The Prime Minister explores natural justice as the basis for reviewing procedures in the House of Commons. The Leader of the House, Jacob Rees-Mogg, also used the phrase repeatedly. They abandoned that plan shortly afterwards, amid claims that their party had acted improperly. However, this post likewise propounds natural justice in the legislature. Historically the supreme court in England and Wales was part of “Parliament”, when parliamentarians established the sovereignty of Parliament as the rule of law, through the Revolution of 1688. The Constitutional Reform Act 2005 specifies at s 1 that the Act does not adversely affect the existing constitutional principle of the rule of law. In my doctoral research, I therefore argue that the Supreme Court, which under the Act replaces the House of Lords in its appellate jurisdiction, continues to be part of “Parliament”. Parliament was designated the “High Court of Parlyament” by the Crown and Parliament Recognition Act 1689. Therefore, on my argument, the legislature bears the sovereignty of Parliament by comprising part of the High Court of Parliament, which also continues to include the Supreme Court. Proposals for natural justice in the Commons would bolster the legislature’s participation in that authority. Currently however, natural justice is being propagated on the basis of the legislature’s political supremacy, as in the Paterson controversy over legislative standards.
Paterson – Facts
On 30 September 2019, Owen Paterson MP was reported as having “participated in lobbying campaigns for two firms to promote their products”. A month later the Parliamentary Commissioner for Standards, Kathryn Stone, initiated an inquiry regarding those allegations and on 16 July 2021 reported a breach of the Commons Code of Conduct. The full Commons Committee on Standards reported on his conduct on 26 October 2021. It found that his actions were “an egregious case of paid advocacy, that he repeatedly used his privileged position to benefit two companies for whom he was a paid consultant, and that this has brought the House into disrepute”. It considered that his wife’s taking her own life in June 2020, in which his anguish played a “major role” according to Mr Paterson, was a mitigating factor. Yet it recommended his suspension from the House for 30 days. Members become subject to a recall petition process if suspended for at least 10 sitting days.
In debate on 3 November 2021 Standards Committee Chair, Chris Bryant MP, noted the opportunities provided to Mr Paterson to make his case. The latter had been invited to meet and/or submit evidence, upon Commissioner Stone starting her investigation. On finding a breach she submitted to him a memorandum, before submitting it to the Committee. However, the PM expressed concern whether a fair opportunity to make representations had been afforded “and whether, as a matter of natural justice, our procedures in this House allow for a proper appeal”. The Leader of the House and other prominent Conservatives similarly emphasised natural justice and its features such as fairness, and proper and just processes. Conservative MPs supported an amendment by Dame Andrea Leadsom that declined to consider the Committee’s report. Further, it supported the appointment of a Select Committee to make recommendations by February 2022 on whether the procedures governing the make-up of the Committee on Standards and the Commissioner’s powers “should be made consistent with the principles of natural justice”.
Nevertheless, it was later reported that the PM had ditched the immediate overhaul of the standards system, and that Mr Rees-Mogg promised to “bring forward more detailed proposals” later, following cross-party discussions. The move would likely have resulted in Mr Paterson’s suspension. He therefore announced his resignation. The PM’s order to his party to oppose the conclusions of the standards watchdog was later described by even a conservative publication as having “sparked complete chaos, leaving the existing system for regulating MPs’ behaviour in tatters and Opposition parties vowing to boycott the government’s plans to agree a new one”. The matter is even more complicated. An Independent Adviser on Ministers’ Interests earlier viewed as “unwise” the PM’s allowing the refurbishment of his own apartment to proceed without more rigorous regard for its funding from a party donor. The Opposition has been calling on Commissioner Stone to investigate whether the PM should have declared that loan.
A firmer basis for observing natural justice in the legislature is available. We recall that AV Dicey propagated “legislative supremacy”, as if the Westminster legislature is supreme over the executive branch and judicature against which it is juxtaposed. This model assumes that the legislature is now and has always been separate from the judicature, and therefore has always been characterised as independent from the courts. It neglects the curiality of the High Court of Parliament. The supreme court in England and Wales was part of “Parliament” when the Revolution of 1688 founded the sovereignty of Parliament. Lords sat as that supreme court, in addition to sitting as the upper House of the legislature. When Article 9 of the Bill of Rights 1688 (“Article 9”) protected the freedom of speech inside Parliament from any Court or Place out of Parliament, the supreme court was part of the parliamentary forum. In Scotland on the other hand the Court of Session had been a specialised and separate court since 1532. The Scottish Claim of Right 1689 provided for remedy or “remeed of law” to the King and Parliament, a non-specialist forum, from the supreme court of Scotland. The Bill of Rights 1688 instead provided for judicial review to a Parliament of which the supreme court of England and Wales was still part. After 1689 English judges could still have been presumed to be deferring to a court, the High Court of Parliament, when preferring legislation to their own precedents.
