The European Court of Human Rights (ECHR) has ruled that Sir Philip Green’s Convention rights were not breached when he was named in Parliament as having obtained an interim injunction against the Telegraph Media Group.

The judgment is noteworthy as it considers the history and use of parliamentary privilege, as well as the sufficiency of controls to guard against its potential abuse. Ultimately, the Court found against Green, concluding that it should defer to the Parliament on questions of whether to impose controls on the exercise of parliamentary privilege (and, by extension, the freedom of speech of parliamentarians), but advised that the matter be kept under review, such are the potentially serious consequences should it be abused.

The background

The case’s origins date back to 2018, when Green sought an injunction against the Telegraph to prevent publication of material in a story about him that concerned allegations of serious allegations of sexual harassment and bullying made by former employees. When the matter came before the Court of Appeal, it granted an interim injunction and anonymity orders preventing the publication of certain material, including the identification of Green, pending an expedited trial.

The Telegraph subsequently published a story about a powerful businessman using non-disclosure agreements and who had been accused of sexual harassment, racist abuse, and bullying, but did not name Green.

Shortly thereafter, Lord Hain addressed the House of Lords and named Green as being the subject of the article, saying that he felt it was his duty under parliamentary privilege to do so “given the media have been subject to an injunction preventing publication of the full details of a story which is clearly in the public interest”.

As a result of being named by Lord Hain, Green discontinued his claim against the Telegraph on the basis that there was “insufficient confidentiality left in the information concerned in this case… to justify the risk, and the staff time and disruption, involved in pursuing it”. He also lodged a complaint against Lord Hain with the House of Lords’ Commissioner for Standards, but she concluded that she could not investigate it since parliamentary privilege and the sub judice rule – which prevents MPs or Lords from referring to a current or impending court case – did not fall under her remit as they were not included within the House of Lords’ Code of Conduct.

Green therefore took the case to Strasbourg, arguing before the ECHR that: (a) his reputation under Article 8 was harmed as a direct result of parliamentary privilege allowing the disclosure in Parliament of information subject to an injunction; (b) his right to a fair trial under Article 6 was violated not only because Lord Hain’s statement rendered his claim against the Telegraph futile, but also because he could not bring proceedings against Lord Hain directly; and (c) under Article 13, he had no effective remedy to bring his claims under Articles 6 and 8 because he could not bring a claim against Lord Hain and because the Government had failed to implement effective controls on parliamentary speech.

The ECHR

As the court makes clear in its judgment, Green was not seeking to challenge parliamentary privilege itself, but rather the absence of sufficient ex ante and ex post controls to prevent its misuse by parliamentarians giving rise to the violation of Convention rights. Equally, he wasn’t asking the ECHR to impose any such controls on Parliament, but merely to declare that they were necessary and to leave Parliament to design and implement them.

For its part, the Government argued that the implementation of such controls would render the freedom of speech in Parliament subject to the control of the courts, thereby fundamentally altering the constitutional structure and separation of powers.

In the Court’s view, whilst Lord Hain’s naming of Green “had the sole purpose of overriding” the injunction ordered by the Court of Appeal – with serious consequences for Green – it was not prepared to intervene so as to potentially disrupt “the well-established constitutional principle of the autonomy of Parliament”.

As the Court noted, Parliament has at various times reflected on whether to review and codify the rules on parliamentary privilege, but ultimately concluded not to do so. Against that background, the Court was prepared to accept that Parliament is “aware of the problem of parliamentary privilege being used to frustrate injunctions” and that it should be left to Parliament – not the ECHR – to determine whether to introduce any controls in order to prevent parliamentarians from breaching privacy injunctions.

However, the Court did add that appropriate controls over the exercise of parliamentary privilege must be kept under regular review “given the serious impact that the disclosure of such information may have on the privacy of the individual concerned, not to mention the implications for the rule of law and the separation of powers within the United Kingdom constitution of parliamentarians usurping the role of judges, who have considered it necessary, after viewing the evidence before them, to grant an injunction”.

Since Green’s Article 6 and 8 claims rested on an argument that Parliament’s controls on parliamentary privilege were ineffective, both claims failed. As for his claim under Article 13 that he had no effective remedy in respect of his complaints since he could not bring a claim against Lord Hain directly, the Court pointed out that Article 13 does “not go so far as to guarantee a remedy allowing a Contracting State’s primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention”. Furthermore, it held that the claim was manifestly ill-founded as it related to the immunity conferred by Article 9 of the Bill of Rights 1689 which 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.”

To read the judgment in full, click here.