill, a new clause, explicitly preserving Parliamentary privilege regardless of anything else in the legislation, was added.
Last year Dr Malcolm Jack, the Clerk of the Commons, told a committee that the extent of privilege is a legal grey area. Documents relating to anything said in either House are clearly covered, but other documents would have to be judged by the courts on a case by case basis. Chaytor, Devine and Morley could try to argue that their expenses claims are documents protected by privilege, as the claims were made for taking part in the proceedings of parliament. As all three are leaving the Commons at the general election, they have nothing to lose. They may feel that they are unfairly taking on the role of sacrificial lamb for many colleagues who have flipped and worse, and that any shelter is worth using. But if they do, they’d be wrong.
There is no doubt that parliamentary privilege can be a vital pillar of democracy and freedom of speech. Most recently, the John Hemming case has demonstrated that this 321 year old law still has a place in 21st century England. But it was never intended to be used to prevent prosecutions for theft and fraud and nor should it. As LibDem MP David Heath said earlier: “Parliamentary privilege exists purely to ensure we can do our job properly, not to protect us from the law. If there is any question about whether Parliamentary privilege gives protection against prosecution for fraud, then Parliament should make it very clear by passing a resolution to say that it does not”.