In the twenty-first century however, even that bastion of judicial independence, Miller (No 2) (2019), characterised the above English and Scottish provisions as having an identical effect -. It drew on R v Chaytor (2010), in which Lord Phillips reiterated the holding in Stockdale v Hansard (1840) that “whatever is done within the walls of either assembly must pass without question in any other place”. Yet Stockdale occurred just four years before O’Connell v R(1844). There, the supreme court of what is now the UK was recognised as specialised and separate from the legislature. The lay peers departed, to recognise that the professional judges who “assisted” them constituted the real court.
A Duty upon Legislators to Act Judicially
It is submitted that since O’Connell the Westminster legislature can no longer be presumed to be a court. Rather, Parliament is a quasi-judicial body when considered as part of the High Court of Parliament, in addition to its being intrinsically a legislative body. Each of the House of Lords and the House of Commons has the form of a judicial body but cannot be presumed to act judicially. Erskine May:
Parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute.
Each of the House of Commons and the House of Lords is a legislative body. Yet the sovereignty of Parliament originated, and Article 9 was established, when the supreme court was part of the “High Court of Parlyament”, as per the Crown and Parliament Recognition Act 1689. Decades earlier the specialisation of the common law judiciary separated it from the executive branch, such that the king could no longer be presumed able to sit as a common law judge – Case of Prohibitions (1607). Three centuries later, the executive power was, again, not presumed to act judicially, when in Ridge v Baldwin (1964) Lord Reid identified a duty to act fairly with a duty to act “judicially”. A quasi-judicial committee that adjudicated upon a chief constable’s discharge of his duties, without a specific charge against him, and then dismissed him, bore that duty to act judicially.
The legislature cannot be presumed to act as a court, when considered in terms of the parliamentary privilege of the High Court of Parliament, since O’Connell. Instead the Commons’ authority falls to be considered in conjunction with the supreme court, which the Constitutional Reform Act 2005 established as the UK’s Supreme Court. The Supreme Court of England and Wales, which the Act renamed the “Senior Courts of England and Wales”, is not addressed here. The legislature can no longer be presumed to act independently and hence judicially, since O’Connell. That was demonstrated in Jackson v Attorney General (2005), where the supreme court in the UK validated Tony Blair’s Hunting Act 2004. The judicial House of Lords was invited to review the Act even after the Queen had assented to it, because the legislative House of Lords had been by-passed through Mr Blair’s use of the Parliament Act 1911. Although not explicit, the independent stamp of sovereign authority symbolised by the Crown, a symbol Her Majesty personifies, was shown to vest ultimately in the supreme court rather than in either political branch. Doubt attended the Hunting Act despite it gaining the assent of the Sovereign, until the judicial House of Lords validated it. The sovereignty symbolised by the Crown was revealed to be founded on judicial power. The High Court of Parliament likewise originated the sovereignty of the Crown in Parliament in 1688, by independently reviewing and so authorising the Sovereign’s power in the parliamentary court. The Bill of Rights requires that the monarchical Executive assert the Crown’s (not its own) prerogatives ultimately inside that “supreme court – legislature”, including the prerogatives of suspending laws (Article 1), dispensing with laws (Article 2) and, it is submitted, the Crown’s freedom of speech and debating (Article 9). This relation to judicial power to sovereignty accords with an Australian High Court decision:
I am of opinion that the words “judicial power” as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action – Huddart, Parker & Co v Moorehead (1909) (per Sir Samuel Griffith, Chief Justice).
In Miller (No 2), the legislature was similarly unable to offer the requisite independent review of political power. The Executive’s very predominance in the legislature establishes it as the “parliamentary Executive”. Yet as at the Revolution of 1688, the supreme court was able to independently review an external executive power, despite the “parliamentary” Executive now originating in the legislature itself. The Supreme Court found the PM had acted illegally in advising prorogation. It is submitted that in doing so, the Supreme Court acted as part of the High Court of Parliament, and asserted the sovereignty of Parliament.
Paterson – Natural Justice
The Prime Minister’s appeal to natural justice for Mr Paterson was not widely seen as asserting independence or fairness in the Commons. The Parliamentary Commissioner for Standards is a layperson rather than an MP. The Standards Committee presently comprises seven lay members, four Conservative Party MPs, one Scottish National Party MP, and two Labour MPs one of whom is the Chair. Committee Chair Chris Bryant remarked that the vast majority of Members are there to do good. He then attended to the House’s proposal to both decline to consider his Committee’s Report and appoint a Select Committee as part of a new system of natural justice:
But if the public believe that we are marking our own homework, our reputation, individually and collectively, will be tarnished. Independence is essential to protect us. A Conservative MP said to me yesterday: “There have been times when I have been ashamed of being a Member of this House, I don’t want to go back to that”.
