Media organisations are to ask a judge to lift automatic restrictions which will ban journalists from reporting on the hearings of three former Labour MPs.
The three, who have been charged with fiddling their expenses, will argue that they cannot be tried because they are protected by Parliamentary privilege.
The argument, expected to be made at a hearing in May, will not be reportable unless automatic reporting restrictions contained in the Criminal Procedure and Investigations Act 1996 are lifted.
The major national news organisations – Guardian News and Media, Independent News and Media, Times Newspapers Ltd, Associated Newspapers, News International, Mirror Group Newspapers, the BBC and the Telegraph Group – are to mount a challenge to get restrictions lifted.
The organisations will claims the case is one of high public interest and constitutional importance and that it is in the interests of justice for the arguments to be reported.
They will also argue that the automatic reporting restrictions are intended to ensure that jurors and potential jurors are not prejudiced by reports about decisions on the admissibility of evidence and points of law relating directly to the issue of a defendant’s guilt or innocence – but that the question of Parliamentary privilege is in effect a completely separate issue, and that publication of reports on those discussions could not cause prejudice to the criminal trial, if and when it takes place.
The former MPs – Jim Devine, who until recently represented Livingston, David Chaytor, who held the Bury North seat, and Elliot Morley, who represented Scunthorpe – argue that they cannot be tried because they are protected by the Parliamentary privilege granted by the 1689 Bill of Rights.
Article Nine of the Bill states: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.
They also argue that the House of Commons rule book on expenses is part of Parliamentary proceedings and is therefore “privileged” under the terms of the Bill and so cannot be scrutinised by the court.
Solicitor Gerald Shamash, of law firm Steel and Shamash, who is representing the three men, said: “It is not a question of them being above the law – we say this is the law. We have to ask at what point the line is going to be drawn.”
The question of what qualified as proceedings in Parliament was a substantive issue about what privilege was, what it meant, and how far it extended.
“There is also the issue of separation of powers,” Mr Shamash said, adding that the case could lead to the Supreme Court having to decide on how Parliament operated.
But he refused to say whether his clients would oppose a media application for the reporting restrictions to be lifted.
The fourth defendant in the case, Conservative Peer Lord Hanningfield, is being represented by Mark Spragg of Keystone Law, said the issue in relation to his client was not the protection of the Bill of Rights, but the limits of Parliamentary Privilege.
This was because there was a risk that the House of Lords might refuse to disclose information the defence intended to seek – and authorities at the House had themselves said that the extent of privilege was a question for the courts to decide.
Lord Hanningfield’s defence was that the case was an abuse of process, as he was the only Peer who had been charged with a criminal offence although many others had claimed allowances in the same way, and that he should be dealt with in the same way as they were, but internal House of Lords processes.
Mr Spragg would not say whether his client would oppose lifting reporting restrictions, but did say: “We feel that the reporting restrictions are a big issue which ought to be raised at a hearing on its own.
“Whether they should be lifted should be dealt with at a completely separate hearing.”
The reporting restrictions should not be discussed at the next hearing in the case, before the trial judge, Mr Justice Saunders on May 27 and 28, as that hearing would be dealing with other important issues, he added.
Observers believe that both the reporting restrictions issue and the questions of the Bill of Rights and Parliamentary privilege are likely to require a final decision from the Supreme Court – meaning that it is unlikely that the actual trial, if there is one, will not be held before the end of the year.
Chaytor faces three charges under the Theft Act 1968 of providing false information on an allowances form, Devine faces two charges of falsely claiming costs for parliamentary duties in 2009, and Morley faces two charges of falsely claiming allowances between April 2004 and November 2007. Lord Hanningfield faces six charges of making dishonest claims for travelling allowances.
The defendants could face up to seven years in jail if convicted.