12:57, April 09 66 0 theguardian.com

2019-04-09 12:57:05
Top judge attacks growing 'abuse' of parliamentary privilege

The lord chief justice has accused MPs and peers of endangering the rule of law through repeated “abuse” of parliamentary privilege to name individuals granted anonymity in court cases.

In a strongly worded attack, Lord Burnett of Maldon said parliamentarians who ignored their responsibilities were behaving like a “one-person court of final appeal”.

His comments are the latest attempt to rebalance relations between parliament and the courts after ministers and parliamentary speakers shied away from formulating guidelines that might restrict MPs’ and peers’ freedom of speech.

Burnett was speaking at the 21st Commonwealth law conference in Livingstone, Zambia, on Tuesday, a day after the House of Lords standards watchdog dismissed a complaint against the former Labour cabinet minister Peter Hain.

Although Burnett did not name Lord Hain in his address, it was clear he was referring to the incident last year when Hain used parliamentary privilege to name Sir Philip Green, the Topshop tycoon, as the businessman at the centre of harassment allegations.

Hain spoke out after days of speculation over a mystery businessman described by the Daily Telegraph as the subject of multiple sexual harassment and bullying allegations. Green has denied any unlawful behaviour. Hain defended his intervention at the time as a necessary defence of human rights.

Burnett said: “Recent events in the United Kingdom brought forth a torrent of criticism from academic and other commentators who considered the naming in parliament of the beneficiary of an interim injunction, two days after the grant of that injunction and pending a speedy trial to resolve the underlying legal issues, as a straightforward attack on the rule of law with no coherent justification.”

He said his immediate concern was with the “rare instances since the 1970s when parliamentarians have spoken in parliament in ways that have failed to respect the principle of comity and have not left the courts free to administer justice”.

For the previous almost 300 years neither MPs nor peers had thought it “appropriate to use the freedom of speech in parliament to undermine an order of a court”, he observed.

Since the 1970s there had been the odd incident, Burnett said. “In the last 10 years, however, there have been five breaches. The first [the Trafigura case] can be discounted as inadvertent. But in 2011 the subjects of two separate interim injunctions [a reference to breached superinjunctions] were named in both the House of Commons and the House of Lords. Most recently a peer [Hain] named the subject of an interim injunction in the House of Lords.

“In each of the most recent cases, the court order – at the interim stage of proceedings – was compromised by intervention from a parliamentarian. They did so notwithstanding the sub judice rule.”

Burnett said it was a matter of concern “that parliamentarians have taken this approach in active litigation”. The 2011 cases involved the issue of “so-called superinjunctions and the use of interim injunctions in cases where the media wished to publish stories about the alleged sexual impropriety of public figures. The most recent case [involving Hain] concerned what are known as non-disclosure agreements concerning alleged sexual harassment in the course of employment.”

Burnett said he did not doubt “the genuine belief of the parliamentarians in question that they were acting in what they thought was the public interest”. The effect, however, “to nullify the order of a court on the basis of an individual view, however genuinely felt, is not compatible with the rule of law. It results in the parliamentarian concerned constituting himself a one-person court of final appeal.”

The lord chief justice justified his approach by referring to historical examples dating back to 1563. He quoted Sir Edward Coke, “one of our greatest judges”, who in 1593 declared to MPs: “Her Majesty granteth you liberal but not licentious speech, liberty therefore but with limitation.”

Burnett concluded: “The constitutional right to freedom of speech carries with it the obligation to exercise that right responsibly.”

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