High Court of Justice in Northern Ireland Queen's Bench Division Decisions

McGuinness's Application, Re (QBD (NI)) Northern Ireland 3 October 1997 [1997] N.I. 359

KERJ2485

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION (CROWN SIDE)

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IN THE MATTER OF AN APPLICATION BY MARTIN McGUINNESS

FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

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KERR J

1. INTRODUCTION

Martin McGuinness was elected Member of Parliament for the Mid Ulster constituency on 2 May 1997. He is a member of Sinn Fein. It is party policy that Sinn Fein Members elected to Parliament refuse to take an oath or affirm allegiance to the Sovereign. By Section 1 of the Parliamentary Oaths Act 1866 a Member of Parliament is required to swear an oath or affirm allegiance to the Sovereign before he may take a seat in the House of Parliament. Since Mr McGuinness was unwilling to do either he was not able to take his seat in Parliament.

On 14 May 1997 the Speaker of the House of Commons, Miss Betty Boothroyd made a statement to the House. It included the following passage:-

"This House has traditionally accommodated great extremes of opinion. I am sure therefore that the House would not wish to put any unnecessary obstacle in the way of Members wishing to fulfil their democratic mandate by attending, speaking and voting in this House. Equally, I feel certain that those who choose not to take their seat should not have access to the many benefits and facilities that are now available in the House without also taking up their responsibilities as Members.

The present position is that under the terms of the Parliamentary Oaths Act 1866, any Member who fails to take the oath or make the affirmation that is required by law and who then votes or sits during any debate after the election of the Speaker is subject to a penalty of £500 on each occasion and his or her seat is automatically vacated. In 1924 one of my predecessors ruled that any such Member could not receive a salary and this regulation also applies to allowances.

In the interest of the House and making use of the power vested in the Office of the Speaker to control accommodation and services in the Commons parts of the Palace of Westminster and the precincts, I have decided to extend these restrictions. As from the date of the end of the debate on the Queen's speech the services that are available to all other Members from the six departments from the House and beyond will not be open for use by Members who have not taken their seats by swearing or by affirmation."

A schedule listing the various services was appended to the statement in Hansard.

On 12 August 1997 Mr McGuinness lodged an application for leave to apply for judicial review of the Speaker's decision and for leave to apply for a declaration that the Act of 1866, in so far as it requires him to swear or affirm allegiance to the Sovereign, is incompatible with his constitutional rights as an MP, including his right to freedom of expression, and with the rights of his constituents and is therefore unconstitutional and unlawful. I decided to convene an oral hearing for the application with notice to the proposed respondents. This took place on 1 October 1997.

The respondent's resistance of the application for leave to apply for judicial review was confined to the proposition that the Court did not have jurisdiction to entertain the challenge either to the Speaker's order or to the validity of the 1866 Act. It was implicit in the respondents' approach that if I should decide that the applicant had raised an arguable case that the Court had jurisdiction they would not oppose the grant of leave.

2. THE APPLICANT'S CASE

The Order 53 statement adumbrated various grounds of challenge to the decision of the Speaker and the validity of the 1866 Act. Since jurisdiction has become the focus of the application for leave I need not rehearse these. The following are the principal submissions made on behalf of the applicant on the question of jurisdiction:

(i) While it was accepted that "an area of Parliamentary activity" was protected by privilege from the Court's scrutiny, this area should be restricted to what is required to enable Parliament to carry out its principal functions. Decisions as to accommodation and access to services did not fall within it.

(ii) A distinction should be drawn between proceedings carried out within "the four walls" (ie the Chamber) of the House of Commons and activities within the precincts of the Palace of Westminster. The latter can only be protected by privilege if they have a direct and intimate connection with proceedings in the House of Commons itself.

(iii) The Speaker is not invested with an ex officio immunity from judicial review. Whether her decision is reviewable depends not on her office but on the nature of the power exercised by her.

(iv) The boundary between Parliament's exclusive jurisdiction and the ambit of the Court's supervisory powers is not clearly defined. In fixing that boundary the Court should be conscious of the development of judicial review in the latter part of the 20th century and of the preparedness of the courts to review delegated legislation.

