The Supreme Court – FS Cairo (Nile Plaza) LLC v Lady Christine Brownlie
The unequivocal statement by Paula Radcliffe, Britain’s greatest marathon runner and one of its most ardent anti-doping campaigner, that she has never resorted to cheating in any form and was devastated that her name had been linked to blood doping has once again highlighted the legal immunity enjoyed by members of parliament against civil or criminal liability, known as parliamentary privilege.
During a meeting of the culture, media and sport select committee on 8 September 2015, which was looking at recent allegations published by the Sunday Times’ that a third of endurance medallists over a 10 year period had suspicious blood levels, Jesse Norman MP, chairman of the committee, asked David Kenworthy, chairman of UK Anti-Doping, the following question:
“When you hear the London marathon, potentially the winners or medallists at these London marathons, potentially British athletes, are under suspicion for very high levels of blood doping….when you think of the effect that has on young people, what are your emotions about that, how do you feel about that?”
The proceedings of the select committee were covered by parliamentary privilege. Mr Norman did not name Paula Radcliffe but Ms Radcliffe says that Mr Norman’s question effectively identified her as being under suspicion for blood doping and it was for this reason that she was forced to issue her statement the next day to seek to clear her name and reputation. As Mr Norman’s question was covered by parliamentary privilege, there was no risk of any claim for defamation being made against him. Had Mr Norman’s question been made outside the precincts of parliament, it may well have met the test of a “statement of fact” causing “serious harm to reputation” giving rise to a possible claim for defamation (subject of course to any defences that may arise). Ms Radcliffe considered that reference to “winners or medallists at the London marathon, potentially British athletes...” would have led most people with knowledge of her athletics career to believe that she was the athlete referred to. The fact that a person is not named in any defamatory statement does not prevent a claim for defamation being made. Under English defamation law, even if a person is not named, a claim for defamation may proceed if the person concerned can nevertheless be easily identified or recognised from what is said.
Mr Norman has said that his comments were taken “out of context”. He absolutely denies having had any intention to name any athlete and said that “no names were given, no allegations were made, no specific athletes were described, no test results were mentioned”.
This is not the first time that there has been controversy over statements made in parliament which, if they had been made outside parliament, may be regarded as defamatory or in breach of a court order, such as an injunction.
In 2011, Liberal Democrat MP John Hemming was described as having left “privacy laws in chaos” when he used parliamentary privilege to name Ryan Giggs as the footballer identified on Twitter as having brought an injunction to prevent publication of allegations that he had an affair with a former reality TV star.
Also in 2011, Mr Hemming faced calls for his resignation after he named and defended a woman, who was involved in confidential family court proceedings involving serious allegations, who was subsequently described as a “liar” by the Judge in charge of the proceedings.
Mr Hemming defended himself by saying that he would continue to campaign against what he sees as excessive secrecy in the Court system.
Also in 2011 (a good year for parliamentary privilege), John Hemming MP used parliamentary privilege to reveal that Sir Fred Goodwin had obtained an injunction to prevent him being identified as a banker. This led to a front page headline in The Sun the next day “What a Banker!” above the story reporting Mr Hemming’s question and therefore disclosing the information forbidden by the court order.
Most recently in October 2014, Jim Wood MP was accused of misusing parliamentary privilege after making serious accusations against Sir Leon Brittan, who was still alive at the time. Mr Wood said “by the way, the current expose of Sir Leon Brittan, the then home secretary, with accusations of improper conduct with children will not come as a surprise to striking minors of 1984”.
Whilst parliamentary privilege, which by Article 9 of the Bill of Rights 1689 guarantees that “the freedom of speech and debates of proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament”, enables parliamentarians to carry out their duties without fear of civil or criminal liability, there remain concerns that it may be used in such a way to allow members of parliament to circumvent laws which apply to the public at large. Parliament recognises the scope for abuse in the exercise of parliamentary privilege and the powerful Committee on Standards and Privileges oversees the rights and privileges of members and their conduct such that a member in breach of the rules can be suspended or even expelled from the House. However, the power appears to have been little used in recent years.
In the meantime, Paula Radcliffe has stated that Mr Norman’s “accusations” under the “cloak of parliamentary privilege” have undermined her hard earned reputation and that her linking to allegations of cheating have caused damage to her name which “can never be fully repaired, no matter how untrue”.
One of Britain’s greatest athletes now faces another searching test of her endurance.
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