Parliamentary Supremacy, Privilege and the Hyper Injunction, Part 1

by Gildas the Monk on March 28, 2011

Recently our learned editor posted on the serious matter of the use, or rather misuse, of the Super Injunction and the Hyper Injunction:

To be clear, “Super Injunction” refers to an order of the High Court to the effect not only that the details of litigation may not be revealed, but that it may not be publicly revealed that the proceedings have been issued or an injunction made. Its justification is said to be that in some circumstances the dissemination of the knowledge of the fact that the injunction has been made would undermine the protection afforded by the injunction itself.

In a typical example, for example, if it is reported that married Footballer A has obtained some form of injunction against glamour model Miss T, even if the precise terms of the injunction are not made known, it may be pretty clear what has been going on and what it is Footballer A wants to prevent getting out into the press.

The notion of such an injunction should ring immediate alarm bells in the heart of any decent lawyer or constitutionalist, and a brief cross reference of those where the existence of the injunction has been for various reasons revealed (it’s a leaky old place, the internet) suggests they are the particular plaything of the rich and ruthless.

The “hyper injunction” goes even further. The hyper injunction specifically purports to prevent the subject of it discussing his case not just with journalists or lawyers other than the subject’s own legal team, but with Members of Parliament:

But is an order of the Court which bars a citizen from speaking to his MP even lawful?

In my opinion, such an order is of highly questionable legality and a court should not make an order in those terms. To do so seriously violates the role of the MP and the Parliamentary Privileges which go with that function.

To give a proper analysis of why in my opinion this is so one need to understand the constitutional status role of Parliament and its relationship with the courts – the principle of “comity” or, in simple terms, where the line of authority between each is drawn. In order to do that, one needs a little context. In this article I hope to give the background against which the issue has to be determined.

There is a certain story about Lord Denning, whom I had the privilege to meet briefly, a long time ago. The story goes that he had very few law books in his study, but a great number of history books. When he was asked why, his answer was to the effect that you cannot understand the law without understanding Britain’s history first. He was completely and absolutely correct, and in my opinion it is a distinct failing of many of our political and indeed legal establishment that they have no such knowledge.

It is France or America which are often held up as the poster boys or girls of Revolutions. But whilst theirs may have been the most glamorous of revolutions, they were not the first, nor possibly the most shocking. The stolid, deferent, long suffering English have a surprisingly radical and violent history and got in first.

The ultimate crucible which forged the basis of Parliamentary Democracy as we know it today was the 17th Century; the Civil Wars (strictly there were at least two) and the Glorious Revolution of 1668. A full century before our French and American cousins, Britain was the real hotbed of radical politics.

Time and space forbid, but broadly the 17th Century saw the final clash of the ideology of Absolutism and the Divine Right of Kings (linked at the time to Catholicism) on the one hand; and Protestantism and the right of those who are taxed to free and proper representation in Parliament on the other.

Charles I sought to uphold and enforce the latter by force, and the ultimate result was that he was impeached before a grand committee of Parliament, tried and beheaded. As far as I am aware it was the first revolutionary act of Regicide in European history. That is, it is important to understand this was not a coup in which one monarch was killed in battle or murdered and replaced by a rival candidate for the throne, but a genuine revolution in which the people – or a section of the people – said: we shall have no king at all. Later in the Century James II would have gone the same way had he not fled into exile in what became known as the Glorious Revolution of 1688, to be replaced by a foreign King and Queen more sensitive to the rights and privileges of Parliament and the mainly Protestant views of those who sat there.

These events form the backdrop of the constitutional status and rights of Parliament.

As every law student knows, it is not true to say that Britain does not have a written constitution. Rather it has a constitution that is partly written, partly established by custom and precedent, and partly by pure political pragmatism, capable of moving with the times. It contains ambiguities and apparent contradictions, and deliberately so. It thus reflects a subtle blend of the revolutionary and the conservative.

To write on the constitution demands more time and space than a blog allows. But the crux of the position can be summarised as follows.

First, Parliament is sovereign. By this is meant that the duly constituted Parliament of both Houses supplemented by the presence and authority of the Crown is the supreme legal authority. The presence of the Crown is recognised as symbolic, and real power is vested by various mechanisms and conventions in the Commons. Parliamentary sovereignty is the bed rock of the constitution. It is the fact of this sovereignty which gives rises to real problems with Britain’s relationship with Europe, because on a strict view it cannot be eroded and given away. That is for another day, perhaps.

Central to Parliament’s function are the amorphous bundle of rights and immunities which attach to the office of Member and the functioning of the Palace of Westminster known as “Parliamentary Privileges”.

These are the immunities which Parliament deemed necessary for the protection of its members and itself in the struggle for constitutional ascendancy which I have referred to above and which probably form the bedrock of any working democracy.

The great Bible of constitutional law, Erskine May, defines the concept of Parliamentary Privilege is as follows:

“The sum of the peculiar rights enjoyed by each House collectively as a consultant part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. This privilege, though part of the law of the land, is to a certain extent and exemption from the general law.”

Now stop there, and read it again. Notice anything odd about that? I am sure all sharp eyed Racoonistas will have picked up the point. The most important phrase is “The High Court of Parliament,” words which my brilliant Constitutional Law tutor years ago gently slipped into my subconscious.

For as an aspect of its Sovereignty, properly understood, Parliament is also the highest court in the land. In day to day legal terms this was reflected by the delegation of the hearing of day to day matters of law to its judicial committee in the House of Lords. Hence the time honoured phrase “an appeal to the House of Lords.”

Those with an eye on matters legal may have noted that the “House of Lords” has recently been reconstituted as “the Supreme Court”. Leaving aside the fact that this was an excuse for a junket and unnecessarily spending millions on a plush building, I cannot help but feel that this was an attempt to detract from that position, out of ignorance or deliberate spite.

