There has been plenty of both praise and condemnation of Lord Hain for his defiance of the Court injunction to name Sir Philip Green, invoking Parliamentary Privilege for this purpose.
The criticism and condemnation of Lord Hain’s actions focus and concentrate on an assumed abuse of his right to invoke Parliamentary Privilege.
I have not seen any article which actually questions whether his disclosure of Sir Philip Green was in fact covered by Parliamentary Privilege and consequently whether or not he is in fact in Contempt of Court.
Similarly I have not come across any article or discussion as to whether his utterance was in breach of Parliamentary Privilege and thus in Contempt of Parliament.
Contempt of Parliament
The proceedings brought by Sir Philip Green were at an interlocutory stage when the disclosure was made by Lord Hain and the injunction granted by the Court of Appeal was interim pending the trial.
The matter was therefore sub-judice.
As set out in the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, chapter 4, it was resolved by the House of Lords on the 11thMay 2000:-
‘Cases in which proceedings are active in United Kingdom Courts should not be referred to in any motion, debate or question…
Civil proceedings are active when arrangements for the hearing, such as setting down a case for trial had been made, until the proceedings are ended by Judgement or discontinuance.
Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding’.
There are provisions in relation to issues of national importance such as the economy, public order or the essential services wherein the issues referred to in the case may be mentioned when it is in the opinion of the Lord Speaker. These exceptions do not appear to apply in this case.
In any event the Lord Speaker must be given at least 24 hours notice of any proposals to refer to a matter which is sub-judice.
It would therefore appear at first blush that Lord Peter Hain is in breach of the resolution and the question arises as to whether his actions were in Contempt of Parliament (unless perchance, he did in fact notify the Lord Speaker!).
Contempt of Court
The second elephant in the room – which does not appear yet to have been a matter of debate – is whether there is a prima facie case that the disclosure may be a Contempt of Court, despite the assumed cloak of Parliamentary Privilege.
Contempt of Court may be either criminal or civil in nature.
The categorisation was considered by Lord Scarman in Home Office v Harman[1983] 1 AC 280 wherein criminal contempts were illustrated as contempts such as scandalising the Court or publishing matters likely to prejudice a fair trial.
Lord Oliver in Attorney-General v Times Newspapers Limited [1992] 1 AC 191 states ‘…when, however, the prohibited act is done not by the party bound himself but by a third party, a strange to the litigation, that person may also be liable for contempt. There is, however this essential distinction that his liability is for criminal contempt and arises not because the contempt is himself affected by the prohibition…’.
The disclosure by Lord Hain therefore appears prima facie to be in the nature of a criminal contempt as so classified.
Whereas Parliamentary Privilege undoubtedly operates as a defence to civil proceedings, such as defamation or the like, it is by no means settled that it covers criminal conduct including an action for criminal contempt.
It is submitted that the matter should be investigated by the Office of the Attorney General to indeed consider whether the claim of Parliamentary Privilege would defeat an action for Contempt of Court and whether it would be proper and there is a sufficient basis for this matter to be tested.
David Janes
Janes Solicitors
Cording House
34-35 St James’s Street
London SW1A 1HD
31stOctober 2018
