Knight of the realm and business tycoon Philip Green spends a lot of money on expensive lawyers.
First, he took out an injunction in 2018 to block the media from mentioning him over complaints from his employees at Arcadia Group, overwhelmingly women, about bullying and abusive conduct, behaviour which he categorically denied.
But that failed when I named him as the person making the injunction on 25 October 2018 in the House of Lords, under a form of legal immunity known as parliamentary privilege – whereupon his lawyers tried to get me sanctioned by the parliamentary standards commissioner. That failed too when his complaint was roundly dismissed.
Green’s latest action was to instruct lawyers to appeal to the European court of human rights to overturn the concept of parliamentary privilege in Britain, claiming that my comments had circumvented court orders around the injunction, violated his privacy and violated his right to fair trial. That also failed when the Strasbourg court this week sensibly ruled it was not a matter for them. (This was a chamber decision, so there are still three months during which he could ask for the case to be referred to the grand chamber of the court for a final ruling.)
If he were to succeed in overriding parliamentary privilege in this case, that would be seismic for human rights and freedom of speech.
It dates back at least to parliament’s finest historic moment in January 1642, when King Charles I and his soldiers invaded the House of Commons to arrest five MPs for treason after their speeches criticising his rule.
The Speaker courageously defied him while MPs chanted “Privilege! Privilege!” – a cry taken up in the streets by the people of London. In 1689, the right to free speech in parliament was entrenched in the English Bill of Rights.
It means that MPs or peers when speaking in parliament cannot be sued and what they say can be reported in the media without the rich or powerful being able to suppress it with legal injunctions or asset seizures.
Despite outrage from the legal establishment, it was used in 1955 to name for example, the notorious spy Kim Philby. It was vindicated again in 1978 when MPs used it to expose the bogus secrecy of “Colonel B”, wrongly (as judges later found) given anonymity by a court to bolster an oppressive official secrets case against journalists.
When the director of public prosecutions immediately threatened the press with prosecution, newspapers, led by the Times, defied him.
That said, parliamentary privilege should be used very responsibly and sparingly. In my 34 years as a parliamentarian, I had used it just twice before naming Green.
In January 2000, as a Foreign Office minister, and using British intelligence, I named traffickers selling arms for “blood diamonds” fuelling wars in Africa. They went out of business. Their chief “merchant of death”, Putin crony Victor Bout was subsequently imprisoned.
In 2017 in the Lords, I named British-based global corporations alleged to be complicit in former president Jacob Zuma’s corrupt activities in South Africa.
These examples are living proof of parliamentary sovereignty – irrespective of the wishes of the executive, the powerful, and the wealthy, and even rulings by the legal establishment when it prevents the publication of allegations of misconduct – as the courts did initially over the Green case.
I acted for moral reasons and was not second-guessing or criticising the judiciary when I further used parliamentary privilege to name Green and share details of allegations against him in the House of Lords on 23 May 2019 - Green repeated that “to the extent that it is suggested that I have been guilty of unlawful sexual or racist behaviour, I categorically and wholly deny these allegations”.
I did this partly because Green’s employees had signed non-disclosure agreements, when such NDAs are meant to ensure the sanctity of confidential commercial matters, not to hide allegations of abuse.
Film tycoon Harvey Weinstein used NDAs to silence his sexual harassment victims, as did organisers of the Presidents Club dinner in London in January 2018, when 130 women were required to sign agreements in a bid to stop any details of harassment, groping and propositioning going public.
Former Conservative cabinet minister Maria Miller, when chair of the women and equalities committee, said that the case had “thrown a spotlight on the way NDAs can be used repeatedly to cover up alleged wrongdoing”.
Because of Charles I’s attacks, the monarch is still barred from entering the House of Commons. Parliamentary privilege is an absolute free speech right entrenched in the law, a fundamental part of Britain’s constitution and a part of the rule of law itself.
It should not be whittled away by allowing judges, at the behest of the powerful or wealthy, to override the sovereignty of parliament.
Peter Hain was the Labour MP for Neath from 1991 to 2015 and secretary of state for Northern Ireland from 2005 to 2007
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