Three former Labour MPs facing criminal trials over expenses-fiddling allegations will go to the Supreme Court next month to argue that the criminal courts do not have jurisdiction to hear their cases.
Lord Judge, the Lord Chief Justice, today refused permission to take the case to the Supreme Court in the wake of its dismissal, in July, of argument by David Chaytor, Elliot Morley and Jim Devine that they are protected from prosecution by parliamentary privilege.
But he gave them permission to pose a question to the Supreme Court Justices, allowing the three to make a direct application for a final hearing into the case.
Lord Judge cleared the way for the final appeal by agreeing that they could ask the Supreme Court to consider "points of general importance" in their cases.
The questions were: Does the Crown Court have the jurisdiction to try an MP in relation to allegations of dishonest claims for parliamentary expenses or allowances, or is the court deprived of jurisdiction by Article 9 of the Bill of Rights 1688 or the exclusive jurisdiction of Parliament?
Lord Judge, after formally refusing permission, said the matter would "no doubt" be renewed before the Supreme Court at a date he said could be October 18 or 19.
He also refused the MPs, who were not in court, legal aid for separate representation by lawyers because he said there was no conflict of interests in the cases but "a complete identity of interests".
They were allowed one leading and junior counsel and one firm of solicitors.
The three, who deny theft by false accounting, claim that any investigation into their expenses claims and the imposition of any sanctions "should lie within the hands of Parliament".
The judges were told that this was not an attempt to "take them above the law", but to ensure they were adjudicated by the "correct law and the correct body".
Lord Judge, Master of the Rolls Lord Neuberger and Sir Anthony May had upheld an earlier ruling by a judge at Southwark Crown Court in central London that they were not protected.
In an earlier judgment citing cases from as far back at 1629, Lord Judge said: "It can confidently be stated that parliamentary privilege or immunity from criminal prosecution has never, ever attached to ordinary criminal activities by Members of Parliament."
He added: "If the allegations are proved, and we emphasise, if they are proved, then those against whom they are proved will have committed ordinary crimes."
Former Bury North MP Chaytor, 60, of Todmorden, West Yorkshire; ex-Scunthorpe MP Morley, 58, of Winterton, north Lincolnshire; and Devine, 57, of Bathgate, West Lothian, formerly MP for Livingston, are all on unconditional bail and due to face separate trials at Southwark Crown Court.
The Court of Appeal also ruled against Lord Hanningfield on the question of privilege but the Tory peer, who denies the charges, is not pursuing a Supreme Court challenge.