Can the Media use Parliamentary Privilege to Circumvent Reporting Restrictions in Privacy Injunctions? – Henry Fox

24 March 2011 by

The recent claim in Parliament by Liberal Democrat MP John Hemming (pictured right) that Sir Fred Goodwin has obtained an injunction to prevent him being identified as a banker has reignited interest in the suggestion that the media can in some way sidestep the secrecy of an injunction through the indirect use of Parliamentary privilege. The incident is reminiscent of Paul Farelly’s revelation to Parliament that Trafigura had obtained a so-called “super-injunction” against the Guardian in October 2009.

In his blog on the Guardian website, Roy Greenslade asks: “Have MPs, and the media, found a way to overcome super-injunctions?” This question is worth considering from a legal perspective. This post will attempt to answer it by focussing on two areas: (i) the ability of MPs to disclose confidential information in Parliament and (ii) the ability of the media to report on these disclosures in order to evade liability for contempt of court.

Facts

On 10 March 2011, John Hemming raised the following question in the House:

“In a secret hearing, Fred Goodwin has obtained a super-injunction preventing him from being identified as a banker. Will the Government hold a debate, or make a statement, on freedom of speech, and whether there is one law for the rich, such as Fred Goodwin, and another for the poor …?”

As a result, ‘The Sun’ led its front page the following day with the headline: “What a Banker!” which reported Mr Hemming’s question and thus revealed the very information which was forbidden by court order. An online version of the article isavailable here.

I have not seen any injunction obtained by Sir Fred Goodwin and cannot comment on the terms of any order which he might have obtained. On the basis of Mr Hemming’s question the injunction does not seem to have been a super-injunction in the ordinary sense – that is an injunction preventing the reporting of its own existence. Rather, it appears to have been a conventional “privacy” injunction prohibiting the reporting of identifying information about the claimant.

Parliamentary Privilege and the Sub Judice Rules

Article 9 of the Bill of Rights 1689 guarantees 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”. The conventional view is that this provides MPs with complete immunity from legal action arising from what they say in Parliament. In short, it means that whilst the media (and anyone else who has notice of the order) are prohibited from breaching the reporting restrictions of the terms of an injunction which prohibits the publication of information MPs are not.

However, Parliament has sought to prevent abuse of this freedom through self-regulation in the form of the sub judice rules. These aim to ensure that court proceedings are not prejudiced by providing that “matters awaiting adjudication in a court of law should not be brought forward in motions, debates, questions or supplementary questions…” This principle was reaffirmed most recently in 2009 by the Lord Chief Justice:

There are clear conventions about the circumstances in which Parliament will or will not discuss proceedings in court and I have no doubt these conventions will be followed so as to avoid any possible interference with the administration of justice. That is not because a court has sought to order it, but because Parliament has chosen in the public interest not to insist on its privileges

The very nature of self-regulation means that these rules are free from any external interference by the courts and thus it is up to Parliament to decide what should or should not be discussed.

Past examples of Members falling foul of the sub judice rules include the MP who was reprimanded in the wake of the 1979 ‘Colonel B’ affair for the naming in Parliamentary Question Time of a witness in proceedings for an Official Secrets Act offence whom the court had allowed to remain anonymous. More recently, in 1996, a Member breached an anonymity order that had been granted in favour of a child (known publicly as ‘Child Z’).

A 1996 Commons Procedure Committee report into the ‘Child Z’ incident concluded:

“the fundamental problem is that Parliament – or more accurately a single member of Parliament – without requiring any debate or decision in the House can set at naught the judgment of the court, arrived at with great care, and thereby render ineffective the remedy afforded..

If there were strong evidence to suggest that breaches of court orders as a result of proceedings of the House represented a serious challenge to the due process of law, we would not hesitate to recommend a further limitation on the rights of free speech enjoyed by members, whatever the practical difficulties.

We consider there is much judicial weight behind the suggestion of the Master of the Rolls that, where an order has been made restraining publication of a name or other information, Parliament would want to support the High Court

However, the House was reluctant to take action for what seemed to be a very rare breach:

“We do not, however, consider it necessary to take action as a result of one specific case, given the importance the House rightly attaches to protecting the right of Parliament to freedom of speech. We urge members to exercise the greatest care in avoiding breaches of court orders.

The 1999 Report of the Privileges Committee came to the same conclusion:

“Having re-examined the issue we do not recommend, at this stage, going any further than the House of Commons procedure committee in 1996. Instances such as the child Z case, when a member deliberately sets at naught a ruling of a court, are exceptional. We are mindful that breaches of injunctions could give rise to injustice. We are also mindful of the right to an effective remedy guaranteed by article 13 of the European Convention of Human Rights, regarding, for instance, the right to respect for private and family life. If breaches of injunctions became frequent and Parliament were perceived to be impeding the interests of justice, implementation of the substance of the procedure committee’s draft resolution would seem inevitable…But until there is evidence that such a step is essential, we are as reluctant as our predecessors to limit freedom of speech more than is necessary…

… Members will appreciate that the House has overriding powers to discipline its members for conduct regarded by the House as irresponsible. Accordingly, it is in members’ own interests that they should consult the House authorities in this type of case.” [210-211]

Media Reporting of Parliamentary Discussions on Injunctions

Although MPs are, under Article 9 of the Bill of Rights, immune from legal proceedings for anything that they say in Parliament, can the same be said of the media when they report what has been said in the House?

