Saturday, 6 February 2010

What are the privileges of Parliament?

So the MPs facing prosecution (see this excellent blog for more detail - Law and Lawyers) want to rely on parliamentary privilege.

This is very clever because nobody actually has a clue about how far parliamentary privilege goes.  Don't try looking in Erskine May because the relevant section provides more questions than answers.  In the recent case of an MP's room in the Commons being searched it became apparent that lawyers found it difficult to say whether or not there had been a breach of privilege (see the memo of the Clerk of the House).  I suspect that the expenses prosecutions will all centre around the definition of ' proceeding' in article IX of the Bill of Rights - this was the Privy Council trying to work it out in 1963 ([1963] A.C. 103 Page 121):

What has come under inquiry on several occasions is the extent of the privilege of a member of the House and the complementary question, what is a "proceeding in Parliament"? This is not the same question as that now before the Board, and there is no doubt that the proper meaning of the words "proceedings in Parliament" is influenced by the context in which they appear in article 9 of the Bill of Rights (1 Wm. & M., Sess. 2, c. 2); but the answer given to that somewhat more limited question depends upon a very similar consideration, in what circumstances and in what situations is a member of the House exercising his "real" or "essential" function as a member? For, given the proper anxiety of the House to confine its own or its members' privileges to the minimum infringement of the liberties of others, it is important to see that those privileges do not cover activities that are not squarely within a member's true function.  Thus, even in recent years, this question has come under debate: in the Sandys case1 in 1938, in the Allighan case,2 and the Strauss case3 since the last war; and, though the occasion does not seem to be noticed in the current edition of Erskine May, in Henderson's case4 in 1945. It would not be useful to examine those debates or proceedings in any detail, since it would be impossible to extract from them any settled constitutional principle that could be regarded as governing the circumstances of this appeal. Views to some extent in conflict with each other have been expressed on different occasions and in the most recent, the Strauss case, the vote of the House was not in accordance with the opinion of its Committee of Privileges or of that of the Select Committee which considered the Sandys case in connection with the Official Secrets Act. The most, perhaps, that can be said is that, despite reluctance to treat a member's privilege as going beyond anything that is essential, it is generally recognised that it is impossible to regard his only proper functions as a member as being confined to what he does on the floor of the House itself.
So is the act of claiming expenses and all that is consequent and ancillary thereto caught by the phrase 'proceeding in parliament'?  We will wait and see..........
We will also have to see if the Speaker appoints counsel to intervene in any criminal prosecution to uphold the privileges of Parliament (as has been done before) or whether he will leave the defendants to the mercy of the Crown Court Judge.

Accused MPs argue they are above the law - Times Online

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