Communicated on 9 September 2020 Published on 28 September 2020

FIRST SECTION

Application no. 22077/19 Philip Nigel Ross GREEN against the United Kingdom lodged on 23 April 2019

STATEMENT OF FACTS

1 . The applicant, Mr Philip Nigel Ross Green, is a British national, who was born in 1952 and lives in Monaco. He is represented before the Court by Mr I.R. Burton of BCL Solicitors in London.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . The applicant is a well-known businessman and chairman of the Arcadia Group, a retail company which includes Topshop, a clothing retailer.

4 . On 16 July 2018 Arcadia was contacted by a journalist working for the Telegraph Media Group Limited (“the Telegraph”). The journalist made it clear that he intended to report details of serious allegations of sexual harassment and bullying made against the applicant by former employees of Arcadia and Topshop.

5 . The applicant, Arcadia and Topshop had previously settled actual and potential employment proceedings with former employees. Under the settlement agreements, both sides had undertaken to keep information related to the complaints and the settlement confidential, although the employees remained able to make legitimate disclosures (including reporting any criminal offences) if they chose. The employees had each had independent legal advice as regards the settlement.

6 . Considering that the information which formed the basis for the Telegraph story had been provided in breach of confidence, the applicant, Arcadia and Topshop (“the claimants”) on 18 July 2018 applied to the High Court for an injunction preventing publication of their identities and the facts of the allegations. They also sought an injunction preventing disclosure on an interim basis.

7 . On 23 July 2018 the High Court refused the interim injunction following a private hearing. It preserved the confidentiality of the information pending any appeal. The claimants duly sought leave to appeal.

8 . On 25 September 2018 the Court of Appeal heard the appeal in private. It handed down judgment on 23 October 2018 allowing the appeal and granting an interim injunction and anonymity orders pending an expedited trial. Closed and open judgments were handed down.

9 . In its open judgment, the Court of Appeal examined in detail the balance to be struck between the Article 8 and Article 10 rights at issue in the case. It considered it likely that substantial and important parts of the information which the Telegraph wished to publish had been passed to it in breach of a duty of confidence to the claimants. Underlining the important and legitimate role played by non-disclosure agreements in the consensual settlement of disputes, the Court of Appeal disagreed with the High Court that publication would necessarily be in the public interest. It found no evidence that any of the settlement agreements had been procured by bullying, harassment or undue pressure by the claimants. It also noted that the employees had been independently advised by lawyers and that each settlement agreement contained provisions authorising disclosure to third parties, including to regulatory and statutory bodies. There was a sufficient likelihood of the claimants defeating a public interest defence at trial to justify the grant of an interim injunction, bearing in mind that publication would cause immediate, substantial and possibly irreversible harm to all of the claimants.

10 . On 24 October 2018 the Telegraph published a story detailing the nature of the information subject to the injunction but respecting the order made.

11 . On 25 October 2018, after the conclusion of a debate on an unrelated issue in the House of Lords chamber, Lord Hain took the floor to make a short personal statement in the following terms:

“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.”

12 . After Lord Hain had finished making his statement, the House moved on to discuss other, unrelated business.

13 . Lord Hain ’ s statement was widely reported. The orders for anonymity having become pointless, they were later discharged by consent. However, Lord Hain ’ s disclosure did not include details of the underlying information, which therefore remained protected by the interim injunction.

14 . On 29 October 2018, the Lord Speaker of the House of Lords (see “Relevant domestic law and practice”, below) made a statement in the following terms:

“I would like to make a short statement about parliamentary privilege in the light of representations I have received. A robust and healthy democracy such as ours rests upon a number of common and shared features.

Two of the most important are the freedom for members of the legislature to speak freely, without repercussion, and respect by the legislature for the independence of the courts and the rule of law. As we know, this is not the case everywhere in the world. The relationship between these two should not be one of conflict but one of mutual respect.

