Court of Appeal considers Parliamentary privilege in the context of a non-statutory inquiry

In striking out claims against an independent non-statutory inquiry, the Court of Appeal has provided useful guidance on the breadth of Parliamentary privilege, the scope of the Human Rights Act, and the procedure for challenging inquiry decisions: Foreign and Commonwealth Office and Others v Warsama and Another [2020] EWCA Civ 142.

Key points

• The reports of non-statutory inquiries can be protected by Parliamentary privilege if they are published by Parliament.
• Challenges to the decisions of non-statutory inquiries should be brought expeditiously and, in most cases, by way of judicial review.
• Non-statutory inquiries may be considered ‘public authorities’ for the purposes of Section 6 Human Rights Act 1998 (the “HRA”).

The Inquiry and the claims

In 2014 the Foreign and Commonwealth Office ( the “FCO”) appointed Sasha Wass QC to chair an independent inquiry into allegations of corruption and child sex abuse on St Helena (the “Inquiry”). The Inquiry was “non-statutory” – in other words, it had no statutory footing and was not governed by either the Inquiries Act 2005 or the Inquiry Rules 2006.

The Inquiry conducted an investigation, which involved interviewing witnesses and reviewing documents. It then provided its findings (the “Report”) to the FCO. The Report criticised the two individual claimants in this case on a personal and professional level, describing them as “professionally incompetent and unable to fulfil the terms of their employment”.

The House of Commons subsequently published the Report using the “Motion for an Unopposed Return” Parliamentary procedure. This procedure involves the House of Commons passing a motion requiring the provision and publication of particular information, which in this case was the Report. Once the motion was passed, the Report was laid before the House of Commons (and published) accordingly.

Almost a full year after the publication of the Report, the claimants issued proceedings alleging a breach of their right to a private life as protected by article 8 of the European Convention on Human Rights (the “ECHR”), as incorporated into UK law by the HRA. The substance of their claims, in which they sought damages, was that the Report was factually inaccurate and unnecessarily harsh, and that serious procedural irregularities had arisen during its preparation. In particular they alleged that they were not given notice of the Report’s terms or sufficient opportunity to make representations on the inclusion of the relevant criticisms, which had damaged their reputations and livelihoods.

Parliamentary privilege

The question of Parliamentary privilege at issue in this case was whether the publication of the Report through an “Unopposed Return” procedure constituted a “proceeding in Parliament” for the purposes of Article 9 of the Bill of Rights 1689. That provision states:

“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.”

The effect of this provision is that “proceedings in Parliament” cannot be the foundation of any civil or criminal proceedings. This rule applies regardless of whether the statement was untrue to the knowledge of the person making it, and “however injurious they might be to the interest of a third party” (per Lord Chief Justice Cockburn in Ex parte Watson (1869) QB 573 at 576). Both domestic courts and the European Court of Human Rights have emphasised the important public interest in Parliamentary privilege.

There is no comprehensive definition of “proceedings in Parliament” but the authorities are clear (and it was accepted by all parties in this case) that it is for the courts to determine the scope of Parliamentary privilege: R v Chaytor [2010] UKSC 52. The important question for courts is whether a finding that a particular action is not covered by Parliamentary privilege would impact adversely on the core or essential business of Parliament (being the freedom of speech and debate in the Houses of Parliament and their committees).

In this case, both the judge at first instance and the Court of Appeal found that the Unopposed Return procedure did constitute a proceeding in Parliament for the purposes of article 9 of the Bill of Rights. This had the effect that the protection of Parliamentary privilege was conferred on the content of the Report and no party in the proceedings could rely on the Report to support or rebut the claims for damages.

In making this finding, the Court of Appeal emphasised that the subject matter of the Report was “of great public concern” and that it formed an “essential part” of one of Parliament’s “primary functions” (namely ensuring the public accountability of the executive). More broadly, the Court of Appeal considered that the “ability of Parliament to publish information it has called for and which is of interest to its members, and hence also the public, without the risk of exposing the authors of that information to litigation is an important freedom”.

On the question of interference with the claimants’ ECHR rights, the Court found that protecting the Report with Parliamentary privilege was a proportionate response to a legitimate aim of allowing the production of a report on an investigation which “provides a frank and detailed assessment of the actual or alleged failings of institutions or people acting in the public sphere”.

The Court of Appeal similarly accepted the first instance finding that claims based on the procedure of the Inquiry would not necessarily fail because of Parliamentary privilege (as that privilege only attached to the Report). However, on the facts (and on an analysis of the pleaded cases), the Court found that there was no arguable alternative claim. It therefore struck out the claims in full.

Was the Inquiry a “public authority”?

Ms Wass QC appealed the first instance finding that the Inquiry constituted a “public authority” within the meaning of section 6 HRA and sought to contrast the position of the Inquiry with that of a statutory inquiry set up under the Inquiries Act 2005 (which she accepted would have been a public authority).  Applying the leading cases of YL v Birmingham City Council [2007] UKHL 27 and Aston Cantlow v Wallbank [2003] UKHL 37, however, the Court concluded that the factors set out in these cases as being relevant to this issue pointed “inexorably” to the conclusion that the Inquiry was performing a public function. It was funded by the FCO, its establishment was announced in Parliament, its terms of reference were published in the House of Commons Library, and in effect the Inquiry was “performing a function on behalf of the Government in the public interest”.

Comment

It is striking that the claims at issue in this case were brought within days of the expiry of the one year limitation period for bringing proceedings under the HRA. The limitation period for bringing judicial review proceedings, which the Court described as the “right course” for addressing procedural concerns arising from the conduct of an inquiry, had long since expired. This had the effect that, by the time that the claims were brought (at which stage the Report was protected by Parliamentary privilege), it was “too late to mount an effective challenge”. This illustrates the importance of bringing claims against inquiries promptly and, where procedural complaints arise, often before the publication of the inquiry’s report. Promptness is even more important in a statutory inquiry context as section 38 of the Inquiries Act 2005 imposes a 14 day time limit for bringing judicial review claims in many circumstances.

More helpfully from the perspective of potential claimants, this case does indicate that the courts are likely to consider that claims under the HRA can be pursued against non-statutory inquiries.