(v) Primary legislation which infringes fundamental constitutional rights protected by the common law is reviewable. Freedom of expression and of political belief are fundamental constitutional rights. To require a Member of Parliament to swear or affirm allegiance infringed the applicant's constitutional rights and could not be justified.

3. THE RESPONDENTS' CASE

For reasons that I will give presently I did not require the intended respondents to make answer to the applicant's challenge to the validity of the 1866 Act. On the question of the Court's jurisdiction to review the Speaker's decision counsel for the respondents made the following submissions:-

(i) The decision of the Speaker had all the characteristics of a proceeding of Parliament. It had been taken by an Officer of the House of Commons in her capacity as Speaker. It related to a matter within the control of the House and affected facilities and services which were internal to and concerned the House of Commons. The decision was announced in the Chamber of the House and the making of the decision and its announcement in the House of Commons were part of the procedures of the House.

(ii) The applicant's claim that the decision must affect a matter which forms part of or is indispensable to the core functions of the House of Commons in order to attract parliamentary privilege was misconceived. It is sufficient that the subject matter of the decision is internal to and concerning the House of Commons.

(iii) Alternatively, if parliamentary privilege extends only to proceedings in the Chamber and activities which are an essential incident of those proceedings then the provision of the services described in the Speaker's statement to the House and access to those services fall within the latter category.

4. PROCEEDINGS IN PARLIAMENT AND PARLIAMENTARY PRIVILEGE

Article 9 of the Bill of Rights 1689 provides:-

"Freedom of Speech - 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."

In Prebble v Television New Zealand Ltd (1995) 1AC 321, 332, Lord Browne Wilkinson said of this provision:

"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 its established privileges: Burdett v Abbott (1881) 14 East 1; Stockdale v Hansard (1839) AD. and EL. 1; Bradlaugh v Gosset (1884) 12Q.B.B. 271; Pickin v British Railways Board (1974) AC 765; Pepper v Hart (1993) AC 593. As Blackstone said in his Commentaries on the Laws of England 17th Edition (1930) Volume 1 page 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.''."

Of this passage and Article 9 Sedley J said in R v Parliamentary Commissioner for Standards Ex-parte Al Fayed (1997) (Unreported):

"Article 9 is, I think, better viewed as Lord Browne Wilkinson views it, as part of a wider principle, forming a part of the historic constitutional settlement arrived towards the end of the 17th century."

The decisions in these cases clearly contemplate a wider scope for parliamentary privilege than that which attaches to "proceedings in Parliament". But the phrase "proceedings in Parliament" itself has been considered to go beyond that which is transacted in the Chamber of the House. In the 21st Edition of Erskine May Parliamentary Practice at pages 92/3 the following passages appear:

"The Bill of Rights 1689 and the Parliamentary Papers Act 1840 both use the word `proceedings' without further definition, in a context where such definition is likely to be important. The primary meaning, as a technical parliamentary term, of `proceedings' (which it had at least as early as the seventeenth century) is some formal action, usually a decision, taken by the House in its collective capacity. This is naturally extended to the forms of business in which the House takes action, and the whole process, the principal part of which is debate, by which it reaches a decision.

An individual Member takes part in a proceeding usually by speech, but also by various recognised kinds of formal action, such as voting, giving notice of a motion, etc, or presenting a petition or a report from a committee, most of such actions being time-saving substitutes for speaking. The Select Committee on the Official Secrets Act in 1938-39 argued that `proceedings' covered both the asking of a question and the giving of written notice of such question, and includes everything said or done by a Member in the exercise of his functions as a Member in a committee of either House, as well as everything said or done in either House in the transaction of Parliamentary business."

