Rupert Lowe MP, R (on the application of) v Independent Complaints and Grievance Scheme

Parliamentary privilege bars judicial review where the challenged decision forms part of a House of Commons disciplinary framework closely connected with the House’s legislative and deliberative functions. The relevant question is the nature of the sphere of activity, not merely the identity of the decision-maker. Disciplinary investigations into Members’ conduct are distinct from essentially administrative functions such as processing expense claims. The protection may extend to decisions made by bodies to which disciplinary functions have been entrusted, including investigators, the Parliamentary Commissioner for Standards and the Independent Expert Panel. It may also cover an investigation at an early stage where stopping it could prevent the House from imposing a serious disciplinary sanction.

The claimant sought judicial review of the decision of the Independent Complaints and Grievance Scheme to investigate a complaint made against him. He alleged irrationality, bad faith and apparent bias. The Speaker of the House of Commons defended the claim and contended that the ICGS’s functions fell within the exclusive cognisance of the House, so that Parliamentary privilege prevented the court from entertaining the claim.

The court directed that the preliminary issue of justiciability be determined before permission to apply for judicial review. The issue was whether the ICGS investigation, operating within arrangements established by House resolutions and Standing Orders and under the oversight of the Parliamentary Commissioner for Standards, was protected by the wider common law principle of Parliamentary privilege.

1. Claim barred. The claim was barred by Parliamentary privilege and was not justiciable. The court invited written submissions on the order and ancillary matters.
2. The scope of exclusive cognisance is informed by whether the activity is so closely and directly connected with the House’s legislative and deliberative functions that external intervention would undermine the autonomy required for Parliament to perform its constitutional work.
3. The distinction in R v Chaytor [2010] UKSC 52 between the architecture of a scheme and its implementation was material to essentially administrative functions. It did not remove privilege from disciplinary functions merely because particular tasks had been delegated.
4. The ICGS’s investigation of bullying and harassment complaints against Members was disciplinary and concerned the propriety of Members’ activities. It was not comparable to the administrative processing of expenses. The House had created a detailed internal framework through resolutions and Standing Orders, including the ICGS, the Parliamentary Commissioner and the Independent Expert Panel.
5. The framework could result in sanctions affecting a Member’s core parliamentary functions, including suspension or expulsion. Even less severe sanctions, and the fact of an investigation, could affect reputation, standing and the ability to perform those functions. It would therefore be incoherent to permit review of an investigation while treating later disciplinary decisions as privileged.
6. The whole disciplinary framework, including functions entrusted to the ICGS, the Commissioner and the IEP, fell within the exclusive cognisance of the House of Commons.