Introduction

Foreign And Commonwealth Office v. Warsama & Anor ([2020] EWCA Civ 142) is a landmark judgment from the England and Wales Court of Appeal (Civil Division) that delves into the complex interplay between Parliamentary privilege and the Human Rights Act 1998 (HRA). The case centers on whether the report produced by a non-statutory inquiry, published through the House of Commons via the Unopposed Return procedure, is shielded by Parliamentary privilege from legal challenges. The appellants, Mr. Warsama and Ms. Gannon, sought to overturn criticisms leveled against them in the report, alleging breaches of their rights under Article 8 of the European Convention on Human Rights (ECHR).

Summary of the Judgment

The Court of Appeal upheld the protection of Parliamentary privilege for the Inquiry Report under Article 9 of the Bill of Rights 1689. The court determined that the Unopposed Return procedure constitutes "proceedings in Parliament," thereby granting absolute privilege to the content of the Report. Consequently, the appellants' claims seeking to challenge the accuracy and fairness of the Report were struck out. Additionally, the court affirmed that Ms. Wass and her inquiry panel were considered "public authorities" under section 6(3) of the HRA, obligating them to act compatibly with the ECHR rights of individuals affected by their actions.

Analysis

Precedents Cited

The judgment extensively references key cases that have shaped the understanding of Parliamentary privilege:

• Ex parte Watson (1869) QB 573: Defined Parliamentary privilege as protection against civil or criminal proceedings based on statements made by Members of Parliament in the House.
• R v Chaytor [2010] UKSC 52: Clarified that Parliamentary privilege primarily protects freedom of speech and debate within Parliament.
• Stockdale v Hansard (1839) EWHC QB J21: Established that Parliamentary privilege does not extend to documents made available to the public unless specified by subsequent legislation.
• Zollmann v United Kingdom App. No. 62902/00 [2003] ECHR 731: Affirmed the legitimacy of Parliamentary privilege under Article 6 ECHR, emphasizing the balance between public interest and individual rights.
• Fayed v United Kingdom (1994) 18 EHRR 393: Supported the notion that administrative reports intended for public accountability are protected to ensure frank and comprehensive reporting.
• R (oao Miller) v The Prime Minister [2019] UKSC 41: Discussed the limits of Parliamentary privilege, distinguishing between proceedings within Parliament and external actions.
• Chaytor and Prebble v Television New Zealand Ltd [1995] 1 AC 321: Highlighted that Parliamentary privilege prevents litigation that seeks to undermine or question the statements made within parliamentary proceedings.

Legal Reasoning

The court employed a methodical approach to determine the scope and applicability of Parliamentary privilege:

• Definition of Proceedings in Parliament: Drawing from authorities like Lord Phillips in Chaytor and Ex parte Watson, the court concluded that actions such as motions for Unopposed Returns qualify as "proceedings in Parliament." This includes procedural motions that facilitate the efficient transacting of parliamentary business.
• Unopposed Return Procedure: The court analyzed historical and contemporary practices, referencing Erskine May and academic insights, to affirm that the Unopposed Return is a legitimate parliamentary proceeding designed to present documents of public concern without debate or opposition.
• Protection Scope: While the content of the Report fell under absolute privilege, procedural aspects related to the Inquiry itself did not. This delineation ensured that only the substantive contents protected, leaving room for judicial review of the Inquiry's procedures.
• Public Authority Status: Applying criteria from cases like YL v. Birmingham City Council and Aston Cantlow, the court determined that Ms. Wass and her panel acted as public authorities due to their governmental function and public accountability.
• Human Rights Considerations: The court balanced Parliamentary privilege with the HRA, referencing ECHR jurisprudence to maintain that the privilege did not infringe proportionately on individual rights, especially within the context of public accountability.

Impact

This judgment has profound implications for the relationship between parliamentary procedures and the judiciary:

• Reaffirmation of Parliamentary Privilege: Solidifies the protection afforded to documents and proceedings initiated through formal parliamentary motions, ensuring that executive reports cannot be easily contested in court.
• Boundary Setting: Clearly distinguishes between the content protected by privilege and the procedural aspects open to legal scrutiny, providing clarity for future cases involving governmental inquiries.
• Public Accountability: Enhances the ability of Parliament to hold government departments accountable without the fear of subsequent litigation undermining the findings of official inquiries.
• Human Rights Balance: Demonstrates the judiciary's role in balancing Parliamentary immunity with individual rights, particularly under the HRA, setting a precedent for future deliberations on similar matters.

Complex Concepts Simplified

Parliamentary Privilege

Parliamentary privilege refers to the rights and immunities that allow Members of Parliament (MPs) to perform their duties without interference from outside the parliamentary framework. This includes freedom of speech within the House and protection against legal action for statements made during parliamentary proceedings.

Unopposed Return Procedure

The Unopposed Return is a parliamentary mechanism where the House of Commons requests specific documents or reports from government departments without debate or opposition. This procedure streamlines the process of presenting important information to Parliament and, by extension, to the public.

Human Rights Act 1998 (HRA)

The HRA incorporates the European Convention on Human Rights (ECHR) into UK law, allowing British courts to hear human rights cases. Section 6 of the HRA outlines duties for public authorities to act compatibly with ECHR rights.

Article 8 of the ECHR

Article 8 protects an individual's right to respect for private and family life. In this case, the appellants alleged that the publication of the Inquiry Report breached their Article 8 rights by damaging their reputations and affecting their professional lives.

Conclusion

The Foreign And Commonwealth Office v. Warsama & Anor judgment serves as a pivotal reference point in understanding the boundaries and protections of Parliamentary privilege within the UK's legal system. By affirming that the Unopposed Return procedure constitutes "proceedings in Parliament," the court has underscored the sanctity of parliamentary processes in safeguarding governmental accountability. Simultaneously, the ruling delineates the limits of such privilege, allowing for judicial scrutiny of procedural aspects of inquiries. This balance ensures that while Parliament can effectively oversee and investigate public matters, individual rights under the HRA are not unduly compromised.