If you cast your mind back a couple of weeks, you’ll remember Lord Hain exercising his “parliamentary privilege” to name a businessman who’d been granted an injunction, preventing the Telegraph from publishing a story about him.
And, to be honest, Lord Hain’s words were less like a speech, and more like an elephant blundering about in the rose garden of our constitution.
We give our Judges, not politically appointed Lords, the power to make these decisions.
And, lest we forget, these Judges’ decisions are made not just after hearing all the details of the case argued, but also after many years of study and discipline in law, striving to make fair, legally sound decisions.
Imagine I have told you I am going to publish an article which falsely accuses you of being a thief.
I put it around everywhere that an article about a thief is going to be published soon and many people are looking forward to reading it.
They do not know you are my victim. You go to court to stop me.
At the first Hearing, the Judge decides it is not clear whether what I have written is justified and grants you an injunction until a full decision about the case has been made.
Is it fair to you if a Lord or an MP uses Parliamentary Privilege to name you?
There has been no in-depth comment from the media about whether Lord Hain gets away with this playing the supposed “trump card” of “Parliamentary Privilege.” (Who would think the BBC has a ££multi-million news organisation to look into these matters?)
Let’s look at things a little more closely…
“Parliamentary Privilege” is based on the 1688 Bill of Rights which says:
The Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
Note it says “ought not”, not “shall not”, so not a complete exemption to say whatever you want.
Is Hain as above the Law as he thinks?
Firstly: contempt of court.
There are many different types of contempt of court. They are sometimes grouped together into the following two main categories:
- Contempt by disobedience. For example, disobeying or breaching a court order or judgment, or breaking an undertaking given to the court.
- Contempt by interference. For example, disrupting court proceedings or the court process itself (known as “contempt in the face of the court”) and interference with the due administration of justice.
An intentional act in breach of a court injunction by one of the parties to those proceedings who is bound by that order constitutes a civil contempt, which is punishable by the court.
In a case called Attorney General v Times Newspapers Ltd and another in 1992 the Court distinguished that type of breach from a prohibited act by a third party, who may be a stranger to the litigation.
If somebody who is not involved in the proceedings breaches an order they may be acting with criminal contempt because that act constitutes a wilful interference with the administration of justice.
I am not aware of any law which states Parliamentary Privilege definitely gives immunity from criminal contempt.
Secondly: the House’s own Rules.
You can find the relevant Rule here: https://www.parliament.uk/documents/publications-records/House-of-Lords-Publications/Rules-guides-for-business/Companion-to-standing-orders/Companion-to-Standing-Order-2010.pdf
and it says (my emphasis):
The privilege of freedom of speech in Parliament places a corresponding duty on members to use the freedom responsibly. This is the basis of the sub judice rule. Under the rule both Houses abstain from discussing the merits of disputes about to be tried and decided in the courts of law…
In this case proceedings were before the court and interfering with its decision to grant an injunction without the permission of Speaker is a breach of the Rules.
Hopefully Hain’s conduct will be referred to the House and the Court that made the order he breached, as a criminal contempt, and to the Attorney General.
We enjoy living under the rule of law – no person should abrogate to themselves the power to make decisions which we have agreed lie with the Judges. Hain’s conduct is not righteous; in reality it tramples on the constitution and thus on our hard-won freedoms and privileges.
What do you think about it all?