Lord Hain’s decision to name Sir Philip Green in the House of Lords as the individual who obtained an interim-injunction against the Daily Telegraph has polarised opinion. 

On the one hand, his plaudits state that he has stood up against the rich and powerful who use non-disclosure agreements to suppress their victims. On the other, his critics argue that he has brazenly flouted the rule of law: parliament ought not to seek to oust the court’s jurisdiction.

This article examines Lord Hain’s justification for making the disclosure, namely that he believed that the story was “clearly in the public interest.”  With reference to the Court of Appeal’s judgment in ABC & Ors v Telegraph Media Group Ltd [2018] EWCA Civ 2329, we explain the dangers of politicians seeking to usurp the role of judges and why, contrary to what Lord Hain states, his disclosure was not in the public interest (at least not at this moment in time).

It is difficult to dispute that there is at least some public interest in exposing the serious wrongdoing of public figures, particularly if the allegations made against them are credible.  This is no doubt why Lord Hain felt vindicated in seizing upon an occasion of parliamentary privilege to circumvent, with impunity, the injunction granted by the Court of Appeal.  But where Lord Hain’s analysis appears to be flawed is in his apparent failure to take account of the countervailing public interest in preserving confidentiality.  The law recognises that parties should be free to enter confidential agreements and that such agreements will only be effective if the confidential information is sufficiently protected.  Thus the legal test in determining whether confidential information should be disclosed is not as straightforward as Lord Hain’s comments in parliament would suggest.  It is not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached.

However, no consideration was seemingly given by Lord Hain to the weight of the public interest in maintaining confidentiality in Sir Philip Green’s case.  As the Court of Appeal explained,

“provided that the agreement is freely entered into, without improper pressure or any other vitiating factor, and with the benefit (where appropriate) of independent legal advice, and (again, where appropriate) with due allowance for disclosure of any wrongdoing to the police or appropriate regulatory or statutory body, the public policy reasons in favour of upholding the obligation are likely to tell with particular force, and may well outweigh the article 10 rights of the party who wishes to publish the confidential information.”

Each of the agreements for the five employees alleged to have been subjected to Sir Philip Green’s misconduct satisfied these conditions.  The employees were therefore not silenced against their will, nor have they been prevented from reporting the alleged conduct to the appropriate bodies.  Their independent legal advisers would have doubtless warned their clients of the implications of entering such agreements.  It can safely be assumed therefore that the employees signed the agreements with their eyes wide open, in the knowledge that there were alternative routes they could take if they wished for their stories to enter the public domain.    In view of these facts, the public interest in preserving confidentiality is strong, and ought only to be trumped by an extremely compelling public interest in disclosure.  That, in turn, would depend on the details and circumstances of the alleged wrongdoing, which were due to be considered in detail by the court at a speedy trial.

Lord Hain’s decision to name Sir Philip Green at this juncture is extremely dangerous.  He has effectively made very serious allegations of repeated sexual harassment and racist abuse against Sir Philip without disclosing all of the facts. Indeed, it is unclear to what extent Lord Hain is aware of the facts (beyond what he has been told by “someone intimately involved in the case”).  He has claimed that he was unaware that the Telegraph were represented by Gordon Dadds – a law firm at which he is a “global and government adviser”.  If this is correct, then presumably he has not even read the Court of Appeal’s judgment which refers to his firm’s name in bold print on the front page.  In any event, it seems extremely unlikely Lord Hain was better placed to adjudicate than three of the country’s most senior judges who had reviewed a substantial amount of confidential evidence.  Accordingly, the public are unable to make an informed decision about what Sir Philip is alleged to have done.  Naturally, they suspect the worst, not least because sensationalist reporting causes them to do so.   This case has, for instance, been dubbed Britain’s #MeToo scandal with Sir Philip playing the role of Harvey Weinstein.  Such a comparison, even based on the allegations that have been made by Lord Hain, is clearly misplaced.  Mr Weinstein has been accused of rape, one of the most serious allegations of criminality that can be levelled against a man (and an allegation that he denies).  It is also alleged that Mr Weinstein sought to use a non-disclosure agreement to limit what a victim of attempted rape and sexual assault could say in a criminal case against him.  The differences do not end there.

