Parliamentary Privilege

Parliamentary Privilege First Report

Further Memorandum by Professor Anthony Bradley[55]

THE USE OF HANSARD IN JUDICIAL REVIEW PROCEEDINGS

A FURTHER NOTE

1. The Joint Committee will know that I dealt briefly with the use of Parliamentary material in judicial review proceedings in section F of my written evidence to the Committee on 22 February 1998. Amongst recent decisions of the courts, I mentioned in particular R v Secretary of State for Trade, ex parte Anderson Strathclyde plc,[56] where the Divisional Court held that statements in Hansard could not be used to support a ground for judicial review of a minister's decision, and Pepper v Hart[57] where Lord Browne-Wilkinson said that Anderson Strathclyde had been wrongly decided on this point. I then summarised the position in this way:

Pepper v Hart

I have now been asked to amplify my account of current practice in this area. This enables me to confirm the above summary, subject to the qualification that in considering the indication given in Pepper v Hart, account must be taken of the Privy Council's decision in Prebble v Television New Zealand Ltd [1995] 1 AC 321, and I examine this case below.

A. THE RESOLUTION OF 31 OCTOBER 1980

2. I wish first to refer to the resolution adopted by the House of Commons on 31 October 1980 that gave general leave for reference to be made to parliamentary materials in court. The resolution was as follows:

"That this House, while re-affirming the status of proceedings in Parliament confirmed by article IX of the Bill of Rights, gives leave for reference to be made in future court proceedings to the Official Report of Debates and to the published Reports and evidence of Committees in any case in which under the practice of the House, it is required that a petition for leave should be presented and that the practice of presenting petitions for leave to refer to Parliamentary papers be discontinued."

This resolution recognised that statements in Parliament could be relevant to proceedings in the courts and that, given publication of the Official Record of debates and of committee proceedings, it was unnecessary for the Commons to maintain a requirement which had evolved as a matter of practice since 1818, which had never existed in respect of the House of Lords, and which had become an unnecessary formality.[58] Plainly the resolution was not intended to enable the courts to trespass on the proper functions of the House of Commons. It is of interest that while criminal proceedings and libel litigation were mentioned in the debate on the resolution in 1980, no reference was made to judicial review proceedings.

3. The Clerk of the House had in 1979 provided the Committee of Privileges with a list of the 19 occasions since 1945 when leave of the House had been sought by petition for Hansard and other records to be given in evidence; only four of these arose in what today would be judicial review proceedings.[59] The Clerk stated that leave had been refused only once (in 1831) in some 150 years.[60] Indeed, where plausible grounds for use of parliamentary material existed it is difficult to see how the House could have assessed whether the interests of justice required leave to be given for the material to be used as evidence in court.

4. The 1980 resolution included an express statement that Article IX of the Bill of Rights was not affected. As the Joint Committee will know, the years since 1980 have been notable for two parallel developments in law and government:

(a) the operation of the departmental select committees established in 1979 with the role of calling Ministers and government departments to account for acts and decisions;

(b) the vigorous growth in use of judicial review procedure as a means of enabling the High Court to examine the legality of decisions taken by Ministers, departments and other public authorities.

For reasons which were set out in my paper of 22 February 1998, I consider that these developments have each in complementary ways promoted the accountability of government.

B. JUDICIAL PRACTICE SINCE 1980

5. A systematic analysis of reported cases since 1980 would be necessary before one could chart the frequency with which applicants for judicial review came to make use of Hansard. However, it is likely that the growth in judicial review, especially of decisions by central government, has led to an increase in the use by litigants of parliamentary material. This increase was doubtless assisted by the resolution of 31 October 1980 which removed a formal obstacle to the use of Hansard. Although the decision in R v Secretary of State for Trade, ex parte Anderson Strathclyde plc[61] barred applicants from relying on a ground for judicial review which could be supported only by reference to Hansard, this did not resolve all questions about the extent to which in judicial review the courts could take account of parliamentary proceedings.

6. The relationship between courts and Parliament was considered in R v Secretary of State for the Environment, ex parte Notts County Council[62] There the council challenged the Minister's decision to impose expenditure limits on certain local authorities, the statute in question requiring the Minister to seek approval from the House of Commons for the rate support grant report on which his decision was based. On appeal, the House of Lords rejected the Council's application for judicial review, holding that the court would not, as a matter of constitutional propriety, find that the Minister's decision was unreasonable unless the Minister and the House had misconstrued the statute or there had been any other abuse of power. Lord Scarman quoted with approval what Lord Diplock had said in an earlier case concerning judicial review in the area of taxation, that the Inland Revenue Commissioners were accountable to Parliament

In reserving the right of the court to intervene for abuse of power, Lord Scarman gave the example of where it was alleged that the Minister had acted in bad faith, and had "to put it bluntly, deceived the House". There was in the Notts C C case no such allegation; and Lord Scarman did not consider the potential difficulty for an applicant of showing that the Minister had misled the House, nor whether any problems relating to Article IX would arise if such an allegation were made.

