Two days after the Court of Appeal granted an interim injunction restraining reportage of harassment allegations against a high-profile businessman (ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329), Lord Hain named the individual involved, in the House of Lords under parliamentary privilege. This enabled the media to identify him in their reporting on parliamentary proceedings. That is how one politician nullified the reasoned decision of three senior judges.

Lord Hain’s actions were an unconstitutional abuse of parliamentary privilege because they undermine two pillars of the constitution: the rule of law, and the separation of powers. Parliament’s absolute privilege of freedom of expression is an historic, vital element of the constitution, but it does not exist to facilitate subversion of judicial orders by politicians. In taking away an individual’s entitlement to due process, Lord Hain has undermined the integrity and authority of the judiciary. It falls upon Parliament itself, under its exclusive cognisance powers, to remedy the damaging effects of such abuses, and prevent them from recurring in the future.

Parliamentary privilege

The independence of Parliament is secured by two absolute privileges: exclusive cognisance, which enables Parliament, and only Parliament, to control matters in its own jurisdiction; and freedom of speech, which prevents legal action based upon anything said in parliamentary proceedings.

These privileges arose out of the Glorious Revolution, and the latter is enshrined in article 9 of the Bill of Rights 1689. It is an historic and fundamental bulwark of Westminster-style constitutions, protecting elected representatives from reprisals by the Crown and its courts. It is intended to enable free debate on matters before Parliament: open and fearless discussion in Parliament is aimed at ensuring legislative deliberation and the scrutinising of executive action is as robust and comprehensive as possible. It is also intended to preserve mutual respect and restraint between the legislature and judiciary: in a constitutional tradition where the boundary between these two branches has been contested, parliamentary privilege is integral to maintaining equilibrium.

The absolute nature of parliamentary privilege means that, whatever the circumstances, the bar on legal action applies. Categorical exclusion of the courts’ jurisdiction is consistent with the privilege’s purpose. True freedom to debate matters of legislative significance allows no possibility for challenging statements within that debate. The parliamentary process is too important to risk any ‘chilling effects’ that might result from qualifications of privilege. It is therefore unacceptable for the courts to admit claims based upon intra-parliamentary statements Any injustices that result from excluding the courts’ jurisdiction are ramifications of an absolute privilege that have long been accepted as necessary to uphold parliamentary democracy.

Absolute parliamentary privilege is not, however, a licence to act unlawfully. The critically important freedom to debate proposed law reform or scrutinise governmental action without fear of legal action does not encompass a right to break the law deliberately and with impunity. Parliamentary privilege exists within, and not above, the constitution. The rule of law is as fundamental to the constitution as parliamentary democracy. Therefore, it is wrong to assert parliamentary privilege sometimes ought to be used to obviate judicial proceedings or court orders. It is not, and never has been, the function of this privilege to enable parliamentarians to put themselves above the law. Actively and intentionally breaching an interim injunction is, as a matter of constitutional principle, an abuse of parliamentary privilege.

Interim injunctions

The right to a fair trial and entitlement to due process are integral to maintaining individual liberty and the rule of law. They have a long history in the British constitution, and are codified in article 6 of the European Convention on Human Rights.

Interim injunctions are part of this institution of equal entitlement to fair legal process. They are one way of preserving an individual’s ability to bring and argue a claim before the courts. Often pejoratively called “gagging orders”, interim injunctions temporarily restrain the publication of certain information in order to safeguard individual rights so that they can be fairly adjudicated in accordance with due process of the law.

In last week’s case, an interim injunction was granted to preserve an individual’s ability, in future legal proceedings, to assert his contractual right not to be identified as the subject of harassment allegations, which he denies. In other cases, interim injunctions might preserve an individual’s ability, in future proceedings, to assert their right to privacy, for example, in the context of litigation over whether details of their sex life ought to be made public. Premature ‘outing’ destroys an individual’s right, before it has reached the doors of the courtroom.

In effect, injunctions ensure serious issues affecting individual rights can be addressed through a legal process that applies equally to everyone, in accordance with legal principle, and by impartial judges presiding over all of the facts of a case – and not by popular opinion, or mob rule. The importance of upholding legal principle and due process explains why judges have imposed injunctions even when the relevant information had been disclosed online or in other jurisdictions (see CTB and PJS v News Group Newspapers [2016] AC 1081). Injunctions ensure the courts can adjudicate on rights and administer justice. This is why breaching an injunction is a contempt of court, which can result in imprisonment.

Interim injunctions are not automatically granted. They are exceptional, and the courts must determine whether an individual’s entitlement to a fair hearing (without premature ‘outing’) outweighs freedom of expression. Section 12(3) of the Human Rights Act 1998 explicitly obliges courts to take into account the right to freedom of expression in injunction applications. The courts therefore consider each application on its facts to ensure restraining publication of certain information is a justified incursion upon freedom of expression. The test applied in each case is whether the claimant is “more likely than not” to succeed at trial in obtaining a permanent injunction over the relevant information (see Cream Holdings v Banerjee [2005] 1 AC 253).

It is clear that deciding whether to impose an interim injunction involves a nuanced balancing process, taking into account all of the facts, as well as the consequences of imposing and not imposing an injunction. It is a task that should never be taken lightly.

