In his statement to the House of Lords on 25th October 2018, Lord Hain said that it was “his duty under parliamentary privilege” to name Sir Philip Green as the businessman at the centre of the recent proceedings before the Court of Appeal in ABC and others v Telegraph Media Group Limited  EWCA Civ 2329. Notwithstanding that the Court of Appeal had made an interim injunction preventing publication of the full details of the litigation, Lord Hain stated that this story was “clearly in the public interest” and, therefore, that this justified his revelation.
This post considers, firstly, the judgment of the Court of Appeal and, secondly, whether a ‘public interest’ justification should be allowed to trump the rule of law through the use of Parliamentary privilege, with the potential implications for such a position.
The background: ABC
The Court of Appeal in ABC was considering an appeal against a decision by Mr Justice Haddon-Cave (as he then was) to refuse an application by the claimants for an interim injunction preventing the defendant from publishing what was asserted to be confidential information about the claimants. The background to the application concerned settlement or non-disclosure agreements (“NDAs”) made in relation to five employees who had alleged discreditable conduct against a senior executive of the claimant companies.
Notwithstanding that the NDAs contained undertakings that the subject matter of the complaints was to be kept confidential, the Daily Telegraph newspaper learned of the allegations and sought to publish a story about them. The claimants therefore brought legal proceedings to seek an injunction preventing publication. The application was for an interim injunction in the first instance, prior to a full hearing.
It was argued by the claimants that publication should be restrained as the information in question had been obtained in breach of confidence (through being in breach of the NDAs). It was argued by the defendant that it was in the public interest for such information to be published and that Article 10 of the European Convention on Human Rights (“freedom of expression”) allowed for this publication.
Under section 12 of the Human Rights Act 1998, when considering whether to grant any relief which might affect the exercise of the Convention right to freedom of expression, a court cannot grant such relief unless satisfied “that the applicant is likely to establish that publication should not be allowed” (section 12(3)). Part of that consideration includes the extent to which it would be in the public interest for the material to be published (section 12(4)(a)(ii)).
Whilst acknowledging the section 12 provisions, the Court of Appeal noted that there was an important public interest in the observance of duties of confidence. Furthermore, the Court recognised that the weight to be attached to an obligation of confidence may be enhanced if that obligation is contained in an express contractual agreement – as would be the case for a NDA.
As was noted by the Court of Appeal in its judgment, the use of NDAs has come under scrutiny in recent times. The House of Commons Women and Equalities Select Committee recently published a report entitled “Sexual harassment in the workplace” in which the legitimacy of the use of NDAs was discussed. Although that report referred to the unfair use of NDAs by some employers to silence the victims of sexual harassment, it also acknowledged that such agreements were “a way to resolve workplace disputes or end a working relationship without the need to go through the cost and stress (for both parties) of an Employment Tribunal hearing” [paragraph 109 of the report].
The Court of Appeal also considered the earlier case of Mionis v Democratic Press SA  EWCA Civ 1194 in which Sharp LJ held that, where a settlement agreement which restricted article 10 rights had been voluntarily entered into (with the benefit of expert legal advice on both sides), “it would require a strong case for the court to conclude that such a bargain was disproportionate and to refuse to enforce it other than on ordinary contractual or equitable principles.” [paragraph 67 of Mionis]. The Court of Appeal in Mionis accepted that there was a public interest of parties to litigation being encouraged to settle their disputes with the confidence that a court will enforce the terms of that settlement.
In ABC, the Court of Appeal recognised that there was a public interest in allowing for informed debate on the standard of conduct required in public or commercial life. The Court endorsed the views of Haddon-Cave J as to the importance of freedom of political debate, the right of freedom of expression, the essential role played by the press in a democratic society and the important public concern about misbehaviour in the workplace.
However, the Court held that Haddon-Cave J had left out of account “the important and legitimate role played by [NDAs] in the consensual settlement of disputes, both generally but in particular in the employment field.”
Significantly, the Court of Appeal held that there was no evidence that the NDAs in this case had been procured by any bullying, harassment or undue pressure on the part of the claimants. Each NDA recorded that the employee in question was independently advised by a named legal adviser. Furthermore, each NDA contained provisions authorising disclosure to third parties in a range of cases, including to regulatory and statutory bodies. As a result, none of the “unethical vices” of NDAs criticised in the Select Committee report were present in this case.
