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Me Too’s Privileged Few

If you are interested in the law and custom of Parliament (lex et consuetude parliamenti), you should follow Jack Simson Caird on twitter (@jasimsoncaird). Had you done so, you too would have learned of a recent controversy involving parliamentary privilege and legislative self-discipline that caught my attention.

The story begins on October 24, 2018, when the Daily Telegraph, a British newspaper, charged that a “leading businessman” had engaged in “alleged sexual harassment and racial abuse of staff.” This reporting followed an eight month investigation by the Telegraph of the allegations in question. However, the newspaper was unable to reveal the identity of the businessman and other details of its findings because of an injunction issued by a three-judge appellate court at the request of the businessman and his companies. This ruling was widely criticized (at least according to the Telegraph) by MPs and others as a violation of press freedom and an inappropriate attempt to gag harassment victims.

The British court’s opinion explains that five employees had made allegations of “discreditable conduct” against the businessman in question, but all of these claims had been settled by agreements in which the employees had received “substantial payments” and the parties had entered into nondisclosure agreements. The court found that the claimants had made a showing sufficient to establish the likelihood “a substantial part of the [Telegraph’s] information was obtained through breach of duty of confidentiality to the Claimants, either in breach of the NDAs, or by those with knowledge of the NDAs, and that the Telegraph acquired the information with knowledge both of the NDAs and the breach of confidence.” Accordingly, the court issued a temporary injunction prohibiting the newspaper from publishing the businessman’s identity or other details about the alleged misconduct until a full trial on the merits.

Needless to say, the substantive law in the U.K. is quite different from that of the United States, where the First Amendment presumably would prevent a judicial order of this kind. The divergence is illustrated by the British court’s quote of the following from an earlier case:

To take an extreme example, the content of a budget speech is a matter of great public interest. But if a disloyal typist were to seek to sell a copy to a newspaper in advance of the speech in Parliament, there can be no doubt that the newspaper would be in breach of duty if it purchased and published the speech.

The notion that the advance leaking of a budget speech is an “extreme example” potentially justifying a prior restraint against publication would strike Americans as outlandish (though, to be fair, bribery of a government official to provide confidential information might well have other civil or criminal consequences in the U.S.).

What is interesting for our purposes, however, is not the substantive law on press freedom, but what happened next. On October 25, 2018, immediately following the issuance of the injunction, Lord Peter Hain revealed in the House of Lords some of the confidential information covered by the court’s order, including the identity of the businessman in question. This in turn allowed the British media, which otherwise would have been risking contempt of court, to report the information to the general public. (See this blog post by Professor Jelena Gligorijevic for further details). Hain’s action has been widely condemned as an abuse of parliamentary privilege. 

How Hain’s disclosure would be handled in the U.S.

There is no question that if a member of Congress made a similar disclosure on the floor of the Senate or House (or in a committee proceeding), she would enjoy absolute protection from any legal consequence by virtue of the Speech or Debate Clause, which provides that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” Conversely, it is clear that she could be punished by the legislative body in which she served for the disclosure, such chamber constituting the very “place” at which questioning is not forbidden by the Speech or Debate Clause. See, e.g., Howard v. Office of the Chief Admin. Officer of the U.S. House of Representatives, 720 F.3d 939 (D.C. Cir. 2013) (“because the Office of Compliance process occurs within the Legislative Branch, not in a ‘other Place,’ the Speech or Debate Clause does not pose an issue in those cases”) (Kavanaugh, J., dissenting). The constitutional authority of each house to punish its members is also expressly confirmed by the Rules of Proceedings and Discipline Clauses.

This issue most frequently arises in Congress when an individual member discloses (or threatens to disclose) classified information. Each house has a rule which allows for a collegial decision on whether or not to make classified information public. If a member nonetheless decides to disregard this process and unilaterally release classified information on the floor or in the course of legislative proceedings, she would be absolutely immune from legal consequences under the Speech or Debate Clause. She would not be immune from, and would likely face, investigation by and possible sanction from the relevant ethics committee. If a member of the House, she could also be subject to proceedings before the Officer of Congressional Ethics.

