B e f o r e :
R –v- David Chaytor
R-v- James Devine
R –v- Lord Hanningfield
Crown Copyright ©
 ‘These authorities demonstrate that the law of Parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our Constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the courts’.
(i) The scheme for the payment of expenses as prescribed by resolutions of the Houses of Parliament is covered by privilege either under Article 9 or as part of the ‘exclusive jurisdiction’ of the House. This means, for example, that the High Court would have no power to judicially review the scheme.
(ii) The administration of the scheme by officials in the fees office under the supervision of a committee is also covered by Parliamentary privilege. Although I am prepared to make my decision on the basis of this concession, I think that it merits re-consideration in the light of what is said by the Joint Committee on Parliamentary Privilege at para. 248: ‘Occasionally management in both Houses may deal with matters directly related to proceedings which come within the scope of article 9. For example, the members’ pension fund of the House of Commons is regulated partly by resolutions of the House. So too are members’ salaries and the appointment of additional members of the House of Commons Commission …. These resolutions and orders are proceedings in Parliament, but their implementation is not’. Consideration should also be given in this context to what Malcolm Jack the Clerk of the House of Commons said in his memorandum to the Speaker dated 9th September 2009 (to be found in the joint bundle of authorities provided to me.). On the face of it the Prosecution is conceding that the privilege is wider than the House contends that it is. The views of the House are, of course, not binding but they need to be careful considered when it is their privilege which is under discussion. Despite my reservations I will treat the concession as being correctly made for the purpose of my decision.
(iii) While an instinctive reaction might be that, while honest claims are covered by privilege, dishonest ones are not, the Prosecution accept that, if the submission of forms by an MP is covered by privilege then dishonest claims are also covered. That is because, in order to prove dishonesty, the Prosecution would have to question the document, which is not permitted if it is covered by privilege. I am satisfied that this concession is properly made. As I said at the outset, if the submission of the form is covered by privilege, any trial of these Defendants would involve questioning the contents of the form.
(i) It is part of the expenses scheme and as such is part of the business of Parliament and comes under its exclusive jurisdiction (the wider privilege) or under Article 9, or
(ii) It comes within the ambit of proceedings in parliament as part of the member’s core activity or is so closely associated with it that it is covered by Article 9.
(a) the giving of evidence before either House of a committee;
(b) the presentation or submission of a document to either House of a committee;
(c) the preparation of a document for the purposes of or incidental to the transacting of any such business.
It is not necessary to deal with the other subsections, but on the basis of these, it is argued by the Defence that that definition would cover the preparation of a claim for expenses as that is incidental to a member carrying out his duties in the House.
Mr Justice Saunders
Southwark Crown Court
11 June 2010.