#super-injunctions

Daniel Cowdrill 6.10am

The right of Members of Parliament to speak freely without fear of legal repercussions is enshrined in the Bill of Rights. This week a Liberal Democrat MP invoked parliamentary privilege to reveal the details of an injunction claimed by a famous footballer.

John Hemming, MP for Birmingham Yardley, refuses to accept that he ever relied on such privilege. His rationale is that if 75,000 users of Twitter are not in contempt of court then neither is he. This is utterly flawed. The Twitter users are potentially in contempt but this is at the court's discretion. Rightly so, Lord Neuberger has made a distinction between tweets and mainstream media. Section 2(2) of the Contempt of Court Act 1981, states that for contempt there must be a 'substantial' risk that the course of justice in the proceedings in question will be 'seriously' impeded or prejudiced. A tweet is not considered substantial whereas a television interview could be.

Contempt of court is a criminal offence carrying a prison sentence of up to two years. The use of privilege as a defence is inconsistent with Parliament's custom of waiving the privilege for criminal charges, even if the impugned conduct occurs within the Houses of Commons or Lords themselves. With the exception of contempt of court, privilege is otherwise a residuary power largely confined to civil actions such as defamation or libel.

It also sits uncomfortably with the Article 13 right to an 'effective remedy' before national authorities for violations of the European convention (in this case the Article 8 'right to privacy'). As such, the authorities have granted the claimant a remedy with one hand and taken it away with the other. Exactly why is a manifest discrepancy, and it means that parliamentarians like Hemming in the future may not be entirely immune from legal action.

In absence of a means of reproach the Joint Committee on Parliamentary Privilege, in an authoritative report in 1999, urged members to exercise the 'greatest care' in avoiding breeches of court orders. Hemming exercised nothing of the kind and the Speaker, John Bercow, was correct to rebuke the indiscretion. Equally, Lord Judge was right to challenge the propriety of MPs and peers disclosing parties to claims and rendering injunctions null and void.

It is misconceived to think this a threat to parliamentary sovereignty. It is also wrong to think that the courts have created privacy law out of thin air. The superiority of an Act of Parliament has been recognised in the Common Law since 1689. Articles 8 and 10 of the Human Rights Act set out the conflicting rights to personal privacy and freedom of speech. Article 1 of the Act states that courts must observe the rights as embodied in the European Convention articles, the judiciary does not get a choice in the matter. It is left for them to interpret and apply it. If MPs disapprove of the balance struck by the judiciary then they should legislate to alter it.

In this case, the judge balanced the evidence and arguments before him and arrived at a decision. For a Member of Parliament to flout the outcome because he disapproves of it, and so exposing the privacy of those involved, is disgraceful conduct that ought to be widely condemned.

Daniel Cowdrill is a law student at the University of Birmingham School of Law and a member of the Society of Conservative Lawyers. He is also a Master of Philosophy and winner of the John Grenville Prize for History.