Freedom of speech in Parliament is a key element of parliamentary privilege, and is enshrined in law by article 9 of the Bill of Rights of 1689.
It means MPs and Members of the House of Lords have immunity from being found in contempt of court for what they say or do during proceedings in Parliament, unless it falls outside the scope of parliamentary privilege.
But Parliament has rightly imposed constraints on what can be said in Parliament about proceedings which are active in the courts so as to avoid prejudicing those proceedings. A Resolution incorporating the sub judice rule was therefore issued by the House of Lords on 11th May 2000 which provided that live court cases should not be referred to in any debate, motion or question, subject to the Lord Speaker’s discretion where there was an issue of national importance such as the economy, public order or the essential services. In addition, the sub judice rule does not apply to parliamentary proceedings concerning Bills or delegated legislation.
The risk of prejudice to court proceedings is especially evident if the courts have issued an injunction preventing the name of a person to be disclosed. As Lord Burnett said when he was Lord Chief Justice, decisions to grant anonymity are taken after full argument and the consideration of much evidence, and strike balances taking account of competing interests (‘Parliamentary Privilege – Liberty and Due Limitation’, 9th April 2019, page 16).
If the anonymised person’s name is disclosed in Parliament, then the point of the injunction is immediately lost. In the words of the Joint Committee on Privacy and Injunctions, the parliamentarian has in effect placed themselves in the shoes of the judge, and effectively overruled the decision to grant anonymity (‘Privacy and Injunctions’, 27th March 2012, HL Paper 273 of Session 2010-12, page 48).
Notwithstanding the sub judice Resolution, and the risks of prejudice to litigation described above, parliamentarians have occasionally used parliamentary privilege to circumvent court anonymity orders.
The European Court of Human Rights has recently considered whether this amounts to a breach of articles 6 (fair trial) or 8 (right to privacy). In the ECHR case of Green v the United Kingdom (Application no. 22077/19), the Court of Appeal had granted an interim injunction on the basis that disclosure of the applicant’s identity would cause “immediate, substantial and possibly irreversible harm”. But the applicant’s identity was disclosed in the House of Lords on 25th October 2018 in circumstances which were unrelated to the then business of the House.
The Strasbourg Court decided that to find a breach would mean the Court having oversight of free speech in Parliament and having to adjudicate on future similar disputes. It was therefore for Parliament, not the Court, to assess the extent of controls necessary to prevent parliamentarians usurping the role of judges by circumventing anonymity injunctions but the Court stated that “that the need for appropriate controls must be kept under regular review at the domestic level.”
Given that this issue concerns the appropriate balance between the constitutional roles of Parliament and the courts, the Strasbourg Court was right not to interfere. There have also been several reviews by Parliament of its internal rules on the use of parliamentary privilege to breach court orders. To date, the conclusion has been that was not necessary to tighten the controls unless the frequency of such cases were to increase.
But because of the serious impact that disclosures in breach of court orders could have on privacy, the rule of law and the separation of powers, and the fact that the person whose anonymity has been breached will normally have no redress in the courts, the need for regular reviews by Parliament of the extent of controls necessary seems entirely right.
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