Reliance on parliamentary proceedings

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16.22Since Pepper v Hart and Prebble, the courts have been required to rule on the admissibility of a range of parliamentary materials and publications with increasing frequency. Judicial decisions that have followed have in certain cases exhibited a divergence of approach that could represent a challenge to principles that were previously well established. In his written evidence to the 2013 Joint Committee on Parliamentary Privilege, the Clerk of the Parliaments identified ‘inroads’ being made by the courts into the former understanding of how proceedings in Parliament might be questioned or impeached.1 The Clerk of the House of Commons stated in his evidence on the use of parliamentary proceedings in court that he had observed an ‘encroachment of the courts into territory they would have previously avoided’.2 These observations were accompanied by evidence that instances of the Speaker or the Clerk of the Parliaments having to intervene in court proceedings to assert privilege where parliamentary proceedings had been relied upon had been increasing for some time.3 The courts have themselves remarked that in public law cases the practice of parties placing voluminous quantities of parliamentary material before a court has become ‘relatively commonplace’.4

As is described more fully in para 13.15, there has recently been a line of decision which sets out a range of permissible uses of parliamentary proceedings. This can be summarised as undisputed proof of historical fact, consideration of compatibility with the European Convention on Human Rights, statutory construction, ensuring that statutory requirements have been met, establishing the views of Parliament on the scope and effect of parliamentary privilege, and the use of ministerial statements in judicial review proceedings. The court agreed with the contention that the scope and nature of the last exception had not yet been the subject of detailed judicial analysis and required careful consideration of the constitutional issues involved.

The principles set out in Pepper v Hart and in Prebble received further judicial examination in Toussaint v A-G of Saint Vincent and the Grenadines.5 In this case, the Judicial Committee allowed the appellant to rely on statements made by the Prime Minister in the House of Assembly as evidence of unlawful motivation in a case of compulsory purchase. The Judicial Committee's decision was founded on two arguments. The first was that the House of Lords had on a number of occasions stated that use could be made of ministerial statements in Parliament in judicial review proceedings to explain conduct occurring outside Parliament. This approach was endorsed by the 1999 Joint Committee on Parliamentary Privilege.6 The second was that the Prime Minister's statement was relied on simply for its explanation of the motivation of the executive's action outside the House. It was not being questioned or challenged in itself.

The Speaker intervened in three cases in the High Court in 2007 and 2008. In the first case (R (on the application of Bradley) v Secretary of State for Work and Pensions ),7 the judge distinguished between reliance on evidence given to a select committee and reliance on a report of a select committee. In refusing to take either into account, he stated that the evidence was inadmissible because reliance on it would inhibit freedom of speech in Parliament and thus contravene article IX. The report itself was inadmissible on the grounds that the courts and Parliament were both astute to recognise their respective roles and it was therefore for the courts, not the select committee, to decide questions of law. In the second and third cases (R (Federation of Tour Operators) v Her Majesty's Treasury8 and Office of Government Commerce (OGC) v Information Commissioner ),9 the court expanded on the second point to state that in general the opinion of a parliamentary committee will be irrelevant to the issues before a court because of ‘the nature of the judicial process, the independence of the judiciary and of its decisions and the respect that the legislative and judicial branches of government owe to each other’.10

Courts have nonetheless sought to depart from this exclusionary rule in more recent cases. The Age UK case11 involved the judicial review of the Employment Equality (Age) Regulations 2006 on the grounds that they permitted employers a wider latitude to discriminate against employees on the grounds of age than was permitted by the European legislation that the Regulations sought to implement. Parliamentary material relating to the legislative history of the Regulations, including evidence presented to committees of both Houses of Parliament and resulting committee reports, was submitted in evidence. The Attorney General, supporting interventions on behalf of both Houses, submitted that it was constitutionally improper for the court to receive the record of evidence given by a witness to a parliamentary committee and the subsequent conclusions of the committee itself. The Administrative Court took the view in this case that there was:

‘no constitutional impediment to the court receiving the material that the parties and the intervenor seeks to place before it for the purpose of informing itself as to the statutory history, the relevant considerations that led to the formation of policy, the aim of the policy in promoting the Regulations, and the existence of factors that might be relevant to the assessment of whether the Regulations were proportionate in their derogation from the principle of equal treatment of the grounds of age’.12

Further cases have sought to take an expansive approach. In Pelling,13 a case concerning a challenge to a Legislative Reform Order that had proceeded through committees of both Houses, the parliamentary authorities succeeded at the preparatory stages of the case in preventing both parties from adducing parliamentary materials through written and oral submissions to the court. Parliamentary proceedings were nonetheless relied on at some length. In Gibraltar Betting,14 a case concerning a challenge of the lawfulness of a statutory scheme to regulate commercial gambling, Age UK was cited to allow reference to the reports of parliamentary committees that had conducted pre-legislative scrutiny of the statute in question. The court was assisted in coming to this view by the fact that it was the counsel for the defendant Secretary of State relying upon the existence of these reports. At first instance in both Reilly (No. 1)15 and Reilly (No. 2)16, cases concerning the lawfulness of a Government employment scheme, the findings of parliamentary committees and extracts from the Official Report were relied on by the parties and quoted in the judgments. The Supreme Court did the same in 2014 in Nicklinson.17 In the earlier Assange18 case from 2012, a Justice of the Supreme Court suggested that Parliament had been unintentionally misled in respect of the United Kingdom's international obligations when the Extradition Act 2003 was being legislated.19

