Some MPs are, predictably, whining about the letters being sent to them by Sir Thomas Legg, who’s been auditing their expenses going back over the last few years. Ann Widdecombe for instance has suggested there’s a “legal question mark” over his approach to audit, and Martin Salter has suggested some MPs may “choose to mount a legal challenge”. This is surely sabre-rattling: I don’t see what legal challenge there can possibly be. It’s certainly against Parliament’s interest for them to be attempted. It’s quite clear Sir John Lyon is immune from any legal action, too – Iain Dale need not be concerned whether his findings in the case of David Wilshire will stand up in court.
Let’s take Sir John first. As Parliamentary Commissioner for Standards, he’s an officer of the House of Commons. As such, what he does in pursuance of his duties almost certainly counts as “proceedings in Parliament” for the purposes of the Bill of Rights 1689 (a very fashionable statute at the moment – vintage really is cool). Erskine May seems to think so – see para. 98 of the 1999 report of the Joint Committee on Parliamentary Privilege. If that’s right (and I think it must be), then nothing Sir John does may be impeached or questioned in any place outside Parliament – including in the courts. His work is subject to Parliamentary privilege, in other words – and Parliamentary privilege prevents legal action by an MP as much as by anyone else.
Aha! some clever legalistic types might interject. But if what he does is so wrong that it means he’s gone outside his remit – doesn’t that take him outside Privilege, so he can be judicially reviewed after all? This is familiar to public lawyers as “Anisminic” type thinking. In that case, legislation provided that the “determination” of a commission was not to be questioned in any court of law; the House of Lords decided it could be struck down by the courts however if it was so flawed as to be a legal nullity – and therefore not a “determination” at all.
This won’t help MPs, though, because even to ask whether what Sir John does is so flawed as to be a legal nullity (which is what you need to do according to Anisminic reasoning) is to question what he does. The concept of Parliamentary proceedings goes wider than the concept of a determination in the Anisminic case, in other words. Sir John is quite safe.
It’s less clear that Sir Thomas Legg has the status of being an officer of the House – though, since he has been appointed by the Members Estimates Committee, and will report to it, it seems reasonable to ask in what other capacity he could possibly be described as acting. Certainly, it would be extraordinary to suggest what he is doing does not amount to “proceedings in Parliament”. If I were one of these MPs Ann Widdecombe and Martin Salter have spoken to, I’d forget the idea of judicial review – the Bill of Rights will stop it.
By the way: can you imagine the scream of outrage there’d be from an MP if a taxpayer consituent of his or hers were to try to judicially review Sir Thomas or Sir John for unlawful leniency to the MP? You can bet they’d soon be crying Privilege, as many of them wrongly did in Damian Green’s case, and are wrongly doing in the case of the Guardian gag right now. Yet if these knights of the realm were judicially reviewable by MPs, then they’d be judicially reviewable by others. Indeed, if any MP were silly enough to attempt judicial review (paying Legg will cost less, for most of them, than a mad attack on him in the courts) then there’s no reason why constituents and expert bodies like perhaps the Taxpayers’ Alliance could not seek to intervene in the case. I doubt MPs really want that sort of thing, rather than keeping all this between themselves in their committees.
When it comes to Parliamentary privilege, MPs seem to want it all ways.
Carl Gardner2009-10-15T14:56:47+00:00
I’ve not been following the expenses stuff that closely recently, but is judicial review necessarily the option being considered by MPs annoyed by Legg? Many of them – despite the public perception of the House – are NOT lawyers, and may not be entirely sure what they’re talking about. But I thought I heard one MP – Alan Williams, possibly – talking about challenging Legg legally, and it sounded more like he was challenging Legg to get his decision enforced in the courts, rather than saying he would seek judicial review.
Alan Simpson, I think, Tom, who has apparently said:
“If he thinks that the principle of him coming in and retrospectively re-writing the rules would stand up before the courts, then I think he should test it before the courts.”
This is a silly thing for him to say: no one is saying Legg’s findings in themselves are legally enforceable, and there’s no question of Legg going to the courts. He’s not been asked or authorised to do any such thing, and I don’t think he legally could (any more than MPs can legally challenge him). He’s reporting to the Members’ Estimates Committee, as is his remit. It is MPs themselves who will enforce this internal Parliamentary matter, as has always been the intention.
So any talk of a defensive legal challenge is pure hot air. The only way any MP could get this into court is by actively mounting a legal challenge such as a judicial review – which is impossible as I’ve explained.
They certainly don’t know what they’re talking about!
I suppose if some of them dig in their heels and refuse to pay, in spite of being dewhipped, suspended from the House, voted out, all that stuff – then Parliament might have to legislate retrospectively to make these amounts legally enforceable debts. In which case, they may get their day in court after all. If Parliament had to do that, though, then it could easily legislate Legg’s maxima into the rules retrospectively, too – and MPs’ defence in the courts could be legally wiped away.
All good and interesting legal stuff but one suspects that the MPs will wish to keep this matter entirely “in house” because that is the quickest / easiest way to keep it as low key as possible and, hopefully, make it disappear from the media. Their aim would be to delay matters so that the general election intervenes. Once there is a new Parliament it is hardly likely to wish to rake over the expenses claims of members of the previous Parliament and, to be frank, quite a lot of the present MPs will not be returned by the electorate.
Yes, delay is interesting: one someone’s not in the House, what if any authority does the House have over them? Perhaps none. And since the courts don’t, either… brazen delay may appeal to some backwoods MPs.
I don’t know what the position is on MPs’ pensions, but of course (as I argued over Sir Fred Goodwin) there’s nothing to stop the new Parliament legislating to take away the pensions of ex-MPs.