Three Labour MPs being investigated for expenses fraud are arguing that they should not be prosecuted because their suspect claims are covered by parliamentary privilege.
The MPs have hired legal experts to assert that the 1689 Bill of Rights protects them from prosecution.
The lawyers are understood to have sent detailed submissions to police and prosecutors which contend that the House of Commons rule book on expenses is ?privileged? and cannot be subject to scrutiny by the courts.
The legal manoeuvre raises the prospect of the case against the MPs being thrown out before it reaches trial or being bogged down for months in legal argument.
Any delay would minimise the damage to Labour in the run-up to the general election.
It is not known whether the MPs consulted Labour officials before employing the lawyers, who were instructed through the party?s solicitors.
?This question of privilege is slowing everything down,? said a Commons source. ?It means nothing is likely to be resolved until well after the general election.?
Two members, Elliot Morley and David Chaytor, are being investigated by the Metropolitan police over allegations that they received taxpayers? money for non-existent mortgages on second homes.
Chaytor is also alleged to have paid allowance money to his daughter, who used a different surname.
The third MP facing prosecution, Jim Devine, is alleged to have submitted a claim for ?2,157 for rewiring his London flat using a receipt bearing a bogus Vat number. All three are using Steel & Shamash, the Labour party?s solicitors, to represent them, although the costs are being met by the MPs themselves.
Until now no MP has been investigated by police for expenses fraud.
The MPs? lawyers have advised them that because of the legal questions hanging over the inquiry, they are within their rights not to co-operate with the police.
Steel & Shamash last night confirmed they had instructed the QCs Nigel Pleming and Edward Fitzgerald to consider whether Morley, Chaytor and Devine should be protected by parliamentary privilege.
Anthony Bradley, a barrister and former professor of constitutional law at Edinburgh University, has been hired to make a similar study into whether MPs? expenses should correctly be a matter for parliament alone.
?It is their opinion that there are substantial legal and constitutional arguments that this is, in fact, the case,? said a spokesman for Steel & Shamash. ?Any possible future involvement of the prosecuting authorities in this instance raises serious constitutional issues that will affect not just our clients but the way parliament itself operates.?
The doctrine of parliamentary privilege was introduced primarily to protect free speech in Westminster debates. It has evolved, however, to provide a number of parliamentary activities with immunity from civil or criminal legal action.
Norman Baker, the Liberal Democrat MP, said: ?Parliamentary privilege exists to safeguard democracy, not to subvert it.
?It certainly does not exist to allow MPs to rip off the taxpayer with impunity. Whether or not these MPs have committed a crime, they should not be allowed to subvert the court process with arcane technicalities that threaten further to undermine the standing of parliament.?
The question of whether the prosecution of the MPs is unlawful revolves around interpretation of article nine of the 1689 Bill of Rights, which states: ?Proceedings in parliament ought not to be impeached or questioned in any court.?
Both the QCs and Bradley are understood to have argued that the definition of parliamentary ?proceedings? should include documents produced by the Commons such as the ?green book? which outlines rules on expenses. By extension, they said, an argument could be made that any claims under this expenses regime were also ?privileged?.
Vincent Coughlin QC, a specialist in defending frauds, said the argument about privilege should not prevent charges if the Crown Prosecution Service believed there was sufficient evidence.
However, he added: ?The privilege issue could form part of the legal arguments ahead of trial. Because it is such an unusual point, it is quite possible it would have to be considered by the Supreme Court before trial can proceed.?
Commons authorities are understood to be aware of the lawyers? representations and have prepared their own case.
A source close to John Bercow, the Speaker, said: ?We do not believe that privilege applies here. The Commons has effectively waived privilege by exempting the MPs under police investigation from the Legg audit process.?
Sir Thomas Legg, a former civil servant, was asked to review the claims of all MPs after the expenses scandal broke last May.
Some senior MPs are concerned that any delay to the police investigation could prevent the Commons from withholding severance payments from the three MPs, all of whom are stepping down at the election.
One MP said: ?If we get to the election and they have still not been charged, there is no way under employment law that we could prevent them getting the payments, which will amount to up to a year?s money.?
Labour refused to say whether the party had been aware of the studies commissioned by Steel & Shamash. ?This is a firm of solicitors that we use for advice and representation,? said a spokesman. ?We do not pay them to act for or advise any client other than the Labour party. Any work that they do for individuals or other organisations is separate from the work they do for us.?
