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Parliamentary Privilege: An Outdated Right?

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About The Author

Hannah Gilliland (Guest Contributor)

Hannah is a Politics and Sociology graduate from the University of Cambridge. She enjoys looking at the intersection between politics, current affairs and the law. She has completed various Mini-Pupillages and is looking forward to beginning her legal career.

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Parliamentary privilege is a precious part of our constitution and an expression of Parliament’s absolute sovereignty, but it should only ever be used sparingly, with total integrity and responsibility. It is not something that one should ever abuse and it should never be used randomly.

Lord Hain

On the 25 October 2018, Lord Hain exercised his right to Parliamentary privilege by naming controversial businessman Sir Philip Green as the anonymous figure recently granted a temporary injunction by the Court of Appeal. This injunction sought to prevent The Daily Telegraph from printing details of harassment claims by ex-employees – who had previously signed non-disclosure agreements (NDAs) – against Sir Philip Green.

In light of this case, judgment on which was handed down in ABC v Telegraph Media Group Ltd [2018], this article will take a closer look at the right of Parliamentary privilege and its place in today’s society. It considers whether the recent exercise of this right is a cause for celebration and the epitome of freedom of speech in a liberal democracy, or instead an abuse of the archaic process that serves to undermine the rule of law?

Parliamentary Privilege

The Facts

Parliamentary privilege is the right that provides legal immunity from potential criminal or civil liability when speaking within the Palace of Westminster. Although it has been used recently to name those protected by – often controversial – NDAs and injunctions, such as Ryan Giggs and Trafigura (as discussed further below), the original concept of Parliamentary privilege stemmed from an entirely different issue.

Parliamentary privilege dates back to the English Civil War, when it was used by governments as they tried to assert independence from monarchical right. It was used in this capacity for some time before 1689, when it was formerly enshrined in Article 9 of the Bill of Rights 1688. This provides:

[T]he freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

While initially established to ensure politicians could speak freely from monarchical influence, today Parliamentary privilege is being used for a different purpose. This can be illustrated with numerous examples from the 2000s. In 2009, the oil trader Trafigura was granted a super injunction – which not only prevents publication of the issue, but also prevents the publication of the existence of an injunction – to prevent the media from revealing allegations that it had been dumping toxic waste. However, the details of the case were later exposed under Parliamentary privilege by Paul Farrelly, a Labour MP.

Similarly, in 2011, Liberal Democrat MP John Hemming revealed the name of Sir Fred Goodwin, who had reportedly used a superinjunction to prevent the news of a relationship with a colleague reaching the public. In the same year, Hemming also revealed the name of footballer Ryan Giggs as the person paying for a super injunction to prevent the media publishing details of his extramarital affair with Imogen Thomas. Thus, the use of Parliamentary privilege to expose legally protected information is not unique to this recent case.

In 2011, following these incidences, the then-Lord Chief Justice, Lord Judge, commented that:

You do need to think whether it’s a good idea for our lawmakers to be flouting a court order just because they disagree with a court order or they disagree with the privacy law created by Parliament.

The Debate

With Lord Judge's question and the events of the last few weeks in mind, it must be debated whether this use of Parliamentary privilege was correct. Indeed, Lord Hain’s decision to reveal the name of Sir Philip Green has been divisive. On the one hand the Labour MP, Jess Phillips, described the move as ‘brave’, saying that ‘[Lord Hain] did the right thing by exposing a man who appears to have used money to pay for silence.

Yet many have also criticised Lord Hain’s act. Alongside Lord Judge offering further criticism, former Attorney General Dominic Grieve QC claimed that Lord Hain had ‘abused’ his Parliamentary privilege in an ‘arrogant’ act and observed that:

We can’t operate a democratic free society when peers or MPs decide to take the law into their own hands.

Grieve’s point of view is compelling. Indeed, there are three different reasons why to exercise Parliamentary privilege in such a way is wrong: it is contrary to the public interest; it is a waste of the time and effort spent in the courtroom; and it goes against the will of those who sign NDAs.

Argument One: The ‘Public Interest’ Argument 

When disclosing this information, Lord Hain called it his ‘duty’ to expose Sir Phillip Green, saying the story is ‘clearly in the public interest’. This public interest argument can be subjected to serious criticism, on the grounds that it is not completely clear who should be the judge of what is in the public interest: the courts or Parliament?

