14:37, October 26 298 0 theguardian.com

2018-10-26 14:37:07
Parliamentary privilege can be 'threat' to rule of law, warns QC

MPs and peers who exploit parliamentary privilege to breach court injunctions are undermining the rule of law, senior lawyers have claimed.

Lord Peter Hain’s decision to name Sir Philip Green as the businessman protected by an injunction split legal opinion and reignited a constitutional dispute between the judiciary and parliament that had been dormant since the row over super-injunctions in 2011. The case sets the principle of absolute freedom of speech enjoyed by parliamentarians – which enables the media to report what is said in the Commons or Lords – against the slower-moving, legal priorities of the courts.

Hugh Tomlinson QC, an expert in media and privacy law, said: “It’s the function of the courts to decide cases after hearing evidence and arguments. It’s not the function of parliamentarians to decide cases or decide that the judiciary has got it wrong.

“If that happens, it’s a fundamental threat to the rule of law. They have no idea of what the focus of the cases are. They haven’t seen the evidence. This could be an appalling case of bad behaviour or absolutely proper and above the board. Lord Hain has no idea.”

Tomlinson suggested that a solution in future might involve the speaker of the Commons or Lords saying that any such comments should be “removed from the parliamentary record”, depriving the media of the legal protection in reporting it.

On Friday, it emerged that Lord Hain is a paid adviser to Gordon Dadds LLP, the law firm that represented the Daily Telegraph in the Philip Green injunction case. The company’s website carries a statement that describes him as being its “global and government adviser”.

In a statement on Friday, Hain said: “I took the decision to name Sir Philip Green in my personal capacity as an independent member of the House of Lords. I categorically state that I was completely unaware Gordon Dadds were advising the Telegraph regarding this case.

“Gordon Dadds … played absolutely no part whatsoever in either the sourcing of my information or my independent decision to name Sir Philip. They were completely unaware of my intentions until after I spoke in the House of Lords.”

Gordon Dadds also denied it had provided any information to Hain. In a statement it said: “Peter Hain is a self-employed consultant who provides occasional advice to the firm relating principally to African affairs. Any suggestion that Gordon Dadds LLP has in any way acted improperly is entirely false. Peter Hain did not obtain any information from Gordon Dadds regarding this case. He has no involvement in the advice that we provide to the Telegraph newspaper, and he had no knowledge of any sensitive information regarding this case.”

According to paragraph 10(b) of the House of Lords code of conduct, members must “declare when speaking in the House, or communicating with ministers or public servants, any interest which is a relevant interest in the context of the debate or the matter under discussion”.

Enforcement of the code is overseen by the House of Lords commissioner for standards, Lucy Scott-Moncrieff. No formal complaint about Hain’s comments had been made by the end of the session on Friday.

The former attorney general, Dominic Grieve QC, had earlier also attacked Hain’s decision to name Green. “It was an entirely arrogant decision that had absolutely no regard for judicial process or the rule of law,” he told the BBC, pointing out that the injunction against the Telegraph was only an interim one.

Grieve added: “Parliamentary privilege is very important, but like any power which is extremely important, it is open to abuse. I can’t see – looking at this particular matter – that Peter Hain can argue that he hasn’t abused it.”

But Geoffrey Robertson QC, an expert in media and human rights law, said: “Parliamentary privilege is an historic aspect of Britain’s unwritten constitution. It was used to expose Kim Philby when the establishment was trying to cover up his treason [in the 1960s]. As a privilege, Peter Hain was entitled to use it, and he did so responsibly.

“Various leading businessmen were being accused on Twitter and it was important for their sake to end speculation. It was in the public interest to reveal a little of the truth. This is really about free speech.”

Robertson said that non-disclosure agreements meant that complainants could be silenced by judges brought up to prefer property rights over human rights.

“Breach of confidence injunctions stop the truth from being told. Outside the national security context, injunctions should not be granted against the media. We should give free speech the priority it deserves and refrain from permanently gagging anyone,” he added.

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