Parliamentary privilege – the need for balances and controls

In Green v. the United Kingdom (Application no. 22077/19), the European Court of Human Rights (ECtHR) considered whether the UK’s protection of parliamentary privilege violated the rights of Sir Philip Green, a prominent businessman, under the European Convention on Human Rights (ECHR).  

The ECtHR ultimately dismissed the complaints on the basis that parliamentary privilege should be left to states to regulate. However, it noted the implications for the rule of law and separation of powers of parliamentarians making statements that undermine court proceedings, and urged the UK to regularly review its system to ensure appropriate controls are in place.

Background

The case arose out of a high-profile legal dispute between Sir Philip, Arcadia and Topshop against The Telegraph, regarding breach of confidence. The newspaper had sought to publish allegations of sexual harassment, racial abuse and bullying made by former employees. In response, Sir Philip and the companies obtained interim injunctions and anonymity orders from the Court of Appeal to prevent publication of the allegations pending a full trial.

Following the grant of these protections, Lord Hain publicly named Sir Philip in association with these allegations during a House of Lords parliamentary debate (in a statement made after an unrelated debate). He justified his disclosure by invoking parliamentary privilege, stating that he felt it was his duty to act in the public interest, particularly given the media’s inability to report the story due to the injunction. Although the injunction remained in place in respect of the detailed allegations, the anonymity orders were rendered ineffective by Lord Hain’s statement, which was widely reported in the press. Following this disclosure, Sir Philip and his companies withdrew their claim against The Telegraph, citing the loss of confidentiality as a key reason.

Parliamentary privilege in the UK is protected by Article 9 of the Bill of Rights 1689. This constitutional principle ensures that Parliament can regulate its own affairs without judicial interference. While the scope of this privilege is a matter for the courts, they cannot challenge what is said during parliamentary debates or otherwise interfere with proceedings in Parliament. Sir Philip's complaints to the House of Lords Commissioner for Standards, including allegations that Lord Hain had abused this privilege, were unsuccessful.

ECtHR proceedings

Sir Philip then brought his case to the ECtHR, alleging violations of Articles 6, 8 and 13 of the ECHR. Under Article 6 (right to a fair trial), he argued that Lord Hain’s disclosure had rendered his legal proceedings against The Telegraph futile, effectively denying him a fair trial and interfering with his right of access to court. Under Article 8 (right to respect for private life), he claimed that the public identification caused serious reputational harm and constituted an unjustified interference with his privacy. Finally, under Article 13 (right to an effective remedy), he contended that he was left without any effective legal remedy for his complaints since he was unable to bring a claim against Lord Hain and the Government had failed to implement effective controls on the use of parliamentary privilege.

The ECtHR acknowledged the significant impact of the disclosure on Sir Philip but ultimately found no violation of the articles complained of. It emphasised that parliamentary privilege is a fundamental feature of democratic systems and that national parliaments are best placed to regulate their members’ conduct. The ECtHR conducted a comparative analysis of how other states approach parliamentary privilege and concluded that the UK’s framework, which provides absolute protection for statements made in Parliament, fell within its margin of appreciation.

While the ECtHR did not require the UK to introduce additional controls around parliamentary privilege, it encouraged regular domestic review of such controls, particularly in light of the potential harm caused by disclosures of private information. It also referred to the implications for the rule of law and the separation of powers of parliamentarians usurping the role of judges who have considered it necessary to grant an injunction as a further reason to ensure there are appropriate controls in place.

Notably, two judges of the ECtHR issued a partly dissenting opinion. They argued that the majority had failed to fully consider the impact of Lord Hain’s statement on Sir Philip's access to a fair trial, particularly in the context where the statement had been made before any substantive hearing and had the effect of undermining the existing legal protections, describing this as "a strong and concrete impact on the already final judicial decision on interim measures and on the proceedings which were underway". They also contended that Lord Hain should have been viewed as a public authority rather than a private person for the purposes of Article 8, thereby engaging the State’s negative obligation not to interfere with private life.

Comment

Although this judgment found in favour of the UK, it signals that even where there are important constitutional principles in issue the ECtHR will carefully balance those principles against individuals' rights. The latitude given to Member States is not unfettered, and the ECtHR reaffirmed the need for states to take practical steps and keep their systems under regular review to ensure respect for the rule of law.