Privacy and Injunctions - Joint Committee on Privacy and Injunctions

Privacy and Injunctions - Joint Committee on Privacy and Injunctions Contents

CHAPTER 6: Parliamentary Privilege and Injunctions

210. One of the issues that led to our inquiry was the revelation of information protected by anonymised injunctions during parliamentary proceedings. The day after Ryan Giggs was named as the claimant in CTB v Imogen Thomas and News Group Newspapers by the Sunday Herald in Scotland, and amidst much media reporting of the widespread availability of his name on Twitter and other internet sites, John Hemming MP revealed his name in the House of Commons.[208] The revelation was widely covered in the media.

211. In recent years there have been other examples of information subject to anonymised injunctions being revealed in Parliament. In October 2009 Paul Farrelly MP tabled a written parliamentary question which concerned a super-injunction obtained by Trafigura. Trafigura's solicitors informed the Guardian that it would breach the injunction if it reported the question. The Guardian then reported that it was unable to report a parliamentary question.[209] In March 2011 John Hemming MP revealed that Fred Goodwin had obtained a super-injunction.[210] In April 2011 Mr Hemming named Vicky Haigh as the subject of an injunction which had been granted by the Family Division of the High Court and which prevented the names of the parties being identified.[211] In May 2011 further details about Fred Goodwin's injunction were revealed in the House of Lords by Lord Stoneham of Droxford.[212]

212. The revelation of material subject to an injunction is not a daily occurrence in Parliament; it is in fact quite rare.[213] There is however a possibility that it may happen more often in future, especially if the media orchestrates action against injunctions.[214]

Freedom of speech in Parliament and injunctions

213. Article IX of the Bill of Rights 1688 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." Article IX is fundamental to our constitution and to the workings of Parliament. It allows members to debate what they wish without fear of redress by the courts, the executive or anyone else. It is jealously guarded.

214. Article IX means that it would not be constitutionally possible for a court order, including an injunction, to apply to Parliament.[215] It follows that it is not a contempt of court for a parliamentarian to reveal in parliamentary proceedings information subject to an injunction.

215. Whilst it may be legal for parliamentarians to reveal information in this way, some witnesses suggested it was not appropriate to do so.[216] Injunctions are granted by a judge after hearing evidence and representations from both sides. A parliamentarian who does not conform to the injunction can be seen as in effect placing him- or herself in the shoes of the judge, and overruling the decision to grant anonymity.[217] Once the name has been revealed in Parliament, and subsequently reported in the media, anonymity cannot be regained: the effect of the anonymity order is set at nought. Moreover, there is no redress for the individual whose identity or private information has been revealed; Article IX prevents them taking proceedings against the member.

COMITY BETWEEN PARLIAMENT AND THE COURTS

216. The long-standing constitutional principle of comity between Parliament and the courts means that each takes care not to intrude on the other's territory, or to undermine the other. A key means through which that principle is exercised on Parliament's side is through each House's sub judice resolutions. These prevent references to cases before the courts in questions, motions or debates. They contain exemptions for when the Houses are considering legislation; and allow for the Speakers to waive the application of the sub judice rule.[218] In addition to preserving the principle of comity the sub judice rule prevents parliamentarians influencing, or appearing to influence, courts. In return, the courts do not question the proceedings of Parliament or routinely criticise parliamentarians.

217. As evidenced by the Speakers' powers to waive the sub judice rule, the principle of comity is not absolute. There may be occasions when it is appropriate for reference to be made to active court proceedings in Parliament. Similarly, there may be occasions when it is appropriate to reveal in Parliament information subject to an injunction. Most would accept that it should only be done when in the public interest.[219] However, determining what is in the public interest leaves room for individual judgment, and there may be disagreement on the outcome.

218. As things stand, it is a matter for each parliamentarian to decide, if they come across information that is subject to an injunction, whether to reveal that information in parliamentary proceedings. There is an obvious tension here. Parliamentary privilege belongs to each House as a whole, and not to the individual member.[220] If the privilege is abused it follows that Parliament as a whole may be affected by that abuse.

219. The absolute privilege for freedom of speech granted by Article IX of the Bill or Rights 1688 is part of the very foundation of our parliamentary democracy. This privilege places a significant responsibility on parliamentarians to exercise it in the public interest. The presumption should be that court orders are respected in Parliament; and that when a member does not comply with one he or she can demonstrate that is in the public interest or enables the parliamentarian to discharge his or her parliamentary duties (such as representing constituents).

Compliance with injunctions in Parliament

220. Given our concern about the scope for parliamentarians to set court orders at nought, with no redress or right of appeal possible, we have considered whether either or both Houses should make arrangements themselves for preventing reference to material subject to injunctions.