The Parliamentary Papers Act 1840 governs the reporting of Parliamentary proceedings. Section 3 is of the greatest importance to the media as it provides that any “extracts or abstracts” of official reports of Parliament (e.g. Hansard) and “authenticated copies” thereof will only be protected from legal liability if it can be shown by the defendant that: “such extract or abstract was published bonâ fide and without malice”.

Failure to fall within Section 3 would mean that a newspaper would have no defence to a charge of contempt of court arising from its reporting of Parliament.

Comment

Whilst the label ‘bona fide’ can be a slippery concept to define, it is hard to see how it would apply to a newspaper which publishes information which it has been explicitly prohibited from disclosing by a court of law.

With regard to MPs, there is clear evidence of recognition by Parliament that the actions of one MP can render the remedy granted to a citizen by a court completely nugatory.

Understandably, the House has been reluctant to tighten its self-regulatory sub judice rules given the relative rarity of MPs straying into this area. The 1999 Committee referred to above considered various measures that could be taken to deal with the issue:

… a member breaching an injunction should be required to justify his action before the privileges (or another) committee after the event, or risk punishment for misconduct. This would not deter a member determined to breach an injunction, but the existence of such a procedure might deter frivolous or ill-conceived breaches…

The Joint Committee considered other possibilities. Prior vetting by a select committee, or permitting an injunction to be breached in the House only after the public had been excluded, are not practicable options, given the nature of debate.” [206-207]

The media controversy that surrounds injunctions is likely to continue and it is thus possible to foresee ‘media-friendly’ MPs attempting to circumvent the secrecy of injunctions on a more regular basis. It may well be that Parliament will have to reconsider some of the measures it considered in 1999 to avoid any interference with the administration of justice.

This post first appeared on the Inforrm Blog and is reproduced with permission and thanks.

5 comments


  1. John Hirst says:

    Oh look, John Hemmings has crossed the floor from left to right…

  2. richard danbury says:

    Good post. But…

    With regard to MPs, I’d argue that there are circumstances in which it may be in the public interest for article 10 rights of free speech to trump the interests of the administration of justice. The art 9 Bill of Rights absolute privilege is there to recognise that the judges, citing concerns about the administration of justice, should not always hold the trump card.

    After all, to paraphrase Lord Bingham, the approach of the common law to freedom of speech has been hesitant and negative, and art 9 is one of the few historic places it has received unqualified protection – and, of note, the protection is statutory not judge-made. It would be problematical for our democracy should the chill of the judges’ supervision descend onto the chamber of the House.

    As for the media publishing what is said, I’d argue that in this case, the publication is defensible too. Our laws of libel and defamation are notorious, and what was reported was not the identity of a rape victim, say, or the details of troop dispositions in Afghanistan, where there would be stronger argument, distinct from arguments merely about the administration of justice, to advocate restraint.

    1. Corrupted Mind says:

      @RichardDanbury
      I sensed almost the moment that I pushed the button that someone would throw Bingham in my direction. However, to the strict literalists I would posit in reply that article IX was a victim of its historical context (i.e. a less confident Parliament was legislating to prevent what it thought were judges acting in concert with a renegade monarchy to restrain them). Today, the separation of powers is looked at in more absolutist terms – judges certainly don’t enjoy traversing into policy and politicians (should) feel the same about marching into courtrooms.

      In any case, I see no difficulty in Hemming arguing for fewer injunctions with non-disclosure requirements – or a reduction of the rights of corporations to have non-disclosure injunctions. Both a worthy goals, it is the idea of interfering with specific cases that is so, well, malevolent and subversive (for want of a better word).

  3. Corrupted Mind says:

    There is something about Hemming acting in this way that leaves me feeling very queasy.

    If you park the Sir Fred Godwin issue (which the media leapt all over) and focus on the Andrew France case. It is difficult to see how his intervention won’t influence ongoing legal proceedings. He trod carefully in order to avoid *active* issues but is that sufficient? Is this not the type of interference that the sub judice rule was designed to prevent.

    Turning to the Dr Waney Squier case, again here when asked directly whether this was in breach of the rule of sub judice Hemming answers:

    “The case has not been active to my knowledge since 2006. It is definitely not active now. I think the case ended in 2006-the date of the injunction-partly because of the trap that the individual concerned has found himself in.”

    Which amounts to a “Um, not sure. Definitely. Well definitely insofar as he hasn’t found a resolution to his current problems.” After being advised by Bacon as to what circumstances determines the active or not status of a case. He intimates that there is nothing going on when in actual fact the case may be active (the order related to satellite litigation) and ongoing.

    Bloggers might celebrate, but the idea of politicians infuencing the outcomes of active cases is the last thing any civil libertarian should want to see. However, because terms like “Super” and “Hyper” injunction continues to be bandied around willy nilly such behaviour (alas) will continue.

    (A quick nota bene: Over on the last thread this topic on the blog some commenters have suggested that corporations are seeking to gag individuals. This is clearly not the case in the Godwin case (i.e. injunctions affect individuals too.))

  4. John Hirst says:

    “The recent claim in Parliament by Liberal Democrat MP John Hemming (pictured right)”.

    Would that be the same person pictured left in your article?

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