Hemming's way

Aside from the 'personal privacy versus internet free speech' clash at the heart of the super-injunction sagas involving Ryan Giggs and Sir Fred Goodwin, both cases are also worthy of discussion on account of broader constitutional concerns about the proper relationship between parliament and the courts.

In one view, identifying these two men in the House of Commons amounts to a serious breach of parliamentary privilege, in which proceedings in the legislature have been used to undermine the authority of the courts. But have John Hemming MP and Lord Stoneham really violated constitutionally sacred notions of the separation of powers? The blurry contours of parliamentary privilege mean it is not immediately clear.

The position of media organisations that choose to report parliamentary proceedings and thereby circumvent court orders is beyond the scope of the present discussion.

In passing, however, it is surely appropriate to query whether the common law defence of qualified privilege would necessarily protect media organisations in a contempt action '“ a context that lies beyond the defence's usual application to libel proceedings.

Legislative encroachment on workings of the courts has long preoccupied constitutional designers. James Madison, one of the founding fathers of the US constitution, was certainly troubled by the record of colonial and post-colonial state legislatures in arrogating to themselves judicial functions of granting appeals from court decisions or allowing equitable relief from court judgments.

Madison famously denounced the extension of the legislature's sphere of activity claiming that it drew 'all power into its imperious vortex'. It is worth remembering that the prompt for Madison's anxiety was the influence over legislatures exerted byfactions and powerful private interests, an influence that he plainly considered state courts to be free from. For Madison there is a clear threat to the impartial administration of justice where an assembly reflecting the wishes of economically superior forces disturbs court rulings.

Over on this side of the Atlantic, and despite Montesquieu's assertion to the contrary, the evolutionary, incremental nature of constitutional development has gravitated away from the separation of powers ideal favoured by the founding fathers. As first year law students are all too aware, the principal problematic consequence of such incrementalism is the dominance enjoyed by the executive in the legislature. In respect of the overlap between members of the judiciary and the legislature, however, recent innovations in constitutional design do suggest a clearer commitment to the separation of powers principle. The

Constitutional Reform Act 2005's creation of the Supreme Court and abolition of the role of Lord Chancellor was an attempt to formally distance the judiciary from the legislature, regardless of established checks on any undue overlap.

Speaker's corner

The current super-injunction cases raise separation of powers issues of an altogether different order. How immune should our elected (and unelected) parliamentarians be from ordinary legal rules as they engage in the pursuit of their parliamentary duties? Should any such immunity extend to parliamentary conduct which effectively undermines judicial orders, including those orders intended to safeguard the human rights claims of litigants?

What are the competing interests in this scenario that require somehow to be balanced? In the case of judicial orders restraining freedom of speech, to what extent, if at all, ought a legal analysis of parliamentarians' conduct factor in the reality of adherence to the order beyond the courtroom in the world at large (including on electronic social media platforms)? Is there a critical point where unlawful dissemination of the prohibited matter becomes so widespread that the law risks being brought into disrepute by attempts to enforce the original injunction against members of parliament or tweeters? If so, how might we ascertain when this point is reached?

The unwillingness of parliament to submit to the ordinary laws of the land has a venerable history. One important aftermath of the Stockdale v Hansard litigation in the 19th century was the passing into law of the Parliamentary Papers Act 1840 which conferred statutory immunity on reports of governmental bodies from civil and criminal actions where the report was published under the authority of parliament.

The courts have also on occasion been willing to cede exclusive jurisdiction to parliament. In R v Graham-Campbell ex parte Herbert, the High Court ruled that the ordinary courts lacked jurisdiction to hear a complaint that sales of alcohol had occurred within the precincts of parliament in breach of the provisions of the Licensing Act.

While the outer boundaries of parliamentary privilege may have remained obscure, the claim of parliament to exclusive cognisance or jurisdiction over the conduct of its own members has recently been eroded, at least in so far as the ordinary criminal laws of false accounting under the Theft Act 1968 are concerned. In R v Chaytor, the Supreme Court unanimously ruled that parliamentary privilege, as covered by article 9 of the Bill of Rights 1689, did not oust the jurisdiction the Crown Court. Lord Rodger noted that in the past parliament has not claimed jurisdiction to try people accused of criminal conduct under English law, even where the offence was allegedly committed within the precincts of Westminster.

Instead, criminal proceedings in the ordinary courts of the land have been allowed to take their course, even if separate proceedings for contempt of parliament offer an additional internal sanction for each House to pursue in cases of members' misconduct. Following the Supreme Court's ruling, Chaytor subsequently pleaded guilty at the Old Bailey to three charges of false accounting and was jailed for 18 months.

The Supreme Court's ruling in Chaytor sheds arguably little light, however, on the ordinary courts' receptiveness to an article 9 claim when the alleged criminal conduct consists entirely of words spoken during parliamentary proceedings. Consider the hypothetical case of criminal proceedings against an MP as a third party in knowing breach of a court order where an article 9 claim would be raised in a jurisdictional challenge to the proceedings. Lord Browne-Wilkinson's speech in Pepper v Hart seems to offer some powerful support to that challenge. 'Article 9,' he stated, 'is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected members of parliament to discuss what they will and to say what they will.

'In my judgment, the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that members of parliament were not subjected to any penalty, civil or criminal, for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed.'

Putting to one side the fact that the beneficiaries of article 9 cannot all claim to be acting to further a democratic mandate, one possible reading of this rationale is that article 9's central protective ambit extends so far as is necessary for members of the legislature to call the executive and other public power holders to account on matters of legitimate public interest without fear of external sanction. Additionally, where a powerful private corporation is allegedly engaged in activities that are seriously harmful to human health and environmental interests, parliamentary defiance of a Trafigura-style super-injunction preventing the naming of the corporation looks to be the sort of prima facie case where robust parliamentary debate ought to be immune from external constraint.

The problem with the invocation of parliamentary privilege by John Hemming MP and Lord Stoneham in personal privacy cases is that public interest arguments in favour of breaching the injunction look relatively weak, especially in the case of the footballer Giggs. MPs, it might be claimed, could still discuss in general terms the tendency of courts to curtail media freedom via super-injunctions without revealing the identities of parties at the centre of such cases.

A stronger, albeit practical argument in favour of parliamentary defiance of court orders exists where (i) the very subject matter of the injunction has already become widely disseminated via the internet since the initial order was granted; and (ii) there appears to be little prospect of the tens of thousands of contemnors being brought to court. In these circumstances, for parliament to be constrained by a narrow reading of article 9 looks ill-conceived, even if the underlying free speech interests are not especially compelling. The damage to the litigant and the authority of the court has already occurred outside parliament.

On reflection, it is apparent that a parliamentarian's reliance on article 9 is less obviously connected with members' scrutinising function. No clear freedom of expression rationale appears to justify an injury to individual interests (or other public interest, such as the administration of justice). It is always open for parliament to determine that an abuse of parliamentary privilege has occurred, penalise the offender and, if necessary, revise its own rules and procedures. After all, parliament has devised its own sub judice rules to prevent members bringing up matters in 'debates, questions and motions which are awaiting adjudication in a court of law'. Attention will now doubtless turn to the joint committee of both Houses that has been entrusted with a review of recent controversies.

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