Use of parliamentary material in court proceedings
13.15The claim to exclusive cognizance of proceedings means that Members cannot be compelled to give evidence in the courts regarding proceedings in either House without the permission of the House.1 Similarly, no clerk or staff of the House of Commons or person employed to take minutes of evidence before the House or any of its committees may give evidence elsewhere in respect of any proceedings of the House or its committees without the special leave of the House.2 Parties to a suit who desire to produce such evidence or any other document in the custody of staff of either House accordingly petition the House, praying that the proper officer may attend and produce the material (see para 24.21 ).3 Motions for leave have on occasions been moved without previous notice.4 A motion made in the House of Commons that leave be given for certain unreported select committee evidence, correspondence and notes to be produced in court has been withdrawn.5
The House of Commons partially relaxed its claim to exclusive cognizance in 1980, when it agreed to a resolution permitting reference to be made in court to certain (though not all) parliamentary papers which until then had been protected by the claim to exclusive cognizance. Those to which reference may be made without the necessity of the presentation of a petition for leave are the Official Report and the published reports and evidence taken by committees. The same resolution made clear, however, that the statutory protection afforded to proceedings in Parliament by the Bill of Rights was not affected by the relaxation.6
There had emerged in the courts at least by the middle of the eighteenth century a self-imposed rule which excluded from their consideration when interpreting statutes parliamentary material, including debates, relevant to the legislative history of the statute.7 A number of cases decided by the House of Lords in its judicial capacity in recent years have significantly varied this rule, and so are of particular relevance to the privilege of exclusive cognizance as it relates to freedom of speech. In 1989, the House of Lords took account of ministerial statements made in Parliament for the purpose of ascertaining Parliament's intention in agreeing to certain draft regulations intended to give effect in United Kingdom law to a judgment of the European Court of Justice. The House of Lords concluded that this course of action was legitimate, because the draft regulations, being a statutory instrument, were ‘not subject to the usual parliamentary procedure as a bill would have been…and [were] in the context of section 2 of the European Communities Act 1972’. It was said in a subsequent case that this decision ‘represented a major inroad’ into the courts' exclusionary rule.8 The third case arose in 1991.9 The practice of referring in court to the Official Reports of parliamentary proceedings had been permitted over a number of years in cases of judicial review, in order to determine ‘whether a statutory power ha[d] been improperly exercised for a certain purpose or in a wholly unreasonable manner’. In this instance, it was the Crown which invited the court to look at the Official Report of the Commons.
Much the most far-reaching change by way of a relaxation of the rule excluding parliamentary material from the courts when interpreting statute was made by the House of Lords sitting in its judicial capacity in 1992 in the case of Pepper v Hart.10 The ruling built on the three judgments mentioned above. The House of Lords concluded that there was no logical distinction between the use of ministerial statements introducing subordinate legislation and such statements made in respect of other statutory provisions capable of amendment. Second, fine distinctions between, on the one hand, looking for the mischief which a statute was intended to tackle by comparing Law Commission proposals with bills in Parliament and, on the other, seeking parliamentary intentions expressed in words, were ‘technical and inappropriate’. Finally, references to the Official Report for the purposes of judicial review and for the purposes of statutory construction were found by their Lordships to be indistinguishable.11 As a result of the decision in Pepper v Hart, the courts now refer to parliamentary material where legislation is considered to be ambiguous or obscure, or leads to an absurdity; where the parliamentary material consists of one or more statements by a Minister or other promoter of a bill, together with such other parliamentary material as is necessary to understand such statements and their effect; and where the statements relied upon are clear.12
