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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
    1. Stockdale v. Hansard (1839) 9 Ad. & E. 1; 3.St.Tr.(N.s.) 723
    2. Case of the Sheriff of Middlesex (1840) 11 Ad & E 273
    3. Bradlaugh v Gossett (1884) 12 QBD. 271
    4. Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42
    5. R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 1 All ER 195
    6. R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 All ER 93
    7. Hamilton v Al Fayed [1999] 3 All ER 317
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 All ER 93

LORD WOOLF MR: This is a renewed application for leave to apply for judicial review by Mr Mohamed Al Fayed in relation to a report by the Parliamentary Commissioner for Standards. The application for leave was originally refused by Sedley J on 24 April 1997 in a reasoned judgment which I have found of considerable assistance in dealing with this application today.

The application is in effect a preliminary issue as to whether the activities of the Parliamentary Commissioner for Standards are an appropriate subject of an application for judicial review.

In his very helpful skeleton argument, Mr Pannick QC identified the issue as being whether the supervisory jurisdiction of the court applies where the impugned decision is not by the House of Commons itself, or by one of its committees, but by an independent person who has been appointed by Parliament to exercise an investigative function.

The issue raises the question of the relationship between the courts and Parliament. That is a relationship which is central to the constitutional arrangements in this country. It is clearly a matter of sensitivity and importance. Therefore, although this court was clearly of the view that this was a case where the Parliamentary Commissioner for Standards is not an appropriate subject for judicial review in relation to matters of which complaint is made, none the less, we should grant leave to Mr Pannick to apply for judicial review and treat the application as the hearing of the substantive application.....

Because the issue appears to us to be one to which there is a clear answer (and that that answer is the same as that to which Sedley J came in the judgment to which I have referred) we have also come to the conclusion that, notwithstanding the importance of the point, it is not necessary to reserve judgment.

It is clearly established that the courts exercise a self-denying ordinance in relation to interfering with the proceedings of Parliament. That approach is supported by s 1, art 9 of the Bill of Rights (1688)....:

That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.

The expression 'proceedings in Parlyament' is not defined by the Bill of Rights, and in my judgment the issue which I have previously identified is best approached by consideration of the broader principles which underline the relationship between Parliament and the courts. That relationship was elegantly described by Sedley J as 'a mutuality of respect between two constitutional sovereignties'.

In Prebble v Television New Zealand Ltd [1994] 3 All ER 407 at 413, [1995] 1 AC 321 at 332 Lord Browne-Wilkinson dealt with the same matter. Lord Browne-Wilkinson indicated that a generous approach had to be adopted to art 9. He then went on to say:

In addition to art 9 itself, there is a long line of authority which supports a wider principle, of which art 9 is merely one manifestation, viz that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of established privileges. As Blackstone said (1 Bl Com (17th edn) 163): ".(The whole of the law and custom of Parliament has its original from this one maxim, that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere".

The establishment of the office of Parliamentary Commissioner for Standards has its source in the First Report of the Committee on Standards in Public Life (Cm 2850, vol 1) (the Nolan report). In the course of argument, Mr Pannick drew our attention to parts of that report which explain why it was created. The report also resulted in the setting up of a standing committee with responsibilities for the Parliamentary Commissioner for Standards. What had been recommended by Lord Nolan in his report (para 11) was that-

"the House should appoint a person of independent standing, who should have a degree of tenure and not be a career member of the House of Commons staff, as Parliamentary Commissioner for Standards; the Commission should have the same ability to make findings and conclusions public as is enjoyed by the Comptroller and Auditor General and the Parliamentary Commissioner for Administration; the Commissioner should have independent discretion to decide whether or not a complaint merits investigation or to initiate an investigation; the Commissioner should be able to send for persons, papers and records, and will therefore need to be supported by the authority of a Select Committee with the necessary powers".

I draw attention to the fact that in the Nolan report itself an analogy was drawn between the position of the Parliamentary Commissioner for Standards and the Parliamentary Commissioner for Administration, who is commonly referred to as the ombudsman.

By the Standing Orders of the House of Commons of 1997, printed by order of the House on 20 March 1997, it was ordered that there should be a Select Committee called the Committee of Standards and Privileges, who should have the responsibility:

(a) to consider specific matters relating to privileges referred to it by the House; (b) to oversee the work of the Parliamentary Commissioner for Standards (c) to consider any matter relating to the conduct of Members, including specific complaints in relation to alleged breaches in any code of conduct to which the House has agreed.