As parliamentarians we should be keen to respect the proper business of the courts, just as we expect the courts to respect the authority of Parliament. In particular, we should be careful that in exercising our undoubted right to free speech in Parliament we do not set ourselves in conflict with the courts or seek to supplant them.”

15 . On 31 October 2018 the applicant ’ s legal representatives lodged a formal complaint against Lord Hain with the House of Lords Commissioner for Standards. They alleged that Lord Hain had violated the House of Lords Code of Conduct inter alia by breaching the sub judice rule and by abusing parliamentary privilege (see “Relevant domestic law and practice”, below). Following a preliminary assessment of the complaint, the Commissioner found that she could not examine allegations concerning the sub judice rule and parliamentary privilege since they did not fall within the Code and were therefore outside her remit.

16 . The claimants subsequently sought damages in the underlying court proceedings against the Telegraph for the consequences of Lord Hain ’ s statement, seeking to attribute to the Telegraph responsibility for the making of that statement. The Telegraph ’ s defence was that the issues raised were non-justiciable having regard to Article 9 of the Bill of Rights (see “Relevant domestic law and practice”, below), as they invited investigation of a parliamentarian ’ s source for something said in proceedings in parliament. The claimants resisted that proposition and made clear that they intended to press on to determine, if they could, who provided the applicant ’ s identity to Lord Hain, and what role (if any) the Telegraph played in that disclosure.

17 . In a judgment of 23 January 2019, the judge addressed the issue as follows:

“42. After hearing from Counsel, I determined that I should draw these issues to the attention of the Lord Speaker, in order to give the Parliamentary authorities an opportunity, if so advised, to make representations on questions of Parliamentary Privilege. I have therefore written to Lord Fowler accordingly ... The issue may need to be revisited at the Pre-Trial Review next Tuesday, 29 January 2019.”

18 . On 28 January 2019 the applicant and Arcadia issued a statement confirming their decision to discontinue the claim against the Telegraph on the basis they considered it pointless to continue following Lord Hain ’ s actions. The claimants therefore applied to the High Court for permission to discontinue the legal proceedings. They explained to the court that “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”.

19 . The application was subsequently granted and the claim discontinued. The summary of recent events set out in the judgment of 8 February 2019 included the following:

“23. ... Following [the judgment of 23 January 2019], the clerk to the Parliaments wrote to the Court submitting that an investigation into Lord Hain ’ s source(s) would infringe Parliamentary Privilege. The claimants accepted that Lord Hain himself was immune from suit in respect of what he had said.”

20 . The House of Lords, the upper house of the Parliament of the United Kingdom, is self-regulating. This means that the preservation of order and the maintenance of the rules of debate are the responsibility of the House itself.

21 . The House does not recognise points of order. It elects a Lord Speaker to preside over proceedings in the Chamber. However, the Lord Speaker has no power to rule on matters of order. As explained in the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (25th edition, 2017) (“the Companion”), the Speaker ’ s function is to assist and not to rule.

22 . There is a Code of Conduct which regulates the conduct of members of the House of Lords. It is principally enforced by the Commissioner for Standards and the House of Lords Committee on Privileges and Conduct. The Code of Conduct contains no provisions on parliamentary privilege or discussion of sub judice matters.

(a) Law and practice

23 . Article 9 of the Bill of Rights 1689 states (in modern English):

“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.”

24 . The Companion (see paragraph 22 above) explains:

“ Freedom of speech

12.03 Members need to be able to speak freely in the House and in committee, uninhibited by possible defamation claims. Freedom of speech is guaranteed by article 9 of the Bill of Rights 1689 ... Article 9 affords legal immunity ( ‘ ought not to be questioned ’ ) to members for what they say or do in ‘ proceedings in Parliament ’ . The immunity applies in ‘ any court or place out of Parliament ’ . The meaning of ‘ proceedings in Parliament ’ and ‘ place out of Parliament ’ has not been defined in statute.

...

