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Parliament: Freedom of Speech and the Rule of Law - Motion to Take Note

– in the House of Lords at 11:37 am on 23rd May 2019.

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Lord Brown of Eaton-under-Heywood:

Moved by Lord Brown of Eaton-under-Heywood

That this House takes note of the potential conflict between the right of members to speak freely in Parliament and the obligation under the rule of law to obey court orders.

Photo of Baroness Barran Baroness Barran Baroness in Waiting (HM Household) (Whip)

My Lords, I respectfully remind your Lordships that the advisory speaking time in this debate is six minutes. When the clock shows six that means the six minutes are up.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct

My Lords, it will be obvious to all that the impetus for this debate, its essential backdrop, was the statement made by the noble Lord, Lord Hain, in the Chamber on 25 October last year, naming Philip Green under parliamentary privilege as the subject of an anonymity order issued by the court two days earlier.

I should make plain at the outset that my central objective in this debate is not to criticise the noble Lord, Lord Hain—although inevitably I will need to persuade your Lordships that he acted wrongly before I can hope to ask the House to change its procedures. To that end, I will have to spell out why I regard his statement as a misuse—indeed, I would suggest, a clear abuse—of privilege.

Still less do I seek to have the noble Lord, Lord Hain, disciplined. Indeed, as to that, while several complaints were made against him by members of the public, as well as by Philip Green’s solicitors, the Commissioner for Standards rightly recognised that the only complaint within her jurisdiction was an alleged breach of the noble Lord’s obligation to declare his role as global and governmental adviser to the law firm Gordon Dadds, which was acting for the Daily Telegraph in the litigation. Against that complaint, the noble Lord had a complete defence: he had no idea that Gordon Dadds was involved in the litigation. He would have known had he looked at the court judgment, because the solicitors’ name was prominently shown there—but he did not. Whether, overall, that is to his credit I leave to others. To set oneself up as a one-person or one-Peer court of final appeal over a fully considered Court of Appeal judgment without even reading the judgment might be thought a touch presumptuous. Indeed, the noble Lord in his evidence to the commissioner went further and said that he did not think it would have made any difference even if he had read the judgment—a judgment that had granted a short interim injunction pending a speedy trial of the issue so as not to pre-empt the final decision on the merits of anonymity.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

Would the noble and learned Lord give way?

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct

I am terribly sorry, I am not proposing to take interventions. This is a strictly time-limited debate and I need my 15 minutes.

The noble Lord, Lord Hain, does not suggest that the court’s judgment was in any way wrong, but rather that, whatever the legal position, he thought it his moral duty to name Green. He said that he believed he was acting honourably in naming him and:

“The sovereignty of judges is vital but should never override the sovereignty of parliament”.

Of course I accept that the noble Lord is an honourable man, but I reject utterly his suggestion that his own subjective view of what is right must always prevail over a court order.

My central concern is for the future. Indeed, the very fact that, as I understand it, the noble Lord, Lord Hain, does not accept that he was guilty even of a misjudgment in his use of the privilege increases that concern. Why would he and perhaps others of like mind, if there be such, not act similarly in the future unless the House now clarifies and, as I suggest, modifies the position? Doing what we now can to guard against any such egregious exercise of parliamentary privilege is essential to protect both the rule of law and the reputation of this House. Here I should declare an interest as a member of the House’s Privileges and Conduct Committee and as the chair of its Sub-Committee on Lords’ Conduct until these were recently restructured.

My essential concern is for the House’s loss of reputation if its Members breach the rule of law. Of course I recognise the fundamental importance of a Member’s right to speak freely in Parliament. Parliamentary privilege is enshrined in Article 9 of the Bill of Rights. It is of foundational significance in our constitution and I am certainly not proposing any legislative change to its scope. But I cannot accept that parliamentary privilege must always prevail over all competing interests. Are Members invariably to be free to breach court orders protecting, say, the identity of children, sometimes even the safety of children? Take the notorious Thompson and Venables case: could a Member have decided off his own bat to reveal their whereabouts and thus imperil their lives—or, say, trade secrets or intelligence material?

Essentially, the privilege is to prevent Members being vulnerable to claims of defamation, breach of privacy and so forth—indeed, to any other risks inhibiting the discharge of their duty to speak fearlessly on an issue in the House. But surely it is one thing to say that the privilege should not be whittled down, and quite another to claim for it so exorbitant a reach as is asserted here—namely the right, with total impunity, to breach any court order that the Member dislikes.

I advocate two distinct steps. First, the Companion, our guide to proceedings in the House, should be tightened up on this point. It is 250 pages long but there is not a word about disobeying court orders. All there is is our resolution some years back on the sub judice rule, which I can summarise simply: the privilege of freedom of speech in Parliament should be used responsibly. It requires both Houses to,

“abstain from discussing the merits of disputes about to be tried and decided in the courts of law”.

Essentially the rule requires Members in most proceedings before the House not to refer to active court proceedings, except where the Lord Speaker, in his discretion, allows it, and the Lord Speaker must be given at least 24 hours’ notice of any proposal to refer to a matter which is sub judice. Civil proceedings cease to be “active” on judgment.

I have three comments. First, the rule contemplates the issue arising in the context of,

“any motion, debate or question”.

I suggest that it does not envisage doing what the noble Lord, Lord Hain, did here—rising unannounced before the House after the conclusion of one unrelated, busy debate, and before the start of the next, to make a “personal statement”.

Secondly, in his evidence to the commissioner, the noble Lord asserted not only that he did not consult the Lord Speaker before making his statement but that he consulted no one. He merely notified the Deputy Speaker on the Woolsack at the time that he would say something once the ongoing debate had ended.

Thirdly, the noble Lord’s statement was contrary to the sub judice rule, but only because the court’s order was for an interim injunction. Had it been a final court order at the conclusion of proceedings, it would not have been covered by the rule. I suggest that the very least the House should do now is revise the Companion to make plain that in addition to the sub judice rule—indeed, more important than the sub judice rule—there is an obligation on Members to respect the independence of the courts and the rule of law, as the Lord Speaker said in his brief, well-judged Statement four days after the noble Lord’s statement, so that,

“we do not set ourselves in conflict with the courts or seek to supplant them”.

The sub judice rule is, after all, intended merely to discourage Members without good reason from discussing the merits of a case, so that their views will not risk prejudicing the court in deciding it. Intentionally flouting an actual court order after it has decided the case is surely altogether more extreme, and clashes directly with the rule of law.

I might add that the action of the noble Lord, Lord Hain, in the Green case had the effect of preventing the court ever deciding the important final question that the interim injunction was intended to leave for decision—namely, the correct approach to non-disclosure agreements in this context. The court’s open judgment, a full and measured judgment, expressly recognised the conflicting interests and arguments in play. The Court of Appeal took account of a recent House of Commons report by its Women and Equalities Committee on sexual harassment in the workplace, which recognised a legitimate role for NDAs, not least—as in the Green case—in settling employment tribunal claims. Two of the five employees supported Green’s application for an injunction. All five had been separately and independently legally advised, and each agreement expressly allowed disclosure to people such as the police and any regulatory and statutory bodies.

Unsurprisingly, Green discontinued his action after the statement of the noble Lord, Lord Hain, had pre-empted the result. Anonymity, of course, was lost for ever—but surely even unpopular people such as Philip Green are entitled to the protection of the courts. Shortly after the statement the noble Lord, Lord Pannick, described it in his Times column as,

“a clear abuse of parliamentary privilege”,

and suggested that the House should,

“amend its procedures to deter such conduct in future cases”.

He advocated Standing Orders in both Houses forbidding disclosure of information,

“without first seeking and then complying with a ruling by the Speaker”— a failure to comply with that being a breach of the Code of Conduct. Whether that approach would put too heavy a responsibility on the Speaker is for consideration, but it is difficult to think of many cases where the Speaker would support the proposed breach of a considered court order.

Moreover, there is another important factor to have in mind here, which is the European Convention on Human Rights. In 2002 Strasbourg, in A v UK, accepted by a majority that the rule of absolute parliamentary immunity was justified even when it operates to defeat convention rights. The court’s reasoning, however, included that:

“General control is exercised over debates by the Speaker of each House of Parliament”,

and that,

“the immunity attaches only to statements made in the course of parliamentary debates on the floor of the House”.

The privilege there had been used to prevent a defamation claim—not, as in the case of the noble Lord, Lord Hain, a statement wholly outwith the control of the Speaker and unrelated to any debate on the Floor of the House, simply oversetting a court order. As Erskine May tells us on pages 222 and 301, even in A’s case,

“the judges were not uncritical of the exercise of privilege without recognition of … human rights”.

They expressed the view that a national Parliament should incorporate into its procedures,

“some system of redress for citizens”.

For my part, I seriously doubt whether the case of the noble Lord, Lord Hain, would survive a Strasbourg challenge today.

As the admirable Library note makes plain, there have been a number of relevant committee reports down the years. In the context of super-injunctions, a 2012 Joint Committee on Privacy and Injunctions concluded that the use of privilege to defeat them, as in the Ryan Giggs and Fred Goodwin cases, had not yet reached the point where Parliament needed to act; a high threshold for taking action had not yet been crossed. I suggest that it now has been and that we should not kick this can further down the road.

We all of course enjoy our privileges and it is understandable that we should cherish them and wish to guard them jealously. But it is my contention that the time has come when we should recognise an abuse for what it is and try to limit its recurrence in future. I greatly look forward to hearing what the noble Lord, Lord Hain, and all others have to say in this debate—the non-lawyers at least as much as the lawyers. I beg to move.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 11:53 am, 23rd May 2019

My Lords, I put my name down to speak in this debate when it was a two-and-a-half hour debate and I had intended to go by plane to Inverness later today, at a time that would have allowed me to be here until the very end of the debate and after. Unfortunately, for some reason a strike has taken place at Inverness Airport and my flight was cancelled. I have therefore had to make alternative arrangements to fly to Edinburgh and get the train, which as your Lordships can imagine is a slightly longer procedure. I may therefore have to leave before the end of this debate. I am extremely sorry about that and I shall attend as long as I possibly can—but I gather that the Jubilee line is not perfect today, which is another difficulty.

