APPENDIX IV
Memorandum submitted by the Attorney General
PARLIAMENTARY PRIVILEGEROLE 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 privilegeit 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 courtssee
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 usethe
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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