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.