I want to look at this issue in a general way, and do not propose to deal with a particular case. The right of free speech in Parliament is well-established and has been ever since the present arrangements of Parliament came into being. There are two difficulties with that. One is that Parliament might seek to affect a judgment in a case before the courts—the so-called rule of sub judice. On the other hand, Parliament has free speech when there is no current case and, as mentioned by the noble and learned Lord, Lord Brown, when there is a decided case about a matter. My understanding of the law on this is that that right to speak freely is to be exercised responsibly by Members of Parliament.

That is the general rule. The rule for sub judice is different because here, there is a perceived conflict on the final decision between the court—which has been set up to decide these matters as part of our constitution —and Parliament, if it has stepped in to alter the judgment or make it instead of the court. That is a special problem that, over the years, Parliament has thought needs to be dealt with. Parliament has no desire, as a corporate body, to replace the courts of law, which are independent and set up for that purpose, with severe oaths affecting the judges and so on.

That issue has been thoroughly discussed in this House. A committee, under the distinguished chairmanship of Lord Nicholls of Birkenhead, came up with a resolution that Parliament adopted, at page 60 of the volume of the Companion to the Standing Orders that we all have. That sets out what a sub judice case is and the attitude that Members of Parliament should have to it. A Member of Parliament who seeks to make a statement that may, in some way, affect a judgment or resolution still to be made, should give notice to the Lord Speaker in our House. In the House of Commons, a similar resolution was passed to give notice to the Speaker. The Lord Speaker here has the discretion to see whether the statement proposed by the Member is likely to interfere with the course of the judgment. Even if it refers to it, as long as it does not seek to interfere with the course of the judgment, it might be allowed at the Lord Speaker’s discretion. That seems an entirely satisfactory arrangement and I have no reason to seek to change it.

This is fundamental to the more general aspect referred to by the noble and learned Lord, Lord Brown. Strictly speaking, if you analyse it properly, the courts have no jurisdiction to restrict the speech of a Member in Parliament. It is not part of their jurisdiction. Therefore, if somebody in Parliament makes a statement that conflicts with a decision of the court, because the court’s jurisdiction does not extend to Parliament, it is not a breach of the order. On the other hand, it could give rise to confusion. The rule, therefore, which seems general and appropriate, is to exercise these rights responsibly, as for every other right we have. That includes consideration of the effect of what you are doing on the general position in the country for which we are responsible.

Photo of Lord Hain Lord Hain Labour 11:59 am, 23rd May 2019

My Lords, I have great respect for the judicial expertise and eminent career of the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I remind your Lordships that the Commissioner for Standards completely exonerated me in dismissing complaints from Sir Philip Green after I had named him on 25 October 2018. I explained to her that I acted for moral reasons and was not second-guessing or criticising the judiciary, nor have I done so since. To explain why, I am revealing for the first time in public exactly what one of Sir Philip Green’s victims told me while pleading with me to name him under parliamentary privilege.

I quote: “He was touching and repeatedly slapping women staff’s bottoms, grabbing thighs and touching legs. Hundreds of grievance cases were raised with HR. The company lawyer who interviewed me then lied. Sir Philip screamed and shouted at staff ‘to go to psychologists’. Victims went to an employment tribunal but were told it would not get anywhere so settled with an NDA. Some were worn down with spiralling legal costs costing them a fortune. He broke some in the end. It was horrible. He is still doing exactly the same thing. It is rife, it happened all the time. I saw him grab the breasts of others. This has gone on for a long time”.

After I named Sir Philip, numerous former employees and executives of his made similar allegations in various newspapers. My motive was to stand up for ordinary employees against a very powerful and wealthy boss who, as described to me, seemed to think he was above the rules of decent respectful behaviour. Part of the injustice I acted against is the misuse of non-disclosure agreements—NDAs—which Sir Philip Green deployed to suppress victims from obtaining redress, as did Harvey Weinstein to silence his sexual harassment victims, as did organisers of the Presidents Club dinner in January last year, when 130 women were required to sign NDAs in a bid to stop any details of harassment, groping and propositioning going public.

Maria Miller MP, chair of the Women and Equalities Committee, said the Philip Green case had,

“thrown a spotlight on the way NDAs can be used repeatedly to cover up alleged wrongdoing … If an NDA hadn’t been used in this case then maybe the managers and the board of the company involved could have taken action to avoid this repeated behaviour, and that is what is so concerning about the way NDAs are being misused”.

She added that she personally would like to see NDAs outlawed in employment severance agreements. Jess Phillips also said that:

“It seems that our laws allow rich and powerful men to … do whatever they want, as long as they can pay to keep it quiet”.—[Official Report, Commons, 24/10/18; col. 274.]

Parliamentary privilege is a fundamental part of our constitution and is the only absolute free speech right entrenched in the law. It is a part of the rule of law itself, and the prospect that it may be used should surely be a deterrent to anyone minded to seek a secrecy order from the courts to cover up allegations of misconduct, as in the Philip Green case. Despite similar outrage from the legal establishment, it was used to name the notorious spy Kim Philby. It was vindicated again in 1977 when MPs used it to expose the bogus secrecy of “Colonel B”, who was wrongly—as the judges later found—given anonymity by the court to bolster an oppressive official secrecy case against journalists. When the DPP immediately threatened the press with prosecution, newspapers, led by the Times, defied him. That said, it should be used responsibly, sparingly and only when absolutely necessary. In my 30-year parliamentary career I have used it just twice before: in 2000 when I named traffickers selling arms for “blood diamonds” fuelling wars in Africa; and then in 2017-18 to name, in this House, British corporations complicit in former President Zuma’s corrupt activities in South Africa. These, like my Sir Philip Green intervention, exposed gross injustice in the public interest when the law was clearly failing to do so, and are living proof of parliamentary sovereignty, irrespective of the wishes of the Executive, the powerful and the wealthy, and even rulings by the legal establishment when it covers up allegations of misconduct.

Some noble Lords would make parliamentary sovereignty subject to the power of judges, who perhaps have granted secrecy orders—as, notoriously, in the Colonel B case—at the behest of an oppressive Executive. In such cases, a parliamentarian’s right to exercise privilege conscientiously and responsibly is an important safeguard for the liberty of the subject. It should not be whittled away by turning the Speaker or the Lord Speaker into pre-vetting police officers with a censorship role. Nor should the sovereignty of judges override the sovereignty of Parliament—the path down which, I fear, the noble and learned Lord, Lord Brown, and others might be leading us.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 12:05 pm, 23rd May 2019

My Lords, naturally the disclosure of material contrary to a court order offends against the training of all lawyers. We are brought up to respect the rule of law, to keep our mouths shut when it is appropriate, to respect the courts and their judgments and not to criticise them. I am wary that this approach may not have the same cataclysmic effect upon those who are not lawyers.

This issue came to a head in 2011 with John Hemming, the Liberal Democrat Member of Parliament for Birmingham, Yardley from 2005 to 2015. I have been a guest in his house and I know him very well. John Hemming was a scholar in theoretical, atomic and nuclear physics at Magdalen College, Oxford, and he became a millionaire with a software business by the age of 27, at which point he took up Liberal politics. He really was a good, old-fashioned Liberal campaigner. He passionately opposed super-injunctions, orders forbidding the revelation not just of the parties but even of the existence of the injunction itself. He considered that their use was the preserve of the rich, because only the rich could go to court and obtain them. I was very interested to hear from the noble Lord, Lord Hain, that Jess Phillips, who succeeded him in Birmingham, Yardley, made precisely the same point—that this is the preserve of the rich. In 2011 John Hemming revealed a number of well-known figures under parliamentary privilege: the chairman of Barclays Bank, Mr Goodwin and a well-known Welsh footballer. The result of that seems to be that the use of super-injunctions has declined—you can spend a lot of money and find that, if it is mentioned in Parliament, you have wasted it all.

Similarly, another friend of mine, Paul Farrelly, Member of Parliament for Newcastle-under-Lyme in Staffordshire, disclosed the existence of a super-injunction in the Trafigura scandal by means of a Parliamentary Question. Trafigura was dumping toxic waste products in Côte d’Ivoire, causing injury in the nature of burns to skin and lungs to 30,000 people. These are exceptional cases involving very considerable public interest. I oppose altering our disciplinary procedures so as to make such disclosures a breach of the Code of Conduct. It seems to me that, in exceptional circumstances, it may be justified to do what the noble Lord, Lord Hain, did—although I must say that, as a lawyer, I was shocked at the time, I can tell him that, and I do not think it quite comes into the category of some of the other disclosures that have been made. However, I think it is highly unwise to make such disclosures.

First, I think that a Member of Parliament who does so must examine his own motives. It may be a vehicle for a lowly Member of Parliament to indulge in publicity he would not otherwise get, as a result of the dramatic disclosure he makes and all the press that follows.

Secondly, it is obviously wide open to abuse. I do not suggest that abuse has taken place in any of the cases I have mentioned, but it would be possible for parties to proceedings and the press to approach a particular Member and induce him in one way or another to ask a Parliamentary Question under the cloak of privilege. We should be very concerned about that.

Thirdly, the Member in question is not a caped crusader, going around the world to seek justice and end injustice wherever it may be; someone must put him up to the particular issue, as we have heard from the noble Lord, Lord Hain. Whether it could amount to a criminal conspiracy to perform an unlawful act is doubtful, but it is inappropriate for a representative of the people to engage in an unlawful act, and it is unlawful to breach a court injunction. The fact that you are an MP and will not be punished for mentioning it in Parliament is an exercise of the privilege of Parliament, not the privilege of the Member. The Member is not cloaked and protected by the armour of this principle. It rests with Parliament itself.

I do not criticise the noble Lord, Lord Hain, for doing what he did. I am sure that he had very good reasons and was moved to do so. However, it is unwise, and anyone who seeks to do it should examine their conscience very carefully.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench 12:11 pm, 23rd May 2019

My Lords, I congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on arranging this important and topical debate. While aware in general terms of the concept and protection provided by parliamentary privilege, I was grateful for the additional information in the helpful Library briefing note provided by Nicola Newson.