The Court of Appeal also recognised that employees may themselves wish to maintain confidentiality in relation to the settlement of a dispute with an employer. It was noted that in ABC, two of the complainants in fact supported the application for an injunction, one giving the express reason as being the protection of their privacy. In addition, the effect of each of the NDAs was to put an end to existing or potential litigation and enable the employees to receive substantial payments.
Having considered the competing arguments, the Court of Appeal concluded that there was a sufficient likelihood of the claimants defeating any defence of public interest in publication (under section 12 of the 1998 Act) at trial. Furthermore, they held that there was a real prospect that publication by the Daily Telegraph would cause immediate, substantial and possibly irreversible harm to all of the claimants. It recognised that “confidentiality, once breached, is lost for ever.”
The Court of Appeal noted that the effect of the NDAs upon the claimants was that they lost the opportunity to contest the allegations in an independent judicial adjudication. If the Daily Telegraph was permitted to publish all the information it sought, the claimants would be left to challenge the allegations through the media whilst they themselves would be bound by the NDAs.
Therefore, the Court held that an interim injunction should be granted. However, the Court acknowledged that any delay in the publication of matters of public interest is undesirable and, therefore, ordered that a speedy trial be held.
Both the Court of Appeal and Haddon-Cave J produced ‘open’ and ‘closed’ judgments in respect of the application. The ‘open’ judgments were placed on the public record but the ‘closed’ judgments were released only to the parties and their legal advisers. It follows that the ‘open’ judgments were necessarily limited in their contents and were given in such as a way as to preserve the confidentiality of the information pending the full hearing. It can be inferred that the ‘closed’ judgments would have covered in greater detail the competing interests and arguments raised on behalf of each party.
However, from the ‘open’ judgment released by the Court of Appeal, it is clear that the Court was alive to the tension between the competing public interests that arose in this case. On the one hand, there was the public interest of ensuring that the contractual obligations freely entered into by the parties to the NDA were upheld and maintained. On the other hand, there was the public interest in publication of alleged misconduct against a prominent businessman.
It was in the context of the Court of Appeal having granted the interim injunction and the ‘open’ judgment being published that the statement by Lord Hain came to be made. The interim injunction granted by the Court of Appeal in ABC prevented the press from publishing anything which could reveal the identity of those involved with the litigation. However, Lord Hain was able to use Parliamentary privilege to override the terms of that interim injunction and reveal those confidential identities.
Parliamentary privilege in this context relates to the freedom of speech that members of either House of Parliament are guaranteed under Article 9 of the Bill of Rights 1689 (“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”). Article 9 is viewed as a fundamental part of our constitution since it allows members of both Houses of Parliament to debate what they wish without fear of redress by the courts, the executive or anyone else.
In relation to the ABC decision, Article 9 means that it is not constitutionally possible for a court order, including an injunction, to apply to Parliament. As a result, it was not a contempt of court for Lord Hain to reveal in parliamentary proceedings information that was subject to an injunction.
In the Supreme Court case of R v Chaytor and others  UKSC 52, Lord Phillips PSC commented that “there are good reasons of policy for giving Article 9 a narrow ambit that restricts it to the important purpose for which it was enacted – freedom for Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown’s judges.” One main policy reason for this is the fact that Article 9 is, in effect, an exception to the general principle of the rule of law.
Notwithstanding the narrow ambit of Article 9, there has been consideration as to whether legislation was necessary to restrict freedom of speech in Parliament in respect of court injunctions. In 2012, the Green Paper on Parliamentary privilege examined that issue (amongst others) but was not in favour of any legislation which affected Members of Parliament and injunctions. It suggested that the way forward was respect for the principle of comity between the courts and Parliament.
Also in 2012, the Joint Committee on Privacy and Injunctions examined the relationship between Parliamentary privilege and injunctions, in particular the breaches of court injunctions by Members of Parliament. It concluded that no action was required at that stage but warned that: “If the revelation of injuncted information becomes more commonplace, if injunctions are being breached gratuitously, or if there is evidence that parliamentarians are routinely being ‘fed’ injuncted material with the intention of it being revealed in Parliament, then we recommend that the Procedure Committees in each House should examine the proposals made to us for new restrictions with a view to implementing them.”