7. In another House of Lords case, Re Findlay, [64] serving prisoners sought review of a policy statement which the Home Secretary had made in the House of Commons and which, by changing the parole system, increased the time which existing prisoners would serve before being released on parole. The change of policy had first been announced at a Conservative party conference and was confirmed by a full statement in the Commons on 30 November 1983. The full text of the statement in Hansard was in evidence in the case. It was not suggested in the Divisional Court, the Court of Appeal or the House of Lords that Hansard could not be read where it contained the very decision which the applicants sought to review. In considering one submission made by the applicants, the Court of Appeal read and commented upon a statement of policy made in the Commons in 1975 by an earlier Home Secretary and considered whether that was lawful. In the Court of Appeal, Browne-Wilkinson LJ (dissenting from the majority) held the 1983 policy statement to be unlawful, but the House of Lords unanimously found the statement to have been lawful. It appears never to have been suggested that the courts were acting in breach of Article IX of the Bill of Rights by questioning the legality of a ministerial statement, recorded in Hansard, that contained a change in policy adversely affecting the applicants.[65]

8. The 1980 resolution ending the requirement to seek leave of the House before Hansard could be cited in court was considered in Pepper v Hart,[66] when the House held unanimously that use of parliamentary material for resolving statutory ambiguities would not infringe Article IX. An issue of statutory interpretation may, of course, arise in any kind of litigation. Where a discrete point of interpretation arises in a case of judicial review (for example, as to the meaning of legislation on which a public authority has relied against a private person), the Pepper v Hart rules have the same application as in other litigation. It can be difficult to predict when the court will agree to look at Hansard under Pepper v Hart[67] but such difficulties are not in any way peculiar to judicial review cases.

C. DOCUMENTARY MATERIAL AND APPLICATIONS FOR JUDICIAL REVIEW

9. A different reason for wishing to consult Hansard or minutes of evidence given to a select committee arises in cases of judicial review where the dispute is not about the meaning of an Act, but about the legality of an executive decision. The text of the decision may itself be in Hansard, as in Re Findlay, or approved by resolution of the House, as in the Notts CC case, and Hansard may contain material explaining or justifying the decision.[68] Such material may include references to the factual background or to relevant legal issues, an account of the procedure adopted, or the reasoning adopted by the decision-maker. As well as prepared statements by Ministers, relevant material may be found in ministerial speeches during debates on legislation, in Ministers' replies to adjournment debates and questions, and in evidence by Ministers and civil servants to select committees. Where a key decision is controversial, a departmental selelct committee may take evidence about it. Thus an extract from evidence to the Employment Committee of the House was cited in the case which arose from Mrs Thatcher's decision to end trade union membership at GCHQ.[69] Where a governement statement is made in Parliament, for instance on publication of a white paper, this statement is often followed by questions to the Minister, who may amplify what is said in the statement itself.

10. In very many cases material in Hansard or in the minutes of evidence to committees is no more than supplementary to other documentary material that is available to the applicant for judicial review. This other (non-parliamentary) material may include a Minister's decision given outside Parliament, the reasons for a decision given by the Minister or a civil servant in a letter to the applicant or to a Member, statements of departmental policy, ministerial circulars and guidance to local authorities. Where there is both parliamentary and non-parliamentary material relating to the same decision, an applicant for review is bound to compare them. Inconsistency on an important point may raise a question-mark about the decision. Exceptionally, parliamentary material may be the sole or predominant basis for an application for judicial review. This was the case in two important recent decisions.

D. THE PERGAU DAM AND FIRE BRIGADES UNION CASES

11. In the Pergau Dam case,[70] the challenge by judicial review to the decisions of the Foreign Secretary was not made until after proceedings in public took place before the Public Accounts Committee and the Foreign Affairs Committee early in 1994. Material from such proceedings was relied on by the applicants in the Divisional Court, as well as a ministerial statement made to Parliament in 1988. No objection was taken by the Crown to use of this material in evidence. The applicants made it clear that they did not question the accuracy of what had been said to the House's Committees, but used it to establish (as they did successfully) that the decision to grant aid for the Pergau Dam was not in accordance with the Overseas Development and Co-operation Act 1980.

