Injunctions - the debate goes on

Parliamentarians have had a bumper year of injunction-breaking - raising matters on the floor of the Commons or the Lords, which the media are forbidden from publishing, and thereby providing the media with a way of publishing them.

But is the use of parliamentary protections dating back to the 1689 Bill of Rights and the 1840 Parliamentary Papers Act, to break injunctions imposed by a court, a right and proper activity for MPs and Peers? Or does it undermine the rule of law? A fair number of MPs will argue that they should have a constitutionally-protected space in which they can, if their conscience dictates, name names or state facts protected by injunction, not only so that other parliamentarians can hear them, but also so that the press can report them with all the legal protection given to reports of a parliamentary proceedings. You can also hear them argue that super-injunctions - particularly celebrity ones - have become far rarer since MPs began breaking them.

On Monday, the Joint Committee of MPs and Peers reviewing the law on privacy and injunctions turned their attention to this interesting little chink in the law. And what became clear is that there is a genuine clash between the rights or Parliament and the rights of the courts - and one which has existed since 1689. Article 9 of the Bill of Rights states that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. So, MPs speaking in the Commons or Lords in the Upper House are above the law, in that respect at least.

Should they be? The former Clerk of the Commons Sir William McKay suggested that a new set of rules were needed, requiring an MP who wanted to break an injunction to seek the consent of the Speaker in advance. The Speaker could then consult senior Commons figures, if appropriate, and give a ruling. And if anyone defied a ruling and blurted something out when they had been forbidden, they could face suspension from the House. Not everyone giving evidence thought that was a good idea. And a high powered panel of witnesses including the two high priests of Parliament, Robert Rogers, the Clerk of the Commons and David Beamish, his Lords equivalent, the Clerk of the Parliaments, spent some happy hours mulling the possible mechanisms for restraining injunction-breakers before the event or for bringing them to heel afterwards, without reaching any firm agreement.

But one very interesting point did emerge, from the Speaker's Council, Michael Carpenter. Suppose a court had ruled that some matter should be kept private, and that matter was then brought to light on the floor of either house, the aggrieved individual might not have any recourse through the British legal system, thanks to that pesky Bill of Rights - but they could well be able to seek redress against the UK via the European Court of Human Rights. The logic runs like this: the European Convention guarantees a right to privacy, a court has ruled something should be kept private, that privacy has then been set aside in a proceeding of Parliament. So the UK - not the particular parliamentarian who blew the gaff - could be dragged through the European Courts. The committee chair, John Whittingdale, pounced immediately; was Mr Carpenter saying the European Convention trumped the Bill of Rights? Er, yes, he was. We could be hearing more of this…….

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