Parliamentary privilege and court orders

Parliamentary privilege is the privilege that members enjoy to protect them from the courts for the things that they say in the House. It is subject to rules and conventions so that members are not free to simply say anything they wish, but the place where they are held to account for the things that they say is in Parliament, not the courts.

Now we get to the interesting point - what about the MP that decides to expose the story anyway? Who polices that? The answer is pretty simple, it is policed by the Speaker of the House of Commons for MPs. He may look at the breach of the order as a breach of what MPs would call the Sub Judicie rule - or the convention that requires comity between Parliament and the Courts. The former would apply where proceedings in court are afoot, but the latter where there are, as yet, no proceedings.

Because of Parliamentary Privilege, the courts have no power to do anything about the MP's behaviour. It is for the ultimate court, Parliament, to act. Ultimately, the Speaker could name an MP, remove him from the sitting and members of the House could censure the MP.

John Hemming MP's first mistake, it seems to me, is to assume that he can simply ignore the rules and conventions of the House and deliberately breach a court order that he knows exists thus precipitating a constitutional argument between Parliament and the Courts.

His second mistake is that he appears to assume that the law that he is concerned with is 'Judge made'; it is not. For the reasons set out at the start of this, the law was made in Parliament, a Parliament that he is a member of although he was not a member when the HRA was passed in 2002.

Potentially the most damaging mistake that he makes - is that he does not appear to have a clue of where he is going. He appears not to consider that there may be very good reasons for there to be a requirement for 'super-injunctions'. He appears not to know that there are benefits for people to obtain 'freezing orders' in secret - so that a debtor cannot dissipate his assets to avoid creditors, for example - or that the best person to decide whether or not to grant such secrecy must be the Judge who hears the argument.

At the same time, there is no doubt that members of the Judiciary have been, in my view, insufficiently critical in their examination of some of the applications that we are hearing about in the news and they have granted injunctions in circumstances where I would have thought they wouldn't have - although it has to be said that I am not privy to any privileged information in reaching that conclusion and have only the various newspaper and other reports to guide me.

What next? The press wants revenge ... and the freedom to do and say what it wants, when it wants. That would be an absolutely disastrous outcome. Other privileges, such as legal professional privilege would suddenly become impossible to maintain against leaks - as it appears happened in the Trafigura case.

All this for the trivial tales about the sexual exploits of a few ... sensible reforms would include ensuring that the temporary nature of the orders is strictly enforced. Guidance should be given to tighten up the circumstances in which such orders are made and to ensure that they are only granted in cases where there are real risks, rather than the perceived risks of being shouted at on a football field.