Lord Hain and Privilege: When power, wealth and abuse combine to subvert the rule of law – Paul Wragg

Judges have their role to play, and Parliamentarians theirs, and “it is for the public to judge whether what I have done is right or wrong”, says Lord Peter Hain.  Yet since Lord Hain chose to breach the court injunction issued by the Court of Appeal in ABC v Telegraph Group plc by hiding behind Parliamentary privilege, this is exactly what the public does not get to do. 

They do not get to judge him at all.  When Evan Davis, in an interview for the BBC, put it to him that this extraordinary use of Parliamentary privilege undermined the rule of law, Hain looked genuinely perplexed.  This wasn’t about judges and law, he retorted, but an important matter of Parliamentary sovereignty… somehow.

We are entitled to feel a sense of incredulity at Hain’s precipitous actions.  For the law was poised to judge this matter and to pronounce on whether, in Hain’s words, ‘power, wealth and abuse’ were behind the silencing of five women who had accused Sir Philip Green of sexual harassment, racial abuse and bullying.  Whilst we would not have discovered whether these claims had merit, we would have heard whether the use of NDAs by the company had been done duplicitously.  Thus, an important piece of evidence in the campaign to tighten the law in this area has been lost to us, replaced instead by useless innuendo and Hain’s smug sense of satisfaction that he did the right thing.  Worst still, Hain’s ego has made Green the (undeserving) victim, which makes good liberals wince at thought they are (or appear to be) defending him by criticising Hain.

Thus, it comes as no relief that Hain ‘believed’ it was his duty to speak out nor that he ‘considered [the matter] extremely seriously before I said it’.  Neither is it comforting that he recognises Parliamentary privilege is something to be used ‘with integrity’ and ‘very responsibly’ – for if he truly did understand this, then he would not have spoken out.

But what interests me is whether it is right that no legal action can be brought against him for his decision to wilfully thwart the administration of justice.  Press reports so far have been disappointing for their failure to ask this question.  Instead, they have been content to conclude that Hain is protected absolutely – an argument which, incidentally, suits them since it underscores their own absence of legal liability whilst dispelling any sense of moral wrongdoing on their part for their vital contribution to Hain’s project.  They were, after all, only doing their job by immediately disseminating Green’s identity to the waiting world.

The reason for this is Article IX of the Bill of Rights 1689, which, in in the words of the 2011 Report of the Committee on Super-Injunctions words, ‘provides absolute privilege’ for freedom of speech in Parliament: ‘there is…no question that…any court order could extend to Parliament, or restrict, or prohibit Parliamentary debate or proceedings’ (p 68, [6.8]).  Indeed, in the report is was positively misty-eyed in its description of Art IX’s provenance:

‘It is of such importance because, within our uncodified and unwritten constitution, it sets an express constitutional boundary between Parliament and other branches of the State… It sets the constitutional limits of the jurisdiction of the courts (as well as that of the Executive) in relation to Parliament.  An attempt by the courts to go beyond the constitutional boundary delimited by Article 9…would be unconstitutional’. (p 68, [6.7])

Such is the stirring nature of this passage that, reading it back in 2018, I momentarily forgot the sentiment was being applied to John Hemming MP’s cowardly use of privilege to disclose Ryan Giggs’s identity as the person who had had an alleged affair with Imogen Thomas.  (See further discussion in O Gay and H Tomlinson, ‘Privilege and Freedom of Speech’ in A Horne, G Drewry, and D Oliver, eds, Parliament and the Law (Hart Publishing, 2013), 56-57).  I’m not sure anyone could seriously say, even then, that Hemming’s actions were ennobled with constitutional valour, at least not with a straight-face.

These grand statements of principle obscure the fact that Art IX is not framed as a categorical imperative.  Art IX says ‘that 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’ (emphasis added).  We tend to forget this, not least because Erskine May: Parliamentary Practice is taken to be the last word, but then we forget that when Sir Thomas Erskine May published his treatise in 1844, MPs could be relied upon to have a sense of propriety and would not, say, invite a hate-mongering convicted felon like Tommy Robinson to come have dinner.

But we should not forget that whilst Parliamentary privilege is absolute, there is still the question of what counts as Parliamentary privilege.  This is a question that, as the Supreme Court confirmed in 2010 (in R v Chaytor), and as the High Court reminded us as recently as 15 June 2018, is an appropriate question for the court to determine.  Although, in R v Chaytor, the Supreme Court had no serious free speech issues to contend with, the decision suggests the court can decide matters ostensibly concerning Art IX where there is ‘no adverse impact on the core or essential business of Parliament’ ([48]).

