The Maria Miller expenses case has raised the issue of why members of the UK Parliament “mark their own homework” regarding their own ethical issues. Calls have been made to give lay members (ie non-MPs) on the Commons Standards Committee a vote on breaches of expenses rules – or to take the issue away from MPs altogether. Further, the idea of allowing MPs’ constituents to recall and “sack” MPs if not satisfied by their performance has also been raised.
Conservative MP Geoffrey Cox QC has warned against siren voices demanding a watering down of parliamentary privilege as a result of the expenses affair. That would be a dangerous constitutional change from the position in which MPs order their own affairs. If outsiders interfere “it can have the power to change history” he told the BBC’s World At One. It is a constitutional issue.
Fundamentally Cox is right. The privilege the House of Commons has to order its own affairs goes back to one of the earliest struggles with James I – who was no fan of the Parliament he was forced to work with when he became King of England in 1601.
He is reported to have told a Spanish ambassador: “The members give their opinion in a disorderly manner. At their meetings nothing is heard but cries, shouts and confusion. I am surprised that my ancestors should ever have permitted such an institution to come into existence.”
Little has changed but ultimately James nevertheless established his Parliament’s privilege after a conflict over the election as MP for Buckinghamshire of Sir Francis Goodwin in 1604. Goodwin was an “outlaw” meaning he had failed to answer outstanding summonses to court . Two “outlawry” cases were apparently outstanding involving debts of £60 and £16. Goodwin argued that the legal proceedings had not prevented him from sitting in the House in parliaments since those cases – in 1597 and 1601. It was pointed out that numbers of members with outstanding “outlawries” against them had sat in the House in the past. Nevertheless, on this occasion the Court of Chancery, in effect a proxy for the King, barred Goodwin, issued a new writ for the Buckinghamshire election and his opponent, Sir John Fortescue, was elected. Sir John happened to be a member of the king’s Privy Council – so the King had got his own man into Parliament.
The Commons, however, insisted Goodwin should take the seat in Parliament, declaring that the membership of the House was to be controlled by the members of the House and certainly not the king or his Lord Chancellor in Chancery. That was one of its privileges. For James the issue was equally clear: While he had “as great a desire to maintain their privileges as any prince had, or as themselves”, nevertheless Parliament “derived all matters of privilege from him and by his grant”, so by implication should not use those privileges against him. The privileges were offered by the king’s grace; they were not the right of Parliament. Election returns went through the King’s court of Chancery so it was right that they be corrected there if there were problems.
This was the position of the Commons: A legal writ was issued to hold an election, then as now. Parliament was a court. Since “all returns of writs were examinable in the court where they are returnable”, Parliament should examine the returns (ie the result of the election). Chancery was “a place appointed to receive the returns, as to keep them for the Parliament, but not to judge of them”.
If this system did not exist, the Commons declared:
“when fit [suitable] men were chosen by the counties or the boroughs, the lord chancellor or the sheriffs might displace them and send out new writs until some were chosen to their liking; a thing dangerous in precedents for the time to come, howsoever [even though] we rest securely from it at this present by the now [current] lord chancellor’s integrity”.
The struggle was one about the “privileges” of Parliament, the balance of power between Parliament and the king. Arguably, wresting control of elections from the executive – the king then, the government now – was one of the crucial building blocks of the later more democratic House of Commons.
In the event a compromise was found which seems to have established Parliament’s privilege in such matters. The king suggested both Fortescue’s and Goodwin’s elections be set aside and a new writ issued for the Buckinghamshire seat. The king declared that “he would confirm and ratify all just privileges” and accepted “the Parliaments of England not be bound by a sheriff’s return”.
In future such matters would go before a Committee of Privileges of the Commons – though that did not end controversy since there would always be a political battle as to who sat on the committee and therefore who had power to decide.
This committee was replaced in 1995 by the Standards and Privileges Committee with ethical and legal issues such as the Register of Members’ Interests and expenses claims as part of its brief. In 2013 as a result of the expenses scandal, the committee on Standards was separated out to oversee the work of the Parliamentary Commissioner for Standards – and was allowed to include at least two lay members (there are currently three). But they do not have a vote so the privilege of the Commons to order its own affairs remained largely untouched.