In coming to their decision in Pepper v Hart, the Lords of Appeal in Ordinary considered arguments put by the Attorney General about the relevance of the parliamentary privilege of exclusive cognizance and the statutory protection in the Bill of Rights against ‘questioning’ proceedings in Parliament (see para 13.11 ). They found themselves unable to identify any privilege which extended beyond the Bill of Rights, and could not agree with the Attorney General on the breadth of the term ‘questioning’.13
The House of Lords authoritatively restated the scope of the rule in Pepper v Hart in its judgment in Wilson v Secretary of State for Trade and Industry (Appellant).14 It accepted that the purpose of the rule was to create a kind of quasi-estoppel against the executive (or to require it to honour a legitimate expectation it had created) which prevented it from subsequently placing on words a meaning different from that used by Ministers in Parliament.15 The Lords further held that reliance on ministerial or other statements in Hansard was legitimate, as would be the case for White Papers or similar material, where information as to the background of legislation was sought to establish its compatibility with the European Convention on Human Rights under the provisions of the Human Rights Act 1998. It was otherwise when the purpose was to control the meaning of an Act or to ascribe to Parliament as a whole views expressed by Ministers. It is for Parliament to decide what reasons need be given for legislation and how far they are sufficient. The views of one Member—ministerial or otherwise—cannot be attributed to the House of which they are a Member, and a fortiori not to Parliament as a whole.16
Several more recent cases have addressed at what point the deployment of parliamentary proceedings constitutes questioning or impeaching of those proceedings, contrary to Article IX of the Bill of Rights.17 In Office of Government Commerce v Information Commissioner, the use by one party of an opinion expressed by a select committee was held to be inadmissible in part because it would put the other party at an unfair disadvantage. The other party must either accept the opinion (when it would otherwise not wish to do so) or challenge that opinion, thereby inviting the tribunal to pass judgment on it and risk a breach of Article IX.18
There has been repeated parliamentary consideration of the use of parliamentary material in judicial review and other cases. In 1999, the Joint Committee on Parliamentary Privilege recommended that Article IX of the Bill of Rights should not be interpreted as precluding the use of proceedings in Parliament in court for the purpose of judicial review of government decisions or in other proceedings in which a government decision is material.19 This was rejected by the Joint Committee on Parliamentary Privilege in 2013, on several grounds, including that such use of proceedings could have a chilling effect on what Ministers were prepared to say in proceedings or it could lead to judicial evaluation of the way in which parliamentary committees reached their conclusions. The then Lord Chief Justice described some of the uses made of proceedings as ‘a mistake’. The Committee considered that no action was immediately necessary, but recommended that Parliament should be prepared to legislate if necessary to protect freedom of speech in Parliament from judicial questioning.20
The following description of permitted uses of proceedings, formulated by Speaker’s Counsel, has been adopted in two recent judgments:
‘The Speaker accepts that there are circumstances in which reference can properly be made to proceedings in Parliament and where therefore this will not constitute impermissible “questioning” of statements made in Parliament:
- The Courts may admit evidence of proceedings in Parliament to prove what was said or done in Parliament as a matter of historical fact where this is uncontentious: see Prebble v Television New Zealand Ltd  1 AC 321, at 337.
- Parliamentary material may be considered in determining whether legislation is compatible with the European Convention on Human Rights: see Wilson v First County Trust Ltd (No. 2)  1 AC 816, at paragraph 65 (Lord Nicholls of Birkenhead).
- The Courts may have regard to a clear ministerial statement as an aid to the construction of ambiguous legislation: see Pepper v Hart  AC 593, at 638.
- The Courts may have regard to Parliamentary proceedings to ensure that the requirements of a statutory process have been complied with. For example, in this case, the Courts may admit such material in order to be satisfied that the steps specified in section 9 of the Planning Act have been complied with.
- The Courts may have regard to Parliamentary proceedings in the context of the scope and effect of Parliamentary privilege, on which it is important for Parliament and the Courts to agree if possible: see the decision of Stanley Burnton J (as he then was) in Office of Government Commerce v Information Commissioner  QB 98, at paragraph 61.