The judgment in ABC v Telegraph Media

The Court of Appeal did not take its task lightly in ABC: that is apparent from the principled and fact-sensitive reasoning in its decision. It found the applicant was more likely than not to succeed at trial, and an interim injunction was therefore necessary to preserve his ability to argue under his contractual right to confidentiality at such a trial. The press’s ability to report on the harassment allegations was justifiably limited. That decision was not the result of a plea to protect the applicant from those allegations: it was a means of preserving his entitlement to due process and a fair hearing vis-à-vis his contractual rights. The interim injunction by no means asserted he should remain anonymous indefinitely, or that the allegations against him were unfounded.

In coming to its decision that the applicant would more likely than not succeed at trial in arguing there was no public interest in breaching confidence to report on the allegations, the Court highlighted that the ex-employee (the alleged victim) had entered into the non-disclosure agreement on independent legal advice, and that there was no evidence that individual was coerced into signing the contract. As significant and widespread as the public debate about workplace harassment was, the public interest in ‘outing’ an individual alleged to have committed such serious wrongdoing, in breach of an express contract and in view of his disputing the allegations, did not outweigh the public interest in observing duties of confidence.

The damage done by abuse of privilege

Lord Hain’s ‘outing’ of the businessman, under immunity in the Chamber, is a perversion of parliamentary privilege. It can never be a parliamentarian’s “duty” to place himself above the law, assert he knows better than the courts when a binding contract should be set aside, and deliberately breach a court order. No degree of public interest can turn parliamentary privilege into a weapon against due judicial process.

This abuse of privilege is unconstitutional because it damages the rule of law and separation of powers. It sees politicians second-guessing the courts in their adjudication of matters before them, disturbing the legislative-judicial equilibrium. The very purpose of ‘outing’ is to nullify the injunction: parliamentary statements can safely be reported widely by the media, achieving the exact outcome which judges had reasoned should be avoided.

This exhibits a complete disregard for the purpose and operation of interim injunctions. Not only does it obliterate the nuanced judicial balancing process, it entirely ignores the principle that what might be of interest to the public is not necessarily ‘of public interest’. Parliamentarians are not privy to all of the facts of case, and cannot come to reasoned, finely balanced decisions. In the context of contested allegations of serious misconduct, ‘outing’ individuals also undermines the presumption of innocence, which has been acknowledged by the courts to be at particular risk in this context.

The fact that the most recent ‘outing’ comes a few years after the ‘outing’ of Fred Goodwin and Ryan Giggs, also breaching injunctions under privilege, suggests parliamentarians believe they are permitted – or even obliged – to breach such court orders. Possibly the greatest damage done by such actions is the crystallising of a precedent that parliamentarians can and should abuse privilege in this way.

Remedying and preventing abuse of privilege

There is nothing an ‘outed’ individual can do to remedy the breach of their rights, and repair the legal process upon which they had embarked. They can complain to Parliament, but that cannot undo the irreparable damage done by the breach. The courts are also powerless in asserting their authority over matters under adjudication and subject to injunctions. That is the nature of absolute privilege. But unconstitutional behaviour and abuse of privilege do not justify removing or qualifying that privilege, for it remains a fundamentally important element of the constitution. In any event, it is unlikely that the only institution capable of limiting privilege – Parliament itself – would do so.

Absolute privilege does not, however, denote lawlessness. Parliament is subject to its own rules, and, under its exclusive cognisance powers, ought to regulate its proceedings in accordance with these rules. Ensuring parliamentarians adhere to these rules maintains a necessary, minimal degree of dignity and confidence in the legislature. It is precisely in response to abuses of privilege that such rules of proper parliamentary conduct should be implemented, and Parliament’s integrity asserted.

Parliament’s rules are contained primarily in the Standing Orders of the House of Lords and the House of Commons. The Standing Orders provide for the enforcement of Codes of Conduct, and, in extreme cases, members may be suspended or expelled for misbehaviour (see, for example, Standing Order 12, House of Lords Standing Orders). The constitutionally appropriate way of ensuring privilege is not abused, and the rule of law not undermined, is for each House to enforce its rules on conduct, and, where these are lacking, to ensure the Standing Orders codify the importance of respecting judicial process, separation of powers, and the rule of law. An example of a rule that already exists to prevent abuse of privilege and protect comity between Parliament and the courts is the sub judice rule (see Joint Committee on Privacy and Injunctions, Privacy and Injunctions (2010-2012), HC 1443, HL 273 at [216]-[217]).

In view of the potential for a dangerous trend forming, in which parliamentarians habitually abuse privilege, Parliament should act assertively to preserve its integrity against unconstitutional behaviour that makes a mockery of parliamentary privilege and undermines the rule of law.

Jelena Gligorijević, PhD Candidate (Law), Trinity College, Cambridge

(Suggested citation: J. Gligorijević, ‘Breaching Injunctions in Parliament: An Unconstitutional Abuse of Parliamentary Privilege’, U.K. Const. L. Blog (29th Oct. 2018) (available at https://ukconstitutionallaw.org/))