Parliamentary Privilege - Joint Committee on Parliamentary Privilege Contents


5  Judicial questioning of proceedings in Parliament

Introduction

112.  In this chapter we review the relationship between Parliament and the courts, focusing on the extent to which the courts currently allow parliamentary proceedings to be used as evidence.

113.  It is important to note at the outset the different roles and different modes of operation of the courts and the legislature. Parliament is a forum for debate, which takes place in a political atmosphere, whether in the House or in committees. The legislation enacted by Parliament is the result of a political process. Legal judgments, in contrast, are carefully reasoned and impartial statements of a court's findings in relation to specific facts, and in the case of judgments by the higher courts of the meaning or effect, in the context of those facts, of statute or common law. Both courts and Parliament are necessary, but they operate in fundamentally different ways: the challenge is to set the boundaries between them in a way which enables each to function effectively without encroaching on the proper responsibilities of the other.

114.  The Green Paper asserts that "Recent developments have seen proceedings in Parliament used in court more regularly than in the past without encroaching upon the protections provided by parliamentary privilege". After analysing the circumstances in which proceedings in Parliament may be used in court, the Green Paper concludes by stating the Government's view that "the current situation, whereby the courts can use proceedings in Parliament as long as they are not questioned or impeached, is perfectly satisfactory".[97]

Comity

115.  Underlying the present relationship is the principle of comity between Parliament and the judiciary. This principle was articulated by Lord Simon of Glaisdale in 1974:

"It is well known that in the past there have been dangerous strains between the law courts and Parliament—dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other".[98]

116.  But the general principle of comity, which nobody would challenge, does not prevent constant evolution and occasional tension. David Howarth noted that the level of comity has fluctuated over the years, citing the "two extremes" of Stockdale v. Hansard, in the 1830s, where the courts directly challenged the House of Commons, and Bradlaugh v. Gosset, half a century later, where the courts were almost exaggeratedly respectful of parliamentary exclusive cognisance.[99]

117.  The Clerk of the House of Commons was confident that "at the highest levels of the judiciary there is an ... understanding of the different roles of Parliament and the courts."[100] The evidence we have heard bears out this claim, and there has been no recent judicial challenge to parliamentary privilege comparable to that of the New South Wales courts in the 1980s, which led to the passage of the Australian Parliamentary Privileges Act 1987 (see paragraph 35).

Judicial questioning of proceedings in Parliament

118.  While developments in the United Kingdom have been less dramatic than those in Australia in the 1980s, there has been a significant increase in recent years in the number of references made in court to parliamentary proceedings. Such references fall into three main areas.

119.  First, there is the principle, deriving from the 1993 decision in Pepper v. Hart,[101] that the court, in seeking to resolve ambiguity in primary legislation, may rely upon statements made by the minister in Parliament as an aid to interpretation. The degree of latitude allowed to the courts in making such references has varied over the years. As David Howarth described it:

"My impression is that the courts are fairly careful these days to make sure that the Pepper v. Hart jurisdiction does not go too far. There was a time when it was drifting toward a US free-for-all interpretation of parliamentary intention. Since the remarks of Lord Steyn in particular, extra-judicially, where Lord Steyn was warning about the overuse of Pepper v. Hart, the courts have come back to the straight and narrow".[102]

120.  This impression, that practice in applying the Pepper v. Hart principle has been tightened up, was confirmed by the Lord Chief Justice: "We envisage ... that you look at Pepper v. Hart to see the purpose of legislation that is opaque. Other than that, it does not apply, and you should not be referring to it. If you do, it is a mistake".[103]

121.  The second main area where parliamentary proceedings are admitted as evidence is where they are referenced as a matter of history, or as part of a narrative, to explain what happened, without the content as such being questioned. Such references to parliamentary material are uncontroversial.

