R v Chaytor and others

Key legal principles and grounds of decision.

The Supreme Court held that neither article 9 of the Bill of Rights 1689 nor the doctrine of the exclusive cognisance of Parliament bars the criminal prosecution of Members of Parliament for allegedly dishonest expense claims. The court treated the submission of allowances claims to the Fees Office as administrative activity rather than as "proceedings in Parliament" for the purposes of article 9, and concluded that Parliament has substantially relinquished exclusive cognisance over administrative matters of this kind. The Theft Act 1968, section 17(1)(b), therefore applies to the alleged false accounting in the circumstances alleged.

The court emphasised (i) that the courts are the ultimate arbiters of the scope of privilege though they will give careful regard to authoritative parliamentary views; (ii) that article 9 is principally directed to freedom of speech and core deliberative proceedings in the Houses; and (iii) that management and administrative implementation of allowances are not ordinarily within the exclusive province of Parliament and may be the subject of criminal inquiry where appropriate.

Background and procedural posture.

Three former Members of Parliament were committed for trial on charges of false accounting contrary to section 17(1)(b) of the Theft Act 1968 in connection with parliamentary expenses submitted to the Fees Office of the House of Commons. Each defendant contended that prosecution would infringe parliamentary privilege and that the Crown Court therefore lacked jurisdiction. The issue was argued initially at a preparatory hearing before Saunders J (Southwark Crown Court) who rejected the privilege claim. The Court of Appeal dismissed the defendants' appeals ([2010] EWCA Crim 1910). Permission to appeal to the Supreme Court was subsequently granted and the appeals were heard together.

(i) Nature of the claim / relief sought.

• The defendants sought a ruling that criminal proceedings should not be permitted because they offended either article 9 of the Bill of Rights 1689 or the exclusive cognisance of Parliament.

(ii) Issues framed by the court.

• Whether the submission of expenses claims to the Fees Office constituted "proceedings in Parliament" for the purposes of article 9.
• Whether the exclusive cognisance of Parliament precludes judicial determination of the alleged criminality of such claims, and if so whether Parliament had in practice relinquished that exclusive cognisance over administrative matters.
• Who is the appropriate arbiter as to the scope of privilege: the courts or Parliament, and what weight should be given to parliamentary statements?

(iii) Concise account of reasoning on the issues.

The court started from the proposition that, although parliamentary committees and officers may express views on privilege, the boundaries of privilege are ultimately for the courts to determine. On article 9 the court concluded that the primary object of that provision is to protect freedom of speech and debate in the Houses and that "proceedings in Parliament" covers core collegiate actions of the House and its committees; the submission of claims to the Fees Office is administrative and not part of such proceedings, so article 9 does not apply. The court rejected arguments that a narrow construction of privilege would be nugatory in practice; it found persuasive precedent and parliamentary reports supporting a confined scope.

On exclusive cognisance the court explained that Parliament historically retained some exclusive privileges but that, by legislation and administrative practice (including the establishment of the Commission, the Fees Office arrangements and the Parliamentary Corporate Bodies Act 1992, and more recent cooperation with police inquiries), Parliament has in practice and by agreement allowed courts and statutory bodies to adjudicate many administrative matters. The court distinguished between protected decisions of parliamentary bodies and the implementation or administration of those decisions, holding that the latter are only exceptionally protected. It concluded that the investigation and prosecution of alleged dishonest expense claims did not fall within the exclusive cognisance of Parliament.

The court also noted that Parliament had cooperated with the police and prosecuting authorities and that the House had not asserted exclusive privilege in these cases; that cooperation was an important factor supporting the court's exercise of jurisdiction.

Disposition. The appeals were dismissed and the trials were permitted to proceed.

Appeal dismissed. The Supreme Court held that neither article 9 of the Bill of Rights 1689 nor the exclusive cognisance of Parliament prevented the Crown Court from trying Members of Parliament on charges of false accounting in relation to expenses claims. The submission of claims to the Fees Office is administrative, not part of "proceedings in Parliament", and Parliament had effectively relinquished exclusive cognisance over the administration of such matters and cooperated with criminal investigation; accordingly criminal jurisdiction was not ousted.

Southwark Crown Court (preparatory hearing): Saunders J (11 June 2010) ruled against the defendants. Court of Appeal dismissed the appeals ([2010] EWCA Crim 1910) (Lord Judge CJ, Lord Neuberger MR, Sir Anthony May P). Permission to appeal to the Supreme Court was subsequently granted and the appeals were heard in the Supreme Court, which dismissed them on 1 December 2010.