However, it must be stated that, with great respect, that O’Connell has made the position of legislators ambiguous even before the Paterson matter arose. Through O’Connell the curiality of the High Court of Parliament became specialised and vested in a professional court, separate from both Houses of the legislature. Earlier this year the Common Privileges Committee stated the need for natural justice, when considering its powers to call for persons, papers and records. It specified the need to protect Committees’ work from fear of unreasonable obstruction or impediment. It sought “to reduce the risk of any unnecessary judicial oversight of parliamentary proceedings”, to be compatible with human rights law and natural justice, and required a clear internal framework establishing due process and the fair treatment of witnesses. In response it must be stated that simply recognising the curiality of “Parliament” when Article 9 was passed would lessen the need to legislate for natural justice and due process, by inviting independent, curial, authority. As to the risk of judicial oversight, it must likewise be reiterated that the sovereignty of “Parliament”, of which the supreme court was part, originated in an independence against the Executive.
Formerly the “exclusive cognizance” asserted through Article 9 over parliamentary privilege protected the parliamentary court from an executive power that could act outside that court, to negate its authority inside that court as in Test Act cases such as Godden v Hales (1686). But O’Connell now separates the legislature from its former ally the supreme court, an authority that could otherwise fortify the independence of legislators against their own alter ego, the parliamentary Executive. Since O’Connell exclusive cognizance is a doctrine by which the legislature is asserting its supremacy as a purely political body, over the judicature. Rather than the High Court of Parliament having a single mind as to parliamentary privilege, the cognizance of the legislature as to its privileges explicitly sets the legislature against the Supreme Court. The two are no longer unified, according to the Executive in the legislature, when independently reviewing the Executive in the legislature. They were unified at the passage of Article 9, when the executive power originated outside of the legislature.
Since O’Connell the legislature can no longer be presumed to act judicially and hence to afford natural justice. However, Jackson and Miller (No 2) show that the High Court of Parliament can still independently review political power. In the case of Paterson the PM’s thirst for natural justice would have an even more secure footing than political supremacy . On my approach, the sovereignty of Parliament itself would require the radical conclusion that the Supreme Court is able to review parliamentary procedure in the legislature independently of the parliamentary Executive, in terms of legislators’ duty to act judicially as an “acurial” part of the High Court of Parliament. The fact that legislators can no longer be presumed to act judicially need not impair the legislature’s claim to a judicial authority. The public demands that Parliament bears an independent and fair authority. Political pressure was eventually able to stop the PM from neglecting the Commissioner’s report regarding Mr Paterson, after he had advanced his version of natural justice on the floor of the legislature. Yet the Chair of a public body sponsored by the Cabinet Office, Lord Evans, was reported as describing the mere proposal as “extraordinary”, “deeply at odds with the best traditions of British democracy”, and “an attack on standards”. Constitutionally speaking, Dicey’s legislative supremacy did not help the legislature as against the Executive, when Mr Johnson unlawfully advised Her Majesty to prorogue the legislature in Miller (No 2).
It is submitted that the courts’ historical role in Parliament is a strong precedent for the involvement of the Supreme Court in standards cases today. The Commons Privileges Committee proposes legislation that complies with the needs stated above. Yet in the context of obtaining witnesses for Select Committees, rather than just judicial enforcement of MPs’ standards, it has said:
We do not seek to disguise the fact that our proposal would encroach upon protections previously afforded to parliamentary proceedings under Article IX of the Bill of Rights. However, a limited reduction in the extent of exclusive cognisance is a price worth paying to secure effective enforcement. Our proposal gives scope for the court to consider the nature and purpose of a committee’s summons, but only for the purposes of ensuring compliance with the UK’s international human rights obligations, in particular Article 6 of the European Convention on Human Rights (the right to a fair trial). (Paragraph 143)
Encroachment upon Article IX or the legislature’s exclusive cognisance need not be feared, since the provision protects the joint High Court of Parliament against the executive power, not the courts. In debate, the Shadow Leader of the House Thangam Debbonnaire remarked how the introduction of both the Standards Commissioner in 1995 and the Standards Committee in 2013 has “gone a long way to restoring public trust in the House”. Further, in an exemplary statement of parliamentary collegiality, Jacob Rees-Moggs recently encouraged MPs to follow the example of Scottish Nationalist Party MP Patrick Grady, and engage fully with legislation, because “Parliament is first and foremost a legislature”. With respect however, its authority as a legislature, and hence its ability to observe natural justice, derives not from asserting an isolated, political, legislative supremacy but from its participation in the Revolutionary sovereignty of the High Court of Parliament, together with the Supreme Court.
Tom Spencer, PhD Candidate, University of Southern Queensland
(Suggested citation: T. Spencer, ‘Natural Justice in Parliament: A Courageous Proposal, Prime Minister’, U.K. Const. L. Blog (15th Nov. 2021) (available at https://ukconstitutionallaw.org/))