and

"A large description of what is comprehended by the phrase `proceedings in Parliament' is thus not difficult to arrive at, and of course the application of any definition to a particular case will normally be a matter for the House concerned. Nevertheless, for some time there has been discussion of the advisability of attempting a closer definition, in order both to provide a more secure framework for decisions in individual cases and to help in judgments about how close to an undoubted proceeding an act done outside Parliament needs to be before it can properly benefit from the immunity conferred by privilege and declared by the Bill of Rights. The Select Committee on the Official Secrets Act gave thought to the latter problem and concluded that `cases may easily be imagined of communications between one Member and another or between a Member and a Minister, so closely related to some matter pending in, or expected to be brought before the House, that, although they do not take place in the Chamber or a committee room, they form part of the business of the House, as, for example, where a Member sends to a Minister the draft of a question he is thinking of putting down, or shows it to another Member with a view to obtaining advice as to the propriety of putting it down or as to the manner in which it should be framed. The Committee's conclusions were agreed to by the House.

On the other hand, in 1958 the House rejected the opinion of the Committee of Privileges that a particular letter written by a Member to a Minister relating to a nationalised industry was a proceeding in Parliament. It had accepted however the conclusion of the Committee in 1947 that `attendance of Members at a private party meeting held in the precincts ... during the parliamentary session to discuss parliamentary matters ... is attendance in their capacity of Members of Parliament', so that financial arrangements to induce a Member to disclose information from such a meeting were a breach of privilege.

The Select Committee on Parliamentary Privilege in 1967 reviewed these issues once more and recommended legislation to extend and clarify the scope of both absolute and qualified privilege, and the Joint Committee on the Publication of Proceedings in Parliament in its second report in 1970, in agreeing with the 1967 committee, put forward a draft definition of `proceedings in Parliament' on essentially functional lines. The Faulks Committee on the Law of Defamation reported to the same effect 1975, and two years later the Committee of Privileges repeated the recommendation for legislation `in order to reflect the way that Parliament actually works'. On the other side of the argument is the contention that a precise statutory definition of `proceedings' would deprive the Houses of freedom of interpretation and might lead to disputes with the Courts. The most recent review of the matter by a select committee simply commended the evidence received to the attention of the Commons as likely to be helpful in any future consideration of the scope of the term `proceedings in Parliament'. To date, no legislation intended to define `proceedings' has been laid before Parliament."

Two points should be noted from these passages. Firstly a Member may be engaged in proceedings in Parliament outside the Chamber; thus attendance at a private party meeting to discuss parliamentary matters in the precincts of the House of Commons was deemed to be a proceeding in Parliament. Secondly, whether a particular matter falls within the definition "proceedings in Parliament" will normally be a matter for the Houses of Parliament to decide. In view of these considerations the Court should be slow to reject a claim by the Speaker that an action taken by her to regulate the availability of facilities and services for MPs is a proceeding in Parliament.

This is particularly so because the Speaker, in extending the restriction on services and accommodation, is acting as a delegate of the House. On 23 March 1965 the Prime Minister made a statement to the House of Commons that Her Majesty the Queen had agreed that the control, use and occupation of the Palace of Westminster and its precincts should be permanently enjoyed by the Houses of Parliament. The Government decided that the control of the accommodation and services in the House of Commons and its precincts should be vested in the Speaker on behalf of the House.

In extending the restrictions on facilities and services the Speaker was thus acting on behalf of the House. She was dealing with a matter which affects Members' access to services relating to their duties as MPs. Those services are available to them because they are Members of Parliament. For these reasons, were it necessary for me to do so, I would have held that her decision to introduce these restrictions was a proceeding in Parliament - or rather, that her assertion that it was so could not be challenged by way of judicial review. In this context I should note the concession of counsel for the applicant that the provision of these services and facilities was ancillary to the activities of Members in the Chamber itself. He submitted, however, that there was no evidence that they had a direct or intimate connection with those activities and that they had not been shown to be essential for the proper discharge of the Members' core function as legislators. But counsel was unable to point to any authority to support the claim that, to qualify as a proceeding in Parliament, an activity outside the Chamber had to be shown to be essential to the discharge of functions within it. The Speaker's announcement in the House of Commons of action taken by her on behalf of the House to regulate the use by Members of services which are ancillary to their work within the Chamber must therefore be considered to be a proceeding in Parliament and immune from judicial intervention by virtue of Article 9 of the Bill of Rights.

