Police Searches on the Parliamentary Estate - Committee on the Issue of Privilege Contents


APPENDIX IV

Memorandum submitted by the Attorney General

PARLIAMENTARY PRIVILEGE—ROLE OF THE COURTS AND THE HOUSE OF COMMONS

  1. By way of general observation on the role of the Committee on Standards and Privileges, while the Committee has the function of considering specific matters of privilege referred to it by the House, it does not itself determine whether material is subject to Parliamentary privilege—it only makes a recommendation to the House and it is for the House to decide the matter by resolution.

2. Secondly, the fact that the House resolves that particular material or categories of material are "proceedings in Parliament" within the meaning of Article IX of the Bill of Rights (which in any case I consider is a matter for the courts—see below) would not automatically have any effect on the admissibility of the material in a criminal trial. The material will only be inadmissible if the courts consider the use to which it is put amounts to the "impeaching or questioning" of Parliamentary proceedings. It would be unprecedented for the House itself to resolve that the material is being to put to such a use—the House would not know the use to which the relevant material is intended to be put to without questioning the prosecuting authorities.

ADMISSIBILITY OF EVIDENCE AND PARLIAMENTARY PRIVILEGE

  3. It is clear that the determination of whether material is inadmissible as evidence in a criminal trial by virtue of Article IX is a matter for the court. Article IX is statute law and its interpretation, as with any other statute, is a matter for the courts. It is a question of law both whether particular material constitutes "proceedings in Parliament" and whether the use that the material is being put to amounts to the impeaching or questioning of such proceedings. The role of the courts was confirmed in Bradlaugh v Gossett[41] in which it was held that the while the House of Commons was capable of effectively superseding the general law so far as its internal affairs were concerned, it could not properly extend the scope of the term "proceedings in Parliament". There are a number of cases in which Article IX has been interpreted by the Courts.[42]

4. The House has, in the past, attempted to clarify the interpretation of "proceedings in Parliament" (the Strauss case in 1958 and the recommendations made by the Joint Committee on Parliamentary Privilege in 1999) but I am not aware of such an attempt in relation a specific complaint or investigation since the Strauss case. In any case, the House has not attempted to determine the admissibility of such material as evidence in court proceedings. Thus the House has effectively accepted that it is the role of the courts to resolve disputes on the application of Article IX.[43]

THE ROLE OF PARLIAMENT IN PROTECTING ITS PRIVILEGES IN COURT PROCEEDINGS

  5. The House can seek to intervene in any proceedings, under the name of the Attorney General, to assert the privileges of the House. In fact, the House has done so in a number of cases recently.[44]

6. The Joint Committee on Parliamentary Privilege considered a suggestion that the House could make a reference to the Judicial Committee of the Privy Council to resolve any dispute on the application of Article IX but concluded that introducing an additional stage into proceedings would cause delay and expense for the parties. It considered that the ability of the Attorney General to intervene and assist the court was sufficient.

DISAGREEMENT BETWEEN PARLIAMENT AND THE COURTS

  7. I am not aware of any instances where Parliament and the courts have disagreed, in the sense that either House has made a resolution (following a report by the relevant privileges committee) about the extent of a Parliamentary privilege and, at the same time, a court has come to a contrary view. In fact, I am not aware of an example since the Strauss case where the House has attempted to clarify the meaning of "proceedings in Parliament" in relation to a specific case.

8. As noted above, it is open to the House to intervene in court proceedings to argue (for example) that reliance on particular material would contravene Article IX. In such cases the court is not bound by the views of the House and in some instances the courts have not accepted the submissions of the House (or have not accepted them in their entirety), eg Pepper v Hart.[45] Consistent with the analysis above, it is the ruling of the court which is definitive.

IMPACT OF A RESOLUTION OF THE HOUSE (FOLLOWING A RECOMMENDATION BY THE COMMITTEE) ON THE PRINCIPLE OF COMITY

  9. If the House were to instruct the Committee to examine the evidence in a particular case with a view to deciding what, if anything, was covered by Parliamentary privilege, any decisions made by the Committee (or a resolution of the House agreeing with its report) would not be binding on the courts. It would again be for the court to decide whether Article IX applied to any particular material. This is made clear by Bradlaugh v Gossett. Otherwise this would amount to allowing one House of Parliament, in effect, to amend statute law. In that case Stephen J distinguished matters which were internal to the House (such as sitting and voting) where the courts would not interfere from "rights to be exercised out of and independently of the House" which were a matter for the courts to interpret.

10. In conclusion: the respective roles of the courts and Parliament in relation to the matters of privilege are now well settled. In particular, it is settled that it is the role of the courts to determine any questions of law relating to Parliamentary privilege (especially in relation to Article IX). There is a risk that the principle of comity would be undermined by a purported attempt by the House to determine such questions and thus usurp the determinative role of the courts.

Baroness Scotland QC

3 April 2009





41   [1883-4] 12 QBD 271. Back

42   Prebble v TV New Zealand [1995] 1 AC 321, Rost v Edwards [1990] 2 QB 460. Back

43   Report of the Joint Committee on Parliamentary Privilege, Vol 1, p 38-9, paragraphs 130-132. Back

44   OGC v Information Commissioner [2008] EWHC 774, R (Wheeler) v Office of the Prime Minister & Secretary of State for Foreign & Commonwealth Affairs [2008] EWHC 1409. Back

45   [1993] AC 593. Back


 
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