12.05 In order to prevent abuse, freedom of speech is subject to self-regulation by Parliament. Thus, for example, by the sub judice rule the two Houses ensure that court proceedings are not prejudiced by discussion in Parliament.” ( references omitted)

25 . The Supreme Court confirmed in R. v. Chaytor and Others [2010] UKSC 52 that while parliamentary privilege is essentially a matter for Parliament itself, the scope of parliamentary privilege is a matter for the courts. In assessing in that case whether the submission of fraudulent expenses claims by members of Parliament was protected by parliamentary privilege, Lord Phillips said:

“47. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament

...

61. 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 the Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown ’ s judges. The protection of article 9 is absolute ... Its effect where it applies is to prevent those injured by civil wrongdoing from obtaining redress and to prevent the prosecution of Members for conduct which is criminal ...”

(b) Reports of parliamentary committees

26 . In 1997 a Joint Committee of both Houses of Parliament on Parliamentary Privilege was appointed and tasked with reviewing parliamentary privilege and making recommendations. In its Report on Parliamentary Privilege 1999 (Session 1998-99, HL 43, HC 214), it explained:

“12. Freedom of speech is central to Parliament ’ s role. Members must be able to speak and criticise without fear of penalty. This is fundamental to the effective working of Parliament, and is achieved by the primary parliamentary privilege: the absolute protection of ‘ proceedings in Parliament ’ guaranteed by article 9 of the Bill of Rights 1689. Members are not exposed to any civil or criminal liabilities in respect of what they say or do in the course of proceedings in Parliament. There is no comprehensive definition of the term proceedings in Parliament... Proceedings are broadly interpreted to mean what is said or done in the formal proceedings of either House or the committees of either House, together with conversations, letters and other documentation directly connected with those proceedings.

“37. ... The modern interpretation is now well established: that article 9 and the constitutional principle it encapsulates protect members of both Houses from being subjected to any penalty, civil or criminal, in any court or tribunal for what they have said in the course of proceedings in Parliament...” ( references omitted)

27 . After analysing parliamentary privilege, the Report recommended that a Parliamentary Privileges Act be enacted to codify parliamentary privilege as a whole. However, the Government of the time saw no need for such codification.

28 . A Joint Committee of both Houses of Parliament on Privacy and Injunctions was appointed in 2011 to consider and report on privacy and injunctions. The Committee published its report in March 2012 (Session 2010-12, HL 273, HC 1443). It noted that there had been examples i n recent years of information subject to anonymised injunctions being revealed in Parliament, but considered such examples to be rare. It continued:

“214. Article IX [of the Bill of Rights] means that it would not be constitutionally possible for a court order, including an injunction, to apply to Parliament. It follows that it is not a contempt of court for a parliamentarian to reveal in parliamentary proceedings information subject to an injunction.

215. Whilst it may be legal for parliamentarians to reveal information in this way, some witnesses suggested it was not appropriate to do so. Injunctions are granted by a judge after hearing evidence and representations from both sides. A parliamentarian who does not conform to the injunction can be seen as in effect placing him- or herself in the shoes of the judge, and overruling the decision to grant anonymity. Once the name has been revealed in Parliament, and subsequently reported in the media, anonymity cannot be regained: the effect of the anonymity order is set at nought. Moreover, there is no redress for the individual whose identity or private information has been revealed; Article IX prevents them taking proceedings against the member.” ( references omitted) ”

29 . It concluded:

“230. We regard freedom of speech in Parliament as a fundamental constitutional principle. Over the last couple of years a few members have revealed in Parliament information covered by injunctions. We have considered carefully proposals for each House to instigate procedures to prevent members from revealing information subject to privacy injunctions. The threshold for restricting what members can say during parliamentary proceedings should be high. We do not believe that the threshold has yet been crossed.

231. 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.”

