As you may know, I am currently chairing a joint committee of both Houses of Parliament which is reviewing the law of parliamentary privilege. A question has arisen on which I would greatly welcome your assistance.

  One of the fundamental parliamentary privileges is freedom of speech, enshrined in article 9 of the Bill of Rights 1689. As interpreted by the Privy Council in Prebble [1995] 1AC 331, this article and the wider principle it exemplifies have the effect that the courts may not enquire into and draw inferences from statements made by members in either House or to a committee of either House. Despite this, in suitable cases the courts may and do look at ministerial statements in Parliament for the purpose of construing ambiguous statutes (Pepper v Hart).

  One question which my committee is now considering is whether ministerial statements in Parliament should be capable of being taken into account by courts on applications for judicial review of ministerial decisions. Typically one might have a case where a minister is questioned regarding one of his decisions by a select committee, and afterwards an applicant in court proceedings, who is challenging the lawfulness of the minister's decision on judicial review grounds, seeks to rely on the minister's answer in committee as, for instance, evidence that the minister misdirected himself in the exercise of a statutory power.

  Two points arise: (1) So far as I know, but I may be misinformed, there is no court decision expressly on this point. I have the impression that, whatever may be the strict legal position, in practice ministerial statements made in Parliament or committee are referred to from time to time in judicial review proceedings, presumably without objection. Is this so? What is the practice?

  (2)  What should the position be? Why? There are obvious advantages in the judiciary being able to take account of answers given by the executive when called to account by the legislature. Some concern has been expressed that if ministerial answers can be used in this way, ministers might be less forthcoming in their answers to questions in select committees.

  Your thoughts on these points, and generally, would be enormously appreciated.

The Right Hon the Lord Woolf

  I do apologise for not replying earlier to your letter of 20 May 1998. I do however want to give some thought to the questions which you posed. I will deal with them in turn.

POINT (1)

  Ministerial statements made in Parliament are regularly referred to in judicial review proceedings. There used to be a problem with regard to relying on Hansard in the courts (I remember in the Crossman Diary case having to prepare a petition to the House for permission to refer to Hansard) but this is no longer the position. You will remember that in the recent cases of Pierson v SSHD [1996] 3 WLR 547 (Court of Appeal) [1997] 3 WLR 492 (House of Lords) and R v SSHD ex parte Venables [1997] 2 WLR 67 (Court of Appeal) and [1997] 2 WLR 23, there were references to the successive policies of different Ministers in relation to life sentences. There are many other examples which could be cited. The practice however is for both applicants and the government to use Hansard to indicate what the government's policy in a particular area is.

POINT (2)

  I can see no difficulty as to the present position and consider that there would be serious disadvantages in any other course being adopted. Parliament is the appropriate forum for the announcement of government policy. Statements in Parliament by reason of the fact that they are made in Parliament have extra authority. They are acted upon, in part at any rate, because they are made in Parliament. They are intended to be relied upon and it would be most unfortunate if they could not be relied upon. As it happens last weekend I was taking part in a conference being held by the Inland Revenue. A matter which was being discussed was the use of the extensive powers of the Revenue under section 20 of the Taxes Management Act 1970. The way in which those powers are exercised is confined by what is known as "the Hansard Statement". On any application for judicial review in relation to an abuse by the Revenue of its powers under section 20, it would be essential to look at this statement.

  So far as ministerial statements are concerned, I just do not accept that there is a problem. I can however see that difficulties can arise from ministerial answers given in response to questions in Parliament or in Committee. The Minister might have given an immediate reaction which on examination might not be accurate. If this is the case, then the inaccuracy can always be corrected either in Parliament or before the courts. The judiciary would fully understand that slips can happen. As long as the judiciary do not adopt an unrealistic standard in relation to answers given to questions, then I cannot myself accept the fact that answers could be used in legal proceedings would mean that Ministers would be less forthcoming.

  I emphasise that what at present happens in the courts does not involve questioning what has happened in Parliament. It involves no more than using Hansard as a factual record of what happened in the House. There is no infringement of the Bill of Rights.

  I hope this is of some help. If it would be useful if I clarified or expanded what I have said I would be happy to do so.