Parliament v the Courts

When I read that the Lord Chief Justice, Lord Burnett, was talking on Parliamentary Privilege – Liberty and Due Limitation in a Commonwealth Law Conference, in Zambia on 9 April 2019, I wondered how he would deal with the recent case of ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329 (23 October 2018), where an interim privacy injunction was granted to prevent reporting of the claimants’ identities, but a member of the House of Lords made use of the privilege to reveal the main claimant’s name and thus render the injunction futile.

The case concerned complainants of discrimination and sexual harassment who had signed confidentiality agreements (of the type commonly known as a “non-disclosure agreement” or NDA) in exchange for substantial compensation payments by their employers. Reporting restrictions had been imposed after the Telegraph, having learned of them, threatened to publish information in breach of the confidentiality agreements. The Court of Appeal said the anonymity of the complainants and employers should continue pending the final hearing of the application for a privacy injunction (and an early hearing date was fixed), when the court would review the question.

Lord Hain (Peter Hain), in the House of Lords was not content to await the final ruling of the court. Indeed, he claims not even to have read the court’s interim judgment, before using what he regarded as his parliamentary privilege to disclose and publicise the name of Sir Philip Green, chairman of the company in question. In doing so, he rendered the Court of Appeal’s order completely pointless.

Lord Burnett LCJ used this as one of five examples of the use of parliamentary privilege to override the sub judice rule. His talk concluded with an explanation of how respect for this rule is essential in securing a balance between Parliament and the courts to bolster the rule of law. But first the he provided a history of parliamentary privilege since Tudor times.

The Bill of Rights: comity and the sub judice rule

The privilege is rooted in the Bill of Rights 1689, which set up the foundations of our modern constitution. Article IX asserts that “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 freedom was not a matter of grace – that is of grant by the Crown – but a matter of right for parliamentarians. Article IX is what governs the privilege today. (See the First Report of the Joint Committee on Parliamentary Privilege, 1999)

Its main object is to protect freedom of speech by parliamentarians, protecting them from any risk of defamation claims. (The privilege is confined to “proceedings” in Parliament. It does not exclude the law in relation to dishonest acts of MPs, such as false expenses claims, or acts of violence or sexual assault within the premises.) In relation to its own proceedings, Parliament must be the judge of any application of its own law. If Parliament could not regulate its own law, the purpose of the privilege would be undermined.

What then is the relationship of Parliament and the courts over parliamentary privilege? This comes down to recognising the separation of powers, to respecting that separation and to what is their respective constitutional relationship. This brings Lord Burnett to the sub judice rule (the rule that nothing should be said or published about a case whilst it awaits adjudication). He emphasises this as party of the ‘comity’ – working together – of courts and Parliament.

Lord Burnett defines the rule as (para 24):

“It enables the courts to carry out their constitutional role; and it preserves for Parliament its right to comment on judicial proceedings once they are no longer live. So, while protecting the courts and Parliament, it also protects the rule of law by enabling both branches to carry out their roles effectively and without interference.”

In particular he stresses the protection which courts may have to give to parties in particular cases. “Open justice is the default position”, he says (para 29), but there are countless examples of cases where the court may consider that a party or witness should have anonymity; where children are caught up in proceedings; where the safety of someone might be compromised by identification; or to protect trade secrets or the sources of intelligence material. Anonymity may be conferred by statute. In some cases the grant of anonymity by the courts may be controversial; but, as Lord Burnett sees it, that is no reason for a legislator (as all members of Parliament are) to override the court’s order.

So, of Lord Hain, Lord Burnett said (para 36):

“Yet in effect to nullify the order of a court on the basis of an individual view, however genuinely felt, is not compatible with the rule of law. It results in the parliamentarian concerned constituting himself a one-person court of final appeal. The freedom of speech in Parliament was guaranteed to protect parliamentarians in the exercise of their functions, rather than to enable the open defiance of court orders.”

It comes down to a question of comity between Parliament and the courts; and of the former’s respect for the rule of law. The system is corrupted if parliamentarians, however well-meaning, set themselves up as a court of appeal.

Postscript: the Hain defence

On the day of Lord Burnett’s speech, the Law Society Gazette published a report on the findings of the parliamentary Commissioner for Standards (former Law Society president Lucy Scott-Moncrieff), into a complaint that Lord Hain had broken the parliamentary code of conduct by naming Sir Philip Green as the chairman of the company involved in the ABC case—not because he had abused parliamentary privilege, but because failed to declare his role as a global and governmental adviser to Ince Gordon Dadds LLP, the firm acting on behalf of Telegraph Media Group, which wanted to publish the story.

Dismissing the complaint brought by the law firm Schillings, acting on behalf of Green, the commissioner accepted Hain’s assertion that he had been unaware of the involvement of Ince Gordon Dadds.

“Though Schillings was correct to say the involvement of Ince Gordon Dadds was plain on the front page of the ABC & Others v the Telegraph Media Group Limited, Hain had explained why he did not read the judgment, why he considered it unnecessary to read it, and therefore why he did not know of the firm’s involvement.”

Hain was reported to have told the commissioner:

“I am not a surrogate lawyer and I was not acting as one. I was not challenging the court in that sense… I was not trying to second-guess the court, the lawyers or the judiciary at all.”

Needless to say, this is hardly the sort of defence that would cut much ice before a court considering a charge of contempt of court. But it seems that inside Parliament (where the laws are made) ignorance of the law, and of a court order, is a complete defence.

Featured image: House of Lords chamber, posted by UK Parliament on Flickr, reproduced with thanks.