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.
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.
In March 2011 John Hemming MP revealed that Fred Goodwin had obtained
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
May 2011 further details about Fred Goodwin's injunction were
revealed in the House of Lords by Lord Stoneham of Droxford.
212. The revelation of material subject to an
injunction is not a daily occurrence in Parliament; it is in fact
quite rare. There
is however a possibility that it may happen more often in future,
especially if the media orchestrates action against injunctions.
Freedom of speech in Parliament
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
It follows that it is not a contempt of court for a parliamentarian
to reveal in parliamentary proceedings information subject to
215. Whilst it may be legal for parliamentarians
to reveal information in this way, some witnesses suggested it
was not appropriate to do so.
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.
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
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.
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.
However, determining what is in the public interest leaves room
for individual judgment, and there may be disagreement on the
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.
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
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. 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. The Joint
Committee on Parliamentary Privilege in 1999 took a similar view.
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.
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.
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.
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 judgein
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.
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.
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.
However, it would not be necessary for the two Houses to have
equivalent procedures on this matter.
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.
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
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
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
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.
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'
"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
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. 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. There is qualified privilege in defamation
for a "fair and accurate report" of parliamentary proceedings.
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."
The question becomes particularly pertinent if the media report
parliamentary proceedings knowing them to breach a court order.
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. 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
237. We received evidence cautioning against
granting absolute immunity for all reports of parliamentary proceedings
that are fair and accurate.
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
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. 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,
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.
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.
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
For more details see Culture, Media and Sport Committee, 2nd
Report (2009-10): Press standards, privacy and libel (HC
362-I), paras 94 to 102. Back
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
HC Deb, 26 April 2011, col 58. Back
HL Deb, 19 May 2011, col 1490. Back
Q 997. Back
Q 955. Back
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
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
Grabiner and Hughes; Mosley; Schillings; Berrymans Lace Mawer
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
See, for example, the evidence of the Clerk of the House of Commons
and the Clerk of the Parliaments (Q 988), and Tomlinson. Back
Q 945. Back
Select Committee on Procedure, 2nd Report (1995-96,
HC 252), para 16. Back
Ibid. A draft resolution
was in the annex to the committee's report. Back
Op. cit., para 210. Back
Clerk of the House of Commons. Sir William McKay, a former Clerk
of the Commons, suggested a similar approach, as did Tomlinson,
Lawyers for Media Standards and Professor Anthony Bradley QC. Back
As an analogy, the sub judice rules in each House do not
apply to proceedings on bills, Church of England measures or delegated
legislation; and the Speaker in each House exercises a general
power of waiver and a power of waiver in cases where, in the opinion
of the Speaker, "a case concerns issues of national importance
such as the economy, public order or the essential services". Back
Howarth. The sub judice rule is intended to protect the
process of cases, not their outcomes. Back
QQ 959 and 1018. Sir William McKay referred to the Parliament
Act 1911, which requires the Speaker to consult two members of
the Chairman's Panel, if appropriate, before designating a bill
as a money bill. Back
Q 1000; Howarth. Back
Clerk of the Parliaments. Back
QQ 1003 and 1004. Back
Q 992. Back
As an analogy, the Intelligence and Security Committee examines
the policy, administration and expenditure of the Security Service
(MI 5), the Secret Intelligence Service (MI 6), and the Government
Communications Headquarters (GCHQ). It has access to highly classified
material and normally meets in private. It is composed of parliamentarians
but is not a committee of either House. Back
McKay, para 3. Back
Op. cit., page vii. Back
HC Deb, 19 December 2011, 144-5WS. Back
Paragraph 1 of Schedule 1 to the Defamation Act 1996. Back
Speech to City University school of journalism, 1 December 2011. Back
Legal advice given to the House of Commons Committee of Privileges
in 1978 by Mr Harry Woolf (now Lord Woolf) suggested that "it
was probable that a court would come to the conclusion that if
an extract from Hansard were to be used with the deliberate intention
of frustrating the arrangements which the court had made to preserve
a person's anonymity this was not a publication which was bona
fide and without malice, for the purposes of section 3 of
the Parliamentary Papers Act 1840." (HC 667 of session 1977-78,
page xi.) Back
Q 294; BSkyB. Back
Guardian News Media Ltd; Newspaper Society. Back
Q 1008. Back
Clerk of the Parliaments para 8. Back
Though section 3 has since been widened so as to allow equivalent
protection for radio and television broadcasts. Back
Established in Wason v Walter (1868) 4 QB 73. Back
Master of the Rolls' committee's report, op. cit., para
6.28. The Joint Committee on Parliamentary Privilege thought it
was "doubtful" such protection existed (op. cit.,
para 364); Mr Harry Woolf in his 1978 advice to the Commons Procedure
Committee thought there was no reason that the common law protection
would not extend to contempt proceedings; Lord Denning when Master
of the Rolls concluded the same, though by way of obiter. Back