Of course, this raises the delicate constitutional issue of entrusting judges to decide what counts as ‘core or essential’.  Such a problem did not arise on the facts of Chaytor because the question of dishonest expenses claims was clearly an administrative matter.  In Hain’s case, the claim involves speech expressed in the House of Lords during debate.  It is understandable that the courts might feel distinctly uneasy in declaring this outside Parliament’s core or essential business.

Yet, as Chaytor shows, our approach to Parliamentary privilege should be based on a proper discussion of constitutionality; that is, by scrutinising the MP’s actions, rather than simply concluding that the application of criminal and civil law to MPs for comments in Parliament is always unconstitutional.  In an important sense, there is nothing controversial in doing so.  As the Court of Appeal said in Chaytor, (which Lord Phillips in the Supreme Court approved), it would be ‘impossible to see how subjecting dishonest claims for expenses to criminal investigation would offend against the rationale for parliamentary privilege’ (emphasis added).  This strikes me as an important and proper way to think about Art IX and the concept of freedom of speech.  Freedom of speech is not – and never has been – simply a right to say whatever one pleases.  For example, we should think it right that the courts could intervene to prosecute the MP who threatened a fellow MP with violence, even though the assault happened during a debate.  That would not threaten the rationale for Art IX.

Moreover, there is support for such an approach in the Strasbourg jurisprudence.  The Bill of Rights 1689 is no different to any other piece of legislation; it must be read compatibly with the Human Rights Act 1998.  In A v United Kingdom, the European Court of Human Rights concluded that ‘the broader an [MP’s] immunity, the more compelling must be its justification in order that it can be said to be compatible with the Convention’ ([78]).  Judicial interference with Parliamentary privilege is not, therefore, illegitimate per se, it is only that ‘very weighty reasons must be advanced’ to justify such interference.

There are two strategies by which to argue that interference, in Hain’s case, be that contempt of court proceedings or legal action by Sir Philip Green for breach of confidence, would not undermine the rationale of Art IX.

The first is to interpret the concept of freedom of speech according to its origins, which was, as Lord Browne-Wilkinson put it in Pepper v Hart ‘to discuss what they [Parliament], as opposed to the monarch, chose to have discussed’ (p 638).  As Gay and Tomlinson have said, ‘Article 9 was designed to protect members from being brought before the courts by the Crown and accused and convicted of seditious libel’ (p 37).  In this way, judicial interference to safeguard an individual’s rights is a very different (and worthy) reason to interfere than monarchical (or executive) eccentricity.  Admittedly, this is less appealing as a reason since it would undermine the capacity to defame others as part of a full and frank discussion about the merits of policy (which is what had happened on the facts of A v UK), albeit I do not think that that, of itself, should provide blanket protection.

The second, and preferred, interpretation is to say that freedom of speech does not allow anyone to subvert the rule of law.  This gets to the heart of the problem in Hain’s case.  His outburst is not freedom of speech as a means of debate, but the thwarting of the administration of justice.  His words prevent justice being done.  Matters would be different if the decision in ABC v Telegraph Group concerned a permanent injunction or if the resolution of the full trial had raised serious matters of legal principle.  But the Court of Appeal had done no such thing.  It had issued an interim injunction to retain the integrity of the judicial process (since they recognised that revealing ABC’s identity would destroy the subject matter of the claim).  It had also indicated to the defendants that the claim would succeed if they could not demonstrate the non-disclosure agreements had been obtained through something like coercion.  And, most gallingly of all, it had recognised the need to deal with these matters expeditiously.

This is why Hain’s behaviour is so frustrating.  He knew that the judicial process was ongoing, but he decided that he was above the law.  He knew that his actions would destroy the parties’ rights to justice, but he did it anyway. That he could not explain why he had to intervene in this way, by taking matters into his own hands, and thinking himself superior to the judiciary, underscores the point.  His bumbling claim that this was something to do with power, wealth, and abuse is unwittingly prescient for this is now what this dispute is about.  That the privileged, and sometimes over-privileged, few of the unelected House of Lords can use their immense power to destroy the administration of justice on a whim is a matter of serious constitutional concern and Hain deserves to be made an example of.

Dr Paul Wragg, Associate Professor of Law, University of Leeds, Associate Academic Fellow, Inner Temple, Editor-in-Chief of Communications Law (Bloomsbury Press)

This post will be published in the December edition of Communications Law.