320 years down the line - was this what they meant?

The news that 3 Labour MPs have cited clauses within the 1689 Bill of Rights as part of their reaction to criminal proceedings brought in relation to claims submitted for expenses leaves a feeling that this was not what was intended when the original draft was laid before Parliament.

The Bill of Rights is one of the fundamental pieces of legislation that defines the English system of government and the constitution of the land. It came after a turbulent period in English history - the Civil War had taken place some 40 years earlier and had led to the execution of King Charles I in 1649 and the creation of a republic under the leadership (dictatorship) of Oliver Cromwell. After Cromwell’s death in 1658 the monarchy was restored and King Charles II returned to London in 1660. The death of Charles in 1685 with no legitimate heir raised substantial issues of succession. James, Charles brother, took the throne but was not popular. Charles eldest son, James, Duke of Monmouth raised an army and led a rebellion in the west, culminating in the last battle fought on English soil, at Sedgemoor in 1685. James, Duke of Monmouth escaped the field of battle but was captured at Ringwood, tried and executed for treason (the executioner botched the job and was forced to finish the decapitation with his pocket knife). James II fled in 1688 (The Glorious Revolution) and was replaced by his son-in-law, William of Orange. After the experience of James II (absolute monarchy), Parliament introduced the Bill fo Rights in 1689 in order to define the role of Parliament and the freedom of members.

The Bill of Rights makes clear its importance, ‘An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne’. The reason for the Act is then set out, ‘Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome.’

The part that has been cited in the recent period comes later in the Heads of Declaration. The Bill makes it clear that the election of Members to Parliament ought to be free and that there should be freedom of speech, ‘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.’

It is this part that has now been brought forward in an attempt to prevent prosecution in the criminal courts. The MPs suggest that their dealings in relation to Parliamentary expenses should be considered as ‘Proceedings in Parlyament’ and should therefore not be questioned in any place other than ‘in Parlyament.’ Proceedings in Parliament are defined on the Parliamentary website, a definition that offers some clarity. Proceedings taking place on the floor of the House, in committee etc. are protected by privilege. If necessary, a Member can name a person within a speech without fear of that person taking action for slander in another place (in the courts). This is an important freedom and one that must be guarded and protected.

Submission of expense claims may take place within the Palace of Westminster and may be seen as part of an MP’s administrative proceedures but should not be seen in the same context as a speech, statement, question etc. before the House. Those actions are recorded in the proceedings of the House (Hansard) and available in print and on line.

To consider the use of the clause within the 1689 Bill there should be consideration of the context and the intent of the Parliamentary draughtsmen at the time. The preface to the Bill makes it clear that the Bill is a repsonse to the abuse of Parliament conducted by James II, ‘Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert ….. the Lawes and Liberties of this Kingdome.’ Parliament was taking care to enshrine and ensure the freedom of speech, the opportunity for Members to make statements, to raise questions and to name and shame without fear or favour.

The allegations made agains the Members suggest that there was criminal intent (mens rea). The Crown Prosecution Service have now indicated that they consider there is a case to answer and that this should be answered in the Criminal Courts with charges laid under the Theft Act. The intent of the Bill of Rights was clearly to protect Parliamentary freedom but reading the Act with the preliminaries does suggest that the intent was not to provide an escape clause for criiminal proceedings.

The late, great Master of the Rolls, Lord Denning, reiterated Thomas Fuller’s statement of some 300 years ago, “Be you ever so high, the law is above you.” Good advice, as ever. The three MPs who now find themselves facing criminal proceedings should now make it clear that they wil not attempt to distract the investigation by calling upon privilege. It does rather seem that this is the view of the party who have now withdrawn the whip from the accused.

None of the accused will be candidates in the forthcoming election, that had already been decided by the party. Now they should face up to the criminal investigation, prepare their defence and make efforts to persuade a jury that they are indeed innocent.

If they do want to insist on the application of the 1689 Act then they may wish to consider accepting the penalty that would have been applied for theft at that time - if they are found guilty. A couple of public beheadings on Palace Green might concentrate the minds, ‘pour encourager les autres’, as Voltaire noted in Candide after the execution of Admiral Byng. Somehow, The Crusher believes there might be a limitation as to the application of 17th Century legislation.