The MPs have hired legal experts to assert that the 1689 Bill of Rights protects them from prosecution.
The lawyers are understood to have sent detailed submissions to police and prosecutors which contend that the House of Commons rule book on expenses is ?privileged? and cannot be subject to scrutiny by the courts.
The legal manoeuvre raises the prospect of the case against the MPs being thrown out before it reaches trial or being bogged down for months in legal argument.
Any delay would minimise the damage to Labour in the run-up to the general election.
It is not known whether the MPs consulted Labour officials before employing the lawyers, who were instructed through the party?s solicitors.
?This question of privilege is slowing everything down,? said a Commons source. ?It means nothing is likely to be resolved until well after the general election.?
Two members, Elliot Morley and David Chaytor, are being investigated by the Metropolitan police over allegations that they received taxpayers? money for non-existent mortgages on second homes.
Chaytor is also alleged to have paid allowance money to his daughter, who used a different surname.
The third MP facing prosecution, Jim Devine, is alleged to have submitted a claim for ?2,157 for rewiring his London flat using a receipt bearing a bogus Vat number. All three are using Steel & Shamash, the Labour party?s solicitors, to represent them, although the costs are being met by the MPs themselves.
Until now no MP has been investigated by police for expenses fraud.
The MPs? lawyers have advised them that because of the legal questions hanging over the inquiry, they are within their rights not to co-operate with the police.
Steel & Shamash last night confirmed they had instructed the QCs Nigel Pleming and Edward Fitzgerald to consider whether Morley, Chaytor and Devine should be protected by parliamentary privilege.
Anthony Bradley, a barrister and former professor of constitutional law at Edinburgh University, has been hired to make a similar study into whether MPs? expenses should correctly be a matter for parliament alone.
?It is their opinion that there are substantial legal and constitutional arguments that this is, in fact, the case,? said a spokesman for Steel & Shamash. ?Any possible future involvement of the prosecuting authorities in this instance raises serious constitutional issues that will affect not just our clients but the way parliament itself operates.?
The doctrine of parliamentary privilege was introduced primarily to protect free speech in Westminster debates. It has evolved, however, to provide a number of parliamentary activities with immunity from civil or criminal legal action.
Norman Baker, the Liberal Democrat MP, said: ?Parliamentary privilege exists to safeguard democracy, not to subvert it.
?It certainly does not exist to allow MPs to rip off the taxpayer with impunity. Whether or not these MPs have committed a crime, they should not be allowed to subvert the court process with arcane technicalities that threaten further to undermine the standing of parliament.?
The question of whether the prosecution of the MPs is unlawful revolves around interpretation of article nine of the 1689 Bill of Rights, which states: ?Proceedings in parliament ought not to be impeached or questioned in any court.?
Both the QCs and Bradley are understood to have argued that the definition of parliamentary ?proceedings? should include documents produced by the Commons such as the ?green book? which outlines rules on expenses. By extension, they said, an argument could be made that any claims under this expenses regime were also ?privileged?.
Vincent Coughlin QC, a specialist in defending frauds, said the argument about privilege should not prevent charges if the Crown Prosecution Service believed there was sufficient evidence.
However, he added: ?The privilege issue could form part of the legal arguments ahead of trial. Because it is such an unusual point, it is quite possible it would have to be considered by the Supreme Court before trial can proceed.?
Commons authorities are understood to be aware of the lawyers? representations and have prepared their own case.
A source close to John Bercow, the Speaker, said: ?We do not believe that privilege applies here. The Commons has effectively waived privilege by exempting the MPs under police investigation from the Legg audit process.?
Sir Thomas Legg, a former civil servant, was asked to review the claims of all MPs after the expenses scandal broke last May.
Some senior MPs are concerned that any delay to the police investigation could prevent the Commons from withholding severance payments from the three MPs, all of whom are stepping down at the election.
One MP said: ?If we get to the election and they have still not been charged, there is no way under employment law that we could prevent them getting the payments, which will amount to up to a year?s money.?
Labour refused to say whether the party had been aware of the studies commissioned by Steel & Shamash. ?This is a firm of solicitors that we use for advice and representation,? said a spokesman. ?We do not pay them to act for or advise any client other than the Labour party. Any work that they do for individuals or other organisations is separate from the work they do for us.?
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