There have at the same time been instances of cases which have moved back towards the exclusionary position. In Aspinall,20 the Administrative Court refused to allow counsel for an intervening party to rely on a report of a parliamentary committee, distinguishing the Supreme Court's usage in Nicklinson and returning to the position established in the OGC case that the opinion of parliamentary committees should be irrelevant to a court. In Reilly (No. 2),21 the Court of Appeal held that the judgment of the Administrative Court had in places transgressed article IX by reliance on the findings of a Lords Committee. The court took the opportunity to observe the difficult position that the courts are placed in by parties (including the Crown) who seek to place voluminous parliamentary materials before them, making the point at which parliamentary proceedings are being questioned difficult to observe. OGC was again cited as an indication of the correct approach. In Henley-Smith, the Administrative Court, after a comprehensive examination of the relevant case law, restated the importance of the criteria established in Pepper v Hart when relying on parliamentary material for the purposes of determining legislative intention, and held that using parliamentary materials to determine the scope of a discretionary statutory power was impermissible.22

The Nicklinson case has raised a further issue, which is how Parliament can convey a decision that the law does not need changing to the courts.

Footnotes

  1. 1. Written Evidence from David Beamish, Clerk of the Parliaments, Joint Committee on Parliamentary Privilege Oral and Written Evidence, HL 30, HC 100 (2013–14), p 157.
  2. 2. Written Evidence from Sir Robert Rogers KCB DL, Clerk of the House of Commons, Joint Committee on Parliamentary Privilege Oral and Written Evidence, HL 30, HC 100 (2013–14), p 149.
  3. 3. Oral evidence from Sir Malcolm Jack KCB, Former Clerk of the House of Commons, Joint Committee on Parliamentary Privilege Oral and Written Evidence, HL 30, HC 100 (2013–14), Q 66.
  4. 4. R (Reilly and another) v Secretary of State for Work and Pensions (No 2) [2016] EWCA Civ 413, [2017] QB 657, [2016] 3 WLR 1641, at para 109. The full quote is reproduced in fn 22 below.
  5. 5. Toussaint v Attorney General of Saint Vincent and the Grenadines (Saint Vincent and the Grenadines) [2007] UKPC 48, [2008] 1 All ER 1, [2007] 1 WLR 2825.
  6. 6. HL 43-I, HC 214-I (1998–99) paras 46–55.
  7. 7. Bradley, R (on the application of) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin), [2009] QB 114, [2008] 3 WLR 1059.
  8. 8. Federation of Tour Operators, R (on the application of) v HM Treasury [2008] EWCA Civ 752, [2008] STC 2524.
  9. 9. Office of Government Commerce v Information Commissioner (Rev 1) [2008] EWHC 737 (Admin),  [2009] 3 WLR 627.
  10. 10. Office of Government Commerce v Information Commissioner (Rev 1) [2008] EWHC 737 (Admin), at para 48. In R (on the application of Jeffries) [2018] EWHC 3239 (Admin), the reason given for a ruling that a statement in the House of Commons did not give rise to a legitimate expectation was that it was ‘a statement of intent, made in an intensely political context and made not to a small or defined class but in effect to the public at large’ (para 78). The court implicitly recognised the distinction between political and legal accountability.
  11. 11. R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin), [2009] IRLR 1017.
  12. 12. [2009] EWHC 2336 (Admin), paras 50–59.
  13. 13. Pelling, R (on the application of) v Newham London Borough Council [2012] EWCA Civ 679.
  14. 14. Gibraltar Betting & Gaming Association Ltd v The Secretary of State for Culture, Media & Sport the Gambling Commission [2014] EWHC 3236 (Admin), [2015] 1 CMLR 751, [2015] LLR 6.
  15. 15. R (on the application of Reilly) v Secretary of State for Work and Pensions [2012] EWHC 2292 (Admin).
  16. 16. R (on the application of Reilly) v Secretary of State for Work and Pensions (No 2) [2014] EWHC 2182 (Admin), [2015] QB 573, [2015] 2 WLR 309.
  17. 17. R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38, [2015] AC 657, [2014] 3 All ER 843, paras 50–52, 183, 188 and 190. It is arguable in this case that references to parliamentary materials could be justified on the basis that the court was considering the compatibility of primary legislation with the European Convention on Human Rights per Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, but Wilson was not cited by the court as authority for this approach. See also R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin), [2016] QB 862, [2016] 3 All ER 490, paras 65–69 on the use of parliamentary materials to determine ECHR compatibility.
  18. 18. Assange v The Swedish Prosecution Authority (Rev 1) [2012] UKSC 22, [2012] 2 AC 471, [2012] 4 All ER 1249, [2012] 2 WLR 1275.
  19. 19. [2012] UKSC 22, paras 98–99.
  20. 20. Aspinall, Pepper, R (on the application of) v Secretary of State for Work and Pensions [2014] EWHC 4134 (Admin), paras 119–22.
  21. 21. Reilly v Secretary of State for Work And Pensions [2016] EWCA Civ 413, [2016] 3 WLR 1641, para 109:
    ‘We do, however , wish to observe that [the learned judge at first instance] was put in a difficult position by the Secretary of State's reliance in his evidence on the justifications for the legislation advanced by Lord Freud in his speech in the House of Lords and by the extent of the Parliamentary materials placed before her in the voluminous bundles produced by the parties. That made the line between criticising the Secretary of State's case and questioning proceedings in Parliament hard to identify or observe. It has become relatively commonplace in public law proceedings for every last word spoken or written in Parliament to be placed before the court. In particular, debates are relied upon extensively when they should not be and, furthermore, the conclusions of Select Committees are prayed in aid with the court being asked to “approve” them. For the reasons summarised by Stanley Burnton J at paras. 46-48 of his judgment in Office of Government Commerce v Information Commissioner [2010] QB 98 that should not happen.’
  22. 22. Henley-Smith, R (On the Application of) v Secretary of State for Justice [2017] EWHC 1948 (Admin).