It will be remembered that various parliamentarians in 2010 argued that criminal prosecutions for false accounting in expenses claims should not proceed because of parliamentary privilege. David Chaytor and others (Elliot Morley, Jim Devine and Lord Hanningfield) claimed the regulation of expenses claims had been within the “exclusive cognisance” of Parliament and that, thanks to the 1698 Bill of Rights, what happens in Parliament, stays in Parliament. They cited Article 9: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” – claiming “proceedings” included the members’ day-to-day running of things – including their expenses claims.
But the Supreme Court decided that “neither article 9 nor the exclusive cognisance of the House of Commons poses any bar to the jurisdiction of the Crown Court”.
Lord Phillips notes in his judgment that there is an issue about how widely “proceedings” can be drawn to qualify as privileged, a matter addressed in The Joint Committee on Parliamentary Privilege Report HL paper 43-1, HC 214-1 (1998-99).
Under the heading “Right of each House to administer its internal affairs within its precincts” it notes at para 247:
“The dividing line between privileged and non-privileged activities of each House is not easy to define. Perhaps the nearest approach to a definition is that the areas in which the courts ought not to intervene extend beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly. One example is the Speaker’s decision on which facilities within the precincts of the House should be available to members who refuse to take the oath or affirmation of allegiance. Another example might be steps taken by the library of either House to keep members informed upon matters of significant political interest. Such steps, if authorised by the presiding officer of the House, would properly be within the scope of the principle and not amenable to orders of the court.”
So how are new Acts of Parliament to be treated? Do they apply to Parliament? Phillips said: “Following Ex p Herbert [in which AP Herbert sought a prosecution of the Parliamentary Kitchen for serving alcohol outside licensing hours; he failed and the drinking continued] there appears to have been a presumption in Parliament that statutes do not apply to activities within the Palace of Westminster unless they expressly provide to the contrary. That presumption is open to question. In 1984 three Law Lords, Lord Diplock, Lord Scarman and Lord Bridge of Harwich, on the Committee for Privileges expressed the view that sections 2-6 of the Mental Health Act 1983 applied to members of the House of Lords, although the Act did not expressly so state.” (Chaytor para 78)
He noted that Parliament has claimed no privilege for crimes such as theft or violence that occur within the Palace of Westminster. “The House does not assert an exclusive jurisdiction to deal with criminal conduct, even where this relates to or interferes with proceedings in committee or in the House. Where it is considered appropriate the police will be invited to intervene with a view to prosecution in the courts. Furthermore, criminal proceedings are unlikely to be possible without the cooperation of Parliament.” (Para 83)
He concluded: “Parliament by legislation and by administrative changes has to a large extent relinquished any claim to have exclusive cognisance of the administrative business of the two Houses. Decisions in relation to matters of administration are taken by parliamentary committees and it has been common ground before the Court that these decisions are protected by privilege from attack in the courts. The 1999 Report distinguishes, however, between such decisions and their implementation, expressing the view that the latter is not subject to privilege. I consider that view to be correct.” Parliament should refer criminal conduct to the police and assist police in their enquiries. The appeals by the four parliamentarians were thus rejected. Soon after they appeared in court and received jail sentences.
So, as the law stands, parliamentary privilege does not for the most part constitute immunity (as it does in other jurisdictions) for criminal offences nor a form of “benefit of clergy” in which MPs face other MPs as their judges rather than the courts that the rest of us must face.
Miller might be regarded as any employee who has breached rules at work. – to be dealt with internally and/or passed to the prosecuting authorities if it is felt she has breached the law of the land. Parliament has no right to hide anything from the police or to stand in their way should crime be suspected. An AP Herbert figure could even institute proceedings.
To use this case, however, to eat away at parliamentary privilege would be a big step to take for passing political purposes – as was allowing police to raid Damian Green’s Commons office over material he had in his possession as an MP.
To extrapolate from the current case and allow constituents’ the right of recall would be a further breach in the protections for MPs and their independence. It would imply a different sort of democracy, one of delegated MPs at the beck and call of voters and their day to day passions. It would also be largely unworkable since MPs in marginal constituencies would be at risk of constantly battling recalls on spurious grounds – distracting them from their proper work.
Perhaps a modern democracy should not rely on principles dating back to the 17th century – but who could you trust to design a new system? Relentless attack by the press coupled with the fear of facing the electorate can often work wonders – as in the case of Maria Miller herself.