- An exception has also been identified for the use of ministerial statements in judicial review proceedings. The Speaker accepts that such an exception exists but contends that the scope and nature of this exception has not yet been the subject of detailed judicial analysis. It calls for careful consideration of the constitutional issues involved. We respectfully agree.’21
- 1. Plunkett v Cobbett (1804) 170 ER 763; Chubb v Salomons (1851) 175 ER 469. For petitions to the House of Commons seeking leave for a Member to give evidence in court, see eg CJ (1966–67) 578; ibid (1967–68) 98, 108; ibid (1981–82) 175. In 1948, the Commons gave leave to certain Members to give evidence in court ‘touching certain incidents’ in the House in an action for libel brought by another Member. Leave was also given to other Members (and other persons) to attend and produce documents touching the conduct of a Member as such (CJ (1948–49) 14 and Braddock v Tillotsons Newspapers Ltd [1948–49] 2 AC 306 ).
- 2. CJ (1818) 389, which followed the proceedings in R v Merceron (1818) 171 ER 675, when a shorthand writer employed by the House of Commons gave evidence in court of what an accused had said when being examined as a witness before a parliamentary committee. See also Parl Deb (1828) 18, cc 968–74. For modern instances where leave was given to officers by the House of Commons to give evidence in court, see CJ (1962–63) 201; ibid (1964–65) 276; ibid (1967–68) 125; ibid (1969–70) 153; ibid (1974–75) 730; ibid (1975–76) 45, 346, 426, 428, 617; ibid (1976–77) 152, 453; ibid (1977–78) 441; ibid (1978–79) 49, 144, 188; ibid (1979–80) 73, 591, 605. In other instances, petitions have not been proceeded with (ibid (1958–59) 313) or proceedings on the motion for leave stood over for lack of a quorum and were not resumed (ibid (1974–75) 567, 571). For the procedure on such motions, see para 20.6.
- 3. The agreement of the House to a motion based on a petition for leave to an officer to give evidence in court remains necessary, even when the action before the court is based on a statute making an implied amendment of the Bill of Rights as it affects the status of ‘proceedings in Parliament’, as eg formerly under the Defamation Act 1996, s 13 (see para 16.19 ). In Forbes v Samuel  3 KB 706, which concerned whether a Member had sat and voted contrary to the House of Commons (Disqualification) Act 1801, a shorthand writer who had taken notes at a select committee gave evidence in court (at 725), as did two clerks in connection with the proceedings in a division (at 725 and 730). In Tranton v Astor (1917) 33 TLR 383, which also concerned disqualification, when the court declined to admit Hansard as evidence, official reporters testified regarding the presence of the accused in the Chamber, producing their notes and personally identifying the individual concerned. Leave was given by the House in both cases (CJ (1913) 101 and ibid (1916) 213).
- 4. CJ (1851) 212, 277; ibid (1852) 291; ibid (1967–68) 125. For a motion not preceded by a petition, see eg HC Deb (1939–40) 365, c 135.
- 5. CJ (1994–95) 299, 366 and HC Deb (1994–95) 261, cc 333–54, and Supplement to the Votes and Proceedings, 26 April 1995. See also Rost v Edwards  2 QB 460,  2 All ER 641.
- 6. CJ (1979–80) 823; Committee of Privileges, First Report, HC 102 (1978–79). It has never been held to be contrary to the Bill of Rights to refer in court to the Official Report where no inferences are sought to be drawn from the reference (see para 16.11 ). The House agreed that select committee papers could be included in the papers exchanged between the parties in Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (see (2000) 72 ConLR 21 ); CJ (1997–98) 281.
- 7. Millar v Taylor (1769) 98 ER 201. See also Francis Bennion, Statutory Interpretation (5th edn, 2008), p 644 ff.
- 8. Pickstone v Freemans plc  2 AC 66, commented on in Pepper v Hart  AC 593 at 609,  1 All ER 42 at 61, 63, 65, 68.