122.  The third and more problematic area is judicial review cases. The Green Paper notes that in such cases the courts "have admitted Ministerial statements to Parliament to demonstrate what Government policy is".[104] The reality is that the courts have, in several recent cases, gone much further, not least by praying in aid reports from select committee. The Clerk of the Parliaments drew attention to a 2011 case involving the Home Office, in which the judge cited a report by the House of Lords Delegated Powers and Regulatory Reform Committee, relying heavily on the Committee's conclusions in developing his own argument. For instance, the judge noted that "the committee accepted that the department had ... arguable grounds for concluding that its consultation was adequate".[105]

123.  In a still more recent case the Court of Appeal drew attention to a report by the House of Lords Merits of Statutory Instruments Committee in the following terms: "The Committee did not suggest that the Regulations were unlawful but I regard their concern as supportive of the conclusion I have reached".[106]

124.  Do such references constitute 'questioning' of proceedings in Parliament, thereby contravening Article 9 of the Bill of Rights? The Lord Chief Justice was clear that they did, noting that once an opinion expressed by a Select Committee was admitted as evidence, "the other side must then contend that the opinion of the Committee was wrong, and that is questioning what the Committee has decided".[107] We agree with the Lord Chief Justice that, in an adversarial system, the admission of evidence derived from committee reports in submissions from one party will necessarily lead to its questioning by the other party, thus contravening Article 9.

125.  In a 2008 case, Mr Justice Stanley Burnton (as he then was) extended a similar line of argument to include judgments:

"If it is wrong for a party to rely on the opinion of a Parliamentary Committee, it must be equally wrong for the Tribunal itself to seek to rely on it, since it places the party seeking to persuade the Tribunal to adopt an opinion different from that of the Select Committee in the same unfair position as where it is raised by the opposing party. Furthermore, if the Tribunal either rejects or approves the opinion of the Select Committee it thereby passes judgment on it".[108]

The effects of such questioning

126.  The mischief that flows from such questioning of proceedings in Parliament is not just the breaching of Article 9, but the blurring of the constitutional separation of Parliament and the courts. In his judgment in Wilson v. First County Trust, Lord Nicholls helpfully explored the nature of parliamentary debate:

"Different members may well have different reasons, not expressed in debates, for approving particular statutory provisions. They may have different perceptions of the desirability or likely effect of the legislation. Ministerial statements, especially if made ex tempore in response to questions, may sometimes lack clarity or be misdirected. Lack of cogent justification in the course of parliamentary debate is not a matter which 'counts against' the legislation on issues of proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister's exploration of the policy options or of his explanations to Parliament. The latter would contravene article 9 of the Bill of Rights".[109]

127.  Even though the courts have been careful to consider the proper boundaries of privilege, judicial notice of parliamentary proceedings may in principle affect what is said in Parliament. Indeed, the Government's Guide to Making Legislation warns that Ministerial statements should be cleared with Parliamentary Counsel as "parliamentary material may be used to assist in the interpretation of legislation".[110] David Howarth also hinted at the possibility that political statements made in Parliament could become a "substitute" for "clear drafting" of legislation.[111] He also noted that "the judges are questioning what was said by a Minister in Parliament to discover whether the Minister meets the legal test of rationality or meets the legal test of relevance".[112] This raises the possibility of a chilling effect, in that Ministers may be deterred from presenting policies and decisions clearly and honestly before Parliament, for fear of judicial review.

128.  The Lord Chief Justice made a broader point, that questioning the conclusions of a Select Committee unavoidably opens the door to questioning the process whereby those conclusions were reached: "It is inevitable, in a situation where you are referring to Select Committee discussions. Look at our discussion now: different people are expressing different views and asking different questions. We must not let anybody be allowed to say, 'The judges are looking at what the Select Committee said' or, 'Mr So-and-so QC said that Mr So-and-so MP was talking rubbish'."[113]

129.  But though he accepted that mistakes had been made by the courts, The Lord Chief Justice felt that they were rare and should be treated simply as mistakes of limited significance:

"In reality, in the overall scheme of things, it is very rare. It should be cleared up before the case starts, but the judge does not have a say in that. When the case starts, the judge may say, "No, hang on." There will be occasions when it is missed, and those are the times that should not happen. We have limited resources like everybody else ... If these things do slip under the wire, they should be treated as what they are: a moment of aberration, and of no consequence whatever by way of a threat or challenge to Parliament. They are mistakes; that is all they are".[114]

Options

130.  We considered whether formal steps are required to ensure that such mistakes do not occur in future. As we have already noted, the Australian Parliament, when faced with (much more damaging) questioning of proceedings in Parliament by the courts, reacted by enacting the Parliamentary Privileges Act 1987, section 16(3) of which provides that:

"(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament."

