R v Parliamentary Comr for Standards, Ex parte Al Fayed

The courts will not exercise judicial review to control an investigation forming part of the House of Commons’ internal machinery for regulating members’ conduct. The decisive question is the nature and constitutional function of the investigation, rather than whether the conduct under investigation would itself attract parliamentary immunity.

An investigation by the Parliamentary Commissioner for Standards, undertaken under the supervision of the Committee on Standards and Privileges and directed to the propriety of parliamentary activity, is directly related to proceedings in Parliament. Its supervision belongs to the House through that committee. The position differs from an ombudsman investigating governmental administration outside Parliament, whose activities may be judicially reviewed.

The applicant sought judicial review of a report in which the Parliamentary Commissioner for Standards concluded that a member of Parliament had no case to answer concerning an alleged corrupt payment. Sedley J refused leave to apply for judicial review on 24 April 1997.

On the renewed application, the Court of Appeal granted leave and treated the matter as the substantive application because of its constitutional importance. The central issue was whether the court’s supervisory jurisdiction extended to an independent officer appointed by the House of Commons to investigate members’ conduct and report to a parliamentary committee.

1. Disposition. The renewed application for leave was allowed, but the substantive application for judicial review was dismissed with costs. Leave to appeal to the House of Lords was refused. Lord Justice Millett and Lord Justice Mummery agreed with Lord Woolf MR.
2. Per Lord Woolf MR, the courts observe a self-denying ordinance against interference with proceedings in Parliament. Bill of Rights, Article 9 supports that approach, but the issue was best resolved through the broader constitutional principle that Parliament and the courts recognise and respect their respective roles. The generous approach stated in Prebble v Television New Zealand Ltd [1995] 1 AC 321 supported that principle.
3. The court had to identify the nature of the Parliamentary Commissioner’s function rather than ask whether the member’s alleged conduct would independently enjoy parliamentary immunity. The Commissioner investigated matters capable of affecting Parliament’s workings, did so under the supervision of the Committee on Standards and Privileges, and reported to that committee. The Commissioner was therefore one of the means through which the committee performed functions forming part of the proceedings of the House.
4. The analogy with the Parliamentary Commissioner for Administration was insufficient. Although both offices had parliamentary connections and reported to Parliament, the ombudsman examined governmental and public administration outside Parliament. Such administration was ordinarily amenable to judicial review. The Parliamentary Commissioner for Standards instead examined the propriety of the workings and activities of persons within Parliament.
5. Judicial supervision of this standards investigation would therefore intrude into an area constitutionally assigned to the House. Responsibility for controlling the Commissioner’s work rested, under the House’s Standing Orders, with the Committee on Standards and Privileges rather than the courts.

1. Court of Appeal: Allowed the renewed application for leave, treated it as the substantive hearing, and unanimously dismissed the application for judicial review with costs. Leave to appeal to the House of Lords was refused.
2. High Court: Sedley J refused leave to apply for judicial review on 24 April 1997.