Role of the courts and the House of Commons: the Attorney General's view

16.25In April 2009, the Attorney General laid a memorandum in the House of Commons Library on the relationship between the courts and the House of Commons and, in particular, on the question of the admissibility in criminal proceedings of material which might be used to impeach or question proceedings in Parliament.1 The principal conclusion of the memorandum was that the determination of whether material was inadmissible as evidence in a criminal trial by virtue of article IX of the Bill of Rights was a question of law for the court. While it was open to the House to intervene in court proceedings to argue (for example) that reliance on particular material would contravene article IX, ‘the court is not bound by the views of the House and in some cases the courts have not accepted the submissions of the House (or have not accepted them in their entirety), eg Pepper v Hart ’.2 The Attorney General's memorandum concluded that:

‘the respective roles of the courts and Parliament in relation to matters of privilege are now well settled. In particular, it is settled that it is the role of the courts to determine any questions of law relating to parliamentary privilege (especially in relation to article IX). There is a risk that the principle of comity would be undermined by a purported attempt by the House to determine such questions and thus usurp the determinative role of the courts’.3

Footnotes

  1. 1. The Memorandum was published in the Report of the House of Commons Committee on Issue of Privilege, First Report, Police Searches on the Parliamentary Estate, HC 62 (2009–10), Ev 130–31 and see para 11.18.
  2. 2. Committee on Issue of Privilege, First Report, Police Searches on the Parliamentary Estate, HC 62 (2009–10), Ev 131 para 8; In 2013, a prosecution of Lord Hanningfield did not proceed after a submission from the House of Lords did not object to the prosecution per se but noted that the question of what constituted ‘parliamentary work’ was not for the courts to decide (see Committee for Privileges and Conduct, Fourteenth Report of Session 2013–14, Conduct of Lord Hanningfield, HL 181; and Sir John Saunders, ‘Parliamentary privilege and the criminal law’, Crim LR 2017, 7, 521–36).
  3. 3. Committee on Issue of Privilege, First Report, Police Searches on the Parliamentary Estate, HC 62 (2009–10), Ev 131 para 10. One such risk would be that of prejudice to a criminal trial if there were to be prior debate and discussion of the evidence in the House before such a trial.