221. Previous parliamentary inquiries have considered this matter. In 1996 the Procedure Committee of the House of Commons thought that if breaches of court orders represented a serious challenge to the due process of law there should be a further limitation on the rights of free speech enjoyed by members, whatever the practical difficulties. However, it was not necessary to take action as a result of one specific case, given the importance the House attaches to protecting the right of Parliament to freedom of speech.[221] The committee said that if there were a number of instances of such breaches the House would be advised to adopt a resolution prohibiting it.[222] The Joint Committee on Parliamentary Privilege in 1999 took a similar view.[223]

222. The question of whether to institute a new parliamentary rule arose during our inquiry. It would be possible for each House to pass a self-denying ordinance, on the pattern of the resolutions on matters sub judice. The rule could subsequently be modified in the light of experience or waived on occasion, though only where the Speaker judged it necessary. It would be for each House through its own self-regulating processes to take any necessary disciplinary action where a member chose deliberately to break the rule.[224]

223. The advantage of a new resolution, or an adaptation of the sub judice rule such that it covers material subject to injunctions, is that it would be in keeping with Parliament's approach to other matters within the domain of the courts. It would allow for exemptions, and the power of waiver would not impede members' ability to raise issues when it is genuinely in the public interest to do so.[225]

224. Some witnesses cautioned against any new resolution going wider than cases involving the misuse of private information, citing examples of when Parliament has taken an interest in confidentiality clauses drawn up when an employee leaves an organisation. It was also suggested that a new resolution should only seek to protect interim injunctions, as a resolution of wider scope would be seen as protecting the outcome of court proceedings, not as safeguarding the judicial process.[226]

225. In addition, if the Speakers were granted a power of waiver (as they are in the sub judice resolutions), they would potentially be put in an invidious position when approached with an application to exercise that power. Presumably in most instances the application would advance reasons why it would be in the public interest to allow the waiver. However, the public interest in allowing freedom of expression to be exercised in relation to the injuncted material would have been considered by the judge; and in order for the judge to have granted the injunction he or she would have determined that the right to privacy in that case outweighed the public interest in revealing the information. The Speaker, therefore, would in effect be substituting his or her interpretation of the public interest for that of the judge—in most cases with fewer facts to hand than the judge and no ability to test the evidence.

226. That said, at present the individual member in revealing injuncted information in effect substitutes his or her interpretation of the public interest for that of the judge. Giving that task to the Speaker allows for a more objective view; more so if the suggestion that the Speaker consult two or so senior members before reaching his or her decision is followed.[227] In addition, the Speaker of the House of Commons in particular is used to exercising judgment in sensitive situations. The Speakers' powers of waiver in the sub judice resolutions do not appear to have caused difficulties with the courts.

227. The practicality of enforcing any new rule would be an issue. It would only take a moment for a member to reveal a name and so negate the order; often the Speaker would not be able to anticipate it.[228] There could also be particular difficulties in implementing any new resolution in the self-regulating House of Lords, where the Lord Speaker has no power to rule on matters of order.[229] However, it would not be necessary for the two Houses to have equivalent procedures on this matter.[230]

228. For any new resolution to work, it is important that the parliamentary authorities are aware of injunctions. One of the issues with the Trafigura injunction was that the House of Commons Table Office was unable to ascertain whether the case was sub judice because no details were held on it either by the Table Office or by Her Majesty's Court Service (as it then was), whose internal database simply recorded the applicants as RJW and SJW. The Master of the Rolls' committee therefore discussed the creation of a secure database maintained by Her Majesty's Courts and Tribunals Service (HMCTS) which would contain details of all relevant anonymised injunctions and super-injunctions, and which would be searchable by party name. The parliamentary authorities could approach HMCTS to enquire about a case. Discussions are under way about creating such a system.[231]

229. Regardless of whether there is a new rule thought should be given to alternative ways that members can raise concerns about open justice and injunctions without having to discuss them on the floor of the House. At present the only way members can be certain that they will not be pursued for contempt of court if they discuss information subject to an injunction is to raise it during parliamentary proceedings, which are almost always held in public and recorded. An alternative approach would be for the member to raise it with a select committee, sitting in private.[232]

230. We regard freedom of speech in Parliament as a fundamental constitutional principle. Over the last couple of years a few members have revealed in Parliament information covered by injunctions. We have considered carefully proposals for each House to instigate procedures to prevent members from revealing information subject to privacy injunctions. The threshold for restricting what members can say during parliamentary proceedings should be high. We do not believe that the threshold has yet been crossed.

231. If the revelation of injuncted information becomes more commonplace, if injunctions are being breached gratuitously, or if there is evidence that parliamentarians are routinely being "fed" injuncted material with the intention of it being revealed in Parliament, then we recommend that the Procedure Committees in each House should examine the proposals made to us for new restrictions with a view to implementing them.

Media reporting of parliamentary proceedings

232. The freedom of the press to report what is said in Parliament is an essential link in the chain between those who make law and those affected by it.[233] Parliamentary freedom of speech would be of little value if what is said in Parliament could not be freely communicated outside Parliament. However, the freedom of the media to report parliamentary proceedings is not part of the privilege of Parliament, but derives from the common law and statute.

