Letter dated 20 May 1998 from the Chairman
to the Master of the Rolls
As you may know, I am currently chairing a joint
committee of both Houses of Parliament which is reviewing the
law of parliamentary privilege. A question has arisen on which
I would greatly welcome your assistance.
One of the fundamental parliamentary privileges
is freedom of speech, enshrined in article 9 of the Bill of Rights
1689. As interpreted by the Privy Council in Prebble 
1AC 331, this article and the wider principle it exemplifies have
the effect that the courts may not enquire into and draw inferences
from statements made by members in either House or to a committee
of either House. Despite this, in suitable cases the courts may
and do look at ministerial statements in Parliament for the purpose
of construing ambiguous statutes (Pepper v Hart).
One question which my committee is now considering
is whether ministerial statements in Parliament should be capable
of being taken into account by courts on applications for judicial
review of ministerial decisions. Typically one might have a case
where a minister is questioned regarding one of his decisions
by a select committee, and afterwards an applicant in court proceedings,
who is challenging the lawfulness of the minister's decision on
judicial review grounds, seeks to rely on the minister's answer
in committee as, for instance, evidence that the minister misdirected
himself in the exercise of a statutory power.
Two points arise: (1) So far as I know, but
I may be misinformed, there is no court decision expressly on
this point. I have the impression that, whatever may be the strict
legal position, in practice ministerial statements made in Parliament
or committee are referred to from time to time in judicial review
proceedings, presumably without objection. Is this so? What is
(2) What should the position be?
Why? There are obvious advantages in the judiciary being able
to take account of answers given by the executive when called
to account by the legislature. Some concern has been expressed
that if ministerial answers can be used in this way, ministers
might be less forthcoming in their answers to questions in select
Your thoughts on these points, and generally,
would be enormously appreciated.
The Right Hon the Lord Woolf
Reply from the Master of the Rolls
I do apologise for not replying earlier to your
letter of 20 May 1998. I do however want to give some thought
to the questions which you posed. I will deal with them in turn.
Ministerial statements made in Parliament are
regularly referred to in judicial review proceedings. There used
to be a problem with regard to relying on Hansard in the courts
(I remember in the Crossman Diary case having to prepare a petition
to the House for permission to refer to Hansard) but this is no
longer the position. You will remember that in the recent cases
of Pierson v SSHD  3 WLR 547 (Court of Appeal) 
3 WLR 492 (House of Lords) and R v SSHD ex parte Venables
 2 WLR 67 (Court of Appeal) and  2 WLR 23, there were
references to the successive policies of different Ministers in
relation to life sentences. There are many other examples which
could be cited. The practice however is for both applicants and
the government to use Hansard to indicate what the government's
policy in a particular area is.
I can see no difficulty as to the present position
and consider that there would be serious disadvantages in any
other course being adopted. Parliament is the appropriate forum
for the announcement of government policy. Statements in Parliament
by reason of the fact that they are made in Parliament have extra
authority. They are acted upon, in part at any rate, because they
are made in Parliament. They are intended to be relied upon and
it would be most unfortunate if they could not be relied upon.
As it happens last weekend I was taking part in a conference being
held by the Inland Revenue. A matter which was being discussed
was the use of the extensive powers of the Revenue under section
20 of the Taxes Management Act 1970. The way in which those powers
are exercised is confined by what is known as "the Hansard
Statement". On any application for judicial review in relation
to an abuse by the Revenue of its powers under section 20, it
would be essential to look at this statement.
So far as ministerial statements are concerned,
I just do not accept that there is a problem. I can however see
that difficulties can arise from ministerial answers given in
response to questions in Parliament or in Committee. The Minister
might have given an immediate reaction which on examination might
not be accurate. If this is the case, then the inaccuracy can
always be corrected either in Parliament or before the courts.
The judiciary would fully understand that slips can happen. As
long as the judiciary do not adopt an unrealistic standard in
relation to answers given to questions, then I cannot myself accept
the fact that answers could be used in legal proceedings would
mean that Ministers would be less forthcoming.
I emphasise that what at present happens in
the courts does not involve questioning what has happened in Parliament.
It involves no more than using Hansard as a factual record of
what happened in the House. There is no infringement of the Bill
I hope this is of some help. If it would be
useful if I clarified or expanded what I have said I would be
happy to do so.