R v Chaytor and others

Parliamentary privilege does not prevent the criminal courts from trying conduct which concerns the administration of Parliament but is not part of its legislative or deliberative processes. Article 9 of the Bill of Rights 1689 primarily protects freedom of speech and debate. An ancillary activity falls within parliamentary proceedings only where its connection with Parliament’s core business justifies absolute protection.

Exclusive cognisance protects each House’s control of affairs closely and directly connected with its constitutional functions. It may be waived or relinquished and does not ordinarily extend to the implementation of administrative arrangements. Accordingly, submitting expenses claims to parliamentary officials is an administrative activity. Criminal proceedings concerning allegedly false claims neither question parliamentary proceedings nor invade an area reserved exclusively to Parliament.

Three former Members of the House of Commons were committed for separate Crown Court trials on charges of false accounting under section 17(1)(b) of the Theft Act 1968. The charges concerned allegedly false parliamentary expenses claims submitted to the House of Commons Fees Office.

A single preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996 considered whether the prosecutions were barred by parliamentary privilege. Saunders J rejected that contention. The Court of Appeal dismissed the ensuing appeals in [2010] EWCA Crim 1910.

The central issue before the Supreme Court was whether trying the appellants would infringe article 9 of the Bill of Rights 1689 or the House of Commons’ exclusive cognisance of its own affairs.

The appeals were dismissed unanimously. Lord Phillips and Lord Rodger gave substantive reasons. Lord Hope, Lady Hale, Lord Brown, Lord Mance, Lord Collins and Lord Kerr agreed with both judgments. Lord Clarke agreed with the result and added separate observations concerning exclusive cognisance.

1. The courts ultimately determine the existence and extent of parliamentary privilege. They are not bound by the views of a House, its committees or its officers, although authoritative parliamentary views deserve careful regard.

2. Article 9 of the Bill of Rights 1689 principally protects freedom of speech and debate in the Houses and their committees. Those are Parliament’s core legislative and deliberative activities. Whether an act outside those formal proceedings is protected depends on the nature and closeness of its connection with them and whether denying protection would adversely affect Parliament’s core business. The absolute character of article 9 favours confining it to that constitutional purpose.

3. Submitting an expenses claim to the Fees Office was administrative. It did not form part of collective deliberation or decision-making and was not incidental to those activities in the relevant sense. Judicial scrutiny of such claims would not inhibit speech, debate, voting or other parliamentary functions. Section 13 of the Defamation Act 1996 did not enlarge article 9: its references to incidental acts and submitted documents concerned material prepared for parliamentary deliberations, not expenses claims made to administrators.

4. Exclusive cognisance is each House’s right to manage affairs reserved to it without outside interference. Unlike article 9, it can be waived or relinquished. Its modern scope extends only to matters so closely and directly connected with parliamentary proceedings that judicial intervention would conflict with Parliament’s position as a legislative and deliberative assembly. Decisions establishing and governing an internal scheme may be protected, particularly against judicial review, while the scheme’s implementation is ordinarily administrative and justiciable.

5. The criminal law applies within Parliament’s precincts. Parliament’s power to punish conduct as contempt may overlap with the criminal courts’ jurisdiction but does not ordinarily exclude it. The prosecutions did not require the courts to review parliamentary resolutions or committee decisions. They concerned whether information supplied to the Fees Office was fraudulent. Parliament had also cooperated with the investigation rather than asserting exclusive jurisdiction.

6. There was therefore no bar to the Crown Court trying the charges. If a particular issue arising at trial were later shown to intrude upon protected parliamentary activity, the trial judge would have to determine how it should be addressed.

Lord Clarke additionally considered that exclusive cognisance belongs to Parliament rather than individual Members. In his view, a Member cannot invoke it after Parliament has waived or relinquished it.

• United Kingdom Supreme Court: In R v Chaytor and others [2010] UKSC 52, the court unanimously dismissed the appeals and upheld the conclusion that parliamentary privilege did not bar the prosecutions.
• Court of Appeal (Criminal Division): In [2010] EWCA Crim 1910, the court dismissed the defendants’ appeals from the preparatory ruling. It later certified a point of law of general public importance but refused permission to appeal.
• Southwark Crown Court: At a preparatory hearing on 11 June 2010, Saunders J ruled that neither article 9 nor exclusive cognisance prevented the defendants from being tried.