Published in Criminal Law and Justice Weekly, vol 175, 5 February 2011, p 73
On 7 January, Mr David Chaytor became the first MP to be sentenced in relation to an offence committed in respect of parliamentary expenses. His guilty plea followed a preliminary ruling by the Supreme Court that the system of expenses did not attract parliamentary privilege (as established by art 9 of the Bill of Rights 1689), nor did Parliament itself have exclusive jurisdiction over the issue. The case is noteworthy, if primarily because of the high degree of public interest rather than any new legal principle.
Of the courts involved, it was the Court of Appeal who most invoked the spirit of Denning at the constitutional pulpit. It stated that parliamentary privilege was the “bedrock of our democracy”, and that the finest example of the principle in action was Leo Amery’s speech in the Commons in 1940. Following the severe military reverses of that year, Amery launched a direct attack on the incumbent Prime Minister, Neville Chamberlain, concluding with Cromwell's famous exhortation "in the name of God, go".
I would certainly agree with the Court of Appeal about the significance of Amery's speech. Had he made the same speech in most other countries, not to say Hitler's Reichstag, they would have been about the last words he ever spoke.
There was, incidentally, a tragic irony from Amery's personal point of view, as his elder son Jack went on to make pro-German broadcasts from Berlin on a similar line to those of William Joyce, whom I wrote about at vol 174, p 249. As with Joyce, he was executed for treason after the war. He also recommended PG Wodehouse to the Abwehr, which has led to some casting much harsher aspersions upon Wodehouse than I did in these pages (see vol 174, p 791).
Back to the Chaytor case. On appeal the Supreme Court reiterated the importance of art 9, perhaps with fewer rhetorical flourishes but with no lesser emphasis.
There is accordingly no doubting the importance of Parliament being a forum where everything is up for the most robust debate, even if outside the House it might carry legal consequences in libel or worse. To the extent that MPs might abuse that privilege, it is a matter for the House itself to control—usually in the form of the Speaker—with no recourse to the courts.
Moreover, parliamentary business extends beyond simply what is said in either House, and other activities may therefore attract the privilege defence. As Lord Phillips stated, the test is whether impugned actions fall within “parliamentary proceedings” because of their connection to the Houses and their committees, which in turn concerns the nature of that connection and any impact of a prosecution on the essential business of Parliament.
He went on to hold that expense claims failed that test and therefore did not attract privilege.
The second limb of the defence was based on the slightly archaic sounding “exclusive cognisance” of Parliament; in other words, whether Parliament alone had jurisdiction to deal with its own affairs.
As with art 9 the boundaries of the defence are imprecise, but Lord Phillips was clear that “the mere fact that a crime has been committed within these precincts [of Parliament] is no bar to the jurisdiction of the criminal courts”, and that Parliament itself had never challenged that proposition. Further, although a prosecution would ordinarily require the co-operation of Parliament, that was not essential.
Accordingly, the trial of Chaytor and the other defendants was allowed to continue. Of course that was the only acceptable result. Either the MPs took more than they were entitled to or they did not. It was crucial for that question to be decided in the ordinary courts, with the same rights and same procedures to which anyone else would be entitled. Nothing less would suffice for justice to be seen to be done, and for public confidence in the institution of Parliament to be restored. As Denning himself once put it (quoting Thomas Fuller):
“Be you never so high, the law is above you” (Gouriet v Union of Postal Workers  1 All ER 696 at 718).
That said, any wider constitutional significance of the case can be downplayed. Contrary to some published opinion, it says nothing about the relationship of the Supreme Court and Parliament. The Appellate Committee of the House of Lords would certainly have reached the same conclusion (as had the lower courts already), and moreover the actual trials will not take place in the Supreme Court itself but rather the Crown Court.
One final point. The last word on the affair will not be the preserve of the criminal courts, but rather the court of public opinion. MPs and everyone else involved in the system would do well to act accordingly.