However, should Parliament wish to constitute itself as a court and sit as such it has the right, and the absolute right, to do this as an aspect of its Sovereign status. In my opinion, it has the power to call before it any citizen and try them for any offence, including an offence against the State, and that includes if necessary the Monarch. The process is known as impeachment, and that is exactly what happened to Charles I. But I digress.

The key Parliamentary immunities and privileges are as follows:

  • Freedom of speech.
  • Freedom from arrest
  • Exclusive cognisance
  • The power of contempts

I propose to elaborate briefly upon each these. Remember, each was forged in the revolutionary hotbed of the 17th Century in which the very existence of Parliament as recognised today was under threat, with from time to time the King’s (and Cromwell’s)  troops forcibly interrupting proceedings with various degrees of success.

Freedom of speech within the Palace of Westminster is reflected by and established in the Bill of Rights drafted in 1688, and accepted by William of Orange in 1689.  Specifically, Article IX  of the Bill of Rights provides:

“Freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”

This is absolute and unconditional. There are issues about what constitutes “proceedings within Parliament.”  For example, if a Member writes a letter which contains or refers to a defamatory remark and posts it in his “out tray”, will the privilege apply when and  where it is received? Most of this is piffle. The key point is a member may not be impugned for what he says in debate in the Chamber or in any of the Houses’ committees.

Freedom from arrest is understood to mean freedom from arrest on the grounds of civil, not the criminal law. For example, no MP would be immune from freedom from arrest in respect of an allegation of murder or theft, but it would prevent a member from being harassed by old civil laws (now mostly abolished) which could give rise to being arrested. Most importantly, however, the immunity clearly extends to protect from arbitrary arrest and detention at the hands of the State – a critical issue in the conflict between Charles I and Parliament.

Exclusive cognisance is simply the right for Parliament to be free from interference with its own procedures and processes. For example, the Courts may not inquire into and “judicially review” its decision as they may with a Minister of the Crown.

And finally there is the power of contempts. This is an often forgotten but important power. It is the power to exercise a penal jurisdiction in contempt against anyone who improperly interferes with its actions. Erskine May’s definition is this:

“Any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or  officer in the discharge of his duty, or which has a tendency, directly or indirectly, produces such result”

It is fair to point out that this power has not been exercised regularly since the 19th Century and in 1977 the House of Commons resolved that the jurisdiction should be used as sparingly as possible and only when the House of Commons is satisfied that it is essential to act to provide reasonable protection from improper obstruction causing or likely to cause interference with its functions.  Modern Parliaments have preferred to take a more relaxed view of threats to their authority, but in my opinion the power unquestionably exists. A report of the Committee on Parliamentary Privileges in 1967 recommended that it be confirmed by statute. According to custom, the House may commit an offender to  prison for the remainder of the term of the Parliament.

Of this more later, but before dealing with the specific issues of the super and hyper injunction, let me try to bring this abstract analysis back to back to modern and specific events try to illustrate how there is a complicated relationship with the courts – which is the core of the problem in respect of the hyper injunction.

We have recently seen for example how certain MP’s have, for want of a better word, fiddled their expenses. Some of these involved invoked Parliamentary privilege and argued that it was exclusively matter for Parliament to decide if there had been wrong doing.

So, the question is: who decides if that is constitutionally right or wrong? The answer is that Parliament, almost invariably as part of this subtle constitutional mix, cedes that decision to the Courts. Who decided, quite rightly, that the MP’s were not protected by Parliamentary Privilege because it was a purely criminal matter.

But take a different example. In November 2008 police entered the precinct of the Palace of Westminster. Their reason was that they had received complaints from the Cabinet Office about leaks of government information on the issue of immigration. Leaks which had been taken up and used by then shadow immigration minister, Damien Green MP. Police invaded his office, searched it, and arrested him on suspicion of the crime of “conspiring to commit misfeasance in a public office”.

Legal? No. In my opinion, a spectacular contempt of Parliament. This was a put up job, clothing a fishing expedition in the MP’s private office with the veneer of a bogus criminal investigation.

At the time the police gained access to the House the Serjeant at Arms, responsible for the security of the House, was the perhaps appropriately named Jill Pay, a former civil servant and general non entity. Pay, presumably being intimidated by Inspector Knacker and ignorant of her role or the constitution, supinely allowed the forces of “the law” entry. And the ultimate apparatchik, former speaker “Gorbals Mick” Martin took no action either.

The default setting of the Serjeant at Arms in the face of such patently questionable  intrusion into the affairs of a Member of Parliament should be that the agents of the State may not enter the Palace of Westminster and interfere with the activities of a member at the very least without a warrant from a Court, and possibly not without permission from the House in any event. Pay’s proper constitutional response was clear. She should politely but firmly insisted that the police leave at once and referred the matter to the Speaker, who in turn should have dealt with it or referred to the House. And frankly, if the police attempted forced entry, her duty was to physically resist by whatever means available.

Of course Green was guilty of no such offence. He was harassed because a mole was proving distinctly inconvenient to the Government of the day. Green was harassed by the agents of the State because he knew stuff they didn’t want him to know. It is exactly what  he should be protected from by Parliamentary privilege.

Consequences? Green was exonerated and various persons including the Cabinet office supremo criticised. There was a resolution that police should not be allowed to enter Parliament without at least a warrant. And there the matter lay.

The correct response in my opinion would have been for the House to convene a  Committee on Privileges and have brought before it those agents of the State who invaded the Palace of Westminster and charged them with contempt of the High Court of Parliament.  But in the fag end days of the last government the matter was left to drift.

Having set out the scene at some length, next: comity, and the dividing line between the Courts and Parliament.

To be continued.

©Gildas the Monk


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