REGINA. -and- Lord Hanningfield OBSERVATIONS ON BEHALF OF THE HOUSE OF LORDS AUTHORITIES 1

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1 IN THE CROWN COURT AT SOUTHWARK T His Honour Judge Alistair McCreath, sitting with a jury B E T W E E N : REGINA -and- Lord Hanningfield OBSERVATIONS ON BEHALF OF THE HOUSE OF LORDS AUTHORITIES 1 1. The House of Lords Authorities have recently become aware of the dismissal application and ruling that was made in this case, and the Defendant s written submissions dated 21 st June At paragraph 32 of those submissions the Defendant invites the Court to seek clarification as to Parliament s position as to whether it is claiming exclusive cognisance over this issue. No such request from the Court for clarification has been received by the House of Lords Authorities. Nonetheless, given that the trial is due to take place imminently, these observations are provided now in advance of trial. 2. The House authorities have not sought, and do not seek, to intervene in these proceedings. It appears to the House authorities, in the light of the judgment of the Supreme Court in R v 1 These observations closely follow observations that were filed in R v Taylor (Lord Taylor of Warwick) on 18 th January In that prosecution the House authorities did not formally intervene and the proceedings were concluded without any oral submissions on their behalf (albeit written observations very similar to these observations were filed). 1

2 Chaytor and others [2011] 1 AC 684 (and for the more detailed reasons given below) that the instant proceedings can, in principle, run their course without any issue of Parliamentary privilege or exclusive cognizance necessarily arising. The House authorities therefore respectfully agree with the findings of the Court on the dismissal application 2 that the prosecution does not necessarily engage issues of Parliamentary privilege In particular, it does not appear that either the Crown or the defence seek to rely on matters to which Parliamentary privilege would attach (such as the records of the proceedings of the House of Lords or, in particular, the fourteenth Report in Session of the Committee for Privileges and Conduct into the conduct of Lord Hanningfield) or to adduce any such material in evidence. 4. Moreover, the opinion set out in paragraph 2 above is reinforced by the nature of the case. The central issues in the case appear to be (a) whether the Defendant was, in fact, undertaking the activities he claims to have been undertaking on the dates in question, and (b) whether the Defendant acted honestly when he submitted his claims (or, in other words, whether he honestly believed that he was entitled to the payments that he claimed). 5. In these circumstances, the House authorities do not anticipate that Parliamentary privilege need become an issue in these proceedings. 6. It is, of course, recognised that the position may change. As Lord Rodger observed (in the context of the House of Commons) in Chaytor at [126]: Of course, the Court can judge the situation only as it stands at present. If the trial goes ahead, it may turn out that, contrary to expectations, some issue arises which is said to touch on these core activities of MPs or of the House itself. If that were actually so, the proceedings might be trespassing on an area for which the House would claim exclusive cognizance and to which article 9 would apply. In that event the Speaker or the House authorities might seek to intervene. It would be up to the presiding judge, with the assistance of counsel, to decide what should be done. In the meantime, however, there is nothing on the face of the indictments which would justify this Court in preventing the appellants trial from proceeding. 2 The House authorities were not aware of that application at the time it was made. 3 Albeit the House authorities would respectfully submit that the ambit of Parliamentary privilege is rather broader than indicated in the Court s judgment see further below. 2

3 7. In the event that an issue of privilege arises the House authorities are content to leave the resolution of that issue to the Court on the basis of submissions from the prosecution and defence. The House authorities would not seek proactively to intervene at first instance. If any issue of principle were to arise on appeal then the appropriateness of an intervention would be reconsidered (cf the observations of Rose LJ in Re Pinochet Ugarte (Habeas Corpus) (2000) 97(1) LSG 24 and see Blackstone s Criminal Practice at D3.37 for the undesirability generally of an intervention at first instance). 8. That said, if the Court considers that submissions on behalf of the House Authorities on any particular issue that arises in the course of the trial would assist then all efforts would be made to place such submissions before the Court expeditiously (and in any event within 24 hours of notice being given). It is readily understood that the Court would not countenance any significant delay of the trial to await such submissions. 9. For the reasons given above it is difficult to make meaningful submissions at this stage: neither party has thus far sought to adduce material which engages Parliamentary privilege and it is not currently clear precisely how such an issue might arise. Any submissions would be hypothetical and speculative. The following tentative observations are made subject to those caveats. 10. As observed above, the central issues in the case do not raise questions of Parliamentary privilege. The question of whether the defendant s account of what he did on the days in issue is correct is a question of fact for the jury. The House does not claim exclusive cognizance in relation to this and it does not raise any other issue of Parliamentary privilege. It will no doubt depend on the jury s assessment of whether the Crown have established, to the requisite standard of proof, that the defendant s accounts are incorrect. The question of whether the claims were honestly made is, again, an issue of fact for the jury. Again, the House does not claim exclusive cognizance in relation to this and it does not raise any other issue of Parliamentary privilege. It is possible that in relation to this the parties may seek to rely on evidence as to advice that the defendant was or was not given by other peers acting in a nonofficial capacity. Again, that would not raise a question of privilege. 3

