Parliamentary privilege, MPs and super-injunctions

Parliament and the Courts tiptoe warily around one another. Except it seems where the Lib Dem MP John Hemming is concerned.

He is leading the parliamentary challenge to the use of "super-injunctions" and their even more awesome relatives, "hyper-injunctions".

Super-injunctions are court orders preventing the mention of a given matter, say an extra marital affair by a public figure or celebrity, and then preventing the fact that the order exists from being reported, too. Hyper-injunctions go even further and prevent discussion with MPs, journalists or lawyers.

Mr Hemming says these are an "affront to democracy". And he has used parliamentary privilege - which provides the centuries old legal guarantee of free speech in the Commons - to bring some of the injuncted issues into the public domain.

On one level, this is what Parliament is supposed to be for - but it also makes the Commons authorities very nervous. They don't want MPs intervening in active court cases or clashing with the judges every five minutes - and so there are detailed rules about what can and can't be done.

The Commons resolution on sub-judice, passed in the 1960s, bans discussion of live issues before the courts - cases "awaiting judicial decision, being heard or appealed". The Chair will cut off any discussion of such cases the moment they realise what's happening.

That applies to all kinds of Commons proceedings, debates or questions, whatever. (Incidentally, none of this prevents the Commons from legislating on a matter before the courts, should the fancy take it.)

Matters covered by super-injunctions do not seem to come under that ban. There is no live court proceeding to be interfered with if MPs comment or discuss. So mentions like John Hemming's are protected by absolute privilege as far as MPs are concerned, under Article 9 of the Bill of Rights, and by the normal "qualified privilege" as far as journalists are concerned. In other words, an accurate, timely report of what was said should be legally fireproof - although that has not yet been tested in the courts.

There has been considerable behind the scenes discussion of the activities of Mr Hemming - who has deliberately broken the terms of one super-injunction in the Commons, has complained about court orders restraining his constituents from talking to him.

The overall view is that it is not "wise" to get into specifics around individuals, and that "particular caution" should be exercised, but that the chair has no power to stop references by MPs to injuncted matters which are not before the courts. The chair can only stop an MP from speaking if they break the rules of the House by straying into comment on live court proceedings. Which may be why Mr Hemming's point of order on super-injunctions this week was twice cut off by the Speaker - who said he would discuss it in private, but not in the Chamber.

Part of the nervousness around this issue is that super-injunctions are a relatively new phenomenon, and the ramifications of MPs breaking their terms with the shield of parliamentary privilege have not been resolved by the courts. Many MPs want a new Parliamentary Privilege Bill to sort these issues out - to draw clear lines in the sand between the courts and Parliament and set out what the rules should be for the media, too. It is not a job for the Joint Committee on the Draft Defamation Bill, although it may touch on super-injunctions.

But what our parliamentarians are allowed to say, and the extent to which it can be reported, is more than just a techie issue for Westminster nerds.