***BREAKING*** Could Eric Ilsley Prove the First Subject of Recall

When the Liberal Conservative Government actually gets down to making new acts they will include the one that enables the right to recall an MP who has been proven of wrong doing.

This morning's news makes one wonder if Barnsley Central MP Eric Ilsley may be the unfortunate to make the history books as the first MP to face the public's right to recall. He has been called before Westminster Magistrates Court just like his former Labour colleagues Jim Devine, David Chaytor and Elliot Morely along with Conservative peer Lord Hanningfield on the 17 June for dishonestly claiming council tax and other household bills on his second home in London.

Legal Aid for MP Fraudsters - They 'Aving a Laff

I just cannot believe the audacity of Livingston's Jim Devine, Scunthorpe's Elliot Morley and Bury North's David Chaytor. Not only are they still saying that their fraudulent accounting on their expenses is above the law of the land but on their salariesthey will be claiming legal aid to take the hearing through the magistrates court about why they shouldn't be tried in a court in what are expected to be the days before and of the General Election 4-6 May.

The MPs' QC is apparently charging 150 hours at £250 an hour and £1000 a day for the days in court, just for the hearing where they claim that they should not be tried in a court at all. That is a total of £40,500 or £13,500 each or the equivalent of 21% of their gross salary. In terms of someone on a minimum wage working a 37.5 hr week that is the equivalent of £2428.34 in court costs, if say they were caught fraudulently claiming benefits whilst holding down that job.

Legal Aid is there to help the poor deal with cases they need. This case is raised by the MPs to try and avoid a further court case looking at the actual crime itself being heard in the courts of the land. This money is being spent by them to try and prove that they are above the law. A defence that has sounded hollow since it was first issued from their lips.

They surely have got to be having a laugh, only please don't do so at the tax payers expense, you've tried that once and have been caught out.

MPs' Day In Court

Today is the day that Jim Devine, Elliot Morley, David Chaytor and Lord Hanningfield are meant to walk around the corner from the Palace of Westminster to Westminster Magistrates Court to answer charges of false accounting relating to their expenses. I say meant to because Devine was too ill according to his doctor to appear before an employment tribunial yesterday.

It comes the day after it was announced that another Labour MP Harry Cohen is also to be investigated further by the police. The four appearing today The face charges of false accounting under section 17 of the Theft Act 1968. The maximum sentance for such an offence is 7 years in prision.

MPs, the Law and a Thin Privileged Line

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.

Parliamentary Privilege v Freedom of Information

The latest ploy by three disgraced MPs is to claim that their expenses claims over which they are facing prosecution are protected under Parliamentary Privilege under the 1689 Bill of Rights. Not surprising amongst there number if Livingston MP Jim Devine as well as Elliot Morley and David Chaytor.

The heart of their claim is that the House of Commons rule book on expenses is "privileged" and shouldn't be open to scrutiny of the courts. The sad thing is that the three of these MPs using this argument just shows the people that MPs are trying to hide behind ancient rights instead of being open to public scrutiny, the end result being that they appear privileged in the wrong way as people who think they can spend what they want, without being subject to what they end up claiming.

Under the Freedom of Information Act which supersedes the Bill of Rights surely the releasing of MPs expenses comes under this. However, the three of them are retaining the Labour party's solicitors Steel & Shamash at their own expense. The firm have confirmed that they have instructed the QCs Nigel Pleming and Edward Fitzgerald to consider whether Morley, Chaytor and Devine should be protected by parliamentary privilege.

Liberal Democrat MP Norman Baker says however:

"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 article of the Bill of Rights that the MPs are attempting to use in their case is that "Proceedings in parliament ought not to be impeached or questioned in any court." Their QCs are claiming that this definition of proceedings applies to the "green book" of rules on expenses, and by extension to the expenses claims themselves.

However, as this latest claim and the MPs failure to co-operate with the police investigations until the matter is resolved raises another far more tricky dilemma. These three MPs are delaying the issuing of charges against them even further by the complex legal argument. One MP says:

"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 [severance] payments, which will amount to up to a year’s money."

So are these potentially to be charge with fraud members holding proceedings up so that they can fleece a whole extra years pay out of their privilege, surely that cannot be allowed to happen.

See also: Dizzy Thinks, Tom Freeman, The Lone Voice, Ellee Seymour, Steve Beasant, Neil Herron, Goodnight Vienna @ Calling England and gmb45 @ Digital Kaos