Rather than dwell on any specific instances of reliance on the privilege, I will add a couple of general points to this debate. I was struck by the explanation that parliamentary privilege is the privilege of each House as a whole, not just of an individual Member. In effect, all Members of a House—not just a spokesperson —are sheltered by privilege, even if they endorse or otherwise support the contribution of the spokesperson. They are sheltered even if they inadvertently say something deemed defamatory.

If all thus benefit, so too should they collectively be responsible for upholding the principles of comity. I further believe that Members of the other place have a greater need of privilege protection than Members here in your Lordships’ House. MPs face re-election to retain their place in Parliament; Members of this largely appointed House do not. This in turn seems to place a greater obligation on this House to abide very closely by the carefully structured rules of sub judice and the essential principles of comity.

Noble Lords should be careful never to use parliamentary privilege which might not be prayed in use in the other place. Although this House no longer includes the Appellate Committee, I like to feel that there remains a deep commitment to upholding the rule of law coursing through the veins of this House.

I fully endorse the description of the 1999 Joint Committee on Parliamentary Privilege that the legislature and the judiciary are, in their respective spheres, estates of the realm of—I stress this—equal status. As the Joint Committee on Privacy and Injunctions concluded in 2012, there should be a presumption that,

“court orders are respected in Parliament”.

Should a Member of either House decide not to comply, he or she should,

“demonstrate that it is in the public interest”.

But there is more than one “public interest” at stake here. Undoubtedly the upholding of the rule of law—not least injunctions—is a clear public interest. What seems to be missing is what else may be honourably brigaded together under the heading “public interest”.

I do not think it upholds the unique importance of the rule of law to claim, for example, that totally different, additional, even contrary “public interests” coexist in any equivalent way: say, some issue, or some persons, that have been the subject of a media onslaught of hearsay and innuendo and which must be further highlighted and enlarged upon by means of parliamentary privilege. That seems to besmirch the importance and value of this unique privilege. Public interest is widely defined in common law, but in relation to parliamentary privilege, should it not be seen as more for matters of national importance and not just some partisan or parochial interest, let alone a personal or private one?

I will make one final point. A truth, from time immemorial, is that one should not blame the messenger if the message is not to one’s liking. However, in these Brexit-charged days, this dictum seems to be more and more overlooked—regrettably only last week over the selection of the chair of Wilton Park, when the individual as the messenger, rather than her message, was traduced in a way that did no credit to your Lordships’ House.

I have long believed, and tried to practise, that by extolling the strength of the case that one espouses, rather than only seeking to rubbish that of the opposition, one may be more likely to succeed. To the outside observer, negative attacks on the opposition suggest, subliminally, that one’s own case is weak and lacks the support and commitment to it that one might expect one to have and to express. Reliance on parliamentary privilege gives protection for defaming a person or issue at stake. But it is also fair to ask, when observing on a use of this privilege: has it been about a matter of national and positive value rather than a vehicle for negativism and spite?

To make use of parliamentary privilege—such a unique, omnipotent privilege—requires the House of the user to seek to ensure that its use is never abused. Not to do so in this media-savvy world might ultimately even call into question the medieval provenance of this privilege itself.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 12:17 pm, 23rd May 2019

My Lords, I too congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on raising this important issue. I will focus on the sub judice rule. Like my noble and learned friend Lord Mackay of Clashfern, who is still with us, I do not propose to comment on any particular case.

As the 2012 Green Paper and 2013 report of the Joint Committee on Parliamentary Privilege noted, references to privilege may appear archaic and misleading. They mask the importance of Article 9 of the Bill of Rights; it is fundamental to Parliament being able to discharge its functions.

As so often, rights need to be matched by responsibilities. The sub judice rule, as the noble and learned Lord, Lord Nicholls of Birkenhead, stressed some years ago in evidence to the House of Commons Procedure Committee, is a self-imposed rule. Its embodiment in the rules of both Houses has developed over time, with some uniformity now between the two. The first edition of Erskine May made no reference to it. As Eve Samson points out in her study of privilege, it first appeared unambiguously in the 10th edition in 1893, which stated:

“A matter, whilst under adjudication by a court of law, should not be brought before the house by a motion or otherwise”.

The rule has been developed and reported on by Joint Committees and the Commons Procedure Committee. There is a recognition of its importance, not just for comity between the legislature and the courts; as Lord Nicholls said, it,

“goes much deeper than that, because it is inherent in the proper discharge by the courts and Parliament of their separate constitutional roles”.

It is vital that both Houses retain freedom of speech to carry out their functions, but it is essential to the courts in fulfilling theirs that the rule is observed. The courts must operate free of parliamentary interference and must be seen to do so. Judges may well be able to ignore or resist MPs or Peers making comments about live cases, but they need to be seen to be free of such interference.

For reasons of time, I shall make just a few core points. The Motion refers to the right of Members to speak freely in Parliament but, as has already been touched on, the essential constitutional point is that the right exists for the benefit of the House. Members in exercising their freedom of speech need to have regard not only to protecting the rule of law, but also to protecting the reputation and role of the House of which they are Members. There have been various problems with breaches in the past, not least in this House in respect of coroners’ courts. Both Houses have since agreed changes to the Standing Orders. If there is a problem, is it with the rule as embodied in the Standing Orders, is it with Members not knowing the rule and its importance, or is it both? I see no reason why Members should not be reminded regularly of the rule. It should form part of the induction process for new Members. It need not be in the form of repeating the Standing Orders, but rather simply in the form of, “If a matter is before a court—any court—it is best not to raise it”. I would add, “If you do plan to raise it, take advice first”.

There is also a case for considering how we deal with the rule. The difference between the two Chambers is in the position of the Speakers. The Speaker in the House of Commons can intervene in a way that the Lord Speaker cannot. The briefing note for the debate reminds us that it is open to any Peer to move,

“that the noble Lord be no longer heard”.

That is a blunt weapon and depends on a Member of the House recognising that the rule is being broken, that it is being broken inappropriately, and being quick- witted enough to get to their feet to move the Motion, which itself is debatable. I think we need a more robust way of dealing with transgressions along the lines indicated by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. For that reason, I would favour the matter being referred to the Procedure Committee. Rather than coming up with any particular solutions today, that is the route to take, and the very fact of the committee considering the matter and inviting comments will itself raise awareness of the rule. My question to my noble and learned friend Lord Keen and the noble Lord, Lord McFall, is this: do you not agree?

Photo of Baroness Whitaker Baroness Whitaker Labour 12:22 pm, 23rd May 2019

My Lords, it is with great trepidation that I venture, as a non-lawyer, into this debate with so many distinguished experts, but I congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on calling it as it concerns a fundamental aspect of our democracy. I have three short points for consideration.

I may be convicted of simplism, but my starting point is that law is not only for lawyers, and perhaps it is not even primarily for lawyers, any more than water is for water engineers. It is one of the essential protections of the citizen. It is for the people. Of course that does not mean that citizens are necessarily able to interpret or advise on the import of the law, but it is for them.

Secondly, the law as it stands is never quite coterminous with justice. It is our best shot at justice at one time and in one context. I think this must be so or the law would not be amended and reinterpreted as culture and values change. Non-disclosure agreements may be a case in point. What I look for in the law as a citizen, before redress, is first the correct attribution of responsibility for harmful acts. Among other things, that seems to me to be about establishing accountability.

My third point concerns the role of the rule of law—which of course I wholly support, on the basis above—in its crucial underpinning of democracy. My understanding is that it protects the citizen against exploitation or oppression by more powerful agents. It protects minorities against majoritarian bias, for instance. Thus it upholds the dignity of our fellow human beings, in particular through human rights law.

Looking at the conflict between a legal injunction and the conduct that is our subject, I am driven to think that the vulnerable citizen is not Sir Philip Green. Allegations of acts for which, I think, we would all agree that responsibility should be attributed were prevented from being disclosed. Accountability was not possible. The wrong conduct was protected.

We think, of course rightly, of the rule of law as essential to democracy. In so doing, we have put democracy as the primary objective. We do not say that democracy is essential to the rule of law. I am not sure that it is, unfortunately. So when a legal decision does not serve democracy, it is in a different place from those laws and judicial procedures that preserve rights.

I would not presume to question a court order, but there is a balance to be struck between juridical decisions and constitutional freedom to expose injustice. I submit that that balance lies in the exercise of parliamentary privilege, including in this case, and that it should not be undermined.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Judge 12:26 pm, 23rd May 2019

I too welcome the pleasure of having this debate on such an important topic and congratulate my noble and learned friend Lord Brown of Eaton-under-Heywood on obtaining it. I do not wish to speak at all about the particular matter that has given rise to this, nor about the sub judice rule as that has already been explained. I wish to deal with two much broader issues.

The first is the interdependent relationship between the three arms of the state—Parliament, the executive Government and the judiciary. It is clear that the state can function properly only if there is a clear understanding of that principle. Although each branch is independent of the others, they are interdependent. Interdependence requires: that there must be a clear understanding by each branch of the state of the constitutional functions and responsibilities of the other branches; that each branch must support the others when they are carrying out the functions and responsibilities that the constitution has assigned to them; and that no branch should interfere in the proper working and functions of the other branches, which have been assigned those responsibilities by the constitution. Each must show a proper and mutual respect. It seems to me that these requirements are applicable to all circumstances where issues arise, not merely to the subject of today’s debate.

I fear, however, that there is much less understanding of the roles of the respective branches of the constitution. I fear that people do not properly understand the role of the judiciary; nor do judges always understand the role of Parliament. This is an unfortunate state of affairs and today is not the time to debate it, but it seems evident to me that there has been a diminution in the discourse necessary to ensure the relationships work. Where there is room for concern that one branch of the state may have overstepped its position or not properly carried out its functions in the views of those in another branch of the state, there should be dialogue before action is taken that interferes with the proper functioning of the other branch of the state. I cannot overemphasise the importance of such dialogue.