12. In R v Secretary of State for the Home Department, ex parte Fire Brigades Union,[71] the Home Secretary had stated in Parliament and had issued a white paper confirming that he would not bring into force the scheme for criminal injuries compensation authorised by the Criminal Justice Act 1988 and would instead use prerogative powers to introduce a tariff-based system of compensation. By a majority of 3-2, the House of Lords held that the Home Secretary had acted unlawfully. There appears to have been no suggestion in the closely argued litigation that the court could not read statements made by the Home Secretary in the House. Indeed, the Home Secretary sought to rely on subsequent debates and votes in Parliament in support of his case. Lord Mustill (dissenting) said that these parliamentary statements were not relevant to the interpretation of the 1988 Act and referred to the importance of maintaining the constitutional boundary between the courts and Parliament; but he accepted that the Secretary of State had an obligation to act within the bounds of fairness and good faith. Amongst the grounds of review relied on by the applicants, the Home Secretary was said to have acted unlawfully in that "he has announced in Parliament and in the White Paper that it is his intention not to perform his statutory duty to implement the Statutory Scheme"[72]

13. These two cases certainly raised difficult questions of public law as to the proper extent of judicial review in respect of executive decisions which were taken, like many ministerial decisions are, in a parliamentary context. The issue for present purposes, however, is the narrower question of whether such difficulties have arisen from a failure by the courts to have due regard to Article IX. I do not consider that they have, and I would be opposed to any suggestion that in some way Article IX should be applied more rigorously in future to prevent the courts from having access to parliamentary material. It is difficult to see how such a suggestion would assist proceedings in parliament, although it might provide government departments with an extra defence against certain applications for judicial review.

E. THE PRESENT STATE OF THE CASE-LAW

14. The present practice, however, does not emerge clearly from the case-law. In Pepper v Hart, Lord Brown-Wilkinson referred to "the practice which has now continued over a number of years in cases of judicial review" whereby Hansard was cited on such issues as whether a statutory power have been "improperly exercised for an alien purpose or in a wholly unreasonable manner". Pepper v Hart itself was an income tax appeal, not a case of judicial review; thus Lord Brown-Wilkinson's remark that the same approach to using Hansard in statutory interpretation applied also to judicial review was obiter.

15. The matter came up again in Prebble v Television New Zealand Ltd[73] (like Pepper v Hart, Prebble was not a case of judicial review) where again Lord Browne-Wilkinson considered the use of parliamentary material in the process of judicial review. Having cited Article IX, he examined the significance of a maxim commended by Blackstone, namely:

"that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates and not elsewhere".

Lord Brown-Wilkinson concluded that:

16. Lord Browne-Wilkinson did give the Judicial Committee's blessing to what had been accepted in argument by the Attorney-General of New Zealand, namely that there could be no objection to the use of Hansard to prove what was done and said in Parliament as a matter of history. However, as we have seen, Prebble itself did not involve judicial review. How does Lord Browne-Wilkinson's principle apply to cases of judicial review when one of the parties (whether applicant or respondent) wishes to rely on statements made in Parliament by a Minister or to select committees by Ministers or senior civil servants? The maxim from Blackstone, as Dr Geoffrey Marshall pointed out in his evidence to the Joint Committee,[75] goes much wider than Article IX itself; taken at face value, it would have the absurd effect of excluding all discussion outside Parliament of what is said at Westminster. If it were applied to judicial review, could a Minister make a decision or policy immune from judicial review by announcing it in the Commons and, say, refusing to repeat the statement outside the House?[76] Such an interpretation of Article IX would be a long way indeed from its primary purpose of protecting freedom of speech in the House against criminal or civil liability for those who have taken part in its debates. It is fundamental in the law of judicial review that the courts are concerned with the legality of official decisions not with their expediency or political merits.

17. To put the point shortly, when judicial review is sought of a decision which has been announced or referred to in parliamentary proceedings, this process cannot be regarded as being in breach of Article IX. To institute judicial review of an executive decision is not to impeach or question the freedom of speech and debates or proceedings in Parliament. Where a Minister's decision is announced in Parliament, it inevitably enters the public domain and it may be reported verbatim in the media. Given the manner in which British government operates today, it would be artificial to restrict the process of judicial review by ring-fencing what Ministers have said in Parliament and excluding this from the purview of the courts.

18. Consistent with what Lord Browne-Wilkinson said in Prebble, an exception to this arises where an applicant for judicial review might wish to show that the Minister had misled the House. If the Minister had done so intentionally, this would be a serious breach of the principles which now govern the conduct of Ministers in relation to Parliament.[77] The duties of Ministers under those principles are owed to Parliament, not to the courts. If an inadvertent error has been made, a Minister must correct this at the earliest opportunity. For the purposes of judicial review, while the court might wish to note any material inconsistency between what is said inside and outside Parliament by a Minister and/or civil servants, the court ought not to examine the Minister about the circumstances in which an error was made, and in particular should not seek to discover whether the error was inadvertent or otherwise. This course would avoid any possible breach of Article IX and would not weaken the essential purposes of judicial review.[78]

19. In his speech in Prebble, Lord Browne-Wilkinson referred to the decision of the New South Wales Supreme Court in R v Murphy[79] and to the Parliamentary Privileges Act 1987 which was enacted by the Canberra Parliament to make it clear that Murphy was not the law of the Commonwealth of Australia. Section 16 of that Act provides "for the avoidance of doubt" in relation to proceedings of the Commonwealth Parliament:

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

(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".

