Control of proceedings

11.16Both Houses retain the right to be sole judge of the lawfulness of their own proceedings, and to settle—or depart from—their own codes of procedure. This is equally the case where the House in question is dealing with a matter which is finally decided by its sole authority, such as an order or resolution, or where (like a bill) it is the joint concern of both Houses. The principle holds good even where the procedure of a House or the rights of its Members or officers to take part in its proceedings depends on statute.

The fullest recognition has been accorded by the courts to the rights of both Houses to exclusive parliamentary cognizance of their proceedings even in matters prescribed by statute. In the judgment given in the case of Bradlaugh v Gosset in 1884, question arose whether Bradlaugh, who had been returned a Member, had qualified himself to sit by making an affirmation instead of taking the oath. Subsequently, following re-election, he was prevented from taking the oath by an order of the House. In the course of his judgment in an action seeking (inter alia) to have the order declared void, Stephen J declared that even if the House of Commons forbade a Member to do what statute required him to do and, in order to enforce the prohibition, excluded him from the House, the court had no power to interfere:

‘the House of Commons is not subject to the control of … [the] courts in its administration of that part of the statute law which has relation to its own internal proceedings … Even if that interpretation should be erroneous [the] court has no power to interfere with it, directly or indirectly.’1

It has been judicially recognised that Parliament is the master of the application of its own procedures to the business before it. A party before the House of Lords in 1973 argued that the promoters of a private bill had misled Parliament into granting certain rights to them. The House of Lords sitting judicially found that he was not entitled to examine proceedings in Parliament to show that the promoters had caused him loss. It was for Parliament to lay down procedures for considering bills, and to decide if they had been followed or to decide to depart from them. Parliament determined what documentary material or testimony might be required, and the extent to which parliamentary privilege might attach. ‘It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry concerning the effect or effectiveness of procedures in the High Court of Parliament, or an inquiry whether in any particular case those procedures were effectively followed’2 (see also para 16.10 ).

In 1997, the Northern Ireland High Court rejected an application for leave to apply for judicial review of the Speaker's decision to withdraw certain facilities of the House from Members who had not taken the oath, on the grounds that the decision lay within the realm of internal arrangements of the House with which the courts would not interfere.3 The European Court of Human Rights ruled inadmissible an application to have the Speaker's decision overturned.4 The Speaker's decision was later superseded by resolution of the House.5

British courts will not review the acts—or omissions—of Members individually in connection with the proceedings of the House. It was decided in the courts in 1894 that no action at common law lay against a Member of the House of Commons who refused to present to the House a petition forwarded to him by a constituent.6

The Court of Appeal found in 1997 that the House, not the courts, was responsible for the activities of the Parliamentary Commissioner for Standards.7

There have been occasions when the courts have appeared to trespass on matters otherwise recognised as exclusively within parliamentary cognizance. When this has happened, however, later decisions have usually commented on or explained the original judgment, as in the case of Adam v Ward before the House of Lords in 1917, which was commented on in Prebble v Television New Zealand.8 In 1990, it was held by the High Court that though the appointment of the chairman and members of a committee of the House of Commons formed part of proceedings in Parliament, and so could not be questioned in court, evidence regarding the practice of the House in respect of the registration of Members' interests was capable of being admitted.9 Notice was given of an appeal relating to the court's view of the meaning and scope of ‘proceedings in Parliament’ (see para 13.12 ), but the matter was not determined in a higher court, as the parties settled.