That takes me to the second point I wanted to deal with, which is the upholding of the rule of law. Each branch of the state has a duty to uphold the rule of law. The constitution has assigned to the judiciary the primary function of upholding the rule of law, particularly where there are disputes between two individuals or between an individual and the state. I hope that for the future it will be generally understood that, although of course the fundamental right of freedom of speech in Parliament is in no way undermined, the principles of interdependence to which I have referred should lead to the clear recognition that, when a decision of the courts relates to a particular case, the issues are matters for the judicial branch of the state and have been assigned by our constitution to that branch. The decision of the judicial branch should be respected as an essential prerequisite of upholding the rule of law and the effect of the decision should not be nullified by another branch of the state.

It seems to me of vital importance that we set out the principles much more clearly, and I hope that we can find a means of doing that. I particularly welcome the suggestions that have been made. We must be sure that each branch of the state understands and respects the principles of interdependence. We must do all that we can to minimise the risk—for we can do no more than minimise the risk—of one branch of the state failing to respect the position of the other branches of the state in relation to a particular matter. We need principles and, above all, we need dialogue. I hope in that way that each part of the state can contribute to the upholding of the rule of law.

Photo of Lord Empey Lord Empey UUP 12:31 pm, 23rd May 2019

My Lords, the noble Baroness, Lady Whitaker, commented on the difficulty of non-lawyers speaking against a background of so many noble and learned colleagues, and I certainly come into the same category as her. But I do not think that this matter is for lawyers only; it affects everybody.

For more than 20 years I have had access to this particular privilege. I have never personally exercised it. However, it is clear that it is there for a purpose. At the end of the day, I suppose that one could say that it has the potential for the exercise of arbitrary power, which is a very serious thing. My anxiety is that, if you particularise this issue, as some noble Lords have in the case the noble Lord, Lord Hain, it misses the point. Where a particular privilege is granted, whether to a Member of Parliament or somebody else, there is always the potential for a mistake to be made. There is always the potential for somebody wrongly to make an accusation or misuse the privilege.

In recent years, people at the other end of the Corridor have joined in campaigns against what they believed to be inappropriate behaviour by a number of senior political figures of the past and made allegations against them that subsequently appeared to be untrue. Nevertheless, my anxiety about the conflict—and the noble and learned Lord, Lord Brown, is correct that this is not just the potential for conflict; there is conflict in many respects—is that once you start to put an envelope around the privilege, you are then in a position of having to decide where to draw the lines, and you are then subject to arbitration about whether you have crossed a particular line or not.

For instance, we could seek the guidance of the Speaker or the Lord Speaker. But if we take our present-day circumstances, one can imagine that one of the two current Speakers might be prepared to take a different view from the other—and I do not specify which one. Therefore, you start down a road at the thin end of the wedge where, ultimately, the privilege will become controlled. On balance, looking at the arguments between observing the rule of law on one hand and maintaining parliamentary privilege on the other, once you introduce a process where somebody or some institution has to judge whether the Member is right or wrong, that power will ultimately be reduced.

The noble Lord, Lord Norton, made a very good point when he talked about Members being advised on privilege at their induction. Although I was aware of it because I had been in an institution for some time, it was not part of my induction. The House could without any difficulty make it a normal part of the induction process. It does not require any additional committees or further reports; it just needs to be done. That would be a very positive contribution.

There is power in the ability to say something, I know that the noble Lord, Lord Thomas, made the point that when it is your training, your life and your career, you naturally give a precedence to something a court will decide that perhaps the general public does not. It is also the case that wealthy and powerful people can get greater access to and understand the potential of the courts more than most ordinary people. They have used and abused this—so the privilege requires protection.

I am nervous about committing to starting reports and going through the whole thing again, and then asking particular individuals, who will vary in judgment from time to time, to decide whether you can exercise the power. It must be done responsibly—I fully accept that—but I do not believe that the situation is so out of control that any radical steps need to be taken. The privilege is used sparingly. One can argue about each individual case, but I do not think that we have a huge constitutional problem on our hands. However, we may do if we start to diminish that privilege. The more people who are engaged in some kind of arbitration on whether you exercise your privilege, the greater the risk that the privilege will ultimately be lost. As a final protection in our constitution, Parliament must uphold that privilege, which should be left alone. Providing Members with guidance should be more than adequate, rather than setting up any further committees or inquiries.

Photo of Baroness Deech Baroness Deech Crossbench 12:37 pm, 23rd May 2019

The Motion moved by my noble and learned friend Lord Brown goes to the heart of our constitution—that is, the separation of powers, the respective and distinct roles played by the judiciary, the legislature and the Executive, and the balance between them. Recent events seem to have put the rule of law and the independence of the judiciary at risk. The legislative branch overreaches itself if it intrudes into the Executive, as we are witnessing almost daily in the struggle over European withdrawal; the legislature also overreaches itself if it intrudes into the judicial function. Intrusion into judges’ independence comes if parliamentary privilege is misused to undermine their judgment, without recourse for either the judges or the subject of the disclosure. In the extraordinary circumstances we are told we are living through, it is all the more important not to abandon the rules; that way lies lawlessness.

The privilege is to enable us to hold the Executive to account, to debate and inquire, to criticise bad conduct and so on without fear. It is not there just to satisfy public curiosity, feed the media or even encourage other victims to come forward. It is meant to help parliamentarians to use their position to uphold and act in the public interest in, for example, the case of a national emergency or corruption on the part of public officials and Ministers that needs exposure. It is especially regrettable when parliamentary privilege is used to expose matters that should be kept confidential but are about sexual impropriety, where the motive for the breach appears to be prurience and satisfying media curiosity. The Philip Green issue, for example, was not urgent, was not of national importance to the economy or security, and the propriety of non-disclosure agreements was already a live issue. We were deprived of the court judgment on that very issue. Moreover, a Peer who takes it upon him or herself to flout a court order will not have heard all the evidence about why the court ordered anonymity. The breach of anonymity will serve only to inhibit future claimants, whose confidentiality will be seen to be at risk from the outset. It will tempt those involved in such litigation to feed injuncted material to parliamentarians to secure revelation in Parliament, to the detriment of the parties involved. The individual who suffers has no remedy and the courts can do nothing about the damage.

The question has arisen of whether a Member should consult the Lord Speaker if he or she proposes to breach court anonymity. The problems with this solution are, first, that a Member may none the less precipitately reveal that which should have been kept secret without prior notice. Secondly, the Lord Speaker, even with the assistance of other Members as advisers, ought not be put in the position where he or she has to pit his or her judgment against that of the court and without the information that led the court to decide that there should be anonymity. It would not be advisable to attempt to lay down statutory rules about privilege, for that would amount to a situation whereby judges would rule on parliamentary matters in contravention of the separation of powers.

I am driven to conclude that there is no more that can be done, save to remember how important it is for the legislature to respect the scope of the judiciary and the judiciary the scope of the legislature, as explained by Stanley Burnton J in the 2008 case of the Office of Government Commerce. Members have to exercise self-discipline and remind themselves of the important historical and constitutional role played by judicial independence and parliamentary privilege side by side. If they fail to respect the rules, the punishment is not contempt of court, but forfeiting the trust of their colleagues and exposure to the sanctions that might exist under rules of parliamentary conduct. We have to act on our personal honour and place the public interest ahead of private interest. An irresponsible breach of court-ordered anonymity or a breach with the wrong motive loses the respect of the House.

Photo of Lord Garnier Lord Garnier Conservative 12:42 pm, 23rd May 2019

My Lords, I thank the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for initiating this debate. He has calmly set out his arguments with authority and care, which comes as no surprise, despite his obvious disappointment at the conduct of the noble Lord, Lord Hain, in deliberately breaking a court order last October not to identify a party to a legal dispute. I agree with the noble and learned Lord’s arguments and his conclusions, subject to the tempering of those conclusions in the speeches of the noble Lord, Lord Empey, the noble Baroness, Lady Deech, and my noble friend Lord Norton.

I have known the noble Lord, Lord Hain, as a political opponent and as an acquaintance for the past 25 or 30 years. I sincerely admire much of what he has done in public life, and I desperately wanted him to convince me today that what he did last October was right, but I am afraid he failed. I draw the House’s attention to my interests set out in the register and, in particular, to the fact that for more than 40 years I have practised as a barrister specialising in media law, the law of privacy, confidence and contempt. When I was Solicitor-General, I frequently had to prosecute cases as contempt, dealing with respondents who had in one way or another interfered with the course of justice in particular cases.

That said, I am entirely familiar with the vital importance in our democracy of free speech in and out of Parliament, the importance of having free media and fearless journalists, and the importance of having laws that protect our right to freedom of expression. Any curtailment of that right must be necessary and proportionate and, if our freedom of expression is to be guaranteed or its curtailment is to be legitimate and acceptable, we can in the final analysis rely only on the law and our justice system to protect our interests,

If we are to rely on our justice system and the law to provide that protection, we need to accept that sometimes, for the greater good of society, decisions or laws may not always suit us personally. For example, I may prefer to keep some information about me private because it is personally or politically embarrassing, whereas someone else may feel that that that information ought, in the public interest, to be made known. I may find somebody else’s comments about me or my conduct offensive and unwarranted, while that person may hold the view that his opinion of me or my conduct is warranted and entirely fair.

Over the centuries, there has been a healthy but often heated debate about where as a general rule, and where in a particular case, the line lies between on the one hand an individual’s right to privacy and the protection of their reputation, which I distinguish from self-esteem, and on the other the right to freedom of speech. Of course, there will be occasions when people confuse what is interesting to the public and what is in the public interest but, absent an agreement on the matter between the individual concerned and the person wanting to publicise it, in a civilised society we ask a dispassionate, disinterested judge to assess the facts of the matter and apply the law, be it our own domestic statute and common law or imported law in international treaties or conventions, such as the European Convention on Human Rights.

I venture to think that judges trying defamation cases in the High Court or dealing with a contempt matter before the implementation of the Human Rights Act would have taken the same liberal view of the law relating to freedom of speech as they do now, as well as recognising that some things are matters for Parliament and some are matters for the courts. Sir Stephen Sedley, a former Lord Justice of Appeal, had it exactly right when he said, in explaining the real significance of freedom of expression in a case involving the unlawful arrest of a street preacher:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.