While Lord Hain could argue that, having spent years carrying out direct public service as an MP, he is better placed to judge the public’s interest. However, this is undermined by the fact that he ceased to be an MP in 2015 and so - when revealing the information in the House of Lords - he was no longer a direct public representative.

Arguably, were it an MP who decided to exercise this privilege, the argument could have been made that they were better placed to act in the public interest, being the representative figure that they are. Yet, as both Lord Hain and the courts are currently unelected, it cannot be argued that the former is any better placed to judge the public interest than the latter.

Argument Two: The 'Time and Effort’ Argument

The decision to grant the temporary injunction was made by the Court of Appeal, England's second highest court, and by some of the country's most senior judges (Sir Terence Etherton, Lord Justice Underhill and Lord Justice Henderson). These judges - crucially - had all of the details of the case in front of them and would not have taken the decision to overturn a previous judgment lightly. Their judgement in ABC v Telegraph Media Group Ltd [2018] was based on the need to protect the binding nature of contracts and the use of NDAs in law, particularly employment, where they are regularly used to the benefit of both parties. By weighing up all the evidence, and evaluating the case of all of those involved in the NDA, the courts were able to make a more informed decision than Lord Hain could ever have made.

Another fact to consider is that this judgment has not yet been fully decided. The injunction had been temporarily extended and another hearing of the Court of Appeal was meant to occur to examine the legal details further. During this later hearing, it is likely that the rights to respect to privacy and freedom of expression – guaranteed under the European Convention on Human Rights (ECHR)– would have been weighed against one another.

Therefore, the Court of Appeal – if it had wished – could have ruled in favour of freedom of expression, granting The Daily Telegraph the ability publish the article. Yet, because of Lord Hain’s actions, this decision has been taken out of the hands of the courts. Surely the opinion of one politician should not have the power to undermine our nation’s legal system.

Argument Three: The ‘Will of Signatories’ Argument

Before signing the NDAs at issue, the employees in question were given independent legal advice, and thus entered into the contract willingly and with full knowledge. They were also paid significant sums of money to do so. While the use of NDAs is increasingly controversial, they can – and do – benefit the victims as well. For example, anonymity can ensure the process of finding another job is easier than for employees whose identities were not hidden in controversial events.

In the present case, it was reported that two signatories of the NDAs did not want disclosure. Thus, whilst Lord Hain referred to the fact that he was contacted by someone ‘intimately involved in the case’, why was his or her desire to speak given more weight than the two anonymised employees who signed the NDA and did not wish for it to be published? As such, this use of Parliamentary privilege to name Sir Phillip Green has arguably not only gone against the ruling of the courts of England and Wales, but it has also gone against the wishes of those who knowingly signed the contract.

Conclusion

It is submitted that Lord Hain’s decision to exercise Parliamentary privilege in the way he did was wrong. The decision cannot effectively be justified as being in the public interest, and it undermined the rule of law as well as the will of the people who entered into this contract. Parliamentary privilege thus seems easily abused.

Although it may be a coincidence, Lord Hain was later found to be a paid advisor of The Telegraph’s solicitors, Gordon Dadds LLP. Whilst both Lord Hain and the law firm have denied any wrongdoing, this demonstrates the ease with which abuse of privilege for commercial gain could creep into Parliament.

So what is to be done? Clearly a decision to revoke Parliamentary privilege would not be acceptable. It allows freedom of discussion without the threat of being sued or arrested, and thus is a fundamental right to our democracy. Yet, should more be done to stop those in power from abusing it? Perhaps the ministers should revisit the ability of peers and MPs to challenge the courts.

Parliamentary privilege as enshrined in the Bill of Rights was not intended for the purpose of exposing those who have sought legal protection. In accordance with the separation of powers in England and Wales, the Parliament and the courts hold distinct roles in the legal system. If Parliament does not agree with a law, it may change it; it should not, however, be able to undermine its rule on the basis of a single Lord’s judgement.

Following this case, ministers have said that there will be a meeting to discuss the use of NDAs within employment disputes. It may also be time to re-examine the ability of peers and MPs to invoke Parliamentary privilege as a challenge to court secrecy. To agree with Lord Judge:

I don’t think that Parliamentary privilege is designed to take away any citizen’s rights, even if we don’t very much like them.

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Tagged: Constitution, Contract Law, Parliamentary & Elections, Public Law, Sexual Offences

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