As was acknowledged by the Joint Committee, the absolute privilege for freedom of speech granted by Article 9 places a significant responsibility on parliamentarians to exercise it in the public interest. Whilst the Joint Committee stated that the presumption should be that court orders are respected in Parliament, they held that when a member does not comply with an order, they should be able to demonstrate that it is in the public interest.
The difficulty with that approach is that determining what is and is not in the public interest will be a matter for individual judgement. As a result, there can be no certainty as to whether a member of Parliament will conclude that the revelation of injuncted information will be in the public interest or not.
Although the use of Parliamentary privilege to reveal information subject to an injunction is relatively rare, it can be argued that any use of Article 9 in those circumstances should be viewed with concern. In Office of Government Commerce v Information Commissioner (Attorney General intervening)  EWHC 774 (Admin), Stanley Burnton J stated that: “the law of parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature.”
The principle of the separation of powers is fundamental to our constitution. Its operation means that Parliament and the courts each take care not to intrude on the other’s territory or to undermine the other. By revealing the subject matter of an injunction, a parliamentarian necessarily intrudes upon the territory of the courts and there are obvious and inherent dangers in such an intrusion.
As can be seen from the decision in ABC, the courts consider and determine applications for injunctions after hearing evidence and representations from both sides. The court then applies the relevant law to the facts of the particular case and reaches its determination. In giving its ruling, the court will provide its reasons for the decision made and each party will be aware of the basis for the findings made. In the ABC case, the judgments both of Haddon-Cave J and of the Court of Appeal were provided a number of weeks after the applications had been heard in court. As a result, it can be inferred that each judgment was made after a period to reflect and to give full and proper consideration to the competing arguments and matters in issue.
By contrast, a parliamentarian who does not conform to an injunction made by a court will not have heard all of the relevant evidence nor the competing arguments advanced by the parties. Nor, in cases (like ABC) where there is an ‘open’ and a ‘closed’ judgment, will they have been aware of the full basis upon which a court has reached its determination. Yet, despite those clear and obvious limitations, by revealing the subject matter of the injunction, the parliamentarian has effectively placed themselves in the shoes of the judge and, thereafter, overruled the decision reached.
That raises a question of considerable importance since allowing such a step to be taken risks undermining the rule of law and the certainties that flow from that. Parties to litigation should be entitled to assume that important decisions that impact upon them will be considered fully and properly by an independent tribunal which then applies the relevant law in reaching its determination. If the position is that a parliamentarian can simply override a decision reached by that independent tribunal, then this will lead to uncertainty on behalf of those engaged in such litigation.
Furthermore, it is not simply the interests of the parties to the litigation that need to be considered. As was made clear by the Court of Appeal in ABC, two of the employees who had signed the NDAs were supportive of the application by the claimants for the injunction. For one of those employees, the express reason given was to protect their privacy, given the potential risk of ‘jigsaw identification’ if some of the information was made public.
Given the commercial perspective of the application in ABC, other interests that may be affected include those of the shareholders and employees of the relevant companies, given the potentially detrimental impact allegations of misconduct can lead to a company’s standing in the eyes of the public. There is also the recognition that the use of NDAs can be of benefit to both employer and employee. There may be any number of reasons why either party may not want to proceed to Employment Tribunal proceedings or to conduct their litigation in the public gaze.
Can it realistically be said that a parliamentarian will have considered all of those interests in weighing up whether to reveal the subject matter of an injunction is in the public interest?
The widespread news interest arising from both the interim injunction and the revelation by Lord Hain could be viewed as a justification that it was in the public interest for the identity of Sir Philip Green to be made known. However, that begs the question of whether it should be left to the press to publish allegations and allow the ‘court’ of public opinion to make up its mind. Should we not trust an independent tribunal (the courts) to apply the relevant law to the facts of a case and reach a determination?
Doesn’t the public interest in the rule of law being upheld outweigh the public interest in knowing about confidential matters prior to their resolution by the courts? Whilst the use of Parliamentary privilege to flout court injunctions remains relatively rare, the absence of any clear code of conduct as to what can and should be said by politicians about such matters during the course of proceedings in Parliament runs the risk that the rule of law will be undermined.