However, he also said on another occasion:

“If Parliament does not like what the courts do, it changes the law. The sovereignty of Parliament as the final source of law and the sovereignty of the courts in interpreting and enforcing the law are the twin pillars on which democracy and the rule of law in the UK rest”.

“Exclusive cognisance” is an old-fashioned term but I think we know what it means.

We all have rights and obligations that need to be respected if we are to live in a tolerant society. Call it a rules-based society, call it respect for the rule of law, call it a world in which we accept that there is no reason not to have a bit of give and take—an understanding that sometimes we have to meet half way and that we cannot always have things our own way—but, however we describe it, we need to live our public and private lives in a way that respects the opinions and customs of others. That does not mean that we are not allowed opinions, that we cannot criticise judges for the decisions they make or that we all have to think and do the same. One of the central purposes of this very Parliament is to provide a forum for argument.

Through the Bill of Rights, the law of the land protects us from arrest or litigation for what we say in this House and in the other place, but we cannot, without damaging our way of life, take unto ourselves the power to make decisions which are entirely or largely selfish. The Bill of Rights enshrined in law what has come confusingly to be called “parliamentary privilege”. Privilege is a legal term with several different meanings depending upon its context.

We know now that our privileges not to be arrested and sued for what we say here are not our own but are held on trust from the public so that we can the better carry out our public duties. That relationship between the public, our uncodified constitutional arrangements and us as trustees is very delicate, and much of it is based on convention, mutual respect and understanding for and between the different elements of our mutual system of law and governance. So it is all the more important for the proper working of our Parliament, courts and Government that none of those constitutional bodies behaves in a way that damages that respect or mutual understanding. In this I entirely agree with the noble and learned Lord, Lord Thomas.

Time prevents me from developing these arguments further, but I urge my noble friend the Minister and all noble Lords that, if we are to run this place in a civilised and sensible way, we must have mutual respect for the various institutions of government and not trample all over them for personal gain.

Photo of Lord Armstrong of Ilminster Lord Armstrong of Ilminster Crossbench 12:50 pm, 23rd May 2019

My Lords, I should like to join other noble Lords in congratulating and thanking the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on bringing this Motion forward for debate. The incident to which the noble and learned Lord referred—that involving the noble Lord, Lord Hain—raises an important issue which ought not to be left unaired.

The time-honoured privilege of being able to speak in this House without fear of being pursued for libel or some other breach of the law was established by the Bill of Rights to allow noble Lords to speak their mind freely when contributing to debates and other proceedings in this House. It is a necessary and valuable privilege which is generally understood and accepted, but it must not be—I was going to say “abused”, but perhaps I should say “misused”.

There are matters and cases where it should not be exercised; if it is misused, that will call into question whether the privilege should be regulated, further controlled, or even abolished. Everyone would accept that it should not be used to expose official secrets or matters that demand a high degree of confidentiality for other reasons. As a general rule, the sub judice rule is important; we should not use the privilege to frustrate a judicial decision in a court of law.

It would be difficult to define a range of issues on which the exercise of this privilege should be banned or limited by legislation or Standing Order. Misuse of the privilege is recognisable when it happens, just as Dr Johnson knew a stone when he kicked it. So what is needed is some sanction which will cause a noble Lord to think twice, or even more often, before deciding to exercise the privilege.

My suggestion is that, if a noble Lord has exercised the privilege in a sense that might be regarded as misuse—against the advice of the Lord Speaker, or without taking the Lord Speaker’s advice—a House committee such as the Committee for Privileges and Conduct should have the right and duty to examine and investigate the matter, and to report to the House of Lords on whether the use of the privilege was justified in that instance. I believe that that—without the need for a ban by definition—would oblige those minded to exercise the privilege in a manner that might be seen as a form of misuse to consider not twice but even more often whether to go ahead.

Photo of Lord Parekh Lord Parekh Labour 12:54 pm, 23rd May 2019

My Lords, I begin by thanking the noble and learned Lord, Lord Brown, for securing this debate and introducing it so well. I think we would all agree that Parliament is at the heart of our democracy. It is the place where discussion and debate takes place and where misuse of power is exposed. It has to be a protected space; a space where people can talk freely without fear of the consequences. That notion of a protected space implies the absolute right that we have been talking about: the right to question things done outside Parliament, including an injunction that the courts might have issued.

That particular right—to question an injunction from the courts—is challenged on three grounds. First, the judge has already considered the public interest, so what is a parliamentarian doing in trying to supersede the judge? It has been suggested that he is unfairly acting as a kind of super-judge. Secondly, it has been noted that the judge has acted in a certain way in his judicial capacity, while the Member of Parliament acts in a legislative capacity. The two are supposed to be separate under the system of executive functions and the division of powers. Thirdly, it has been suggested that in allowing a parliamentarian to question an injunction, you are giving him greater freedom of speech and therefore violating the rule of law and the principle of equal citizenship.

All three objections can be answered, some more conclusively than others. The first point about the Member of Parliament acting as a super-judge is just not correct, because what he is doing is bringing a different perspective to the judgment. The judge has issued an injunction based on his consideration of the public interest, defined from a judicial point of view. A Member of Parliament looks at it from a holistic, national, political perspective and might be able to show that the judgment can be disregarded. On whether the Member of Parliament enjoys greater freedom of speech, it is certainly true that Parliament is at the heart of democracy and therefore that the Member should be able to enjoy certain rights and privileges that are not enjoyed by others.

For these reasons, I would have thought that the objections made to the absolute right to question things can be disregarded. The right of a parliamentarian to question or ignore the injunction issued by the judge can be respected. As it is a right under which the individual cannot be sued, and one of great importance, it should be exercised responsibly. But what does this mean? What seems responsible from one person’s point of view might not seem responsible from another’s. Here one has to think in terms of certain objective criteria.

As your Lordships have suggested, this right should be exercised in consultation with the Lord Speaker, or should have to be defended afterwards in front of a committee of the House. In other words, there must be some sanction on the parliamentarian. Otherwise, it is a free for all, especially when we are entering a situation in which there will be an enormous amount of populist pressure on parliamentarians to placate public opinion. It is important that we are protected against those kinds of pressures and the need to placate public opinion. Therefore, a requirement to consult the Lord Speaker, or another mechanism of that kind, is absolutely vital.

In the case of my noble friend Lord Hain, I almost totally disagree with the noble and learned Lord, Lord Brown. I think my noble friend was acting honourably. More importantly, he was acting in a way that can be fully justified. If there is a danger of the normal democratic process of debate and discussion being shut down because of the enormous power of an important individual, or pressure from him or her, obviously that process of discussion and debate, which is at the heart of democracy, has to be unblocked and activated. If a statement by a parliamentarian activates that process, that action, to my mind, is fully justified.

Photo of Lord Trevethin and Oaksey Lord Trevethin and Oaksey Crossbench 12:59 pm, 23rd May 2019

My Lords, it is a pleasure to follow the noble Lord, although I have the misfortune to disagree with his conclusion. My view, with respect to the noble Lord, Lord Hain, who obviously acted in what he considered was the proper way, is that this was not a proper use of parliamentary privilege. It might be instructive for me to say a little more than some other speakers have about the course of the relevant litigation with which the noble Lord’s comments were concerned because it might indicate, when one understands what happened in that litigation, just why it was inappropriate to use parliamentary privilege in effect to determine the outcome of that litigation when it was heading towards a speedy trial in the Court of Appeal, at which detailed arguments would be advanced to both sides by leading counsel who are eminent in the relevant field.

If the noble Lord had read the Court of Appeal’s judgment before saying what he said in this Chamber—we know that he did not because he said so to the commissioner—he would have learned the following things, among others, about the litigation. Five complainants were directly involved. At the court’s instigation they had been contacted. Two out of the five had said that they supported Sir Philip Green’s application, or his company’s, for an injunction. That is a striking fact that reminds one that NDAs can be regarded as beneficial by both parties to a settlement agreement, not merely by the party who is the subject of allegations of inappropriate behaviour.

Secondly, the judgment informs the reader that these NDAs permit legitimate disclosures, including any report that any complainant might wish to make to the police or other appropriate authority of criminal misconduct. That seems a relevant fact. The reader will also find that the Court of Appeal gives careful consideration to the statutory context and to the reasons given by the judge of first instance for permitting disclosure of relevant matters pending trial.

The reader will also find that the Court of Appeal, having lucidly and carefully explained why it doubted the correctness of the judge’s handling of the matter, ultimately decided that the disclosure should be prohibited pending speedy trial because:

The Judge has ... left entirely out of account the important and legitimate role played by non-disclosure agreements in the consensual settlement of disputes”.

In coming to that conclusion, the Court of Appeal expressly made detailed reference to an instructive report by the House of Commons Women and Equalities Select Committee, which recognised the beneficial part NDAs can play in facilitating consensual settlement. Everyone, not only lawyers, knows that in general terms settlements are to be encouraged. They save money and time, and they avoid a great deal of harassment and distress. Of course, settlements and NDAs within them can be abused, but generally speaking they are to be encouraged.

The Court of Appeal made an interim order restricting or prohibiting disclosure, but also directed that the matter should move at speed towards a trial. At that trial detailed arguments would have been put by both sides of the case concerning the function of NDAs and whether, in the long term, it is desirable for there to be a general recognition that NDAs are worthless because they can be ignored with impunity. There would quite swiftly have been an authoritative judgment of great assistance not only to lawyers but to anyone concerned with this area. What in fact happened, of course, was that the noble Lord’s intervention, which was I think in breach of the sub judice rule, did not merely influence the outcome of the litigation, but in effect determined it.

