Naming names: Parliamentary privilege and privacy

In Green v United Kingdom [2025] ECHR 91 the European Court of Human Rights (ECHR) held that Parliament’s failure to have adequate controls in place to prevent Lord Hain from using parliamentary privilege to circumvent a privacy injunction protecting Sir Phillip Green’s identity, had engaged, but not violated, Sir Phillip’s Article 8 right (to respect for private life).

The judgment does not read as a complete vindication of Lord Hain’s decision to name Sir Phillip – in fact, as set out below, the ECHR expressed considerable concern over what took place. Rather, the decision reflects the ECHR’s reluctance to make any finding that could threaten the autonomy of Parliament.

The ECHR ultimately deferred questions of appropriate controls around the exercise of parliamentary privilege back to Parliament concluding, somewhat anticlimactically, that the existing controls ‘must be kept under review at the domestic level’.

Background

In July 2018, Sir Phillip’s company, Arcadia Group (Arcadia), was approached by a journalist from The Telegraph, with plans to publish a story involving allegations of sexual harassment and bullying made against Sir Phillip by five of his former employees.

The allegations were denied by Sir Phillip and were the subject of non-disclosure agreements (NDAs) previously entered into with the complainants who (after receiving the benefit of independent legal advice) had undertaken to keep information relating to their complaints confidential. The NDAs did not prevent those former employees from making disclosures to the police, or other relevant authorities.

Sir Phillip and Acadia (the Claimants) responded by seeking an interim injunction to prevent The Telegraph from publishing confidential information relating to the allegations, that had likely been disclosed to The Telegraph in breach of confidence, pending a full trial.

While the High Court declined to issue the interim injunction sought, the Court of Appeal reversed this decision (ABC & Ors v Telegraph Media Group Ltd [2018] EWCA Civ 2329), granting the interim injunction until an expedited trial could be held.

In reaching its decision, the Court of Appeal closely examined the Claimant’s Article 8 rights against The Telegraph’s Article 10 rights (freedom of expression), concluding that publication would cause immediate, substantial and irreversible harm to the Claimants and that there was sufficient likelihood of the Claimant’s defeating The Telegraph’s public interest defence at trial, thereby justifying the granting of an interim injunction order protecting the Claimants identity.

On 24 October 2018, The Telegraph published an article entitled ‘The British #MeToo scandal that cannot be revealed’, the article complied with the Court of Appeal’s interim injunction by referring to Sir Phillip as an anonymous ‘leading businessman’.

The next day, invoking parliamentary privilege, Lord Hain made the following personal statement in the chamber on the grounds that, in his opinion, it was ‘clearly in the public interest’ to do so:

“My Lords, having been contacted by someone intimately involved in the case of a powerful businessman using non-disclosure agreements and substantial payments to conceal the truth about serious and repeated sexual harassment, racist abuse and bullying which is compulsively continuing, I feel that it is my duty under parliamentary privilege to name Philip Green as the individual in question, given that the media have been subject to an injunction preventing publication of the full details of a story which is clearly in the public interest.”

Lord Hain’s statement was widely reported, nullifying the effect of the Court of Appeal’s anonymity order, which was subsequently discharged by consent. You can read our blog published at the time of Lord Hain’s statement, here.

The Claimants subsequently discontinued their claim against the Telegraph on the basis that it was now pointless to pursue as following Lord Hain’s actions: “there is insufficient confidentiality left in the information concerned in this case ... to justify the risk, and the staff time and disruption, involved in pursuing it”.

Sir Phillip lodged a formal complaint against Lord Hain with the House of Lords Commissioner for Standards (the Commissioner), complaining that Lord Hain had violated the House of Lord’s Code of Conduct by (1) breaching the sub judice rule that restricts members of parliament or Lords from referring to current or impending court cases, and (2) failing to declare his role as an advisor to the law firm acting on behalf of The Telegraph.

The Commissioner found that she could not examine allegations concerning the sub judice rule since that rule was not incorporated into the House of Lords Code of Conduct and was therefore outside her remit.  She launched an investigation into the claim that Lord Hain had failed to declare his connection as a paid advisor to the law firm representing the The Telegraph, but ultimately accepted Lord Hain’s account that, as he had not read either court judgment, he was completely unaware which law firm was acting on behalf of The Telegraph.  In her official report on the conduct of Lord Hain she noted that ‘discussing his intentions with the Lord Speaker - in accordance with the House’s rules on matters which are sub judice - might have prompted [a] consideration’ of Lord Hain relevant interests.

Application before the ECHR

On 23 April 2019, Sir Phillip lodged an application with the ECHR alleging breaches of his rights under Articles 6, 8 and 13 of the European Convention on Human Rights (the Convention).

The application did not concern, or challenge, the principle of parliamentary privilege itself. Rather, it sought a declaration from the ECHR that the lack of sufficient controls on a parliamentarians’ ability to invoke parliamentary privilege to reveal information subject to a privacy injunction was a breach of Sir Phillip’s convention rights.

Article 6

Sir Phillip complained that his right to a fair trial was violated because the statement by Lord Hain rendered his underlying claim for breach of confidence against The Telegraph futile, and that there was a breach of his right of access to court because, Lord Hain himself was shielded from suit by parliamentary privilege.

Article 13

Sir Phillip complained under Article 13 that he had no effective remedy in respect of his Articles 6 and 8 complaints since he was unable to bring a claim against Lord Hain, and the Government failed to implement effective controls on his use of parliamentary privilege.

