On the 23rd October 2018, Sir Terence Etherton MR, Underhill VP and Henderson LJJ “allowed the appeal and granted an interim injunction preserving the confidentiality of the information pending a full trial” in the case of ABC v Telegraph Media Group Ltd 1. A ‘senior executive’ who was a ‘prominent British businessman’2, wanted to prevent the Daily Telegraph from publishing his name and the details of five separate complainants with whom the senior executive had out of court settlements (protected by non-disclosure agreements) allegedly on the basis of sexual harassment and racial abuse. It is important to note that not only did the senior executive wish to prevent the publication but as did two of these five complainants. However, Lord Hain found it “to be [his] duty under Parliamentary privilege to name” Sir Phillip Green as the executive in question3 in the House of Lords on 25thOctober 2018. In light of this decision it is useful to discussion Parliamentary privilege and its relationship with the rule of law.
The existence of Parliamentary privilege dates back to at least the mid-13th Century4 and consists of rights and immunities bestowed upon both the House of Parliament and their members in order to carry out their parliamentary functions effectively5. Over the centuries Parliamentary privilege has developed many branches: freedom from arrest; the right to control its own proceedings; but Lord Hain utilised the freedom of speech limb to make his statement. The privilege of the House of Lords regarding free speech are the same as in the House of Commons6. This privilege is enshrined in Article 9 of the Bill of Rights (1688).
“The 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 constitutional importance of Article 9 has been reinforced judicially in numerous cases. In R v Chaytor, Lord Philips explained that its “primary object” is “unquestionably to protect freedom of speech in the House of Commons”7 and reaffirmed the rule in R v Elliot (1629) – nothing said in Parliament by a member as such could be treated as an offence by the ordinary courts8.
The scope of Parliamentary privilege is understood through the “proceedings in Parliament” and although the Privy Court expressly refused to discuss what this constituted9 it is in fact a term for the court to define10. In Chaytor, Lord Phillips referred to Erskine May’s explanation in Parliamentary Practice:
“An individual member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking”11.
Clearly, Lord Hain was acting in the course of Parliamentary proceedings when he made his statement in the House of Lords. As such, it would be impossible for Sir Phillip to bring a case against Lord Hain for his actions. This is made especially clear in Re Parliamentary Privilege Act 12. The case involved London Electricity Board attempting to sue an MP in libel by making use of the Parliamentary Privilege Act 1770, section 1 which states that
“… any person … may at any time commence and prosecute any action or suit in any court … against … any … Lord of Parliament of Great Britain… intitled to the privilege of Parliament … and no such action … shall at any time be impeached, stayed or delayed by or under colour or pretence of any privilege of Parliament.”
However, Viscount Simonds found that there was a “necessary limitation inherent in the meaning of the 1770 Act” and that there was “no right at any time to impeach or question in a court or place out of Parliament a speech, debate or proceeding in Parliament”13. Instead, the Act applies to members of Parliament acting in their capacity as private individuals, otherwise it would substantively repeal Article 9. Considering the scope of Parliamentary privilege, it is evident that Lord Hain has acted within its bounds.
A key question at play here is: though acting within the boundaries of Parliamentary privilege, were Lord Hain’s actions against the rule of law? The rule of law is a fundamental principle within the British constitution which, at its most basic, is simply the application of law throughout a jurisdiction. When theorists venture beyond that definition, debate emerges as to its requirements. Yet it is clear that our understanding requires something more. The rule of law is a contested concept14, and the greatest debate lies between those who support a procedural or formal understanding of the rule of law (akin to a checklist of requirements) and those who believe it to be more substantive understanding imbued with normative concepts (such as the separation of powers and human rights).
The understanding of the rule of law that you accept perhaps changes the constitutional propriety of Lord Hain’s actions. Given that Parliamentarians have the power to use this privilege, it seems that Lord Hain was completely within Parliament’s, and therefore his, institutional competence to do act as he did. Therefore, on a formal understanding, the breach of the rule of law is less clear. Nevertheless, it could still be argued that because the factual effect of his actions was to undo the court’s decision he has undermined the certainty following from these decisions and so the ability of the individual to rely on and be guided by the law. In addition to this, the general timing of Lord Hain’s statement is bizarre and perhaps this is best evidence of undermining the rule of law. The legal process has not yet been exhausted. The injunction in ABC was only interim, and the full case is still to be heard. The future outcome could excuse Lord Hain’s actions (if only slightly) by agreeing with assessment of the public interest or will be made redundant by disagreeing with him. The outcome that the court think appropriate is either half done already or can never be done at all.
It would seem that a substantive approach would require the merits of the decision to be taken into consideration. As such, Lord Hain has utilised his privilege in a way which undoes the court’s decision to not to allow publication of names in this case. Dominic Grieve QC and Hugh Tomlinson QC seem to think that this undermines the rule of law by and shows blatant disregard for the constitutional role of the courts15– this seems to be based on the factual outcome and effect of Lord Hain’s actions. It is only if you distance yourself these practical realities does it appear that Lord Hain is has not overstepped in some way. Except, if you take into consideration other circumstances such as: the social background of his decision (in particular the #MeToo movement), is it not right, in some normative sense, for a Parliamentarian to attempt to support social change which gives voice to long-silenced and unprotected victims? This indicates fundamental difficulty with a substantive understanding of the rule of law – which considerations and norms do you leave out?
There are arguments and counter-arguments regardless of the stance that you take. It is not a contest of concepts for no reason. When considering whether Lord Hain’s use of Parliamentary privilege undermines the rule of law, perhaps it is necessary to focus on what we want the rule of law in a modern democracy to embody and protect. This requires clarifying the understanding we wish to take and its scope. Only then can we reconcile the practical realities with these other circumstantial considerations.