Judges have been granting so-called hyperinjunctions to prevent the disclosure of information to MPs, The Times reported on Saturday. Such orders are of very dubious legality.
It is not easy for courts to decide where to draw the line between the public interest in publication and prurient intrusion into private life. Where the judge decides that information must be protected, the court will understandably wish to do all it can to prevent its disclosure.
But there are constitutional limits on the jurisdiction of the courts. Article 9 of the Bill of Rights 1689 states that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.
This is one aspect of a broader principle that “what is said or done within the walls of Parliament cannot be inquired into in a court of law”. Lord Coleridge, the Chief Justice, so declared in 1884 when refusing to grant any remedy to Charles Bradlaugh, who had been duly elected to the House of Commons but whom the Speaker declined to permit to take the oath and whom the House resolved to exclude.
Since at least 1831, when the Lord Chancellor Henry Brougham complained about “wild and extravagant” claims to privilege — the concept had been used to punish cutting down the trees of an MP and “killing Lord Galway’s rabbits” — the courts have been understandably concerned to limit the scope of privilege to “the core or essential business of Parliament”.
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That was the approach taken by the Supreme Court in its judgment last December that parliamentary privilege did not prevent the Crown Court from hearing the criminal prosecutions brought against former MPs and peers accused of dishonestly claiming parliamentary expenses. (I declare an interest as counsel for the Crown on the issue of privilege.) A prohibition on communicating to an MP information covered by an injunction conflicts with the privileges of Parliament because if MPs are prevented from obtaining such material they cannot perform their core functions in Parliament of speaking on issues of public concern. It was only because John Hemming, MP, was given the relevant information that he was able to name Sir Fred Goodwin in Parliament last month as having obtained an injunction, and the press could then publish a report of the proceedings in Parliament.
As recognised by the Joint Committee on Parliamentary Privilege in 1999, privilege has been regarded as extending to the constituency work of an MP only where it is carried out on the floor of the House, in one of its committees or through the tabling of a motion, question or amendment.
Last week’s report by the House of Commons Committee on Standards and Privileges on the hacking of MPs’ phones also focused on this issue. But many MPs are generally concerned about the grant of injunctions in privacy cases and may wish to raise the topic in parliamentary proceedings. Their interest extends beyond their constituency work.
There is another dimension to this issue. For an MP to breach a court order by disclosing confidential information may well breach the sub judice rule of Parliament, that matters awaiting court determinations should not be discussed in Parliament.
In 1996, an MP in an early day motion named “Child Z” whose identity was protected by an anonymity order granted by a court. The House of Commons Procedure Committee agreed with the evidence it heard from Sir Thomas Bingham, then Master of the Rolls, that “Parliament would want to support the High Court” when it had restrained publication of a name or other information. The committee said that if such events were to recur, there may need to be a limitation imposed on the right to free speech of MPs. The joint committee re-examined the issue in 1999, noted that such cases as Child Z are “exceptional” and did not recommend any further action.
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Such concerns cannot justify a court imposing limits on the communication of information to MPs. If restrictions are to be imposed, it can only be by Parliament itself deciding to limit the free speech of its members or deciding to discipline a member who has frustrated a court order by disclosing information in Parliament. The House of Commons must be left to determine when privilege is to be limited or waived, as it did when MPs and others were permitted to give evidence in a libel action brought by Bessie Braddock, MP, in 1948 after a newspaper reported that she had “danced a jig on the floor of the House of Commons” during a division on a Bill. The jury found for the newspaper.
The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords