Friday, March 12, 2010

The Tyrant's Gambit

Milosevic, Hussein, Charles I, and many others have refused to recognise the jurisdiction of the various courts that tried them. Charles I found his refusal to enter a plea taken pro confesso, i.e. as a guilty plea. He was executed, and that was the end, for a short while, of the idea that rex WAS lex. Still, Charles II sorted out those uppity lawyers, mainly by killing them in a variety of horrible ways.

Geoffroy Robertson QC has written many books dealing with war crimes, all of which deal with the refusal by a toppled leader to recognise the jurisdiction of the court to try him.

The Bill of Rights holds that "proceedings in Parliament" shall not be discussed before a court. The three members of the lower House, and the one peer to have been charged in what has become known simply as "The Expenses Scandal", are all backing the same horse. They will argue (and the issue will no doubt be decided as a preliminary issue at the beginning of the trial proper) that their claims for expenses to which they may or may not have been entitled were "proceedings in Parliament", and that the principle of the separation of powers should not be infringed, and the judiciary should not interfere with the legislature.

MPs are free to make all sorts of slanderous statements on the floor of the House, their freedom of speech is well-protected, and rightly so. Where, though, is the line to be drawn? Is the separation of powers a constitutional principle to which the judiciary are so highly attached that they will cast the defendants upon the (apparently abundant) grace of their internal disciplinary proceedings?

I would tentatively suggest that the highest courts in the land will be asked to rule on this issue only when we are well into the next parliament, however that may be constituted. Much ink will no doubt be spilt. All I will say at this very early juncture is this; claiming many hundreds of pounds a month in interest repayments on a mortgage that was long-since paid off is clumsy at best and criminal at worst. It certainly won't win you many votes.

I will also add that my cockles were well and truly warmed when I heard that the application for the men to remain in the well of court was given the short shrift it deserved. Such applications rarely succeed, unless the defendant is in a wheelchair, deaf, or has some other inherent incompatibility with being in the dock. The Right Honorable (sic) gentlemen had no such difficulties, as far as I am aware.

Given the publicity that will inevitably attach to the first appearance by members of parliament before the criminal courts since the 17th century, it seems that they and their lawyers failed properly to consider the public relations ramifications of such an application.


  1. Considering that it was the parliamentary authorities that called in the police, I think that this has been dealt with by parliament. Therefore the idea of any privilege has been neatly sorted out pre trial. Was this not the same argument used in the Damien Green Affair.

    Joseph K.

  2. I was surprised that Baroness Uddin won't be charged. From the BBC news site.
    "But he said "only or main residence" had not been defined and last November the Clerk of Parliaments Michael Pownall had set a threshold that peers must visit their "main home" at least once a month."
    Why not charge her over the expenses claimed up to last November?
    And I thought there was a legal precedent for using the everyday meaning of a phrase, if there was no exact legal definition.

  3. Thank God for the good old Senior Magistrate doing his job!
    We all know that there has been fiddling a plenty in the old Palace of Westminster, however, the fiddlers still can't see it. Whilst it is true to say those charged are really scape-goats, the reality is that the establishment could not counternance a bus load of there members up before the beak.

    The House of Commons might be bad, but the House of Lords is much worse. You have to wonder what sort of idiot said they could nominate anywhere as there home if they sytayed there one in a lifetime. DO THESE BUGGERS NOT GET IT( A BIT LIKE CHARLES I) THAT THE GAMES UP AND THE PEOPLE WILL NOT STAND FOR IT ANY LONGER..


  4. 1] Persons on bail to attend court are required to surrender to the dock. The District Judge was right and I am pleased that he stood by this principle. Why should they have been treated any differently to other defendants?

    2] The Bill of Rights 1689 is essentially a statute. The question seems to be who may interpret the phrase "proceeding in parliament". If only parliament is permitted to define what is such a proceeding then the jurisdiction of the ordinary courts would be ousted and these charges would have to be discontinued. To my mind that would be an appalling outcome but might be a possible outcome.