Article 8

The majority of the judgment is focused on Article 8.

The court found that Article 8 was engaged; there had been a clear interference with the Sir Phillip’s right to respect for his private life as the impact on his reputation had undoubtedly been serious. His anonymity, once lost, was lost forever.

The essence of Sir Phillip’s complaint was that the United Kingdom was in breach of its positive obligation to have a legal framework in place to prevent parliamentary privilege being used to circumvent privacy injunctions.  In examining this argument, the ECHR reiterated its long held position that the United Kingdom, like other member states, enjoys a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. In line with the principle of the autonomy of Parliament - those steps were best considered, designed and implemented by the member state themselves domestically, and should not be dictated from Strasbourg.

The ECHR noted that there did already exist some controls on parliamentary privilege, including in particular, the convention requiring a Members of the House of Lords to give the Speaker 24 hours’ notice of a proposal to breach the sub judice rule.

This convention (which was not observed by Lord Hain) is not incorporated into the House of Lords Code of Conduct.  As such, breaches are not within the remit of the Commissioner. This alone highlights the limitations of existing controls on parliamentary privilege and the lack of enforceable sanctions for such procedural breaches, which formed a large part of Sir Phillip’s complaint to the ECHR.

The need for further controls was previously considered by a joint committee of both Houses of Parliament in 2011. The Joint Committee on Privacy and Injunctions was established to review the effectiveness of existing measures after John Hemming, former MP for Birmingham, used parliamentary privilege to name Ryan Giggs as the subject of a privacy injunction.

Their report concluded that changes to the controls were not necessary, and would not be necessary, unless, amongst other indicators, the frequency of such cases were to increase.  Sir Phillip had not suggested that there had been a sharp increase in incidence of parliamentary privilege being invoked to reveal injuncted material since 2011.

The ECHR therefore found that there was no violation of Article 8, but that the appropriateness of controls should be kept under regular review by Parliament, at the domestic level.

The ECHR declared, by a majority, that the merits of Sir Phillip’s complaints concerning Article 6 § 1 and Article 13 of the Convention would not be examined by the ECHR, as these were found to be manifestly ill-founded and therefore inadmissible.

ECHR expresses concern

Before concluding that (despite the interference) there was no violation of Article 8, the ECHR made clear that, in its view: “the events giving rise to the present application are undoubtedly of considerable concern”.  Of particular concern was the apparent lack of effort on Lord Hain’s part to take into account the Court of Appeal’s reasoning before deciding to disclose Sir Phillip’s identity.

The ECHR noted that it was after a detailed and careful examination of the evidence, that the Court of Appeal reversed the High Court’s decision to not grant the privacy injunction.  In doing so, it found that there was a sufficient enough likelihood that a public interest defence would fail at trial to justify granting an interim injunction to protect the confidentiality of the material.

With little regard for the foregoing Lord Hain, who “[paragraph 91]…had not read the judgment of the Court of Appeal” made a disclosure, under parliamentary privilege, that had the “sole purpose of overriding [the Court of Appeal’s] carefully considered conclusions because he considered it to be in the public interest to reveal the applicant’s identity before the expedited trial could take place”

The consequences were plainly serious. Not only for Sir Phillip reputationally, there were also consequences for Arcadia (potential loss of revenue from consumer reaction adversely impacting the employees of Arcadia), and for two of the former employees who did not want details of their employment disputes and settlements made public. These employees had supported the application for the privacy injunction - possibly through fear that they themselves may become identifiable from the context and detail of their complaints becoming public knowledge.

Having set out its concern the ECHR, concluded that:

“[paragraph 92] Nonetheless, in keeping with the well-established constitutional principle of the autonomy of Parliament…it is in the first instance for national parliaments to assess the need to restrict conduct by their members”.

After the ECHR decision, Lord Hain publicly remarked that he was “really pleased that the Strasbourg court defended parliamentary privilege and [his] right to have named Sir Philip,”  a response that, in failing to recognise the Court’s concerns, may suggest he gave the detail of the ECHR’s judgment no more consideration than he gave the earlier rulings of the High Court and Court of Appeal.

When could Parliament revisit its 2011 review of controls around parliamentary privilege?

Nearly 15 years has passed since Parliament’s last review into controls around parliamentary privilege, which recommended that: “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”.  This may soon need revisiting in light of developments in journalistic practices since 2011 and the confidence some parliamentarians may might now have in using parliamentary privilege to circumvent the law of libel and privacy, even where legal proceedings are extant.

Last year, The Bureau of Investigative Journalism (TBIJ) launched their “Silenced Stories” initiative which involved journalists briefing MPs from across the political spectrum on cases that had not been published.  As a result, 23 parliamentarians signed an application for a half-day debate for these stories to be communicated under parliamentary privilege in the House of Commons, which was subsequently granted.

TBIJ exercised caution - such as withdrawing at least one story from the debate that risked breaching (or undermining) a court order.  Nonetheless, this project represents a coordinated effort to channel stories directly to MPs, who can then reveal details, previously not published by the media, under the protection of parliamentary privilege.

While the Silenced Stories project appears to have so far respected court orders, if such a coordinated provision of material to parliamentarians were to become a routine practice of journalists, potentially straying into material that could feasibly become the subject of a privacy injunction, this could mark a situation not too far removed from exactly the scenario Parliament itself described as one which would require them to look again at the adequacy of controls on the use of parliamentary privilege.