“The Inquiry was established in response to a series of newspaper articles, leaked documents and extraordinary allegations made by “whistleblowers”
“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.”
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”s. 6(3) of the Human Rights Act 1998 states: “(3) In this section “public authority” includes— (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.” (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.”
“That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that there be laid before this House a Return of parts of a Paper, entitled The Wass Enquiry Report into
“particular documents which the Minister responsible for the government department concerned wishes to make public (hence they are ‘unopposed’) but in respect of which the protection of statute afforded by an order of the House for printing or other publication is sought.”
“… unless an extraneous fact is positively agreed (in which case any evidence as to what was said in Parliament is irrelevant), it is inadmissible to use Parliamentary material as evidence since the Court would then have to rule upon the truthfulness/accuracy of that material.”
“Consideration of Parliamentary debates to identify the aims pursued by the legislation and information relevant to the issue which the court has to determine is proper … Nor so far as any material report by a Parliamentary Committee is concerned is there any objection to considering it simply in relation to any relevant information contained in it. What is not permissible is to seek to analyse or criticise anything contained in it since that would be to breach the provisions of the Bill of Rights.”
“… In the report dated23 March 2005 (HC 406) at para. 77, the panel … recommended that legislation should be introduced to amend theBritish Museum Act 1963 … so as to permit restitution of cultural objects of which possession was lost during the Nazi era … The panel also recognised the possibility that legislation might relate to a specific object or objects. I have, in effect, reached the same conclusion. In my judgment only legislation or a bona fide compromise of a claim of the heirs of Dr Feldman to be entitled to the four drawings could entitle the Trustees to transfer any of them to those heirs.”
“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”
“Governments may also lay papers by an older procedure: by moving a motion for the ‘unopposed return’ of the document they wish to lay before the House and be printed on its authority. The large number of papers now required to be laid by statute, combined with the more frequent use of ‘Command papers’ might have been expected to make this procedure obsolete. It has survived very largely because of uncertainty over the extent to which Command Papers have absolute privilege. The procedure of an ‘unopposed return’ was introduced originally to avoid the inconvenience of the House having formally to consider motions by ministers for returns of largely uncontroversial information from their own Departments. It is now used almost exclusively in order to ensure that a report of a ministerial inquiry will not be subject to actions for defamation.”
“Papers laid by Return to an Address (Unopposed Returns)In some cases the government may wish to lay a particularly sensitive report for which there is no statutory requirement or authority to lay, but for which the protection of parliamentary privilege is needed (the Report of the Hallett Review is a recent example). You should contact the Journal Office as soon as possible if you are preparing a paper which falls into this category. The Journal Office can offer further written and oral advice. You should note that the advance agreement of the Clerk of the Journals is required and that a motion has to be tabled at least one sitting day in advance and moved and agreed to on the Floor of the House to allow the laying of a Return to an Address.”
“arises in a similar way to the inherent jurisdiction of the High Court. That is to say, it is simply a power inherent in the nature of Parliament which, with other powers, is necessary to enable its core functions of scrutiny and debate. There is no statutory source for the House of Commons’ power to call for persons, papers and records, but like the inherent jurisdiction of the High Court it is more than a mere convention.”
“to do so would itself risk impeaching or questioning Parliamentary proceedings and therefore infringing Article IX of the Bill of Rights 1689 (and the broader principle of separation of powers between the judiciary, the executive and the legislature …”
“the individual who may be the subject of criticisms appearing in the final report sees the text of what is proposed to be published.”
“... the general and somewhat obscure wording of Article 9 cannot on any view be read absolutely literally. The prohibition on questioning ‘out of Parliament’ would otherwise have ‘absurd consequences’, eg in preventing the public and media from discussing and criticising proceedings in Parliament, as pointed out by the Joint Committee on Parliamentary
“parliamentary papers were protected not by parliamentary privilege but only by qualified privilege in the law of defamation (ie that untrue and libellous statements made in such documents were actionable if shown to have been actuated by malice)”
“... is now used almost exclusively in order to ensure that a report of a ministerial inquiry will not be subject to actions for defamation. Use of the procedure is infrequent. ... Although other Members cannot oppose the motion, the procedure ensures that Members receive clear notice of presentation.”