233. The Parliamentary Papers Act 1840 gives absolute privilege to Hansard and any document ordered to be printed by either House of Parliament. It gives qualified privilege to extracts or abstracts from Hansard or other parliamentary papers. Such extracts or abstracts will be protected if they are published bona fide and without malice. The Master of the Rolls' committee concluded—

"Qualified privilege arises where such a summary is published in good faith and without malice. There is no judicial decision as to whether a summary of material published in Hansard which intentionally had the effect of frustrating a court order would be in good faith and without malice.

Where media reporting of Parliamentary proceedings does not simply reprint copies of Hansard or amount to summaries of Hansard or parliamentary proceedings they may well not attract qualified privilege.

Where media reporting of Parliamentary proceedings does not attract qualified privilege, it is unclear whether it would be protected at common law from contempt proceedings if it breached a court order. There is such protection in defamation proceedings for honest, fair and accurate reporting of Parliamentary proceedings. There is no reported case which decides whether the common law protection from contempt applies. There is an argument that the common law should adopt the same position in respect of reports of Parliamentary proceedings as it does in respect of reports of court proceedings."[234]

234. Perhaps in view of these uncertainties the Government in their announcement about the draft parliamentary privilege bill and green paper said that the green paper will discuss "whether there should be changes to the law on reporting of parliamentary proceedings in the media."[235]

235. There is qualified privilege in defamation for a "fair and accurate report" of parliamentary proceedings.[236] There is no requirement to demonstrate that the report is bona fide. The Attorney General has stated that it is "an open question as to whether something said in Parliament in breach of a court order may be repeated in the press."[237] The question becomes particularly pertinent if the media report parliamentary proceedings knowing them to breach a court order.[238]

236. This can mean uncertainty for the media in what they may report. Broadcasters had to think carefully before broadcasting John Hemming MP's naming of Ryan Giggs in May 2011.[239] There was also uncertainty at the time about whether the Guardian would be in contempt of court for revealing the existence of the Trafigura super-injunction. There was support for the law being clarified.[240]

237. We received evidence cautioning against granting absolute immunity for all reports of parliamentary proceedings that are fair and accurate.[241] In particular, there is the possibility of the media passing private information covered by a court injunction to members, encouraging them to use the information in parliamentary proceedings, and then reporting on those proceedings in the knowledge that no legal consequences can follow. Anecdote suggests that may already have happened;[242] the temptation for it to become more common would surely be greater if the requirement to act in good faith was absent.

238. The 1840 Act was drafted so as to apply to reporting of parliamentary proceedings as they existed at that time.[243] That often consisted of (lengthy) abstracts from Hansard. It does not expressly apply to the more modern approach of reporting what occurs in Parliament rather than quoting from it.

239. Unless they are publishing an extract or abstract of Hansard, the media in reporting the revelation of injuncted information would have to rely on the protection of the common law. There is limited common law protection for the media in defamation proceedings,[244] but there is no authority as to whether there is common law protection against proceedings for contempt of court in respect of a fair and accurate report of parliamentary proceedings.[245]

240. This situation might be considered unsatisfactory in light of the fact that within three hours of the making of a speech on the floor of the House of Commons the Hansard text is available on line and there is live coverage on line of floor and committee proceedings. The law does not reflect the reality of modern communications.[246]

241. The free and fair reporting of proceedings in Parliament is a cornerstone of our democracy. The publication of fair extracts of reports of proceedings in Parliament made without malice is protected by the Parliamentary Papers Act 1840. This cannot be fettered by court order. However, there has been a degree of confusion that causes us the very gravest concern that this freedom is being undermined. The media must know whether or not they are liable to proceedings for contempt in reporting parliamentary proceedings. We therefore recommend that qualified privilege should apply to media reports of parliamentary proceedings in the same way as to abstracts and extracts from Hansard. If legislation is introduced the opportunity should be taken to update the 1840 Act in a clear and comprehensible way.

208 HC Deb, 23 May 2011, col 638. Back

209 For more details see Culture, Media and Sport Committee, 2^nd Report (2009-10): Press standards, privacy and libel (HC 362-I), paras 94 to 102. Back

210 HC Deb, 10 March 2011, col 1069. Using the terminology of the Master of the Rolls' committee's report, it was an anonymised injunction rather than a super-injunction. Back

211 HC Deb, 26 April 2011, col 58. Back

212 HL Deb, 19 May 2011, col 1490. Back

213 Q 997. Back

214 Q 955. Back

215 Clerk of the House of Commons written evidence; Master of the Rolls, Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice, p vii; Joint Committee on Parliamentary Privilege, Report (1998-99, HL Paper 43-I, HC 214-I), para 204; Judiciary of England and Wales, Statement of the Lord Chief Justice, 20 October 2009. Back

216 Q 19. Grabiner and Hughes, Mosley and the Law Society referred to the effect on the rule of law if those who are legislators disregard the law as it applies outside Parliament. Back

217 Grabiner and Hughes; Mosley; Schillings; Berrymans Lace Mawer LLP. Back

218 To assist each House's authorities (principally the Table Offices) in easily identifying cases which are sub judice a list of cases which may be referred to in parliamentary proceedings is drawn up. Back

219 See, for example, the evidence of the Clerk of the House of Commons and the Clerk of the Parliaments (Q 988), and Tomlinson. Back