The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for breaching the rule against impugning an action of Parliament. The minister had made a statement as to the disclosability of the documents.
Stanley Burnton J said: ‘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.
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. These are not matters for the Courts to consider.’
However: ‘There is no reason why the Courts should not receive evidence of the proceedings of Parliament when they are simply relevant historical facts or events: no ‘questioning’ arises in such a case . . Similarly, it is of the essence of the judicial function that the Courts should determine issues of law arising from legislation and delegated legislation. Thus, there can be no suggestion of a breach of Parliamentary privilege if the Courts decide that legislation is incompatible with the European Convention on Human Rights: by enacting the Human Rights Act 1998.’ and ‘it would be better if Parliamentary questions are not answered by a Ministerial statement as to the result of the application of FOIA to a particular case.’ The Commissioner had been wrong to take account of parliamentary questions, and should have avoided a potential breach of parliamentary privilege. It is both implicit and explicit in FOIA that, in the absence of a public interest in preserving confidentiality, there is a public interest in the disclosure of information held by public authorities.
Stanley Burnton J
[2008] EWHC 737 (Admin), [2009] 3 WLR 627, [2008] ACD 54, [2010] QB 98
Bailii
Freedom of Information Act 2000 33(1)(a), Bill of Rights 1689 9, Parliamentary Privileges Act 1987 16(3)(c)
England and Wales
Citing:
Cited – Comalco Ltd v Australian Broadcasting Corporation 1983
(Supreme Court of the Australian Capital Territory) Hansard was admissible to show what had been said in the Queensland Parliament as a matter of fact, without the need for the consent of Parliament. Blackburn CJ added: ‘I think that the way in . .
Mentioned – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Church of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
Cited – Bradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions CA 7-Feb-2008
Complaint was made as to a leaflet PEC 3 issued by the Department in 1996, intended to summarise the changes introduced by the Pensions Act 1995, and their purpose. One answer given was: ‘The Government wanted to remove any worries people had about . .
Cited – Weir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
Cited – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – Toussaint v Attorney General of Saint Vincent and the Grenadines PC 16-Jul-2007
(Saint Vincent and the Grenadines) The claimant complained of the compulsory purchase of his land. He alleged that the compulsory purchase was discriminatory or illegitimate expropriation: an allegation of impropriety. He sought to base this on . .
Cited – Federation of Tour Operators and Others, Regina (on the Application of) v HM Revenue and Customs and others Admn 4-Sep-2007
The claimants complained that the sudden doubling of Airport Passenger Duty was unlawful since it had not been possible to recover this from customers, and was in breach of the Convention.
Held: The claim failed. The cost to the applicants as . .
Cited – Secretary of State for the Home Department v Asif Javed and Zuifiqar Ali and Abid Ali CA 17-May-2001
A designation of Pakistan as a safe place for the return of a failed asylum applicant was unlawful because there was plain evidence that persecution of women who left the marital home, whether voluntarily or by compulsion, was widespread. . .
Cited by:
Cited – HM Treasury v The Information Commissioner Admn 21-Jul-2009
Disclosure of Government’s Legal Advice
The interested party sought to obtain the legal opinion on which the Prime Minister had based his assertion that the Financial Services and Markets Bill complied with Human Rights. The respondent refused claiming protection under the section, and . .
Cited – Regina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
Cited – Makudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .
Cited – Smith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
Cited – Kimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .
Lists of cited by and citing cases may be incomplete.
Information, Constitutional
Leading Case
Updated: 01 November 2021; Ref: scu.266618