30 . In April 2012 t he Government published a Green Paper on Parliamentary Privilege. A Joint Committee on Parliamentary Privilege was subsequently appointed by both Houses of Parliament to consider the Green Paper. The Committee published its Report on Parliamentary Privilege on 3 July 2013 (Session 2013-14, HL 30, HC 100). It explained at the outset:

“20. The possibility of tension between parliamentary privilege and the rule of law means that Parliament ’ s claim to exclusive cognisance should be strictly limited to those areas where immunity from normal legal oversight is necessary in order to safeguard the effective functioning of Parliament. It is agreed that immunity applies to that core work itself, to things said or done as part of proceedings in either Chamber or in a select committee of either House – the ‘ proceedings in Parliament ’ whose immunity from challenge is enshrined in Article 9. The difficulty lies in assessing how far such immunity applies to ancillary matters, to things said or done outside proceedings themselves, but which are necessarily connected to those proceedings.”

31 . The members of the Committee did not consider that there was a need to codify parliamentary privilege as a whole. On the specific question of breaches of court injunctions by members of either House in parliamentary proceedings, it noted that this had been addressed at length by the Joint Committee on Privacy and Injunctions. It considered that there had been no significant developments since, and endorsed the conclusions reached by that Joint Committee.

32 . The sub judice rule is set out in a resolution passed by each of the two Houses of Parliament. The relevant resolution of the House of Lords was passed on 11 May 2000. It provides that, subject to the discretion of the Lord Speaker, cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question. However, where in the opinion of the Lord Speaker a case concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in motions, debates or questions.

33 . The Companion explains that the privilege of freedom of speech in Parliament places a corresponding duty on members to use the freedom responsibly. This, it says, is the basis of the sub judice rule. The Companion also provides that the Lord Speaker must be given at least 24 hours ’ notice of any proposal to refer to a matter which is sub judice , and that t he exercise of his discretion may not be challenged in the House.

34 . As to the making of personal statements in the House of Lords, the Companion explains:

“6.01 Members may by leave of the House make a short factual statement of a personal character, such as a personal apology, a correction of information given in a speech made by them in the House or a reply to allegations made against them in the House. Personal statements are usually made at the beginning of business and are not debatable.”

35 . Breach of an interim injunction can constitute contempt of court which is punishable with imprisonment of up to two years or a fine of up to 2,500 pounds sterling.

COMPLAINTS

36 . The applicant complains under Article 6 § 1 that the statement by Lord Hain rendered his claim for breach of confidence against the Telegraph futile and thus violated his right to a fair trial in the context of those proceedings. He complains that he was not able to bring proceedings against Lord Hain for breach of the injunction. He does not seek to challenge the principle of parliamentary privilege itself, but rather the absence of ex ante and ex post controls on the power to use it to reveal confidential information that is subject to an injunction.

37 . He complains under Article 8 that the statement by Lord Hain identified him and harmed his reputation and that the Government ’ s rules permitting disclosure in Parliament of information subject to an injunction breach Article 8

38 . Finally, he complains under Article 13 that he has no effective remedy in respect of his Articles 6 and 8 complaints since he is unable to bring a claim against Lord Hain and that the Government has failed to implement effective controls.

QUESTIONS TO THE PARTIES

In particular, given the content of the impugned statement and the context in which it was made in the House of Lords, was it arguable that parliamentary privilege did not apply to the statement in the circumstances of the case?

2. Has there been a failure to protect the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention? In particular:

(a) Did the Government have a positive obligation to protect the applicant ’ s privacy by ensuring that parliamentary privilege could not be used to circumvent the interim injunction made by the Court of Appeal?

(b) Would such a positive obligation and corresponding restraint on freedom of speech in parliament strike the correct balance between the interests protected under Article 8 and freedom of expression as guaranteed by Article 10 of the Convention?

3. Does any separate issue arise under Article 6 of the Convention?

In particular, can the applicant rely on Article 6 in respect of his complaint that he was unable to bring proceedings against Lord Hain for breach of the injunction and, if so, has there been a violation of that Article in that respect?

4. Did the applicant have at his disposal an effective domestic remedy for any arguable complaints under Articles 6 and 8, as required by Article 13 of the Convention?