In the case of Green v United Kingdom [2025] ECHR 91 the Fourth Section of the Court of Human Rights held that a failure by Parliament to prevent Lord Hain from revealing information about Sir Philip Green (“the Applicant”) which was subject to a privacy injunction was not a violation of Article 8.
Background
In July 2018 the Applicant’s company, Arcadia, was contacted by a journalist from the Telegraph Media Group Limited, who intended to publish an article on allegations that he had sexually harassed and bullied former employees. The Applicant had previously entered into nondisclosure agreements (“NDAs”) with employees.
Arcadia and the Applicant sought an injunction to prevent the Telegraph from publishing material disclosed to it in breach of confidence. The High Court refused to grant an interim injunction, but the Court of Appeal subsequently granted it, as well as anonymity orders, to protect the confidentiality of the material in the NDAs pending an expedited trial (see ABC & Ors v Telegraph Media Group Ltd [2019] EMLR 5).
On 24 October 2018 the Telegraph published its article but respected the terms of the interim injunction. On 25 October 2018, after a House of Lords debate, Lord Hain made a short personal statement revealing the Applicant as “the powerful businessman using NDAs and substantial payments to conceal the truth about serious and repeated sexual harassment, racist abuse and bullying”. He said that he was exercising his parliamentary privilege and that it was his duty to name the Applicant, given the injunction preventing the media from publishing the story. These comments were widely reported and the orders for anonymity were subsequently discharged.
The Applicant made a formal complaint against Lord Hain for violating the House of Lords Code of Conduct but the House of Lords Commissioner for Standards found that allegations concerning parliamentary privilege were outside her remit.
On 23 April 2019 the Applicant lodged an application with the ECtHR alleging breaches of his rights under Articles 6, 8 and 13 of the Convention.
The Applicant complained that his Article 6 rights were violated because the statement by Lord Hain rendered his claim for breach of confidence against the Telegraph futile, and that there was a breach of his right of access to court because he was not able to bring proceedings against Lord Hain for breach of an injunction. He further complained under Article 8 that his reputation was harmed as a direct consequence of the rules permitting disclosure in Parliament of information subject to an injunction. Finally, he complained under Article 13 that he had no effective remedy in respect of his Articles 6 and 8 complaints since he was unable to bring a claim against Lord Hain and the Government failed to implement effective controls on parliamentary speech.
Judgment
The applicant did not challenge the principle of parliamentary privilege itself. but he sought a declaration that the absence of ex ante and ex post controls on the power to use parliamentary privilege to reveal information subject to an injunction breached his Convention rights. The gravamen of his complaints was that the UK was in breach of a positive obligation to have in place a legal framework that ensured that injunctions preventing the disclosure of confidential information were respected by third parties, including those otherwise protected by parliamentary privilege [53].
The Court found that there had been an interference with Mr Green’s right to respect for his private life as the impact on his reputation had undoubtedly been serious. His anonymity, once lost, had been lost forever [69].
The Court noted that there were a number of factors to be taken into account when determining the breadth of the ,argin of appreciation to be according to a state when considering a State’s positive obligations under Article 8:
- It noted that the notion of “respect” was not clear cut and the diversity of practices between different states need to be considered. State authorities were in a better position than an international judge to give an opinion on how best secure the right to respect for private life [72].
- The nature of the activities affects the scope of the margin of appreciation – the margin is narrowed where an important facet of an individual’s identity or intimate aspect of private life is involved [73]
- The existence or absence of a consensus across member States is relevant – where there is no consensus the margin of appreciation is generally wide [74].
- When the measures required under Article 8 would have an impact on freedom of expression then the fair balance between Articles 8 and 10 must be struck [75].
The Court recognised that in a democracy Parliament is a unique and fundamentally important forum for political debate, and the right to freedom of speech therein enjoys an elevated level of protection, so that very weighty reasons must be advanced to justify interfering with freedom of expression in parliament [76].
Parliamentary immunity pursued a legitimate aim and there was a wide margin of appreciation. Parliament was entitled to regulate its own internal affairs within the limits of the constitutional framework [77-78].
The House of Lords had a wide margin of appreciation in regulating its own affairs [83].
