R v Parliamentary Commissioner for Standards, ex parte Al Fayed

JurisdictionEngland & Wales
JudgeLORD WOOLF MR,LORD JUSTICE MILLETT,LORD JUSTICE MUMMERY
Judgment Date15 October 1997
Judgment citation (vLex)[1997] EWCA Civ J1015-12
CourtCourt of Appeal (Civil Division)
Docket NumberFC3 97/5927/D
Date15 October 1997

In the matter of an application for judicial review

Regina
and
The Parliamentary Commissioner for Standards
Ex Parte Mohamed Al Fayed

[1997] EWCA Civ J1015-12

Before:

The Master of the Rolls

(Lord Woolf)

Lord Justice Millett

Lord Justice Mummery

FC3 97/5927/D

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CROWN OFFICE LIST

(MR JUSTICE SEDLEY)

Royal Courts of Justice

Strand

London WC2

MR D PANNICK QC with MR M FORDHAM (Instructed by Messrs Dibb Lupton Alsop, London EC4R 2SS) appeared on behalf of the Appellant

MR S RICHARDS (Instructed by the Treasury Solicitors, London) appeared on behalf of the Respondent

1

Wednesday, 15 October 1997

LORD WOOLF MR
2

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.

3

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.

4

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.

5

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, nonetheless, we should grant leave to Mr Pannick to apply for judicial review and treat the application as the hearing of the substantive application. We did this so that, if it is thought desirable, an application can be made to the House of Lords for leave to petition their Lordships in relation to the decision to which we have come.

6

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.

7

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 Article 9 of the Bill of Rights. The terms of Article 9 (so far as relevant) are as follows:

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

8

The expression "proceedings in Parliament" 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".

9

In the case of Prebble v. Television New Zealand Ltd [1995] 1 AC 321 at page 332D, Lord Browne-Wilkinson dealt with the same matter. Lord Browne-Wilkinson indicated that a generous approach had to be adopted to Article 9. He then went on to say:

"In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 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 in his Commentaries on the Laws of England, 17th ed. (1830), vol.1, p.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."'"

10

The establishment of the office of Parliamentary Commissioner for Standards has its source in 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 was that(paragraph 11):

"• 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...

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    ...the Parliament. Under reference to the opinion of Lord Woolf M.R. in R. v. Parliamentary Commissioner for Standards ex parte Al Fayed [1998] 1 W.L.R. 669 at p. 670 G - H, counsel for the first respondent submitted, however, that this court should exercise "a self-denying ordinance in relati......
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    ...is considered later. The second goes to the core of the claimant's case. In R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 WLR 669, 670, Lord Woolf MR said it was clearly established that “the courts exercise a self-denying ordinance in relation to interfering with the......
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    ...privilege." 67Other recent authority also in point is to be found in R v Parliamentary Commissioner for Standards ex p. Al Fayed [1998] 1 WLR 669, in which it was said at 672: "Activities of government are the basic fare of judicial review. Activities of Parliament are not the basic fare o......
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    ...of the Parliament. Under reference to the opinion of Lord Woolf M.R. in R. v. Parliamentary Commissioner for Standards ex parte Al Fayed[1998] 1 WLR 669 at p. 670 G–H, counsel for the first respondent submitted, however, that this court should exercise “a self-denying ordinance in relation ......
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