Some further steps were then taken in the litigation that I will mention briefly, because time restricts me. There was a hearing before Mr Justice Warby at which Sir Philip Green’s lawyers made it clear that they were going to pursue the question of who disclosed his name and other matters to the noble Lord, Lord Hain. The judge did not dismiss that suggestion immediately. Instead, he took steps to bring it to the attention of the Lord Speaker so that he could, if he so chose, make representations on behalf of Parliament. The prospect came into view of a court having to consider an application for an order compelling the noble Lord, Lord Hain, to disclose his source on pain of being found in contempt of court. I suspect that that would not have happened, for all sorts of reasons, but the fact that that prospect came into view might indicate just how unfortunate it is for litigation to be derailed in this way.

Almost inevitably, there was then a discontinuance of the proceedings in circumstances in which there had been no adjudication. That left the judge with the very difficult task of having to sort out issues of costs without knowing who had won. All in all, if noble Lords read that sequence of three judgments, they will see that the litigation was derailed in a way that I think is fairly characterised as the course of justice being perverted.

There are clearly cases in which it would be appropriate for a parliamentarian to disclose matters that are subject to an injunction. Such cases would normally involve the parliamentarian giving careful and conscientious consideration to the course of the litigation and deciding that the course of justice had been perverted. I respectfully suggest that this was not one of those cases.

Photo of Lord Bethell Lord Bethell Conservative 1:06 pm, 23rd May 2019

My Lords, I thank the noble and learned Lord, Lord Brown, for bringing forward this remarkable debate, which has showcased the huge legal depth on the Benches here, and I thank the Library for the excellent briefing paper. I have an emotional response to this debate, as a former journalist who has himself been injuncted, which is to sympathise with the description from the noble Lord, Lord Hain, of his feelings when he decided to commit this breach. In my life as a new parliamentarian, I feel very excited about having this privilege. I feel defensive of it. But I think that the noble and learned Lord put really powerfully the case for there being a problem that needs to be resolved. From listening to the debate my sense is that doing nothing is not an option.

I will make two recommendations based on the principle that something needs to be done. First, we need to resolve this bitter battle between the courts and Parliament. Hearing in the debate how parliamentarians and the courts are at odds over this has made me feel very uneasy. Some very sensible-sounding reforms have been recommended—some of which have been articulated by the Bingham Centre, which has written a very good note on this matter—such as strengthening the existing provisions in the Companion to the Standing Orders. The noble Lord, Lord Parekh, made some very detailed recommendations along these lines, which I support.

My second recommendation is to protect not the courts, but citizens. Privilege can be used for good, as a number of noble Lords have explained. I remember, as a boy, when the then Prime Minister, Lady Thatcher, used privilege to expose Anthony Blunt, which not only was a pivotal moment in the Cold War but cleared the name of an innocent man who had been associated with spying. But in recent times some mistakes have been made, the consequences of which can be extremely damaging and long-lasting for the individuals concerned. The lurid and fantastical claims made against Lord Brittan—once my boss at the European ParliamentLord Bramall and Harvey Proctor have been exposed as false. Surely some sort of redress is appropriate for them. The hurt and suffering felt by innocent people and their families when great privileges are not used responsibly should stop us in our tracks and make us reflect on our behaviour.

This is different from the point I have focused on, but I will make not a legal, but a political point. As my noble and learned friend Lord Garnier said, the danger is that such incidents reinforce a deepening impression among ordinary people that somehow parliamentarians might think that they are above the law in some way. It contributes to the sort of anger that is often remarked upon on the Floor of this House, and which I fear we will see meted out at the ballot box today.

Something should be done to tilt the balance of power between unaccountable parliamentarians and ordinary people, in a way that preserves the principle of privilege—which is such an important part of our constitution—and does not create confusing definitions, but gives people a form of redress. Some kind of citizen’s right of reply should be considered. This would provide aggrieved citizens with the opportunity to have published on the record a brief response to accusations made in Parliament that they feel are inaccurate, unfair or defamatory. It would also help redress some of the tensions between the absolute nature of parliamentary privilege and fundamental human rights, tensions which a number of noble Lords have mentioned and the European Court of Human Rights has recognised.

Similar democracies in Australia, New Zealand and Ireland have adopted their own versions of a citizen’s right of reply, putting power back into the hands of ordinary citizens and allowing them to set the record straight and defend their reputations, while preserving the important principle of privilege in Parliament. This House has debated a citizen’s right of reply several times over the last 20 years. Given the public’s justifiable concerns and growing cynicism about government, I wonder whether now is the time to demonstrate respect and honour for our fellow citizens by enabling them to clear their names when they feel unjustly targeted by members of Parliament and abused under the cover of privilege.

I wonder whether it is time to seize this opportunity to consider these two proportionate measures in order to modernise a precious but fraying custom and to protect its fundamental value from being undermined or discredited in the future, while at the same time safeguarding the rights of citizens.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 1:11 pm, 23rd May 2019

My Lords, we all have our prejudices. Mine, in common perhaps with the noble Lord, Lord Hain, include unease about the use of non-disclosure agreements in the employment context—particularly where bullying and harassment are concerned—and a strong belief that in corporate, as in public, life, sunlight is the best disinfectant. Hence the importance of dispassionate and disciplined legal analysis, exemplified by the case to which the noble and learned Lord, Lord Brown, referred in opening, and in which I declare a remote interest, having been instructed in the past on unrelated matters on behalf of one of Sir Philip Green’s companies, and on behalf of the owners of the Telegraph group.

The High Court favoured the public interest in publication. The Court of Appeal, having carefully weighed what it referred to as,

“important and difficult policy considerations”,

gave precedence to the public benefit in the enforcement of settlement agreements freely entered into by the parties. Legal principles developed over many years were argued out and applied in a way that held the ring, pending a speedy trial by judges with the experience and aptitude to do so.

Of course, the development of the law should be robustly debated and criticised in Parliament. We are in the law-making business. If the judges take a wrong turn, it is open to us to reverse it. One thinks of the long history of the admissibility of complainants’ sexual history in rape trials. No legal topic could, or should, possibly be considered off-limits in this House. However, to ignore a court order and so prejudge the result of a trial is an entirely different matter. What would we think of a Supreme Court that overrode the Court of Appeal on the basis of an interview with a single witness, and without troubling to read the judgments of the courts below? Yet if the noble Lord, Lord Hain, is right, then not just he but any Member of either House would be entitled to do exactly that, because his or her personal morality suggested that it was a good idea.

The noble Lord told the Commissioner that he was motivated by human rights, and on human rights his record is well-known and highly respected, not least by me. But this is an area where rights conflict. There is the right of the public to be informed, certainly, and the countervailing privacy rights of the two complainants mentioned by the noble Lord, Lord Trevethin and Oaksey, who had signed non-disclosure agreements and supported the application for an injunction. Crucially, there is also the right of Sir Philp Green and his companies to a judicial determination of their legal rights, guaranteed by Article 6 of the European convention.

The noble Lord, Lord Hain, told the commissioner that he was not seeking to challenge the decisions of the judges, and that he totally respected their authority. However, whatever his intentions may have been, the foreseeable result of his actions was to pre-empt their jurisdiction and prejudge the outcome of the case. Were this matter to be considered in Strasbourg, our system would be scrutinised as a whole. At the very least, as we know from the A v UK case, the European Court of Human Rights would need to be satisfied that there are strong mechanisms in place to prevent privilege from being abused. That case would be a hard one to make, given the absence of a Speaker who controls our proceedings, the limited jurisdiction of the Parliamentary Commissioner for Standards and the lack of mechanisms for redress.

In his recent lecture to the Commonwealth Law Conference, the Lord Chief Justice observed that for almost 300 years it did not appear to occur to any Member of either House that it was appropriate to use the freedom of speech in Parliament to undermine an order of a court. The practice seems to have emerged in the 1970s—ironically, not long after the sub judice rules were formalised. Since then, the pace has picked up. In his lecture, the Lord Chief Justice identified five cases in the past 10 years, only one of which he discounted as inadvertent.

What is the solution? I freely defer to the experience of those who have been in this place much longer than I have, though I respectfully doubt whether the Lord Speaker’s Written Statement of 29 October, welcome though it was, is enough. I have not heard anyone say that we should subject parliamentary sovereignty to the power of the judges, as the noble Lord, Lord Hain, characterised the argument. However, can we not at least consider the ways in which our code of conduct could be beefed up to give the commissioner jurisdiction over the central issue in these cases, and not just questions of conflict of interest? That would avoid the need for these matters to be ventilated in this Chamber in the context of individual cases, which currently seems to be all we can do to register our disappointment or dismay.

I suspect that we also need to achieve clarity about the application of the sub judice rule, or some broader rule, to matters pending before tribunals; to private proceedings in this House, such as Select Committee meetings in closed session; and to cases in which final orders have been made, such as injunctions or orders for anonymity in criminal or family cases. It is seductive to be placed above the law, and it may be tempting to do nothing in the hope that the problem will not get worse. However, the threat to justice is real. We need to get our own House in order, and I hope we will.

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour 1:17 pm, 23rd May 2019

My Lords, I thank the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for giving us this opportunity to consider the potential complexities of this issue. I have no legal expertise, but as a member of the Procedure Committee, I had an opportunity to consider this issue.

I want to speak about parliamentary privilege—to reflect on what it was introduced for and its continuing relevance today. I should say up front that what has been characterised for the purposes of this debate as a potential conflict I see rather as a question of balance—between respect for legal judgments on the one hand and exercising Parliament’s profoundly important right to free speech on the other. I believe that the House already has sufficient mechanisms with which to maintain that balance. The noble and learned Lord, Lord Mackay of Clashfern, set them out very clearly. Seeking to change these mechanisms by introducing new restrictions or disciplines could have a profound effect on the ability of parliamentarians to carry out our public duties without fear or favour.

A consequence of Parliament’s exclusive jurisdiction over proceedings in Parliament is that participants are not legally liable for things said or done in the course of those proceedings; nor are those adversely affected by things said or done in Parliament able to seek redress through the courts. Therefore, in certain circumstances, it overrides other generally accepted legal rights.

