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

Part of the debate – in the House of Lords at 12:37 pm on 23rd May 2019.

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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.