Warsama v Foreign and Commonwealth Office

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16.31Warsama v Foreign and Commonwealth Office1 looked at the extent to which freedom of speech in Parliament enjoyed privilege by analysis of whether or not a particular matter was in fact a proceeding in Parliament. The central question was whether a paper published as the result of an unopposed return was protected both by parliamentary privilege and by the Parliamentary Papers Act 1840. The findings of a non-statutory inquiry into allegations of child abuse in St Helena were published as a return to an order. Two of those named in the report challenged this use of the power. The judge found that:

‘it is in my judgment not open to me on domestic authority to conclude that the Unopposed Return is outside the core business of Parliament. It is a species of “freedom of speech”. It is exercised by a Parliamentary procedure and is thus also a “proceeding in Parliament” giving effect to that free speech, even though not part of “debate” or part of any form of legislative activity. It is noteworthy that both the Bill of Rights and the decision in R v Chaytor do not speak in terms of “freedom of speech in debate” but of “freedom of speech and debate”.’2

The judge also considered that an ECHR-compliant reading of Article IX of the Bill of Rights would include the unopposed return procedure within the protection of that Article. The consequence was ‘that insofar as the Claimants allege and seek to establish that the content of the Report is incorrect and actionably causes them loss and damage then they are necessarily seeking to impeach or question the proceedings in the form of the words uttered in writing by way of the Return to the Motion’ and the protection of the Parliamentary Papers Act 1840 also applied to the separate publication of the report by the FCO.3

The judge reached this conclusion with some ‘unease’ and gave permission to appeal of her own motion. Her concerns were that the unopposed return procedure was not a matter of debate; rather it was a device to allow the Executive to publish material under the cloak of parliamentary privilege. In moving for such a return in Parliament, Ministers were not acting as public authorities, so the courts were:

‘barred by s.6(3) of the HRA 1998 from considering whether the use of the Unopposed Return by the Executive on any given occasion is “in accordance with (accessible) law” for the purposes of the Convention, since the HRA 1998 deems the Minister and the House not to be acting as a Public Authority when exercising a function “in connection with” proceedings in Parliament.’4

It is noteworthy that the judgment drew heavily on the authority of Stockdale v Hansard. The judge also considered arguments that distinctions between the ‘Crown’ and ‘Parliament’ in the manner of the constitution of the United States were misguided. Her analysis distinguished between ministerial actions taken in Parliament in a legislative and in a non-legislative capacity and concluded that:

‘The constitutional origin and purpose of privilege was to protect parliamentary free speech and debate from the Crown interference and oppression evident in Sir John Eliot's case, rather than to secure something close to an unfettered right of privileged publication by the Executive. It is relevant for me to take that into account.’5

On appeal, a Bench which included the Lord Chief Justice concluded:

‘we have no doubt that the Unopposed Return is a proceeding in Parliament for the purposes of article 9 of the Bill of Rights 1689 and does confer on the content of the Report the protection of Parliamentary privilege.’

It considered that:

‘this process forms part of the essential business of Parliament. It is the business of keeping Members informed of the important work being carried out within Government departments so that they can hold those departments to account’.6


  1. 1. Warsama v Foreign and Commonwealth Office [2018] EWHC 1461 (QB).
  2. 2. Ibid, para 107.
  3. 3. Ibid, paras 116 and 117.
  4. 4. Ibid, para 126.
  5. 5. Ibid, para 103.
  6. 6. [2020] EWCA Civ 142, [2020] 4 All ER 486, paras 60 and 63.