In 2007, the European Council agreed a mandate for a new treaty, the Lisbon Treaty, which was signed in December 2007. The Government said that it did not intend to hold a referendum on the Treaty and made no provision for a referendum in the subsequent European Union (Amendment) Bill. In an application for judicial review of the Government's decision to ratify the Lisbon Treaty without a referendum, it was argued that an earlier promise to hold a referendum on the Constitution for Europe involved an implied representation that a referendum would be held in relation to any Treaty having equivalent effect.10

The applicant sought a declaration that the refusal to hold a referendum was in breach of his legitimate expectation and therefore unlawful. The Speaker intervened to argue that it was neither permissible nor appropriate for a court to grant any remedy which would require that particular steps be taken in the House by any of its Members or that Members must vote in a particular way. The applicant's case was reformulated and cut back in an attempt to respond to Parliament's position, but despite that reformulation the judges decided that any judgment which purported to place a duty or obligation on the Prime Minister or the Foreign Secretary to do an act within Parliament in their capacity as Members would plainly trespass impermissibly on the province of Parliament.11 This is distinct from the more recent decision in Miller,12 which held that if the Government wished to undertake an action which would result in a change to the regime of law, namely giving notice of intention to withdraw from the EU under Article 50 TEU, legislation would be required.

Footnotes

  1. 1. Bradlaugh v Gosset (1884) 12 QBD 271 at 278–86. See also the observations of Lord Coleridge CJ at 273–74.
  2. 2. British Railways Board v Pickin [1974] AC 765 at 790 and 1 All ER 609 at 620 per Lord Morris of Borth-y-Gest. See also Fairfold Properties Ltd v Exmouth Docks (1990) TLR 660, in which Millett J observed (at 661): ‘Parliament has to be left in unfettered control of its own procedure’.
  3. 3. 1997 NI 359. For the Speaker's statement, see HC Deb (1997–98) 294, cc 35–36.
  4. 4. McGuinness v United Kingdom (App No 39511/98) (1999).
  5. 5. CJ (2001–02) 274–75.
  6. 6. Chaffers v Goldsmid [1894] 1 QB 186, esp 187.
  7. 7. R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 All ER 93, [1998] 1 WLR 669. Cf a decision that the rulings of the Parliamentary Commissioner for Administration, being concerned with the proper functioning of the public service outside Parliament, are subject to judicial review, while the Parliamentary Commissioner for Standards is focused on the propriety of the working and the activities of those engaged within Parliament, R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 All ER 375, [1994] 1 WLR 621.
  8. 8. See para 12.1. Adam v Ward [1917] AC 309 esp at 319, 322, commented on in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335, [1994] 3 All ER 407 at 416–17. In a lower court, it was suggested that the House of Commons might have elected not to assert its privileges in Adam v Ward (Television New Zealand Ltd v Prebble (1993) 3 NZLR 513 at 520–23 ). There is no evidence to this effect and in any case, since the privilege concerned was enshrined in statute—the Bill of Rights—it is hard to see how, short of legislation, the House could of its sole authority have permitted the court to interfere. The Judicial Committee of the Privy Council ([1995] AC 321 at 336, [1994] 3 All ER 407 at 417) concluded that the questioning in court of the conduct in the House of a member of the New Zealand House of Representatives for the purposes of assessing a defendant newspaper's defence of provocation in a libel action ‘should not have been allowed’ in News Media Ownership v Finlay [1970] NZLR 1089. (Article IX of the Bill of Rights applies in New Zealand, and if it can be given a meaning consistent with the New Zealand Bill of Rights 1990, that meaning is to be preferred to any other.)
  9. 9. Rost v Edwards [1990] 2 QB 460, commented on in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337, [1994] 3 All ER 407 at 418. A more limited case of judicial hearing of evidence on matters which might be regarded as within the exclusive view of Parliament was that of the admission of evidence regarding advice given by an Officer of the Commons to a Member of that House concerning its procedure in Chaffers v Goldsmid [1894] 1 QB 186. This matter was not subject to any subsequent review. See also Allason v Haines (1995) TLR 438.
  10. 10. R (on the application of Wheeler) v (1) Office of the Prime Minister (2) Secretary of State for Foreign and Commonwealth Affairs and Speaker of the House of Commons [2008] EWHC 1409 (Admin).
  11. 11. [2008] EWHC 1409 (Admin), para 49.
  12. 12. R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the UK [2017] UKSC 5, [2017] NI 141, [2017] 1 All ER 593.