20. Lord Browne-Wilkinson's comment on this provision is that the Australian Act:

"declares what had previously been regarded as the effect of Article IX and sub-section (3) contains what, in the opinion of their Lordships, is the true principle to be applied".

With all respect to Lord Browne-Wilkinson's analysis of the law, I do not agree that section 16(3) of the Australian Act does declare what in the recent practice of the United Kingdom courts has been regarded as the effect of Article IX, at least in the law of judicial review. Enactment of section 16(3) could have a potentially severe effect on the process of judicial review, particularly in regard to executive decisions taken by central government. Its effect would, for instance, make another Pergau Dam case impossible and would exclude the use of published evidence given to a select committee that was made in a recent application for judicial review agains the Lord Chancellor.[80]

F. CONCLUSIONS

21. (1) While the position emerging from recent case-law which directly examines Article IX is far from clear, the public law jurisdiction of judicial review was not before the courts in those cases. From the decisions which the courts have made in exercising the constitutional function of judicial review, there is no basis for the view that the essential freedom of speech in Parliament is impeded or affected by the current practice of the courts.

(2) The parliamentary material relevant to judicial review proceedings which either or both parties may wish the court to consider is a matter of public record. In an era when open government is encourage, and when the Government is to introduce freedom of information legislation, it would be contrary to these trends for a court to be barred from reading the Official Report of what a Minister has said at Westminster or the published evidence given to committees of the two Houses.

(3) The duty of the courts to uphold the rule of law means that they are concerned with issues going to the legality of public decisions with which the two Houses and their committees are not constitutionally equipped to deal. If a Minister's statement in the House of Commons shows that a decision taken in Whitehall was an abuse of the department's legal powers (and this ought not to be a frequent occurrence), parliamentary privilege does not bar the courts from reaching a decision on the legal issues involved.

(4) One function of the Official Report of debates in Parliament today is to serve as a depository for government policies and for reasoned justification of those policies. For a court to hold that a particular policy decision goes outside the Minister's powers under the relevant legislation is not a breach of Article IX of the Bill of Rights.

(5) It is not the function of the courts on an application for judicial review to investigate whether or not a Minister acted inadvertently or intentionally in any misleading statements which may have been made in Parliament. But any inconsistency between such statements and statements made outside Parliament is a matter which the courts may take into account in exercising their public law jurisdiction.[81]

It appears from the second affidavit that the first deponent understood that the evidence given to the Home Affairs Committee was not admissible because of Article IX. However, I am in no doubt that an applicant who claims public law rights against a Minister must be able to rely on relevant statements as to facts or policy which have been made by that Minister in public to a select committee. It would be unjust for Article IX to be used to prevent her from doing so. Section 16(3)(c) of the Australian legislation would be likely to have had this effect.

I am grateful to Richard Drabble QC and to Ms Elaine Sherratt, solicitor (Brent Community Law Centre) for the information on which this note is based.

55 Of the Inner Temple, barrister; Emeritus Professor of Constitutional Law, University of Edinburgh. Back

56 [1983] 2 All ER 233. The Divisional Court there applied to judicial review the decision in Church of Scientology v Johnson-Smith [1972] 1 QB 522 (MP sued for libel in course of television discussion; plaintiffs not allowed to prove express malice by reference to defendant's speeches in Parliament). In Strathclyde Anderson, there was inadequate argument as to whether the decision in the private law of defamation should be applied by analogy to the public law of judicial review. Back

57 [1993] AC 593, at 638. Back

58 See First Report of the Committee of Privileges, 1978-89, "Reference to Official Report of Debates in Court Proceedings" HC (1979-80) and HC Deb, 3 December 1979, col 167 and 31 October 1980, col 779. Back

59 R v Governor of Brixton Prison, ex parte Enahoro [1963] 2 QB 455; R v Home Secretary, ex parte Hosenball [1977] 1 WLR 766; Laker Airways v Department of Trade [1977] QB 643; Metzger v DHSS [1978] 1 WLR 1046. Back

60 On 21 July 1975, where leave was sought by the Attorney-General for production of Hansard in his action to restrain publication of the Crossman diaries (A-G v Jonathan Cape Ltd [1976] QB 752), the House lacked a quorum when it voted on the issue. Back

61 Note 2 above. Back

62 [1986] AC 240. Back

63 A quotation from IRC v National Federation of Self-employed Ltd [1982] AC 617, 644. Back

64 [1985] AC 318. Back

65 And of R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864, where judicial review was sought of a decision by the Board which had been set up to administer a non-statutory scheme, the rules of which were contained in Hansard. Back

66 [1993] AC 593. Back