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ECtHR ruling defends parliamentary autonomy

The European Court of Human Rights has found there was no violation of privacy in a claim taken by businessman about his name being mentioned in the British House of Commons.

A majority judgment in the ECtHR today rejected Sir Philip Green’s appeal (8 April).

In 2018 Labour peer Lord Hain used parliamentary privilege in the Lords to name the Arcadia boss as the individual whose identity could not be published due to an injunction.

The injunction had been made against the Daily Telegraph, which was planning to report details of serious allegations of sexual harassment and bullying made against Green by former employees of Arcadia and Topshop.

Green denied wrongdoing.

At the ECtHR, Green challenged the absence of ex ante and ex post controls on the power to use parliamentary privilege to reveal confidential information being withheld under injunction.

He stated to the court that the current law of privilege “allowed parliamentarians to undermine a judicial decision”, and said such speech “was not the sort of meaningful debate that parliamentary privilege was designed to protect”.

A majority judgment in the ECtHR pointed out that in most member states, parliamentary privilege affords absolute protection from external legal actions to any statements made by parliamentarians in parliament.

The judgment added that if it had oversight of the controls the British parliament used to restrict members speaking to the house, that “could amount to indirect control over the free speech itself, as it would undoubtedly become at least indirectly involved in an evaluation of the statements that had been made in parliament.

Separation of powers

“The response to a parliamentarian acting incompatibly with the principle of the separation of powers should not further undermine the very principle it seeks to defend,” the judgment states.

The court found that it should be left to the respondent state, and parliament in particular, to decide on the controls required to prevent parliamentary members from revealing information subject to privacy injunctions.

To find otherwise would run contrary to the principle of the autonomy of parliament, which had already considered and rejected the need for further controls.