Parliamentary Privilege in the Spotlight

March 27th, 2009

It is a fundamental principle of our constitutional structures that Parliament and its members should not normally be subject to judicial scrutiny or supervision. The statutory basis of this principle is to be found in Article 9 of the Bill of Rights 1689 which states 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’. The breadth of the principle of Parliamentary privilege was confirmed in the case of Prebble v Television New Zealand Ltd [1995] 1 AC 321 where Lord Browne-Wilkinson held that the effect of the principle was that the courts would 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. Yesterday Lord Oakeshott, Lib Dem Treasury Spokesman, availed himself of the protection of this important privilege when he told peers about the location of certain documents relating to Barclays’ tax arrangements. The documents in question are particularly controversial because a mere eight days ago the High Court granted Barclays injunctive relief requiring the Guardian newspaper to remove the documents from its website on grounds of their confidentiality (Barclays Bank Plc v Guardian News and Media Ltd [2009] EWHC 591 QB). The curious result of Lord Oakeshott’s comments would seem to be that the Guardian still cannot publish the documents on its website, pursuant to the order made by the High Court, but can report Lord Oakeshott’s comments by placing reliance on the doctrine of qualified privilege.

The decision of the High Court to grant Barclays injunctive relief in respect of the information published on the Guardian’s website is itself likely to be of considerable interest to information lawyers. This is because in reaching that decision the judge, Blake J, accepted that the documents had retained the quality of confidentiality even though there was evidence before the Court that, quite apart from the Guardian website, the documents had already been published on at least one other internet site which would not itself be subject to an application for injunctive relief and, further, there had already been a degree of ‘internet chatter’ about the injunction process. That the court was prepared to accept that the documents retained an element of confidentiality in these circumstances highlights the fact that the judiciary will not automatically accept that publication of information on the internet necessarily equates to publication to all the world.

High Court judgment:

https://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/591.html&query=title+(+Barclays+)+and+title+(+v+)+and+title+(+guardian+)&method=boolean

High Court judgments on Parliamentary privilege (appeal from Information Tribunal)

Office of Government Commerce v ICO & Ors https://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/737.html&query=title+(+Office+)+and+title+(+government+)+and+title+(+commerce+)&method=boolean

Corporate Office of the House of Commons v ICO & Ors – https://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/1084.html&query=title+(+Corporate+)+and+title+(+officer+)&method=boolean

Excerpt from Hansard:

https://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90326-0003.htm#09032630000629

Guardian article:

https://www.guardian.co.uk/business/2009/mar/27/barclays-tax-documents-parliament

 

 

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