The same standing orders provide that there shall be an officer of the House, called the Parliamentary Commissioner for Standards, who shall be appointed by the House, and whose duties should include maintaining the Register of Members' Interests, providing advice confidentially to members, advising the Committee on Standards and Privileges. He should also receive and, if he thinks fit, investigate specific complaints from Members and from members of the public in respect of (i) the registration or declaration of interests, or (ii) other aspects of the propriety of a Member's conduct, and to report to the Committee on Standards and Privileges or to an appropriate sub-committee thereof.

It is not necessary...to refer to the merits of the application. I should however indicate that the applicant contends that Mr Howard, then a minister of the Crown as well as a member of Parliament, received a corrupt payment. I should also indicate that in the report which the Parliamentary Commissioner for Standards produced in relation to that complaint, he concluded that Mr Howard had no case to answer.

Mr Pannick in his submissions recognises that the issue under consideration is borderline. He submits that so far as his client's application is concerned, it is on the right side of the borderline. He relies strongly on the similarities between the position of the Parliamentary Commissioner for Standards and the ombudsman.

The courts having previously concluded that the Local Government Ombudsman was subject to the court's jurisdiction in respect of judicial review, had then to consider the position of the ombudsman. That issue came before the courts in R v Parliamentary Comr for Administration, ex p Dyer [1994] 1 All ER 375, [1994] 1 WLR 621. Mr Pannick submits that it would be inconsistent with the general approach adopted by the Divisional Court in Ex p Dyer for the Parliamentary Commissioner for Standards not to be subject to the supervision of this court on an application for judicial review.

There is no doubt that there is a similarity between the two offices. The ombudsman is not strictly speaking an officer of Parliament. He does, however, have the privileges of such an officer, and that is made clear by Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament (22nd edn, 1997) p 210. In the words of that authority he is 'accorded the privileges of an officer of the House'. In addition, they both are subject to the supervision of standing committees of Parliament. There is then the fact that both make reports to Parliament. However, as I see it, there is a significant distinction which I regard as critical between the two roles. The activities of the ombudsman are in relation to what I will call loosely the 'administration'; they are not in relation to activities of Parliament. The ombudsman investigates the activities of government. Activities of government are the basic fare of judicial review. Activities of Parliament are not the basic fare of judicial review. Indeed activities of Parliament are accepted in general by Mr Pannick to be not subject to judicial review. If I may put it this way, if what was being sought here was judicial review of the standing committee responsible for supervising the activities of the Parliamentary Commissioner for Standards, Mr Pannick would accept that judicial review was not available.

It is important on this application to identify the specific function of the Parliamentary Commissioner for Standards which is the subject of complaint on this application. It is that a member of Parliament received a corrupt payment. Mr Pannick rightly says that parliamentary privilege would not prevent the courts investigating issues such as whether or not a member of Parliament has committed a criminal offence, or whether a member of Parliament has made a statement outside the House of Parliament which it is alleged is defamatory. He submits that, consistent with this, the sort of complaint which the applicant makes in this case is not in relation to an activity in respect of which the member of Parliament would necessarily have any form of parliamentary immunity.

As to those arguments of Mr Pannick, it seems to me that we are not concerned here with what the member of Parliament was doing, but the nature of the role of the Parliamentary Commissioner for Standards. He was conducting his activities under the supervision of the relevant committee, because the activity which is complained of could have an effect on the workings of Parliament. It is therefore directly related to what happens in Parliament.

Here is the really significant distinction between the role of the Parliamentary Commissioner for Standards and the ombudsman. The ombudsman is concerned at looking at what happens in relation to the administration by government and other relevant public bodies outwith Parliament. The ombudsman is concerned with proper functioning of the public service outside Parliament. On the other hand, the focus of the Parliamentary Commissioner for Standards, is on the propriety of the workings and the activities of those engaged within Parliament. He is one of the means by which the select committee set up by the House carries out its functions, which are accepted to be part of the proceedings of the House. This being the role of the Parliamentary Commissioner for Standards, it would be inappropriate for this court to use its supervisory powers to control what the Parliamentary Commissioner for Standards does in relation to an investigation of this sort. The responsibility for supervising the Parliamentary Commissioner for Standards is placed by Parliament, through its standing orders, on the Committee of Standards and Privileges of the House, and it is for that body to perform that role and not the courts.

It is for these reasons that I would dismiss this application.