Peter Hain’s decision to breach an interim injunction granted by the Court of Appeal in the case of ABC v Telegraph Media Group has caused serious concern. It is one of the cardinal rules in Parliament that members should not interfere in ongoing legal proceedings and Hain did not wait until the end of the proceedings before breaching this injunction, even though the case had been scheduled for an early full hearing. He does not appear even to have read the court judgment he saw fit to overrule, effectively.
The duty of comity means that both judges and parliament must respect the others’ boundaries. If Hain’s decision to intervene in live proceedings is treated leniently by parliament, there must be some concern about whether the judiciary will continue to treat Article IX with its current level of extreme deference. Nevertheless this affair shows the importance of the core principle that what happens in Parliament must remain outside the jurisdiction of the courts. It is in hard cases like this that the principle must be maintained.
If it had happened outside Parliament, Hain’s decision to launch a direct attack on the legal system would have rendered him liable for contempt of court. Within Parliament, there are procedures in place to censure those who breach its norms – and the rules concerning interference in live legal proceedings are taken seriously.
In a further twist, it has now transpired that Hain is a paid consultant to the law firm that is advising The Daily Telegraph in the relevant proceedings. Their involvement was clearly stated on the front page of the Court of Appeal judgment and they must be concerned about the potential damage to their reputation so casually inflicted by Hain’s action. This direct connection between Hain and the law firm arguably falls within the Porter v Magill test of whether a ‘fair-minded and informed observer would think there was real possibility of bias’. It might even fall within the ‘personal interest’ test set out in Pinochet. This arguable breach of natural justice is discussed further below.
Notwithstanding the inappropriateness of Hain’s action, there remains near universal acceptance that the doctrines of parliamentary privilege and exclusive cognisance will protect Hain from any judicial process. The legal context was usefully discussed by Jelena Gligorijevic on this blog recently. Persephone Bridgman Baker provides a useful analysis of the merits of ABC itself.
One academic commentator, Paul Wragg, takes a different view, on the Inforrm blog. He argues that Hain may not be immune from extra-parliamentary legal consequences for breaching the rights of citizens of the UK without recourse, including some counter-parties to the NDAs who also did not want their personal details to be revealed. It will be remembered that the NDAs in question expressly permit criminal allegations to be taken to the authorities. As none of the counter-parties appear to have gone to the police, they would not benefit from the anonymity that normally accrues to complainants in criminal sexual assault cases.
Wragg argues that Article IX does not in fact provide unlimited protection to Hain.
Article IX, Bill of Rights 1689
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
For a fuller analysis of Article IX, see the evidence given by Gavin Phillipson to the current Procedure Committee inquiry looking into s 13(1) of the European Union (Withdrawal) Act 2018 which includes the blog he and I posted last week.
Wragg claims that Article IX merely says ‘ought not’ rather than imposing a blanket prohibition. He also claims that the courts have the power to determine the limits of Parliamentary privilege citing R v Chaytor for the proposition that the privilege only protects the ‘core or essential business of Parliament’ . He goes on to say that the proper test from that case is whether any action would ‘offend against the rationale for Parliamentary privilege’ (from the Court of Appeal in R v Chaytor).
Wragg is to be commended for highlighting that the boundary of privilege is not fixed and it is incumbent on us to try to understand where the lines should be drawn. However, his claim is a normative one and it is perhaps useful to analyse why the current near consensus that Hain is immune is not just accurate but, more importantly, necessary. Lord Phillips said in Chaytor that the purpose of Article IX was to ensure the
freedom for Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown’s judges.
Wragg suggests two possible reasons to question Hain’s immunity.
The first is that this case is very different from protecting members from ‘being brought before the courts by the Crown and accused and convicted of seditious libel’ (R v Chaytor). On the contrary, this would be a situation where the courts would be vindicating individual rights against the serious abuse of power perpetrated by Hain, who has no democratic mandate or accountability.
The second is based on the rule of law. Wragg points out that Hain ‘put himself above the law’ and has ‘thwarted the administration of justice’. Wragg draws a sharp distinction between the NDA case in question and where a case has been fully concluded in the courts. He argues that the Bill of Rights should be construed so as to take account of these rule of law issues.
