Where defendants were alleged to have taken advantage of the allowances scheme designed to enable them to perform their important public duties as members of Parliament to commit crimes of dishonesty to which parliamentary immunity or privilege did not, had never and, the Court of Appeal believed, never would attach, those against whom those allegations were proved would have committed ordinary crimes.  R v David Chaytor, Elliot Morley, James Devine & Lord Hanningfield [2010] EWCA Crim 1910.  

Upholding the decision of Saunders J, the Lord Chief Justice said that even stretching language to its limits, the court was unable to envisage how dishonest claims by members of Parliament for their expenses or allowances began to involve the legislative or core functions of the relevant House, or the proper performance of their important public duties.  No question or privilege arose, and the ordinary process of the criminal justice system should take its normal course unaffected by any groundless anxiety that they might constitute an infringement of the principles of parliamentary privilege.

Each of the defendants is due to stand trial at the Crown Court at Southwark to face allegations of false accounting contrary to section 17(1)(b) of the Theft Act 1968 in relation to their claims for expenses as members of Parliament.  An essential ingredient common to all of them is that the defendant in question acted dishonestly.  Three of the defendants were members of the House of Commons and one was, and is, a member of the House of Lords.

The court considered the authorities of Prebble v Television New Zealand Limited [1995] 1 AC 321, quoted with approval in Buchanan v Jenkins [2005] 1 AC 115 at 124, Burdett v Abbott (1811) 14 East 1, Stockdale v Hansard  [1839] 9Ad and EI 1 at 134 and Bradlaugh v Gossett [1884] 12 QBD 271.  Properly analysed, those decisions addressed problems which were essential to the performance of Parliament’s functions.  They did not begin to come anywhere near judicial recognition that members of Parliament were immune from proceedings for criminal behaviour in Parliament.

From October 2011 alternative business structures (ABS) will be permitted in England and Wales.  But this major reform faces a challenge before the European Court of Justice because mainland bars suggest, with some force, that this is unethical.

The President of the Council of the Bars and Law Societies of Europe, Jose-Maria Davo-Fernandez forecasts that if a City firm with other European offices accepts external capital, as will be the case here when the scheme is effected, the issue will be taken up in Luxembourg at the European Court of Justice.  Article 11 of the Establishment Directive permits Member States to bar from their jurisdictions any law firm that is not completely run by lawyers if it is deemed contrary to public policy to permit them to operate.

Lawyers who are employed in organisations where they are managed by non-lawyers will be well aware of the pressures to which they are subjected when their managers wish to pursue a course when the lawyer advises it has no proper legal basis.  Injection of outside capital may well put lawyers under intolerable commercial pressure not to observe the rule of law.

The German bar authorities have already warned of the illegality of ABS in their country, and the American Bar Association is known to be decidedly cool towards the idea.

Dame Janet Smith recommended in the Shipman Report that the adjudication stage of the Fitness to Practise procedures of the General Medical Council should be undertaken by a body independent of the Council. The new body should appoint and train lay and medically qualified panellists and take on the task of appointing case managers, legal assessors (if they were still required) and any necessary specialist advisers as well as providing administrative support for the hearings.

That led, under the last government, to the creation of the Office of the Health Professions Adjudicator (OHPA) although it is not yet fully operational. Whilst it was expected to take over the role of adjudicating on fitness to practise cases from the GMC from April 2011, the coalition government has expressed a desire to get rid of it but has indicated it will consult on its future.

Anne Milton, The Ministerial Parliamentary Under Secretary of State for the Department of Health announced the government’s intention in a written statement. Having reviewed the case for OHPA the government is not persuaded that the creation of another body is necessarily the most appropriate and proportionate way forward in terms of adjudication. The government believes that steps can be taken to strengthen and modernise existing systems within the GMC to deliver substantially the same benefits as OHPA. The learning from these steps could then be reviewed and in due course applied to other health regulators.

In a recent interview Dame Janet Smith told BBC One’s Inside Out North West that not enough changes had been made since her inquiry. But those in the health sector will applaud the decision not to waste more public money, time and upheaval on the creation of what will be, in effect, just another QUANGO. The GMC has learned many lessons in the years that have passed since Shipman. It is now the premier healthcare regulator, a fact recognised by the Council for Healthcare Regulatory Excellence, which commented in its recent Review of Health Professional Regulatory Bodies: The public can be reassured that the GMC has achieved … high standards despite the particular challenges arising from the nature and work of the profession which it regulates.