In the UK there is a provision which required Members of the House of Lords to give the Lord Speaker at least 24 hours’ notice of any proposal to refer to a matter which was before the courts. However, as it was not incorporated into the Code of Conduct, breaches of the rule were not within the remit of the House of Lords Commissioner for Standards. The need for further controls had been considered – and rejected – by a Joint Committee of both Houses of Parliament in 2011 [86]. Although that was over ten years ago, the Applicant had not suggested that there had since been a significant increase in such incidents [88].
It appeared from a recent survey carried out by the Court (see [43-50]) that in most States parliamentary privilege affords absolute protection from external legal actions to any statements made by parliamentarians in Parliament or, more broadly, in the exercise of their parliamentary duties (see [45-46]). Only a small number of States exclude statements of a particular type from the scope of parliamentary privilege and in the majority of those states external legal action could only be brought with the consent of Parliament [88]. For the Court to find that a speech in Parliament, by a Member of Parliament, fell outside the scope of his or her parliamentary activity would be unprecedented, and would run counter to the operation of parliamentary privilege in the majority of member States [88].
The Court therefore considered that it should be left to the national Parliaments in particular, to decide on the controls required to prevent parliamentary members from revealing information subject to privacy injunctions. However, the Court considered that the need for appropriate controls should be kept under regular review at the domestic level [92].
The Court concluded that
“as things currently stand the rule on parliamentary privilege did not exceed the margin of appreciation afforded to the respondent State and there exist no sufficiently strong reasons to justify the Court substituting its view for that of Parliament and requiring it or the respondent State to introduce further ex ante and ex post controls on freedom of speech in Parliament” [93].
There was, therefore, no violation of Article 8.
The Court, by five votes to two, rejected as inadmissible the Applicant’s complaints that he had been denied both access to court and an effective remedy because he had not been able to bring a claim against Lord Hain.
Judges Răduleţu and Guerra Martins partly dissented, in particular being of the view that the Article 6 complaint should have been declared admissible.
Comment
This result is unsurprising. There is consistent Strasbourg case law dismissing challenges to parliamentary privilege. The Court’s own “comparative-law survey” of the operation of parliamentary immunity showed that, despite some interesting variations, it is protected in all the surveyed member states.
Nevertheless, neither the case law nor the survey dealt directly with the point in issue: is there a breach of Articles 6 or 8 when a parliamentarian deliberately breaches a privacy injunction in Parliament? Although the Court answered this question in the negative the position is not straightforward.
Hints of concern about the result can, perhaps, be detected in the judgment. The UK parliamentary privilege rules were not assessed against human rights standards because of the “margin of appreciation”. The Strasbourg judges were reluctant to be seen interfering with rules laid down by the UK Parliament. Nevertheless, the (rather weak) conclusion that “the need for appropriate controls must be kept under regular review at the domestic level” [92] shows an understandable level of unease as to what took place.
While the importance of protecting freedom of expression in parliament is not in issue, it is difficult to see why this freedom needs to extend to allowing parliamentarians to breach court injunctions without any consequences. The Court of Appeal in the ABC v Telegraph Media judgment which led to the grant of the injunction balanced the relevant public interests. Lord Hain thought that he knew better and made a statement which did not form part of any debate, much less one of public interest. There was no sanction for this and no remedy available to the Applicant. There is a strong argument that a rule which permits an individual to breach a court order and render it nugatory does not meet human rights standards.
It would not be difficult to provide individuals such as the Applicant with a remedy. For example, parliament could adopt a rule that if 24 hours notice of a proposal to refer to a matter which was sub judice was not given to the Speaker then any reference to this matter would not be subject to parliamentary privilege. This would not be a substantial interference with freedom of speech in Parliament but would give a measure of protection to individuals in the position of the Applicant.
It seems unlikely that Parliament will ever vote to restrict the privileges of its members in this way. It might be thought that one purpose of human rights law was to provide remedies for violations of rights when Parliament was not prepared to act. Unfortunately, in this case the Court of Human Rights was not prepared to act and with, perhaps, some reluctance left the Applicant without a remedy.
Hugh Tomlinson KC is a member of the Matrix Chambers media and information group and an editor of Inforrm.
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