Moreover, Lord Hain has effectively asserted that the allegations against Sir Philip are the “truth” despite the fact that there has been no judicial finding on this point. The Judge at first instance simply stated that the allegations against Sir Philip were “reasonably credible” (a view which the Court of Appeal accepted had force), but this is plainly not the same as determining their veracity.  Lord Hain, however, appears to have interpreted the signing of a non-disclosure agreement as an admission of wrongdoing by Sir Philip.  This is not a safe inference to draw given that non-disclosure agreements can be signed for various reasons (e.g. to avoid incurring the costs and time of litigation) and we do not know Sir Philip’s motivation for signing such agreements in this case. In the slightly distorted war on NDAs, it is often not appreciated that many complainants welcome or seek confidentiality provisions – because they want to resolve disputes quickly and privately (naming and shaming is not for everyone) and/or in consideration for a higher settlement payment.  In this case, two of the complainants supported the application for an injunction.  Where they are not ‘forced’ on individuals (which one suspects, in this country at least, is in the vast majority of cases), the just principles of certainty and finality should normally be observed.

What makes Lord Hain’s disclosure even more unjust and unfair is that Sir Philip cannot properly defend himself because he is himself precluded from divulging details of the information protected by the non-disclosure agreements.  There may be information that helps to put into context some, or all, of the allegations made against Sir Philip, but at present the agreements mean that he is restricted to issuing a bare denial.

In assuming the role of judge, juror and executioner, Lord Hain has made a grave mistake.  He has presented the public with an incomplete picture and, in so doing, has caused serious and arguably irreparable harm to Sir Philip’s reputation – and deprived him of his right to confidentiality.  It simply cannot be in the public interest for the public to be supplied with limited information, which contains only one side of the story.   As the Court of Appeal recognised, delay in the publication of matters of public interest is undesirable and to counter this they ordered a speedy trial.  Lord Hain should have waited for the judicial process to run its course before deciding whether it was appropriate to comment on the case.   In making such a decision he ought to have been guided by the judiciary, who, apprised of all relevant facts, would have been able to carry out the balancing exercise between the public interest in preserving confidentiality and the public interest in disclosure properly.

Whilst it is not perfect, the English justice system prides itself on being fair and observing due process – this applies equally to those accused of wrongdoing.  It is unclear why a speedy trial was not good enough for Lord Hain.  True, Sir Philip can afford expensive lawyers, but on any view this was no longer a David v Goliath case.  The Telegraph had instructed a top legal team that was capable of seeking to appeal the Court of Appeal’s decision to the Supreme Court and/or fighting the matter at trial.   Lord Hain has taken it on himself to deprive Sir Philip of a fair trial, instead forcing him to face trial by media.  Sir Philip may be a controversial character – and may have upset some politicians and many members of the public in the manner he responded to questions by MPs over the collapse of BHS – but he is still entitled to a fair hearing.

However, the greatest victim here is rule of law.  Parliamentary privilege, much like absolute privilege in court proceedings, is intended to prevent parliamentarians from being stifled – i.e. they should be able to say what they want in a parliamentary debate without being sued for libel or found in contempt of court.  It is not, however, intended to give politicians carte blanche to circumvent court orders.  In this regard, Lord Hain’s naming of Sir Philip Green was wholly gratuitous.  His explanation on BBC’s Newsnight for this abuse of privilege was woefully inadequate, with him seemingly being unable to go beyond a vague and generalised soundbite:” I’m discharging my function as a parliamentarian – and what concerned me about this case was wealth, and power that comes with it, and abuse.”  Such a response merely serves to reinforce the impression that Lord Hain did not appreciate some of the salient facts of this case – that the contracts were freely entered into and two of the alleged victims supported Sir Philip’s application for an injunction.

Moreover, how far does “discharging the function as a parliamentarian” extend?  Showing contempt of court and interfering with the course of justice is generally frowned upon.  Indeed, outside of parliament you can expect to be prosecuted or face an application for your committal to prison.

As former attorney-general Dominic Grieve has said, “Parliamentary privilege is very important, but like any power which is extremely important it is open to abuse. I can’t see – looking at this particular matter – that Peter Hain can argue that he hasn’t abused it.”   It is perhaps somewhat ironic that Lord Hain has accused Philip Green of abusing his power, when he has arguably done just that.

This post originally appeared on the Brett Wilson Media Law blog and is reproduced with permission and thanks