As I have said, however, it is unnecessary for me to reach a final conclusion on this because I am quite satisfied that, whether it qualifies as a proceeding in Parliament or not, the Speaker's action lies squarely within the realm of internal arrangements of the House of Commons and is not amenable to judicial review. Control of its own internal arrangements has long been recognised as falling uniquely within Parliament's domain and superintendence from which the Court's intervention is excluded. In Bradlaugh v Gosset (1884) 12QBD 271 a resolution of the House of Commons which required an elected Member to undertake not to disrupt the proceedings of the House before being allowed to swear or affirm his allegiance was held to be not susceptible of challenge in the Court. Counsel for the applicant in the present case sought to distinguish Bradlaugh on the basis that a resolution of the House was plainly a proceeding in Parliament and therefore entitled to the Article 9 immunity but this was not the basis on which the Court reached its decision. Stephen J said at page 278:

"The legal question which this statement of the case appears to me to raise for our decision is this:- suppose that the House of Commons forbids one of its Members to do that which an Act of Parliament requires him to do, and, in order to enforce the prohibition, directs its Executive Officer to exclude him from the House by force if necessary; is such an order one which we can declare to be void and restrain the Executive Officer of the House from carrying out? In my opinion, we have no such power. I think that the House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable."

Thus the immunity of the action taken by the House of Commons did not arise because it had passed a resolution but because the House was entitled to unfettered control of its own internal proceedings. In the same way the Speaker, acting on behalf of the House, is entitled to restrict Members from using certain facilities which would normally be available to them as Members of Parliament.

Similarly in R v Graham-Campbell ex parte Herbert (1935) 1KB 594 it was held that the privilege of the House of Commons in regulating its own internal affairs and procedures included the sale within the precincts of the House of intoxicating liquor without a licence. Counsel for the applicant in this case suggested that the decision should not be followed; it was, he said, the only case in which it had been held that an activity not intimately connected with the "core function" of Members of Parliament was protected by parliamentary privilege. As I have already noted, however, counsel was unable to point to any case which supported the claim that an intimate connection with work within the Chamber was necessary for an activity to qualify as a proceeding in Parliament. In the absence of such authority I would not be prepared to hold that such a connection was a prerequisite. A fortiori I do not accept that parliamentary privilege extends only to those activities outside the Chamber which are vital to the conduct of business within it.

The extent of parliamentary privilege has not been precisely defined and it may be unwise to attempt too close a definition of it. I am satisfied, however, that, whatever its ambit, this action by the Speaker falls clearly within it. It may be, as counsel submitted, that the Speaker does not enjoy an automatic ex officio immunity. It may also be that the announcement of these measures in the House may not be sufficient per se to attract parliamentary privilege. But the combination of characteristics which the Speaker's decision possesses is sufficient to distinguish it as a measure to which parliamentary privilege must attach.

5. THE COURT'S JURISDICTION TO REVIEW PRIMARY LEGISLATION

I can deal with this aspect of the case shortly. In the skeleton argument and in the submissions to the Court, counsel for the applicant referred to views expressed by a number of commentators that the day is approaching when our courts may be prepared to review primary legislation either because it infringes constitutional rights or is in conflict with "the fundamental requirements of common law". As counsel freely accepted, however, that day has not yet arrived. He acknowledged that it would be "a bold step" to entertain a challenge to the validity of the 1866 Act although he argued strongly that this has become incompatible with the essential principles of modern parliamentary democracy. In view of the current state of our law, such a step would, in my opinion, be not only bold but impermissible. I am satisfied that the Court does not have jurisdiction to receive a challenge to the validity of the 1866 Act.

The application for leave to apply for judicial review must be dismissed, therefore.

A true copy of the judgment delivered by the Honourable MR JUSTICE KERR on the 3rd October 1997.

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Principal Clerk

KERJ2485

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION (CROWN SIDE)

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IN THE MATTER OF AN APPLICATION BY MARTIN McGUINNESS

FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

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KERR J

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