4 11. It is conceivable that witnesses or representatives will canvass matters more broadly than is necessary for a narrow investigation of the defendant s honesty. Whether any particular question or piece of evidence is relevant and, for that reason, prima facie admissible is entirely a matter for the Court. A question of Parliamentary privilege could only arise if the question or evidence is otherwise relevant (because otherwise it would be inadmissible on the grounds of irrelevance and privilege would not need to be considered). 12. As part of his claims, the Defendant certified that he had carried out Parliamentary work. As explained above, there is no difficulty with an enquiry into the honesty of those certifications. It is conceivable that one or other of the parties may wish to debate whether certain activities amount to work 4. It is respectfully submitted that the real issue is whether the Defendant honestly believed that he was undertaking work, not whether he was, in fact, undertaking work. If, however, the Court considers that the issue is relevant, then no question of Parliamentary privilege arises. The question of whether something amounts to work is (if relevant) entirely a matter for the jury. 13. Privilege would, however, potentially arise in relation to matters for which the House is entitled to claim exclusive cognizance. Such matters include proceedings on the floor of the House, proceedings of Select Committees, the investigation undertaken by the Commissioner for Standards, the proceedings of the Committee for Privileges and Conduct and the Committee s report. They also include the question of what does and does not amount to Parliamentary work. These are all part of the core activities of the House, are covered by privilege and are matters in respect of which the House would be entitled to claim exclusive cognizance 5. 4 For this part of the submission, the adjective Parliamentary, is deliberately omitted. The question of whether a particular activity involves work is necessarily an antecedent issue to whether it involves Parliamentary work. The meaning of work does not engage any question of Privilege and so if that is relevant there is no difficulty. However, for the reasons given below the special meaning applied by the House of Lords to the words Parliamentary work in this context is a matter for the exclusive cognizance of the House. 5 But this is all likely to be acutely fact sensitive. In particular, the House is anxious not to cause any disruption to the court proceedings. In deciding whether to claim exclusive cognizance in respect of a particular matter it would wish to consider the detail of that matter, and it would wish to take account of the Court s views of the relevance of the particular matter. It is a long standing convention that the House seeks to avoid asserting its privileges in such a manner as to unnecessarily hamper the course of criminal proceedings. 4

5 14. It is respectfully submitted that this is self-evident so far as proceedings on the floor of the House and in Committee are concerned. It may, however, assist to explain the point in relation to (a) the position of the Clerk, and (b) the concept of Parliamentary work in a little more detail. 15. Exclusive cognizance is a broader concept than the narrow form of Parliamentary privilege that is enshrined in Article 9 of the Bill of Rights. It is the right of the House of Lords (and, for that matter, the House of Commons) to be the sole judge of the lawfulness of their own proceedings, and to settle or depart from their own codes of procedure. (see Erskine May, 24 th edition, at p227 copy attached). It is for the Courts (not Parliament) to determine whether a particular issue comes within the scope of Article 9 of the Bill of Rights. It was therefore entirely for the Court to determine on the dismissal application (and will, if necessary, be for the Court to determine in the course of the trial) whether Article 9 is engaged. The House Authorities do not seek in any way to question the Court s conclusion on that narrow issue. Where, however, a matter concerns the internal procedures of Parliament, then that falls within the exclusive cognizance of Parliament which it is for Parliament alone (not the Courts) to determine and regulate. Such matters may not be reviewed by the Courts see Bradlaugh v Gosset (1884) 12 QBD 271, R v Graham Campbell ex. parte Herbert [1935] 1 KB 594, McGuiness v United Kingdom 1999 (Application 39511/98). 16. The Clerk is head of the House administration, acts as the Accounting Officer of the House, and is the principal procedural adviser to the House. There is absolutely no objection to the Clerk giving evidence or to him explaining the basic functions and procedures that are involved in making the types of claim that were made by the Defendant (if those matters are relevant and cannot be dealt with by way of admissions). However, setting the rules of the scheme of financial support for Members is for the House alone. It is the respectful view of the House authorities that the Clerk s views as to what does or does not amount to Parliamentary work should not (and need not) be questioned in Court. 17. If a clear view is taken of relevance then it is respectfully submitted that such issues need not arise. The Clerk s views as to what does or does not amount to Parliamentary work are not probative of the question of whether the Defendant honestly believed that he was entitled to make the claims that form the substance of these proceedings. The position might be different 5

6 if there was some evidence that the Clerk (or somebody else) had explained to the Defendant what the Clerk did and did not believe amounted to Parliamentary work and if the Defendant had purported to rely on that explanation. However, that is not this case. 13 th July 2016 JEREMY JOHNSON QC 6