    If the ordinary courts may interpret the phrase then the next question is how will they interpret it. Submitting an expenses claim cannot realistically be argued to be anything to do with either speech or debate. If a "purposive approach" to interpretation is adopted then the purpose of the Bill of Rights must be to enable members to say and do things for the proper purposes of parliament without fear of action against them. The Bill cannot have been intended to provide a cloak for any form of dishonesty or to provide members with some modern form of sanctuary for anything they do provided that it is done in somewhere in parliament.

    3] The trial of Charles I was interesting. He probably had a fair point in claiming that parliament had no right to try him. Under the feudal system of government a lord could not be impeached in his own court. Did not that rule actually persist until the Crown Proceedings Act 1947? Of course, Parliament had won the civil war and Charles had lost it. Hence, one can see an element of victor's justice.

    Similar arguments about victor's justice were raised in connection with the Nuremberg trials.

    4] I looks as if the expenses scandal is actually going to have little or no effect on the outcome of the forthcoming election. Persons of all parties have been in the trough and so the issue is pretty much neutral.

  5. On a detail, it's our practice to put someone in the dock if they're in for sentencing following an all-options PSR, or for plea when on a suspended prison sentence, but in most other circummstances, the defendant stands in the back row of the well of the court. Is the 'if bailed, then dock' principle a London thing?

  6. It seems to me that lying and cheating are par for the course when it comes to most left-wing politicians.

  7. Baldybeak - don't think it is a London thing at all. The practice in English criminal courts is that those bailed to attend must surrender to the dock. Persons summonsed may sit near their lawyer (if they have one).

    Harriet - why do you confine lying tand cheating to "left wing" politicians. Politicians of all persuasions lie when their lips move.

  8. Hang on Harriet, haven't you got it wrong? don't all politicians lie and cheat- isn't it a qualification for the job?

  9. Gordon Brown is notorious for his temper. Suppose in a fit of temper, say, he killed the leader of the opposition with the mace!
    Would he be able to claim that he could not be prosecuted and that is was solely a matter for parliament? With his majority he'd get away with it!

  10. anything is possible in this parallel unviverse

  11. ObiterJ, if the Bill of Rights is a statue and only Parliament can interpret it then that must surely apply to all statutes as they are all the result of proceedings in Parliament. If that were a correct interpretation of the Bill then it must mean that no Act of Parliament can be interpreted by any court of law and as such the vast majortity of the laws we have in this country are unlawful!

    On another point, if the Lord who has been charged is so keen to be tried within Parliament then can he not simply chose to be tried by a jury of his peers, i.e. members of teh House of Lords? I thought that this was something Lords were allowed to do? May be that it's changed though.

    On a final point, I hope that somebody is looking at how these men are funding their cases. They do not qualify for legal aid and, as we are always being told MP's don't earn much, I do wonder how they managed to afford a member of Matrix Chambers who claims to be a leader in this area of law.

  12. Doesn't this lead to the conclusion that we should stop messing about and get going with a written constitution, fit for a modern day society. All this nod and a wink stuff is way out of date

  13. Phatboy - the process of interpreting a statute is not a "proceeding in parliament". The ordinary courts of law interpret statutes on a daily basis. However, the courts may not question the processes in parliament which led up to the legislation being enacted though, since Pepper v Hart, the courts may sometimes look at what was said in parliament in order to assist them to interpret a statute.

    What is a "proceeding in parliament"? Obviously debates in the Chamber and committee business are covered. However, beyond that, there is not always a clear-cut answer. The "Constitutional Law" books contain several (very soporific) pages on it. Personally, I would think that submitting expense claims would not be seen as a "proceeding in parliament" but you never know!

    A peer may no longer elect to be tried by the House of Lords. That right was abolished by the Criminal Justice Act 1948. The last such trial (Lord de Clifford) was in 1935.

  14. ObiterJ, your original line was: "2] The Bill of Rights 1689 is essentially a statute. The question seems to be who may interpret the phrase "proceeding in parliament"."

    My point is that if the courts cannot interpret what is or is not a proceeding in parliament (i.e. a phrase contained within a statute) then it follows that they cannot interpret any act. Obviously this is incorrect and so the argument that the court cannot decide what is a proceeding in parliament also fails.

    So it was 1948 that a peer ceased to be allowed a trial in the Lords? Well, that's me only 62-years out of date. A personal best!