The question of Parliamentary Privilege dates back to the 1689 Bill of Rights which was enacted after the Glorious Revolution, so why is a piece of legislation that is almost 330 years old in the news at the moment?
Essentially Parliamentary Privilege was brought in to ensure the independence of Parliament from the Crown and it allows Members of Parliament to control their own affairs but, more importantly, it gives all MP’s and members of the House of Lords freedom of speech to say things within the Houses of Parliament that they might not be able to say outside for fear of, what Parliament’s official guidelines call… being an ‘obstacle to the prosecution of criminal offences’ or ‘proceedings from civil action’.[1]
Parliamentary Privilege is in the news because former Labour Minister Baron Peter Hain used it when speaking in the House of Lords to name Sir Philp Green as the British businessman who is accused of bullying and harassment. Green has spent, according to some estimates, over £500,000 in obtaining injunctions to stop him being named in the press. Peter Hain named Sir Philip as a matter of ‘public interest’ saying that anyone applying for a job in one of Sir Peter’s businesses deserves to know the type of person they could be working for. Sir Philip Green’s business empire, known as Arcadia, includes such high street names as Topshop, Topman, Wallis, Evans, Burton, Miss Selfridge, Dorothy Perkins and Outfit. Green is one of Britain’s wealthiest men.
If Sir Philip is guilty of bullying and sexual harassment then why are people annoyed that Lord Hain has named him? The important word in that question is “if” – Green has not been charged with any criminal offence nor has any complaint been made to the Police and yet by his actions Lord Hain has allowed the press to report on the matter. Once Baron Hain had said the name the press and social media could name Sir Philip Green despite the injunction which leads to claims of a witch hunt or ‘trial by the media’ neither of which are in the public interest.
The problem is that the press and especially social media move much faster than the courts, although there is a very good reason for this. Hugh Tomlinson QC who is an expert in media and privacy law wrote in The Guardian on 26th October – “ It’s a function of the courts to decided 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.” Hugh Tomlinson states that if it is used in the way that Lord Hain used it then “… it’s a fundament threat to the rule of law. They (members of the Commons or Lords) 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.” [2]
The plot thickened considerably when it was revealed that Peter Hain is a paid advisor to the law firm Gordon Dodds LLP – this firm acted for the Daily Telegraph when Philip Green obtained an injunction against that newspaper. Both Hain and Gordon Dobbs LLP that Hain was fed information by the law firm although this may not stop Sir Philip Green from making a formal complaint about Hain’s actions. [3]
Supporters of the actions of Peter Hain include the British #MeToo movement, who are battling against sexual harassment, have expressed concerns in the past that wealthy abusers have the financial clout to use the law in ways that might not be available to their victims. Human Rights lawyer Geoffrey Robertson QC pointed out the intense speculation in the press and social media before the naming of Sir Philip Green was leading to speculation that other businessmen were the person that had been granted the injunction so that it was certainly in the public interest that Green was named.
Speaking about another unrelated matter on the BBC Radio 4 programme ‘Law in Action’ earlier in 2018 Lord Justice Leveson, Head of Criminal Justice, stated that England and Wales (Scotland and Northern Ireland have different systems) were trying to deal with law using an analogue system in a digital age. [4]. Can it be argued, therefore, that Hain acted in the ‘digital 21st-century world’ while a slow and old-fashioned legal system struggled to cope with the press and social media speculation in the traditional way? Only time will tell.