Wragg’s claim is bold and interesting but it is, most unfortunately, mistaken in my submission. Wragg is right that Hain should be ‘made an example of’, not least to secure a suitable deterrent effect. However, that sanctioning can only be done by and within Parliament by means of suspension or expulsion.
Jurisdictional limits of the courts
The issue of jurisdiction raises an interesting, and fairly fundamental, constitutional question about Article IX. On the traditional view, the courts have no jurisdiction over proceedings in Parliament whatsoever and this is merely confirmed by Article IX. On what might be termed the ‘common law’ view, the High Court has unlimited jurisdiction and Article IX must logically be considered as no more than a strong ouster clause which may even need to be interpreted narrowly in line with s 3 Human Rights Act 1998.
The latter part of this argument may be balanced by the claim in HS2 that some Acts, such as the Bill of Rights, may be so important constitutionally that later Acts such as the European Communities Act 1972 may not in fact have been intended to abrogate it . This argument may also apply to the HRA. Furthermore, Lord Browne-Wilkinson in Pepper v Hart said that Article IX was ‘a provision of the highest constitutional importance’ which ‘should not be narrowly construed’.
Wragg’s approach appears to be underpinned by the common law view. This post aims to defend the traditional view which is underpinned by the sovereignty of Parliament.
In one sense, it is simply a category error to suggest that the courts could consider parliamentary proceedings at all. Parliament is a legislature, unlike the courts. The argument that what was said in Parliament could be litigated would appear to offend against an important constitutional principle, the separation of powers.
The High Court of Parliament
On the other hand, Parliament is also, technically, a court. It is of course a superior court to the High Court and the appeal courts. However, as Pinochet arguably showed, even the most senior courts can have their decisions reviewed if there is a wholesale breach of natural justice such as failure to hear both sides, a personal interest in the case or a real possibility of bias. The recent case of Lee v Ashers Baking Company also saw the review of a senior court decision for a procedural error.
Interestingly, Hain’s ineptitude qualifies precisely as the level of failure to observe the principles of natural justice, (without even mentioning his abuse of power and breach of the rights of citizens) that would arguably have satisfied even the ‘pre-Anisminic’ test for acting outside of jurisdiction qua court.
Indeed, if anything could be more serious than the previous claims, it would be the destruction of the efficacy of live legal proceedings in what would otherwise appear to be a contempt of court. In other words, if Hain’s decision does not fall outside the jurisdiction of the High Court of Parliament (both in the modern and in the classic, pre-Anisminic sense of the word ‘jurisdiction’), then it is difficult to see how there could ever be such a case.
It is a truism that Parliament must use crystal clear words to oust the jurisdiction of the courts. Article IX contains no such clear words. Indeed it even uses the words ‘ought not to be …questioned in any court’, variations of which have been treated as ineffective by the courts since Anisminic was decided.
All the auguries therefore would appear to line up in favour of Wragg’s argument that Hain may possibly have acted outside the jurisdiction of the High Court of Parliament on this occasion.
Nevertheless, Hain cannot be brought before the judiciary for contempt of court.
The reason is simple. The common law view is not the right approach. The jurisdiction of the courts has not been ousted by Article IX. On the contrary, the jurisdiction of the courts simply does not extend to parliamentary proceedings in the first place. Incidentally, this has the benevolent side effect of conclusively demonstrating that the common law claim that the High Court has ‘unlimited jurisdiction’ is mistaken. The High Court is a court of limited jurisdiction.
Those who would defend the sovereignty of Parliament against detractors can be reassured that the very egregiousness of Hain’s conduct shows that, in the final analysis, the jurisdictional sovereignty of the high court of Parliament remains outside the jurisdiction of the High Court in even the most extreme circumstances. This particular door remains firmly shut. It is to be hoped that the precedent set by whatever sanction is imposed on Hain is enough to keep it bolted.
The author would like to thank Gavin Phillipson, Alison Young, Tom Poole, Jo Murkens, Paul Wragg and Martin Loughlin for their helpful comments on previous drafts.
Robert Craig, PhD Candidate, Durham University
(Suggested citation: R. Craig, ‘The Peter Hain Case: The Effect of Article IX’, U.K. Const. L. Blog (31st Oct. 2018) (available at https://ukconstitutionallaw.org/))