In a situation analogous to Hain’s (i.e., the disclosure of nonclassified information which arguably infringes on individual privacy or judicial independence), congressional ethics rules are broad enough to discipline a member for such disclosure if it is deemed to bring discredit upon the legislative chamber. Whether as a practical matter there would be an actual investigation or potential punishment would likely depend on the reason for the disclosure. If there were a reasonable claim of a valid legislative purpose (e.g., the disclosure was necessary to inform Congress’s consideration of legislation to address sexual harassment), it is unlikely the member would face any consequences. If the disclosure were a form of “civil disobedience” (i.e., a protest against a decision the member believed unjustly protected a sexual harasser), the possibility of disciplinary action would be somewhat greater, though my guess is that it would amount to a slap on the wrist at most. On the other hand, if there were evidence that the disclosure was made for reasons of the member’s personal interest (as may be the case with regard to Hain, who it appears is a paid consultant to the law firm advising the Telegraph with regard to the court action), one could more easily imagine some discipline being imposed.

How Hain’s disclosure is being handled in the U.K.

On its face, Hain’s disclosure would seem to be protected by Article IX of the English Bill of Rights (the forerunner of the Speech or Debate Clause), which provides that “freedom of speech or debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” However, at least one commentator argues that Article IX should not be read to provide an absolute protection to legislators.

Professor Paul Wragg contends that Article IX must be interpreted in accordance with subsequent legislation, particularly the Human Rights Act of 1998. Under that law, as interpreted by the European Court of Human Rights, a court can disregard legislative privilege if there is a sufficiently weighty reason. According to Professor Wragg, such reason is provided by Hain’s deliberate effort to subvert the law, and Hain should therefore be held in contempt of court. As Wragg puts it: “That the privileged, and sometimes over-privileged, few of the unelected House of Lords can use their immense power to destroy the administration of justice on a whim is a matter of serious constitutional concern and Hain deserves to be made an example of.”

Responding to Wragg’s argument, Professor Robert Craig acknowledges it would be a strong one if in fact Wragg were correct in his implicit premise that the courts have an unlimited jurisdiction which extends to Parliament, with Article IX merely constituting “a strong ouster clause which may even need to be interpreted narrowly in line with §3 Human Rights Act 1998.” This premise is flawed, Craig argues, because Article IX did not oust the jurisdiction of the courts; rather it confirms “the jurisdiction of the courts simply does not extend to parliamentary proceedings in the first place.” Thus, “[t]hose who would defend the sovereignty of Parliament against detractors can be reassured that the very egregiousness of Hain’s conduct shows that, in the final analysis, the jurisdictional sovereignty of the high court of Parliament remains outside the jurisdiction of the [British courts] in even the most extreme circumstances.”

Craig represents the traditional view, which remains the “near universal” opinion of parliamentary scholars today. Nonetheless, he worries that Parliament’s failure to administer discipline could encourage courts to adopt Wragg’s theory or some variant therefor. As he notes, “[i]f Hain’s decision to intervene in live proceedings is treated leniently by parliament, there must be some concern about whether the judiciary will continue to treat Article IX with its current level of extreme deference.” This concern is exacerbated by the fact, pointed out by Professor Gligorijevic, that there have been other notable instances of parliamentarians using privilege to make disclosures in violation of injunctions in the past several years. She observes that such actions may result in “the crystallising of a precedent that parliamentarians can and shouldabuse privilege in this way.”

Craig seems to believe that Hain could be disciplined under existing parliamentary rules, but Gligorijevic suggests that Parliament may need to “codify the importance of respecting judicial process, separation of powers, and the rule of law.” Her position is supported by this 2012 report of the Joint Committee on Privacy and Injunctions, which states that “[a]s things stand, it is a matter for each parliamentarian to decide, if they come across information that is subject to an injunction, whether to reveal that information in parliamentary proceedings.” (p. 48) As suggested in the report, Parliament is now apparently considering a rule that a parliamentarian must give notice to the speaker before raising under protection of privilege a matter pending before a court; failure to provide the notice would result in discipline.

Conclusion

The takeaway here is that it is important for legislatures to show that they will hold their members accountable for improper or unethical conduct. As Professor Chafetz argues, “[m]aintaining public trust on an institutional level requires that the house combat—and be seen to combat—abuses in their midst . . . both for ethical violations, like bribery, and for significant violations of cameral order and decorum.” Josh Chafetz, Congress’s Constitution 266 (2017). (See here for an example of the Canadian Parliament admonishing a member who had abused parliamentary privilege). By enforcing their own rules, legislatures enhance their “soft power” and enhance their institutional prestige, thereby making it less likely that their privileges will be threatened by the other branches.

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