Chaytor & Ors, R v

Article 9 of the Bill of Rights 1688 protects freedom of speech and genuine proceedings in Parliament. Its absolute immunity is confined to activities that are integral to Parliament’s legislative and deliberative functions, or necessary to protect its established privileges.

The courts decide whether privilege exists. The fact that conduct occurs within Parliament, or concerns an administrative scheme created by a House, does not itself attract immunity.

An individual member’s claim for expenses is an ancillary administrative act. It is not a proceeding in Parliament or an exercise of a member’s core parliamentary functions. A prosecution for a dishonest claim may therefore proceed without impeaching or questioning Parliament.

Four defendants, three former members of the House of Commons and a member of the House of Lords, were due to stand trial for false accounting in connection with claims for parliamentary expenses. At a preparatory hearing, Saunders J held that parliamentary privilege did not bar the criminal proceedings.

The defendants appealed, contending that their claims formed part of parliamentary proceedings and that prosecution would infringe article 9 of the Bill of Rights 1688. The Court of Appeal also considered whether reporting restrictions on the appeals should be lifted under section 37 of the Criminal Procedure and Investigations Act 1996.

1. The appeals were dismissed. The court upheld Saunders J’s ruling that no parliamentary privilege barred the proposed prosecutions.

2. Article 9 of the Bill of Rights 1688 gives comprehensive and absolute protection to freedom of speech and to genuine proceedings in Parliament. That exceptional protection is confined to Parliament’s core legislative and deliberative activities and to the protection of its established privileges. It does not confer immunity merely because conduct occurred within the physical precincts of Parliament.

3. The court, not Parliament, decides whether a privilege exists. Parliament retains control over matters that are truly privileged and may discipline its members, but ordinary criminal conduct is not thereby withdrawn from the criminal courts. Concurrent parliamentary and criminal processes may sometimes arise, although principles of comity and fairness will affect whether both should be pursued.

4. The expenses schemes, established by resolutions of the Houses, were distinguishable from individual claims made under them. A claim was submitted to officials performing an administrative task. It was not made in the House or to a parliamentary committee, did not engage freedom of speech, and was not a member’s real, essential or core parliamentary function. The fact that allowances assisted members to perform their public duties made claims ancillary, not privileged.

5. Accordingly, a dishonest expense claim, if proved, would be an ordinary crime. Determining whether such a claim was dishonest would not question or impeach parliamentary proceedings within article 9.

6. The court also lifted the reporting restrictions. The appeal concerned a discrete constitutional issue and did not involve evidence of alleged dishonesty. Responsible reporting would not realistically prejudice a later jury trial, while open reporting served a substantial public interest.

• Court of Appeal (Criminal Division): Dismissed the defendants’ appeals and upheld the ruling that parliamentary privilege did not preclude the prosecutions. The court also lifted reporting restrictions under section 37 of the Criminal Procedure and Investigations Act 1996.
• Crown Court at Southwark (Saunders J): At a preparatory hearing, held that the criminal proceedings were not precluded by parliamentary privilege.