Parliamentary privilege is, by its very name and definition, an exception to the general principle of the rule of law. The tension between parliamentary privilege and the rule of law can be uncomfortable, but the rule of law as reflected in judicial decisions must be balanced against the competing claims of Parliament to be free to speak on matters of importance without fear of prosecution. To seek a general assumption that judicial decisions must trump the freedoms of speech afforded through parliamentary privilege is to introduce the risk that the judiciary or the Executive interfere with the proper operation of Parliament. Parliamentary privilege is a fundamental constitutional principle, itself part of the law. It would be a big step to tamper with that principle by deploying the argument that parliamentary privilege, as currently operating, is no longer proportionate.

The last major review of parliamentary privilege was in 1999, the year I entered this House, and it still usefully reminds us that parliamentary privilege exists to protect the independence of Parliament. Parliament and its Members and officers have certain rights and immunities under the banner of parliamentary privilege, which are rooted in this country’s constitutional history. They allow each House to work effectively, giving them the exclusive right to oversee their own affairs and, above all, to enable Members to speak freely. While the courts have a legal and constitutional duty to protect freedom of speech and Parliament’s recognised rights and immunities, they do not have the power to regulate or control how Parliament conducts its business. Parliament in turn is careful not to interfere in how judges discharge their judicial responsibilities. In taking responsibility for our own affairs, we must still respect the rule of law.

The way that we ensure privilege is not abused, and the rule of law is not undermined, is for each House to enforce its rules on conduct and to ensure that our Standing Orders set out the importance of respecting judicial process, the separation of powers and the rule of law. The sub judice rule, set out in the Standing Orders of the House, makes it clear that the privilege of freedom of speech in Parliament places a corresponding duty on members to use the freedom responsibly. Respect for this rule is important in securing a balance between Parliament and the courts. Perhaps, as the noble and learned Lord, Lord Brown, suggested, stronger wording in the Companion could highlight the need to respect the sub judice rule and use parliamentary privilege responsibly. But I would also want to ensure that any enhanced wording in the Companion would still provide for the possibility of a Member breaching a court order if he or she believed there was a strong public interest argument in favour of doing so.

For me, free speech in Parliament remains the touchstone in any debate of this issue because of its constitutional importance to our functioning democracy. In my 20 years in this House, I have heard parliamentary privilege called on only a handful of times. It is clearly not used lightly, nor do I believe that its recent use by the noble Lord, Lord Hain, in October last year represents an escalation that now needs to be addressed. I would counsel against introducing new or draconian measures that would regulate what Members can or cannot say during parliamentary proceedings. That would mean curtailing the freedom of speech essential to parliamentary privilege, guaranteed by Article IX of the 1698 Bill of Rights, and reaffirmed regularly thereafter.

Photo of The Earl of Kinnoull The Earl of Kinnoull Crossbench 1:22 pm, 23rd May 2019

My Lords, it is a pleasure to follow the noble Baroness, Lady Warwick, and I add my congratulations to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on securing a debate on such an important topic. I am legally qualified; however, I have spent my career in international business, which has included spells in New York, Zurich and Bermuda, as well as 20 years or so in the City itself. Underpinning all international business are written agreements, which all have provisions to determine the governing law and jurisdiction arrangements concerned in whatever that agreement is. The winner by choice in so many of these things—I do not mean just with UK entities as parties, but generally—is English law and English jurisdictional methods, which may include arbitration or mediation as well. This leadership positioning of English law is a key component, I submit, of the great success of the City of London and the huge legal businesses there now: the magic circle firms are world leading and exceptionally large.

In preparing for this debate, I rang up an Austrian lawyer who I knew used English law in some of his arrangements. I asked him why he did that and he said, “It is the prestige”. When I tried to analyse with him what he meant, he said, “The first thing is that you have a structure—a structure which is presidential, predictable and fair. The second thing you have is the people, in that the quality of the judiciary is exceptionally high and they understand what you’re talking about, because they have the knowledge and experience of arcane financial services instruments or other things as well”. He also pointed out, and I agree, that those things are comprehensively intertwined. I therefore feel strongly that any damage to this happy leadership position is greatly against the national interest.

A business principle that I have always abided by is “Everything communicates”. If your brand is trying to be a premium brand, you cannot send out a letter to all your clients full of spelling mistakes. If you were Gerald Ratner, you would understand this point as well because he criticised his own brand and his business simply disappeared. We have our own principles of comity, which are incredibly important as the boundaries between Parliament and the court. They were clearly laid out in principle—or relaid—by our Lord Speaker in his Written Statement of October last year. Although I agree with the noble and learned Lord, Lord Brown, that they could do with some strengthening, they are clearly laid out procedurally as well in our Companion to the Standing Orders. If we ignore those things, we therefore communicate something negative about our precious legal system.

I am not suggesting that this is a death-by-one-cut thing at all, as in the point made by the noble Lord, Lord Empey. But if we serially ignore our courts—ignore the hard work of the Court of Appeal, which heard for several days on this matter—we will find other jurisdictions snapping at our heels. Other governing law matters will come and people will choose them, which would be damaging to us. We will find it damaging to our efforts, which have already been damaged recently by such things as pension arrangements, to recruit really good judges. So “Everything communicates” is why this debate is important, because I hope we are communicating that we thoroughly support our judges and that we have a method of comity, set out in the Statement of our Lord Speaker and in our Companion. We should stick to that method.

Photo of Lord Lisvane Lord Lisvane Crossbench 1:26 pm, 23rd May 2019

My Lords, I start from the premise that there should be a comity between the courts and Parliament and that both should be, in the words of Lord Browne-Wilkinson in Prebble v Television New Zealand,

“astute to recognise their respective constitutional roles”.

There are two means of, as it were, keeping the tanks off each other’s lawns. One is article IX of the Bill of Rights, which says that parliamentary proceedings,

“ought not to be impeached or questioned in any Court or Place”,

outside Parliament. Over the years, the judiciary has generally been very careful to ensure that this is observed. The mirror image is the sub judice rule, enshrined in resolutions of the two Houses, which prohibits reference to active proceedings in the courts, subject to the right of Parliament to legislate on any matter and with the possibility of a waiver if, in the judgment of either presiding officer, this is justified.

I should note in passing, as this was something that much occupied me in my former life, that the sub judice resolutions in their present form date from 2001 and are sorely in need of updating. For example, following the Armed Forces Act 2006, there is now no mandatory post-trial review in court-martial proceedings. Moreover setting down a case for trial, one of the trigger points for the rule’s operation, is phraseology no longer used in the Civil Procedure Rules. The application of the rule to tribunals needs to be clarified, and I have long thought that its application to inquests—in effect, treating them as quasi- criminal proceedings—is simply not sustainable.

However, in the issue we are considering today, the sub judice rule is a bit of a red herring. It may apply to injuncted material but only if proceedings are still active; it will not apply to a final injunction unless an appeal is outstanding. The question before us is, I suggest, whether there should be a parallel rule to protect the rights conferred on an individual by the judicial process, and incidentally of respect for that individual’s private life under Article 8 of the European Convention on Human Rights.

Two particular cases were considered by Commons committees. In 1978, the Committee of Privileges considered the Colonel B case, which has already been referred to, and, in 1996, the Procedure Committee considered the Baby Z case. A more wide-ranging inquiry was undertaken by the Joint Committee on Privacy and Injunctions, which reported in March 2012. Part of the Joint Committee’s consideration was of parliamentary breaches of court injunctions. To what extent they were justified is neither here nor there. They related to people engaged in the popular sports of football and banking, and particularly to sportsmen who, in their private lives, had been a little too sporting.

My noble and learned friend Lord Brown of Eaton-under-Heywood referred to the suggestion made by my noble friend Lord Pannick in the Times a while ago. I hope I may be acquitted of vaingloriousness when I say that I was a few years ahead of my noble friend. In my memorandum, as Clerk of the House of Commons, to the 2012 Joint Committee, at pages 191 to 211 of the committee’s written evidence, I set out how the two Houses could deal with the problem. They could pass in effect a self-denying ordinance, on the pattern of the sub judice resolutions, stating the determination of each House to preserve Parliament’s freedom of speech, uphold the rule of law and respect the rulings of the courts, save either for the purpose of changing the law or if the chair had given prior—note, prior—authority for the rule to be set aside if the circumstances warranted it. This would be a high bar to clear. Such a resolution would also have an important declaratory function, which we should not underestimate. The Joint Committee was clearly attracted by this option but, in the end, concluded that there were not enough cases to constitute a real problem that needed to be dealt with in this way.

That was also the conclusion of the Commons Committee of Privileges in 1978, the Procedure Committee in 1996 and the Joint Committee on Parliamentary Privilege in 1999, which was endorsed by the Joint Committee on Parliamentary Privilege in 2013. It also wisely recommended against the codification of privilege in statute.

There we have it: it is a matter of proportionality. If, in your Lordships’ judgment, and that of the other House—and it would be sensible for the two to keep in step—these are events whose frequency and nature give rise to sufficient continuing concern, the means of addressing the issue are to hand.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Spokesperson (Cabinet Office), Shadow Spokesperson (Business, Energy and Industrial Strategy), Shadow Spokesperson (Exiting the European Union), Shadow Deputy Leader of the House of Lords 1:32 pm, 23rd May 2019

My Lords, I particularly thank the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for enabling me to witness a near-private tutorial, given by some of our nation’s top experts—not just from the law, but from Parliament, academia and elsewhere—on the interrelation of aspects of the rule of law with that vital issue of parliamentary freedom of speech. If my noble friend Lord Hain had done nothing else in his career than create the opportunity for today’s debate, I would have much to thank him for. Incidentally, I wonder whether today’s Hansard together with the helpful Library briefing we had, bound into a book, would not only be a great bestseller, with no issue of copyright and royalties, but may provide that extra guidance that some speakers have called for today.

I turn to the issue, whose coverage I will not try either to summarise or assess, and will say three brief things. The first nicely follows the noble Lord, Lord Lisvane, who talked about there not being enough cases. I always think that amending or making rules in response to an isolated incident, whether that incident is right or wrong, rarely makes for good law. We often refer to the Dangerous Dogs Act but, within other organisations, in business and elsewhere, the normal advice is to wait for a pattern before contemplating a response. Whatever the merits that brought the noble and learned Lord, Lord Brown, to table this debate today, there is clearly not a trend in behaviour to which we need to attract our attention.

