101: With great privilege comes great responsibility: Article 9 of the Bill of Rights continues to grow

Parliamentary privilege hit the headlines in recent months when Bob Seely MP called out several lawyers who have acted for prominent Russian oligarchs. He was able to do this without fear of reprisal thanks to Article 9 of the Bill of Rights 1689:

‘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.’

But the doctrine has also been cropping up in less high-profile places. In February, the High Court handed down a judgment with potentially wide-reaching consequences in the case of R (A, J, K, B and F) v Secretary of State [2022] EWHC 360 (Admin). In short, Fordham J ruled that a consultation process which leads to the introduction of a bill in Parliament is immune from legal challenge under Article 9, since it cannot be separated from the bill itself.

Facts and decision

The Claimants sought permission to apply for judicial review of the Home Secretary’s consultation – ‘New Plan for Immigration’ – which fed into the Nationality and Borders Bill then moving through Parliament. They argued that the consultation breached the well-established ‘Gunning (ii)’ principles of public law-compliant consultations, and the Public Sector Equality Duty. Acknowledging that Article 9 limited potential remedies, the Claimants merely sought a declaration that the consultation was unlawful. They argued that this would inform the political process and debates around the Bill in Parliament without ‘vitiating’ or ‘interfering with’ it.

The Court ruled, however, that the issue was not even justiciable for two reasons.

First, there is no way of separating decisions taken about a consultation, on the one hand, from the design of the Bill that flows from it, on the other. Both elements amount to substantive decisions about parliamentary proceedings and therefore enjoy the protection of Article 9.

Second, even if declaratory relief would not legally compel the Government to take any action, there is a high chance it would convince it to act to remedy the unlawfulness. This, it was held, would amount to interference with Parliament in breach of Article 9. Indeed, Fordham J went further by stating, perhaps obiter, that even if the Government did not take steps to remedy the unlawfulness, the Court’s decision would nevertheless ‘cast a legal shadow’ over the Bill which would amount to an interference with the Parliamentary process.

Comment

The decision takes a wide view of parliamentary privilege and will come as a relief not just to the defendant Home Secretary, but to government departments more generally. But it nonetheless raises several questions.

It is notable that Fordham J found the Claimants’ case on its merits to be unarguable, independent of his findings on justiciability. This raises the question of whether a clear-cut breach of the Gunning (ii) principles would lead to a different conclusion on justiciability. Would a blatantly sham consultation still enjoy absolute immunity under Article 9, so long as it leads to the introduction of a Bill? The decision suggests it would, with the remedy lying in the political sphere rather than the Courts.

Similarly, what about cases where a consultation is intended to, but does not in fact, lead to the introduction of a Bill, or that introduction is delayed for many months or years after the consultation closes? It might be arguable in such cases that there is a tangible break in the chain that links consultation process and the Bill process, opening the former up to legal challenge.

Given the constitutional significance of parliamentary privilege, it will be worth keeping an eye on whether these issues crop up in future litigation, or in a potential appeal to Fordham J’s decision in this case.