The Speaker in the Spotlight: Courts consider the…

Introduction

There have been several recent cases in which the Speaker of the House of Commons has intervened to make submissions on Article 9 of the Bill of Rights 1689 and Parliamentary Privilege. Where questions of Parliamentary privilege arise, the Speaker’s Counsel may represent the views of the Speaker on the materials in issue.
This blog aims to draw attention to these cases for readers’ future interest when decisions are handed down and for general awareness that use of Parliamentary materials may be under increased scrutiny.
Particular focus is given to the Divisional Court’s judgment in R (on the application of ALR) v Chancellor of Exchequer [2025] EWHC 1467 (Admin) (“ALR”), which was the judicial review of the Government’s decision to make VAT payable on private school fees. At Annex B of the judgment, Newey LJ and Chamberlain J provide a thorough and thoughtful analysis of the authorities and principles in this constitutionally sensitive area that is well worth reading in full.

Background
A very pithy summary of the basic principles is set out below, but readers are directed to the Court’s judgment in ALR for a full discussion.
Article 9 of the Bill of Rights 1689 provides:

“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.”
The effect of Article 9 is that any material that falls within its ambit cannot be admitted or referred to by the courts. Such is the constitutional importance of Article 9 that its protection is absolute (R v Chaytor [2010] UKSC 52 per Lord Phillips at §61).
The scope of the phrase “proceedings in Parliament” and Parliamentary privilege generally is a matter for the courts (see Chaytor at §§15-16). In R (Miller) v Prime Minister [2019] UKSC 41 (the prorogation case), the Supreme Court noted at §66 that Chaytor establishes:

“that 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’: para 47. In considering whether actions outside the Houses and committees are also covered, it is necessary to consider the nature of their connection to those and whether denying the actions privilege is likely to impact adversely on the core or essential business of Parliament.”
Whether use of the Parliamentary material will amount to questioning proceedings has been summarised as whether it will challenge the accuracy or veracity of what is said in Parliament (see ALR at §43 citing Stanley Burton J in OGC[1]). Three broad purposes can be identified as underpinning this: (i) to preserve the separation of powers and not trespass on Parliament’s exclusive jurisdiction (see ALR at §35); (ii) that use by one party of an opinion expressed by a select committee would put the other party at an unfair disadvantage since they would either have to “question” parliamentary proceedings or accept a contentious fact (see ALR at §43); and (iii) in the context relevant to select committees and other protected reports, the courts have explained the importance of this as functioning to protect witnesses’ willingness to give frank evidence (see ALR at §63).
The use and purpose of reliance on Parliamentary material is an important consideration in determining whether proceedings are being “questioned” and whether the material in issue may be admitted and referred to by the courts. The Heathrow Hub[2] case provides six grounds put forward by the Speaker’s Counsel on which parliamentary material may be considered by the courts, such as the Pepper v Hart exception.

The Speaker’s recent interventions
There are four recent cases to highlight in which the Speaker has intervened, or has been listed as an interested party.
The first was a challenge to the implementation of the Brook House Inquiry recommendations and the scope of the Article 3 ECHR investigative and systems duties.^{^[3]} The claimants sought to rely on a statement by the then Secretary of State to Parliament establishing the Brook House Inquiry as a basis for an argument of legitimate expectations, as well as materials from select committee reports used to illustrate the historic context.
In relation to the Secretary of State’s statement, Heather Williams J’s judgment in Donald[4] had determined that Ministerial statements could found legitimate expectations without breaching Parliamentary privilege. Heather Williams J herself had relied on obiter in Wheeler that such use of Parliamentary proceedings does not amount to “questioning”. The Speaker’s Counsel argued that Donald had been decided wrongly and should be departed from. Presiding, Lang J decided against admitting the material in issue, and a written decision is awaited.
The second case[5] is a challenge to the new Leasehold and Freehold Reform Act 2024 (“LAFRA 2024”) on Article 1 Protocol 1 ECHR grounds, where the Speaker was represented at a recent case management hearing. The claim is listed to be heard in July 2025.
The third case[6] relates to a complaint before the Investigatory Powers Tribunal (IPT) against British intelligence services’ complicity in mistreatment conducted by the CIA. There, the Speaker’s Counsel sought to argue that reports by the Intelligence and Security Committee are "proceedings in Parliament" attracting parliamentary privilege.
The fourth case[7] is a recently issued judicial review by Wild Justice directly challenging the statement made in Parliament by the Secretary of State for Housing, Communities and Local Government that, in her view, the Planning and Infrastructure Bill will not have the effect of reducing the level of environmental protection. That statement was made pursuant to a statutory duty under section 20 of the Environment Act 2021, and in issue is whether it is protected by Parliamentary privilege. Very broadly, the claimant argues that the court should not extend Parliamentary privilege to a recent, novel statutory duty imposed by Parliament itself on a Minister. If this were done, it would permit Parliamentary privilege to be used as a shield by the executive and render the statutory duty to otiose. Currently, the case is at an early stage, and the Speaker is listed as an interested party.