- 9. R v Secretary of State for the Home Department, ex p Brind  1 AC 696 esp at 713, 715–16, 755, 758. For other cases involving scrutiny of ministerial decisions as announced to the Commons and therefore recorded in the Official Report (on the parole system), see Findlay v Secretary of State for the Home Department  AC 318; Pierson v Home Secretary  3 All ER 577; R v Home Secretary, ex p Venables  AC 407,  3 All ER 97; R v Home Secretary, ex p Hindley  QB 751,  1 QB 152. As explained in Wilson v Secretary of State for Trade and Industry  UKHL 40,  1 AC 816,  4 All ER 97, the use of Hansard in Brind and in cases like it is evidential; it is the Minister's decision not the statement which evidences it which is the subject-matter of the review.
- 10. Pepper v Hart  AC 593,  1 All ER 42.
- 11.  1 All ER 63, 65, 68.
- 12. It was ruled in Three Rivers District Council v Bank of England (No 2)  2 All ER 363 esp at 366, that where a court is seeking to construe a statute purposively and consistently with any European materials, and it is of particular importance to ascertain the true purpose of an Act which introduces into United Kingdom law the provisions of an international convention or European directive, it may adopt a more flexible approach to the admissibility of parliamentary materials than that established for the construction of a particular provision of purely domestic legislation. In the case of National Westminster Bank and Barclay's Bank  VCIR76TC1 the question of construction of legislation was commenced prior to third reading of the relevant Finance Bill but judgment delivered after the Bill was passed.
- 13. Pepper v Hart  AC 593 at 645,  1 All ER 73 at 74.
- 14.  UKHL 40.
- 15. See  UKHL 40 at 113 and 140; Lord Steyn ‘Pepper v Hart, a re-examination’ in Oxford Journal of Legal Studies 21 (2001), p 59; and R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd  1 All ER 195,  2 AC 349 at 391, 398, 402, 407.
- 16. See Wilson v Secretary of State for Trade and Industry  UKHL 40 at 67: ‘The court is called upon to evaluate the proportionality of the legislation not the minister's exploration of the policy options or of his explanations to Parliament. The latter would contravene Article IX of the Bill of Rights’; and also paras 117, 139 and 143. Reviewing the Wilson case, Blake J suggests that Wilson may justify the limited use of parliamentary materials in compatibility cases:  EWHC 2336 (Admin), para 65.
- 17. See eg OGC v Information Commissioner  EWHC 737 (Admin). For a decision by the courts against the use of the Official Report of the Commons in an attempt to seek relief in proceedings for judicial review of something which occurred out of Parliament, in R v Secretary of State for Trade v Anderson Strathclyde plc, see para 16.11. See also the decision of an Australian court in R v Murphy, where the judge took a narrow view of ‘proceedings’ and permitted the cross-examination of witnesses in regard to the evidence they had given before a parliamentary committee; and the subsequent enactment of the Australian Parliamentary Privileges Act 1987, at para 16.13.
- 18.  EWHC 737 (Admin) at para 58. Also see R (on the application of (1) Federation of Tour Operators (2) TUI UK Ltd (3) Kuoni Travel Ltd and HM Treasury and HM Revenue and Customs)  EWHC 2062 (Admin),  STC 547; R (on the application of Henry Bradley) v Secretary of State for Work and Pensions and Parliamentary Commissioner for Administration  EWHC 242 (Admin),  QB 114; R (on the application of Wheeler) v Office of the Prime Minister and Secretary of State for Foreign and Commonwealth Affairs  EWHC 1409 at paras 53 and 54.
- 19. Joint Committee on Parliamentary Privilege, First Report of Session 1998–99, Parliamentary Privilege: Volume I – Report & Proceedings, HL 43-I, HC 214-I, paras 55, 59.
- 20. Joint Committee on Parliamentary Privilege, First Report of Session 2013–14, Parliamentary Privilege, HL 30, HC 100, para 136.
- 21. R (Heathrow Hub) v Secretary of State for Transport  EWCA Civ 13,  4 All ER 276, para 158 and R (PRCBC) v SSHD  EWHC 3536 (Admin),  2 All ER 572, para 90.