Who wins when Parliament and the courts clash?


Parliamentary privilege is in the spotlight after Labour peer Lord Hain named retail tycoon Sir Philip Green as the businessman at the centre of #MeToo allegations – claims the Arcadia chairman strongly denies.

– Why is there tension between Parliament and the courts over this?

In a rare move, former Cabinet minister Lord Hain used parliamentary privilege to name the tycoon despite a court injunction preventing the Daily Telegraph identifying Sir Philip in relation to allegations against him.

– Why did Lord Hain do this?

The peer said it was his “duty” and he was exercising his right as a parliamentarian because he was concerned about the situation: “There’s no point in being in Westminster – which is the sovereign centre of the British constitution, has sovereignty and with it the parliamentary privilege that is a privilege … if you never discharge that; if you never deploy the precious rights of parliamentary privilege.”

– How was he able to do this?

Parliamentary privilege allows MPs and peers absolute freedom of speech, meaning they cannot be prevented from speaking in the House of Commons or House of Lords by the threat of libel action, or any other sanction.

– What has the reaction been?

The move has drawn a mixed response with former attorney general Dominic Grieve saying the peer’s behaviour was “clearly arrogant” and he had abused parliamentary privilege in deciding he knew better than the courts.

And prominent barrister Hugh Tomlinson QC said: “Under our constitution certain questions are dealt with by Parliament and certain questions by the courts. And Parliament can’t trespass into the area of the courts and say ‘we think the courts got it wrong’. That’s what Lord Hain is effectively doing.”

Lord Hain
Lord Hain speaking in the House of Lords (PA)

Yes. Labour MP Jess Phillips wrote in the Telegraph: “In the case of the businessman, I was flabbergasted by the judgment of the Court Of Appeal that silence has been legitimately bought – as if abuse, control and illegal working practices can be played with like Monopoly money. I am delighted that Lord Hain used parliamentary privilege to name Sir Philip Green as the businessman for all to hear. I had considered doing so myself. ”

Conservative MP James Cleverly tweeted that Lord Hain’s action had shown “people must now realise that injunctions and super-injunctions are nothing more than a good way to part with large sums of money and a bad way to keep things secret”.

– What is the legal position?

There have been long-standing calls from MPs to clarify the legal situation regarding what is said in Parliament.

A Joint Committee on Privacy and Injunctions called in 2012 for clearer legal guidance so that the media know whether reporting debates and other proceedings in Parliament could leave them open to an action for contempt of court.

– What does Sir Philip say? 

The businessman said he would not comment on what had happened in Parliament, adding that he “categorically” denied any suggestions of unlawful sexual or racist behaviour.

– What is the Government doing?

Theresa May has pledged to hasten measures to improve regulations on so-called gagging clauses.

The PM said Wednesday that some employers were using non-disclosure agreements “unethically”.

– Has something like this happened before?

In 2011 Liberal Democrat MP John Hemming revealed that banker Sir Fred Goodwin had secured an injunction protecting his identity. The same year Mr Hemming also told Parliament that footballer Ryan Giggs had obtained an injunction regarding an allegation.


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