The Court in ALR
In ALR, the claimants sought to rely on reports from two Parliamentary committees, and a report by the National Audit Office (“NAO”) (Annex B [§7]). The claimants accepted that the committee reports attracted the protection of Parliamentary privilege, but did not accept that the NAO report fell within the term “Parliamentary proceedings”. Further, the claimants submitted that the materials in issue were admissible in the context of a claim which put in issue the proportionality of an interference with Convention rights (§9).
The Court considered that “that the NAO’s function in issuing Value for Money reports, and its centrality to the work of the PAC [Public Accounts Committee] and of Parliament in holding government to account, demands that the protection of privilege should extend to those reports” (§71). The Court having accepted that NAO reports fall within the scope of “proceedings in Parliament”, the discussion of particular interest is whether, nevertheless, reliance on the reports was permissible.
At §79 the Court stated that “If the matter were unconstrained by authority, we would question whether any of the doctrinal rationales for Article 9 justify reading the prohibition on “questioning or impeaching” so broadly as to prohibit any factual disagreement with the evidence given to, or indeed the conclusions reached by, a select committee”. At §80, the Court expressed doubt that the lens of the separation of powers necessarily meant that the court should “adopt an attitude of studied ignorance towards the evidence given to or conclusions reached by a select committee”. However, the Court ultimately accepted that the point was covered by authority (§81).
Rather than excluding, or admitting, the NAO reports outright, the Court addressed its conclusions as to the use that can be made of the materials. It is worth citing the following paragraphs from the conclusion in full:

“87. In many cases, materials falling within the term “proceedings in Parliament” will be a very useful resource for claimants in judicial review proceedings. This is particularly likely to be true of NAO reports, which are typically rigorously researched and carefully drafted. It may also be true of other evidence given to parliamentary committees and of the reports of those committees themselves. This makes it important to take care in distinguishing uses which involve or invite questioning or impeaching from uses which do not.

88. Despite what we have said at [79]-[80] above, it is now well-established that courts and tribunals cannot admit parliamentary materials attracting the protection of Article 9 for the purpose of establishing a contested fact. This is because doing so invites the other party or the court to question or impeach things said in parliamentary proceedings. We would respectfully question whether it follows, as held in Kimathi, that statements made in Parliament cannot be admitted (whether for the truth of their contents or for the fact that the statement was made) in circumstances where the other party has identified no independent evidential basis for contesting them.

89. In any event, however, we are confident that there is nothing objectionable in a party extracting the key factual conclusions upon which he seeks to rely with a view to putting those conclusions to his opponent to see if they are accepted. That is what happened here, following a suggestion made by the court at the hearing on 8 April 2025. If and to the extent that the conclusions are accepted, admitting them involves no infringement of Article 9 or any wider principle of Parliamentary privilege, because it neither involves nor invites any questioning or impeaching of proceedings in Parliament.”

Key takeaways
Questions of Parliamentary privilege, especially whether use or reliance on materials amounts to “questioning” proceedings, are highly fact-sensitive . In that context, two aspects of the Court’s judgment in ALR stand out.
1. First is the doubt expressed as to whether “questioning” has been given too wide an interpretation at §§79-80, and the subsequent question whether Kimathi should be strictly followed (§88).
2. Secondly, the Court’s approach at §88-89 appears to suggest that parties should not simply rely on bare assertions that factual conclusions are contested.
Overall, in ALR the Court gives useful dicta on ensuring that the “absolute” nature of Parliamentary privilege does not prevent valuable and useful material from being excluded by an application of form over substance.

This article is written by Rossen Roussanov, pupil barrister.

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[1] Office of Government Commerce v Information Commissioner [2008] EWHC 774 (Admin), [2010] QB 98 (“OGC”)

[2] R (Heathrow Hub and Anor) v Secretary of State for Transport [2020] EWCA Civ 213 (“Heathrow Hub”)

[3] D1914, AAA and AVY v SSHD – decision pending. Acting for AVY is Alex Goodman KC.

[4] R (Donald) v Secretary of State for the Home Department [2024] EWHC 1492 (Admin) (“Donald”)

[5] Leasehold and Freehold Reform Act 2024 challenges… - Landmark Chambers

[6] Investigatory Powers Tribunal examines UK… - Landmark Chambers

[7] Acting for Wild Justice are Alex Goodman KC and Alex Shattock , of interest to readers may also be the recent opinions on the Bill The Planning and Infrastructure Bill: an ‘overall… - Landmark Chambers