Monday, June 13, 2011

Privilege

I thought it was outrageous when John Hemming MP used Parliamentary privilege to out Ryan Giggs as the footballer behind the notorious super injunction.

As much as anything this was because I felt my gorge rising when I heard him on the radio defending his egomaniacal attention seeking as if it was some sort of Gandhian gesture of disobedience in the service of a noble cause. "Cobblers," I remember thinking, if he really wanted to bring the temple down why didn't he name Giggsy outside the House and challenge the injunction directly?

I was reading something in the London Review of Books the other day, that seemed to me to explain the issues more thoroughly. Perhaps because it was written by Stephen Sedley, who was The Rt. Hon. Lord Justice Sedley until he retired recently.

Here we go:
For more than three hundred years the UK’s constitution has functioned remarkably well on the basis of the historic compromise reached in the course of the 17th century. The 1689 Bill of Rights forbade the impeachment or questioning of parliamentary debates and proceedings ‘in any court or place out of Parlyament’. Parliament in return has made it a rule, enforced until now by the speakers of both Houses, that it will not interfere with the decisions of the courts, whether by anticipating their judgments or by attacking them. If Parliament does not like what the courts do, it changes the law. The sovereignty of Parliament as the final source of law and the sovereignty of the courts in interpreting and enforcing the law are the twin pillars on which democracy and the rule of law in the UK rest. It was the courts themselves which, in the 19th century, extended the privilege of Parliament to cover any fair and full report of what was said there even if it was libellous.

When a member of either House, protected by the privilege which prevents his being prosecuted for it, consciously breaks a High Court injunction by naming an individual who has been anonymised by court order, it suggests two possibilities. One is that he does not understand the constitution; the other is that he does and has set out to transgress it. In spite of protests from members of both Houses who understand very well what is at stake, neither speaker appears at present to have taken any steps against the offenders.
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