“… I understand the committee of a late House of Commons to have asserted the privileges of both Houses of Parliament: and we are informed that a large majority of that House adopted the assertion. It is not without the utmost respect and deference that I proceed to examine what has been promulgated by such high authority : most willingly would I decline to enter upon an enquiry which may lead to my differing from that great and powerful assembly. But, when one of my fellow subjects presents himselfbefore me in this Court, demanding justice for an injury, it is not at myoption to grant or withhold redress; I am bound to afford it if the lawdeclares him entitled to it. I must then ascertain how the law stands: and,whatever defence may be made for the wrongdoer, I must examine itsvalidity. The learned counsel for the defendant contends for his legal right to be protected against all consequence of acting under an order of the House of Commons, in conformity with what the House asserts to be its privilege: nor can I avoid then the question whether the defendant possessesthat legal right or not.”
“But it is said that this and all other Courts of Law are inferior in dignity to the House of Commons, and that therefore it is impossible for us to review its decisions. This argument appears to me founded on a misunderstanding of several particulars … Vastly inferior as this Court is to the House of Commons, considered as a body in the State,… yet, as a Court of Law, weknow no superior but those courts which may revise our judgments forerror; and in this respect there is no common term of comparison betweenthis Court and the House. In truth, the House is not a Court of Law at all…”
“… the court will pay careful regard to any views expressed in Parliament by either House or by bodies or individuals in a position to speak on the matter with authority”
“There is no doubt about the right as exercised by the two Houses of Parliament with regard to … require the production of papers and records, and the right of printing documents for the use of members … and as to any other thing which may appear necessary to carry on and conduct the great and important functions of their charge.”
“... the principal matter to which Article 9 is directed is freedom of speech and debate in the Houses of Parliament and in Parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within Parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.”
“the final observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.”; and “... a limitation will not be compatible with Article 6 para. 1 (art 6-1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. These principles reflect the process, inherent in the Court’s task under the Convention, of striking a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights”
“... no issue of Parliamentary privilege arises. The case is analogous to that arising in Toussaint. The principles set out in that judgment can be taken to reflect the common law ... In this present case the subject of the judicial review is a decision taken by the Minister outside of Parliament. Had I found for the Claimant the relief would have been in relation to that decision. The decision is not the progeny of a proceeding in Parliament. This is not a case for instance where the opinion of a Committee in Parliament is being impugned.”
“Words spoken by MPs in the course of debates in the House of Commons are protected by absolute privilege” and at 378: “More importantly in that context it may be observed that the immunity afforded to MPs in the United Kingdom appears to be narrower than that afforded to members of the national legislatures in certain other Contracting States, to representatives to the Parliamentary Assembly of the Council of Europe or to members of the European Parliament. In particular,the immunity attaches only to statements made in the course ofparliamentary debates on the floor of the House of Commons or House ofLords ... this indicates that the immunity is kept within well-defined limits,such as to achieve the purposes for which it is required without lapsing intounnecessarily blanket protection (see Cordova v Italy [...])”
“... In particular the immunity attaches only to statements made in thecourse of parliamentary debates ...”
“One of the themes of our report is the importance of confining the absolute legal immunity afforded by Parliamentary privilege to those areas which need this immunity if Parliament is to be effective. This principle should apply as much to the immunity afforded by the 1840 Act as to the immunity given to proceedings by Article 9 of the Bill of Rights. The extent to which the House of Commons currently grants this privilege, as a matter of course, to papers laid before it under statute contradicts this principle.”
“15 (1) Where- (a) an inquiry (“the original inquiry”) is being held, or is due to be held, by one or more persons appointed otherwise than under this Act, (b) a Minister gives a notice under this section to those persons, and (c) the person who caused the original inquiry to be held consents, the original inquiry becomes an inquiry under this Act as from the date of the notice or such later date as may be specified in the notice (the “date of conversion”).”
“I have today laid a departmental Minute proposing to provide an indemnity that is necessary in respect of a Foreign Office established independent inquiry into alleged child abuse and associated cover-up on the British Overseas Territory of St Helena. The Government takes any suchallegations extremely seriously, and the Inquiry reflects its commitment to afull and independent investigation into any wrongdoing. Last year (2014) the Foreign Secretary announced the establishment of the Inquiry … to be led by Sasha Wass QC. This indemnity will cover the entire duration of the Inquiry’s work, from November 2014 until when the Inquiry submit their report in the autumn of 2015. The indemnity will cover Sasha Wass QC, the Inquiry Panel, the Inquiry Solicitor and one staff member against any liability for any act done or omission made honestly and in good faith in the execution of his or her duty as such, or in the purported execution of his or her duty as such. … The Treasury has approved the procedure in principle. If, during the period of fourteen parliamentary sitting days beginning on thedate on which this Minute was laid before Parliament, a member signifiesan objection by giving notice of a Parliamentary Question or by otherwiseraising the matter in Parliament, final approval … will be withheld pendingan examination of the objection.”