In their statement yesterday MPs Elliot Morley, David Chaytor and Jim Devine said:
"We maintain that this is an issue that should be resolved by the parliamentary commissioner, who is there to enforce any breach of the rules."
However, the Director of Public Prosecutions has decided they they should be charged under the 1968 Theft Act. Keir Starmer in his statement said:
"We have considered that question and concluded that the applicability and extent of any parliamentary privilege claimed should be tested in court."
So what is it that the court feel they can do that the MPs are saying is protected by Parliamentary Privilege in the 1689 Bill of Rights?
First all the charges made against them are for the crime of gaining money/property by deception. What is the issue is that they appear to have claimed payments under false documentation. Morely was claiming for a mortgage on a property that the mortgage was already fully paid, Chaytor rent on a property he owned and rent on a property from his mother. Chaytor and Devine also used false receipts to claim services.
Should such claims be protected by the same right that gives MPs the freedom of speech to say what they need to in the Chamber of the House of Commons without fear of prosecution to do the job they are responsible for? Hugh Tomlinson QC, at Matrix chambers thinks not saying:
"MPs don't enjoy any kind of immunity from the ordinary criminal law. It seems to me that any privilege arguments are unlikely to be successful because the alleged offences are in substance just ordinary criminal offences. They are no different from the kind of offences any member of the public could also be accused of through their work."
Tomlinson acted in the 2008 case where MPs failed to prevent information about their expenses being released under Freedom of Information legislation. He added:
"Once legislation which applies to parliament has been enacted, MPs cannot and could not reasonably expect to contract out of compliance with it, or exempt themselves, or be exempted from its ambit."
That ruling looked at the Bill of Rights element on privilege "for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in parliament". It decided that privilege serves to "avoid any risk of interference with free speech in parliament" and also preserves "the principle of the separation of powers, which … requires the judiciary not to interfere with, or to criticise, the proceedings of the legislature".
But this is not the proceedings of the legislature that is the issue, this is the dealings of individuals. As Tomlinson said this comes under the remit of ordinary criminal law.
If that is the case why weren't warrants issued, the MPs and Peer taking to their local police station read their charges, finger printed and DNA profiled like common criminals? Instead they were (at least Devine was) appearing on every TV station possible claiming his innocence. Yesterday's inaction may turn out to be the full extent of the Parliamentary privilege that they end up receiving.