131.  This is far more restrictive than current practice in the United Kingdom, and we are not persuaded that the problems being experienced in the United Kingdom would justify such a drastic limitation of the ability of the courts to question proceedings in Parliament.

132.  On the other hand, we do not concur with the recommendation of our predecessor Joint Committee, that "article 9 should not be interpreted as precluding the use of proceeding in Parliament in court for the purpose of judicial review of governmental decisions".[115] Such an unlimited disapplication of Article 9 in respect of judicial review cases could lead to all the damaging consequences outlined above.

133.  A middle way might be to leave the courts to develop their interpretation of Article 9, in respect of the admissibility of parliamentary proceedings, while requiring them to notify Parliament whenever it is proposed to refer to such proceedings in evidence. A requirement not just to notify the House of Commons, but to seek leave to refer to privileged material, existed until 31 October 1980, when the House resolved that "the practice of presenting petitions for leave to refer to parliamentary papers be discontinued".[116] No such requirement was ever imposed by the House of Lords, and the Commons requirement does not in reality seem to have been uniformly observed.

134.  More generally, Lord Justice Beatson commented that the decision as to whether or not to introduce a requirement for prior notification would depend on "whether each House of Parliament believes that there is a real problem that is of sufficient significance to create what will be quite a cumbersome procedure".[117] We are not persuaded that the problem is yet serious enough to justify such a step.

Conclusions

135.  We are grateful for the Lord Chief Justice's assurance that recent instances of judicial questioning of proceedings in Parliament are best "treated as ... mistakes", rather than a challenge to Parliament. We emphasise that such mistakes may have serious consequences: even if they are acknowledged to be mistakes, and do not establish a precedent, their frequency in judicial review cases risks having a chilling effect upon parliamentary free speech.

136.  In conclusion:

  • We welcome the clarification by the Lord Chief Justice as to the extent of the Pepper v. Hart principle, namely, that those instances in which proceedings, including Committee reports, are questioned, are best "treated as ... mistakes".
  • We consider that the comments of Mr Justice Stanley Burnton, in OGC v. Information Commissioner, represent an accurate statement of the legal limitations upon the admissibility of Select Committee reports in court proceedings, including judicial review cases. Such reliance by the courts upon Select Committee reports is not only constitutionally inappropriate, but risks having a chilling effect upon parliamentary debate.
  • We do not at this stage believe that the problem of judicial questioning is sufficiently acute to justify either legislation prohibiting use of privileged material by the courts, along the lines of section 16(3) of the Australian Parliamentary Privileges Act 1987, or the introduction of a formal and binding system of notification when reference to privileged material is contemplated.
  • We trust that less formal means than those above, building on the current good relations between the judiciary and the parliamentary authorities, will address recent problems. But in this matter, as in others covered in our Report, Parliament should be prepared to legislate if it becomes necessary to do so in order to protect freedom of speech in Parliament from judicial questioning.



97   Cm 8318, paragraphs 48 and 88 Back

98   Pickin v. British Railways Board [1974] AC 765 Back

99   Q 42 Back

100   Q 196 Back

101   Pepper (Inspector of Taxes) v. Hart [1993] AC 593 Back

102   Q 31 Back

103   Q 251 Back

104   Cm 8318, paragraph 84. This summary derives from the rule established in R v. Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696. Back

105   Written evidence from the Clerk of the Parliaments, footnote 7; the reference is to R (Pelling) v. Secretary of State for the Home Department and others [2011] EWHC 3291. Back

106   R (on the application of Reilly) v. Secretary of State for Work and Pensions [2013] EWCA Civ 66 Back

107   Q 253 Back

108   Office of Government Commerce v. Information Commissioner [2008] EWHC 737 (Admin) Back

109   Wilson v. First County Trust Ltd [2003] UKHL 40 Back

110   Cabinet Office, Guide to Making Legislation, paragraph 6.37, available on the www.gov.uk website Back

111   Q 34 Back

112   Q 38 Back

113   Q 262 Back

114   Q 265 Back

115   Report of the 1999 Joint Committee on Parliamentary Privilege, paragraph 55 Back

116   House of Commons Resolution of 31 October 1980, CJ (236) 823; see Annex 1, paragraphs 35 to 36 Back

117   Q 268 Back


 
previous page contents next page


© Parliamentary copyright 2013
Prepared 3 July 2013