Duncan Hamilton: Don't blame expense scandal MPs for grabbing legal lifeline

Published on Saturday 13 March 2010 19:32

HAVING left politics for law, I find myself divided over the criticism of the three Labour MPs and one Tory Peer who now seek to challenge whether the courts have jurisdiction to hear their cases. The real loss is that events at Westminster Magistrates' Court have rekindled outrage at the expenses scandal just as politics seemed to have recovered focus on the coming election. With four men charged, a nation senses blood.

The charges under the Theft Act are well-known. Elliot Morley is charged with claiming mortgage interest payments when he no longer had the mortgage. David Chaytor is charged with claiming payments for renting a property he already owned. Jim Devine is charged in relation to false invoices, and Lord Hanningfield with false accounting, including claiming for overnight expenses in London when he wasn't in London overnight. All charges are vigorously denied.

Guilt or innocence is a matter for the courts but even the airing of the charges has unleashed a feral public reaction. Particular outrage was reserved for the attempt by the parliamentarians to challenge the jurisdiction of the court. They did so on an interpretation of the Bill of Rights passed in 1689 and in particular on the basis of Article 9 which (with apologies to this paper's sub-editors and in defiance of spell check) I quote in its original form: "That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament."

Unsurprisingly, most people feel trying to classify the alleged claiming of mortgage interest payments on a house with no mortgage as being covered by "proceedings in parliament" is something of a stretch.

In truth, the leap from the assertion of the rights of parliament more than 320 years ago because of efforts "to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome" to convincing a court that MPs charged under the Theft Act should avoid facing criminal charges in a public court is legally ambitious. For the accused, the attraction – of avoiding court and instead submitting to the disciplinary sanction of a parliament which has not even fined a member of either House in modern times and hasn't expelled someone for more than 60 years – is obvious.

But are they wrong to try? Well, that depends on what you think they are trying to avoid. Given that the three MPs aren't standing again and the peer hasn't ever had to concern himself with the nuisance of an electoral mandate, I assume they couldn't care less about public opinion. And frankly, if I was facing seven years in the pokey, I suspect I too would be climbing aboard any legal life-raft in the vicinity. My point is not to mock, simply to temper our sense of outrage that these men have chosen to use every argument at their disposal in defence of their liberty. There is a legal argument here. They are fully entitled to make it. But all this – particularly the public rage if the court finds for the accused on the issue of jurisdiction – was avoidable.

The issue of parliamentary privilege should have been resolved long ago. In 1997, the new Labour government set up the Joint Committee of Parliamentary Privilege. It was tasked with modernising parliament and making recommendations. In 1999, it did just that, while also setting out the modern interpretation of Article 9. That related both to privilege for what was said in parliament (which is not at issue in these cases) and also what is referred to as "exclusive cognisance", which essentially is "exclusive jurisdiction" over the breach of internal procedures. But that is the point – it is about internal affairs, not crimes which belong in the public courts.

That's why Gordon Brown can't just snap one day and wander across to David Cameron, grab him by the back of the head and repeatedly smash his face off the dispatch box. Tell you what, though, in an era of BBC cuts, that would be a guaranteed way to drive up ratings for the Parliament Channel.

Anyway, the point is that the joint committee concluded that any confusion, doubt or lack of certainty should be removed by statute. The explicit recommendation was that Labour should legislate on the issue. It could and should have done so a decade ago and it would have had a bill through with all-party agreement. Instead, we now face the further corrosion of trust in a political system already utterly discredited in the eyes of the public.

That does not for a minute excuse the conduct of any MP, whether charged or not, implicated in the recent expenses scandal. But before you condemn the accused for challenging the jurisdiction of the court, just remember that not only is it their right to do so but this confusion was specifically predicted in 1999, recommendations were made to avoid this mess with all the attendant damage to parliament, and nothing was done.

By contrast, I have no sympathy for the sense of genuine bewilderment felt by some of the accused. One said "I don't understand why I was picked on" while another "felt like he had been singled out". What planet are these folks on?

We should accept their right to employ whatever legal argument they wish in the course of their trial. But please, spare us the claims of victimisation. At absolute best for these men, big mistakes with public money were made but no crime was committed. Whatever the ultimate legal verdict, they would be well advised to avoid any appeal to the court of public opinion.