5 Judicial questioning of proceedings
in Parliament |
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
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".
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 Parliamentdangerous
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".
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.
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
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
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,
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".
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".
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".
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".
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
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".
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
"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".
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".
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".
David Howarth also hinted at the possibility that political statements
made in Parliament could become a "substitute" for "clear
drafting" of legislation.
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".
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'."
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
"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".
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
(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
Such an unlimited disapplication of Article 9 in respect of judicial
review cases could lead to all the damaging consequences outlined
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".
No such requirement was ever imposed by the House of Lords, and
the Commons requirement does not in reality seem to have been
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
We are not persuaded that the problem is yet serious enough to
justify such a step.
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
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
Pickin v. British Railways Board  AC 765 Back
Q 42 Back
Q 196 Back
Pepper (Inspector of Taxes) v. Hart  AC 593 Back
Q 31 Back
Q 251 Back
Cm 8318, paragraph 84. This summary derives from the rule established
in R v. Secretary of State for the Home Department, ex parte
Brind  1 AC 696. Back
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  EWHC 3291. Back
R (on the application of Reilly) v. Secretary of State for
Work and Pensions  EWCA Civ 66 Back
Q 253 Back
Office of Government Commerce v. Information Commissioner
 EWHC 737 (Admin) Back
Wilson v. First County Trust Ltd  UKHL 40 Back
Cabinet Office, Guide to Making Legislation, paragraph
6.37, available on the www.gov.uk website Back
Q 34 Back
Q 38 Back
Q 262 Back
Q 265 Back
Report of the 1999 Joint Committee on Parliamentary Privilege,
paragraph 55 Back
House of Commons Resolution of 31 October 1980, CJ (236) 823;
see Annex 1, paragraphs 35 to 36 Back
Q 268 Back