Upper Tribunal (Immigration and asylum chamber), 2021-01-27, [2021] UKUT 61 (IAC) (DK and RK (Parliamentary privilege, evidence))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Date | 27 January 2021 |
| Published date | 17 March 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Parliamentary privilege, evidence |
| Hearing Date | 17 December 2020 |
| Appeal Number | [2021] UKUT 61 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
DK and RK (Parliamentary privilege; evidence) [2021] UKUT 00061 (IAC)
THE IMMIGRATION ACTS
|
Heard at Field House by Skype |
Decision & Reasons Promulgated |
|
On 17 December 2020 |
|
|
|
………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
Dk (India)
RK (INDIA)
(ANONYMITY DIRECTION made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
MIGRANT VOICE
Intervener
Representation:
For the appellants (DK): Mr P Turner and Mr J Gajjar (Direct Access)
(RK): Mr R Ahmed and Mr Z Raza, instructed by
Charles Simmons Immigration Solicitors
For the respondent: Ms L Giovannetti QC and Mr C Thomann,
instructed by Government Legal Department
For the intervener: Mr M Biggs
(1) Although the Upper Tribunal is not bound by formal rules of evidence, it cannot act in such a way as to violate Parliamentary privilege, whether that be to interfere with free speech in Parliament or by reference to the separation of powers doctrine. The Tribunal cannot interfere with or criticise proceedings of the legislature.
(2) Courts and tribunals determine cases by reference to the evidence before them and not by reference to the views of others, expressed in a non-judicial setting, on evidence which is not the same as that before the court or tribunal. Indeed, even if the evidence were the same, the court or tribunal must reach its own views, applying the relevant burden and standard of proof.
DECISION AND REASONS
-
These appeals have been remitted to the Upper Tribunal by the Court of Appeal. Both appellants have brought human rights appeals, in which they contend that the respondent was wrong to curtail their leave to remain and, subsequently, to refuse their human rights claims, on the basis that they had cheated in oral English tests set by the Educational Testing Service (“ETS”), which the appellants needed to pass in order to obtain further leave to remain in the United Kingdom.
-
Both DK’s and RK’s appeals were remitted on the basis of discrete errors of law. A further reason for remittal, common to both, was the appearance in July 2019 of a report of the All Party Parliamentary Group (“APPG”) on TOEIC (Test of English for International Communication). The APPG was chaired by Right Hon. Stephen Timms MP and comprised six other MPs. The Secretariat to the APPG was “Migrant Voice”, a charity describing itself as a “migrant-led” body “established to develop the skills, capacity and confidence of members of migrant communities, including asylum seekers and refugees”. Migrant Voice works “to amplify migrant voices in the media and public life to counter xenophobia and build support for our rights”.
-
On 17 December 2020, the Tribunal addressed two matters. First, it heard submissions on the question of whether the APPG report should be admitted in evidence in the appeals. Secondly, it considered an application by Mr Biggs of Counsel that Migrant Voice should be allowed to intervene in the appeals.
-
At the conclusion of the hearing, we informed the parties that the APPG report would not be admitted; but that, subject to one matter, the transcript, prepared by Migrant Voice, of the APPG hearing on 11 June 2019, would be admitted as a factual record of what was said on that occasion by and to Professor Peter Sommer, Dr Philip Harrison and Professor Peter French. The matter just mentioned was that Migrant Voice would file and serve its recording of the session, so that this could be checked by the respondent against the written transcript.
-
We also gave Migrant Voice permission to intervene, on a limited basis. Mr Biggs, who had helpfully produced written submissions on behalf of Migrant Voice, would re-cast those submissions, so as to exclude reliance upon the APPG report. The witness statements proffered by Migrant Voice would not be admitted. However, Mr Biggs and Migrant Voice would consider who might be best placed to provide a witness statement that exhibited the recording and transcript of the 11 June hearing.
-
Our reasons for our decisions on these issues are as follows.
-
Article 9 of the Bill of Rights 1689 provides 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.”
-
In Prebble v Television New Zealand Ltd [1994] UKPC 4, the respondent TV company wished to defend a libel action by contending that statements made by Ministers in the House of Representatives were misleading, in that they suggested the government did not intend to sell off state-owned assets, when in fact its spokesman was allegedly conspiring to do so.
-
Giving the judgment of the Privy Council, Lord Browne-Wilkinson held that Article 9 of the Bill of Rights was accompanied by a long line of authority that supported the wider principle “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 its established privileges”. The Privy Council held that “parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading”. Those matters lay “entirely within the jurisdiction of the House” subject to any statutory exception. There was, however, “no objection to the use of Hansard to prove what was done and said in Parliament as a matter of history”.
-
In Office of Government, Commerce and Information Commissioner v HM Attorney General obo the Speaker of the House of Commons [2008] EWHC 737 (Admin), Stanley Burnton J held that the Information Commissioner and the Information Tribunal had been wrong to consider the adequacy of a Ministerial reply to a Parliamentary question and that the Tribunal infringed Article 9 of the Bill of Rights and/or the wider principle of Parliamentary privilege by relying on the conclusions of a Parliamentary Select Committee as authority supporting its decision on a contested issue before it.
-
Stanley Burnton J said:-
“46. … the law of Parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our Constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts.
47. Conflicts between Parliament and the Courts are to be avoided. The above principles lead to the conclusion that the Courts cannot consider allegations of impropriety or inadequacy or lack of accuracy in the proceedings of Parliament. Such allegations are for Parliament to address, if it thinks fit, and if an allegation is well-founded any sanction is for Parliament to determine. The proceedings of Parliament include Parliamentary questions and answers to. These are not matters for the Courts to consider.
48. In my judgment, the irrelevance of an opinion expressed by a Parliamentary Select Committee to an issue that falls to be determined by the Courts arises from 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.
…
57. … It was the duty of the Tribunal to determine the issues before it judicially, on the basis of the evidence and arguments before the Tribunal. … The Select Committee had arrived at its view on the evidence before it, and not on the evidence that was before the Tribunal. Indirectly, in relying on the opinion of the Select Committee, the Tribunal relied on evidence that was not before it, and failed to make its decision only on the basis of the evidence and submissions before it.
58. … If a party to proceedings before a court (or the Information Tribunal) seeks to rely on an opinion expressed by a Select Committee, the other party, if it wishes to contend for a different result, must either contend that the opinion of the Committee was wrong (and give reasons why), thereby at the very least risking a breach of Parliamentary privilege, if not committing an actual breach, or, because of the risk of that breach, accept that opinion notwithstanding that it would not otherwise wish to do so. This would be unfair to that party.
…”
-
It is common ground that the APPG report is not within the scope of Article 9. Its report is not a proceeding in Parliament. The...
To continue reading
Request your trial