Secondly, in any arena where two long-held and vital principles might collide—although the idea of balance referred to is better—hard and fast rules will rarely provide the solution. Careful judgment is needed, particularly when the public interest has to be defined and weighed. This is where skill may need to mix with sense, even political understanding, for a judgment to be made. As the noble Lord, Lord Empey, said, if lines are drawn, someone will have to arbitrate on where the boundary was crossed. Few of us want to rise to that challenge.

Thirdly, we have a Procedure Committee. As one of its members, my noble friend Lady Warwick, said, it has already looked at this issue and has not come to us with recommendations for change. We should heed its membership, which reflects the expertise we have in the House, from whom we have heard today. As they have the confidence that we did not need to bring anything today, we should follow their lead. It has been a fascinating two hours or so, and I now look forward to some added experience from the noble and learned Lord the Minister.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 1:36 pm, 23rd May 2019

My Lords, I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his careful and well-considered contribution to this debate. I am also grateful for the contributions of other noble and learned Lords, and noble Lords, on this issue.

Parliamentary privilege is a critical part of our democratic process, and is essential if Parliament is to function fully and freely. Noble Lords, and in particular the noble Lords, Lord Norton and Lord Lisvane, referred expressly to Article 9 of the Bill of Rights of 1689, which protects debates and proceedings in Parliament from interference from the courts. But let us be clear: the protection of absolute privilege belongs to the Houses of Parliament, not to its individual Members. This protection does not mean that Members are above the law, nor that they can ignore it. Indeed, parliamentarians have a duty to exercise the privilege of the House in a responsible manner that reflects the public interest. That includes being mindful of the sub judice principle and respectful of the jurisdiction of the courts.

It is a matter for Parliament, in the administration of its internal affairs, to regulate the conduct of its Members in the exercise of Parliament’s privilege. More particularly, it may be for the Committee for Privileges and Conduct of the House of Lords to consider the use of parliamentary privilege by Members of this House. The noble Lords, Lord Armstrong, Lord Parekh and, I believe, Lord Anderson of Ipswich, alluded to the apparent absence of procedures and perhaps sanctions to address that issue.

It is clear that the privilege of Parliament should not be relied upon in such a way as to undermine the independence of the judiciary and, consequently, the rule of law. Where the judiciary has seen fit to make a court order, that ruling should be respected. That is the case no matter what stage legal proceedings may have reached. There may, of course, be a tension, but the relationship between parliamentary privilege and the independence of the courts—and, indeed, the rule of law—should not be one of conflict but of mutual respect. Each individual parliamentarian has to be mindful of the tension between releasing information where he subjectively considers it to be in the public interest and, on the other hand, the absolute necessity of maintaining comity between Parliament and the courts.

As it happens, we already have in place appropriate guidance on how that can be achieved. The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords has already been referred to. It is quite clear, at least with reference to the issue of sub judice. Indeed, it is recorded that the House of Lords adopted a resolution on sub judice on 11 May 2000. That resolution, as amended, states inter alia:

“Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question”.

That is subject to qualification, as is necessary, because the Companion goes on to say:

“But where a ministerial decision is in question, or”—

I emphasise this—

“in the opinion of the Lord Speaker a case concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in motions, debates or questions”.

That, of course, is subject to a safeguard. The Lord Speaker must be given at least 24 hours’ notice of any proposal to refer to a matter which is sub judice. That, in turn, will prompt the Lord Speaker to consult with the clerks and the usual channels when he receives intimation of such an intention.

The Lord Speaker cannot, of course, intervene in our proceedings in this House, but it is open to any Member to move that a noble Lord should no longer be heard on a particular matter. We do, therefore, have in place safeguards that can be properly employed. Regrettably, where those safeguards and recommendations are circumvented, there is a danger that the House will bring itself into disrepute, and that the comity that it is necessary to maintain between Parliament and the courts may be undermined. In those circumstances, noble Lords may wish to look further at the issue raised by a number of noble Lords concerning the present terms of the guidance given on this matter and the potential need for sanctions where such guidance is overlooked.

Clearly it must remain central to our proceedings that we maintain the privilege of Parliament. I emphasise again that it is the privilege of Parliament, not a privilege of individual Members. I am obliged to noble Lords.

Photo of Lord McFall of Alcluith Lord McFall of Alcluith Chair, Freedom of Information Advisory Panel (Lords), Chair, Hybrid Instruments Committee (Lords), Chair, Liaison Committee (Lords), Chair, Committee for Privileges and Conduct (Lords), Chair, Procedure Committee (Lords), Chair, Committee of Selection (Lords), Chair, Standing Orders (Private Bills) Committee (Lords), Chair, Sub-Committee on Leave of Absence, The Senior Deputy Speaker 1:42 pm, 23rd May 2019

My Lords, I thank the noble and learned Lord, Lord Brown, for initiating such an interesting debate and the Minister, the noble and learned Lord, Lord Keen of Elie, for agreeing to share the task of winding up today. It is unusual for two Members to respond to a debate—but this is an unusual subject area, where both the Government and the House have responsibility. As chairman of the Procedure Committee, I will set out the deliberations of our recent meeting where this matter was discussed in response to a written request from the noble and learned Lord, Lord Brown. I invited the noble and learned Lord to give an oral representation to the committee, and he asked us to consider four options.

The first was that the Companion to the Standing Orders should stress the importance of Members complying with court orders and injunctions—final and interim—rather than deliberately disobeying them under parliamentary privilege. The second was that consideration should be given to extending the sub judice resolution to encompass all, or almost all, proceedings in the House. At present, Members are exempted from the resolution during legislative proceedings where a ministerial decision is in question, or where the Lord Speaker believes that the court case in question concerns,

“issues of national importance such as the economy, public order or the essential services”.

The third was that thought should be given to whether “egregious abuse of privilege” should in future become sanctionable in some way. The noble and learned Lord, Lord Brown, suggested that such behaviour might be deemed a contempt of the House, sanctionable by a requirement to apologise publicly and/or to pay a fine, or perhaps an explicit breach of the Code of Conduct. Finally, it was suggested that consideration should be given to whether the Lord Speaker might be empowered to require a Member who breaches, or is about to breach, the sub judice rule, and presumably any rule on injunctions, to desist.

In considering these options the committee was mindful that in 2011-12 the Joint Committee on Privacy and Injunctions was established to inquire into this issue in depth. That Joint Committee considered some of the suggestions now being made by the noble and learned Lord: namely, whether it would be desirable for the Houses to pass a new resolution on injunctions or to adapt the sub judice resolution. While the Joint Committee saw some advantages in this course of action, it also saw significant practical difficulties with enforcing it, particularly in the Lords. It concluded, in paragraph 231 of its report:

“If the revelation of injuncted information becomes more commonplace … we recommend that the Procedure Committees in each House should examine the proposals made to us for new restrictions with a view to implementing them”.

The comments of the noble Lord, Lord Lisvane, on proportionality come into focus here.

The revelation of injuncted information has not become more commonplace in this House since the Joint Committee reported. In fact, we are aware of only one such revelation in this House since then—the case of the noble Lord, Lord Hain, which has been discussed today. At our meeting earlier this month, the Procedure Committee noted that there is no evidence that this is a growing problem. Further, members of the committee expressed strong support for the Joint Committee’s conclusion that freedom of speech in Parliament is “a fundamental constitutional principle” and that:

“The threshold for restricting what members can say during parliamentary proceedings should be high”.

Like the Joint Committee, the Procedure Committee decided that that threshold had not yet been crossed.

Having said that, we are mindful of the need for Members to use their freedoms responsibly, as the Lord Speaker set out in his Written Statement a few days after the noble Lord, Lord Hain, named Sir Philip Green. To this end, the committee agreed with the first proposal of the noble and learned Lord, Lord Brown, that the Companion to the Standing Orders should include some new text exhorting Members to respect court orders and to use parliamentary privilege responsibly. The committee agreed to look at a revised text for the Companion at our next meeting.

The suggestion by the noble Lord, Lord Norton of Louth, echoed by the noble Lord, Lord Empey, that Members should be reminded of the importance of using parliamentary privilege as part of the new Member induction programme, is a good one. The committee will shortly be publishing a new edition of the short guide to procedure, which will be given to all Members, current and new, as part of the induction package, and this paragraph will be included in that.

I hope that today’s debate will help raise the profile of this issue among Members of the House. I hope that each of us will reflect on how we use our freedoms responsibly. I give a commitment to the House to convey the comments made by Members here to the next meeting of the Procedure Committee—so it will be on the agenda. I thank all noble Lords for their contributions, especially the noble and learned Lord, Lord Brown.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct 1:47 pm, 23rd May 2019

My Lords, I have three very brief comments; I am conscious of the fact that there are aeroplanes and trains to be caught. First, I give huge thanks to all noble Lords who have spoken in this high-quality debate. Not least, I am grateful to the non-lawyers who have spoken. This is partly because their view on the conflicting interests in play is particularly valuable and partly because I suspect that they have had to do even more homework to prepare their contributions than the lawyers who have spoken.

Secondly, the noble Lord, Lord Hain, and one or two other noble Lords suggested that what he did here was justifiable. This heightens my concern that there is a real risk of this being repeated unless we now do something worthwhile to discourage such statements in future.

Thirdly, I respectfully suggest that there is more than sufficient support from the speeches today for taking some real action to deter future misuses or abuses, whatever you call them, of this privilege. So I respectfully urge the House authorities—no doubt predominantly the Procedure Committee—to give full consideration to this matter.

The Senior Deputy Speaker has just said, rightly, that the matter was looked at, comparatively briefly, by the Procedure Committee recently, and he undertook to look at it afresh. I urge him and the members of any committee that now looks into this to do so fully informed by this debate, in all its aspects. I hope that giving full consideration to the speeches today might very well temper what is otherwise a very limited proposed response to the problem, simply by way of adapting the Companion. I repeat that I am very grateful to all noble Lords who made such valuable contributions today and I beg to move.

Motion agreed.