Case Summary and Outcome

The European Court of Human Rights (ECtHR) held that the United Kingdom did not violate the right to respect for private and family life—under Article 8 of the European Convention on Human Rights—when a Member of Parliament disclosed confidential details about a former chairman of a British company. The British businessman alleged that the State failed to fulfil its positive obligations by allowing the Member to reveal confidential information. The Court argued that parliamentary immunity is essential to protect free speech and that the States have a wide margin of appreciation when dealing with issues related to parliamentary immunity. The ECtHR highlighted that the UK Parliament has repeatedly examined—and ultimately rejected—proposals to introduce ex ante and ex post controls “on the power to use parliamentary privilege to reveal information.” On this point, the Court emphasized that national authorities are better placed than an international court to assess whether restrictions on the conduct of Members of Parliament are necessary.

Facts

On 16 July 2018, the newspaper The Telegraph contacted Arcadia Group, a British clothing retail company, to inquire about allegations of sexual harassment and bullying made against Sir Philip Green, the former chairman of the Arcadia Group, by former employees. These allegations arose from employment grievances previously resolved through confidential settlement agreements that contained non-disclosure clauses—restricting public dissemination of information without consent while permitting limited disclosures.

On 18 July, Green, Arcadia Group, and fashion retailer Topshop sought an injunction to restrain The Telegraph from publishing the material disclosed to it in breach of contract and confidentiality. The claimants also sought an interim injunction to prevent the disclosure pending trial. The High Court refused the interim injunction. However, the Court of Appeal granted it, considering that the publication risked immediate, substantial, and possibly irreversible harm to Green. The following day, on 24 October, 2018, The Telegraph published limited details of alleged misconduct without naming Green.

On 25 October 2018, during parliamentary proceedings in the House of Lords, Lord Hain delivered a personal statement identifying Green as the anonymous figure protected by the injunction. Citing parliamentary privilege, he asserted a duty to disclose wrongdoings of “serious and repeated sexual harassment, racist abuse and bullying.” [para. 14] The statement was widely broadcast and rendered the anonymity order functionally ineffective.

Green’s legal representatives lodged a formal complaint before the House of Lords Commissioner for Standards. Complaints were also made by members of the public alleging abuse of privilege, violation of the sub judice rule, and undeclared conflicts of interest. However, the Commissioner determined that parliamentary privilege and sub judice issues fell outside her remit.

The claimants conceded that confidentiality had been irreparably compromised and discontinued proceedings against The Telegraph. Meanwhile, the High Court reiterated that probing Hain’s source risked infringing Article 9 of the Bill of Rights 1689. Said provision states “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

Subsequently, on 23 April 2019, Green approached the European Court of Human Rights (ECtHR), considering his right to privacy under Article 8 of the European Convention on Human Rights (ECHR) was violated. To Green, “the absence of ex ante and ex post controls on the power to use parliamentary privilege to reveal information subject to an injunction breached his Convention rights.” [para. 53]

Decision Overview

Justice Chanturia, President of the Fourth Section of the European Court of Human Rights, delivered the judgement. The central issue before the Court was whether Article 8 of the ECHR (right to private life and reputation) requires States to implement measures “to prevent Members of Parliament from revealing information subject to privacy injunctions.” [para. 81]

Green did not “challenge the principle of parliamentary privilege itself,” [para. 53] but rather the absence of controls on parliamentary privilege. He submitted that Lord Hain’s statement before the Parliament breached a judicial order and that the government was under a positive obligation under Article 8 ECHR to ensure that parliamentary privilege could not be used to circumvent judicial orders. Furthermore, the applicant argued that the domestic legislative framework failed to strike a fair balance between articles 8 and 10 (right to freedom of expression) of the ECHR.

For its part, the Government held that introducing ex ante or ex post controls on parliamentary privilege would inevitably subject parliamentary speech to judicial supervision, fundamentally altering the constitutional balance between Parliament and the courts. It maintained that courts have recognized that the public interest in protecting parliamentary privilege justifies even a significant curtailment of individual rights. To the Government, introducing controls would enable well-resourced individuals to restrain parliamentary debate by securing court orders enforceable against Members, thereby undermining both free parliamentary speech and the separation of powers.

At the outset of its analysis, the Court considered that publicly linking Green to allegations of “serious sexual harassment, racist abuse and bullying” attained a “sufficient level of seriousness to harm his reputation,” thereby recognizing an interference with his rights. [para. 69]

Turning to the competing interests at stake, the ECtHR stressed that any assessment of positive obligations under Article 8 had to take account of the right to freedom of expression under Article 10. It reiterated that, “Parliament is a unique and fundamentally important forum for political debate, and the right to freedom of speech therein enjoys an elevated level of protection.” [para. 76] Considering this, the Court underscored that “very weighty reasons” are required to justify restrictions on speech in Parliament. [para. 76]

Subsequently, the ECtHR said that parliamentary immunity is essential to protect free speech and that States have a wide margin of appreciation when dealing with issues related to parliamentary immunity. The Court highlighted that the UK Parliament has repeatedly examined—and ultimately rejected—proposals to introduce additional controls of the kind sought by Green. In this regard, it emphasized that national authorities are better placed than an international court to assess whether restrictions on the conduct of Members are necessary.

The Court declined to engage with Green’s argument that speech breaching a judicial order “is not the sort of meaningful debate that parliamentary privilege was designed to protect,” [para. 89] stating instead that it is not for the Court to “assess the value of parliamentary speech or its contribution to meaningful debate.” [para. 89] The ECtHR held that it would be unprecedented to conclude that speech uttered in Parliament by a Member fell outside the scope of parliamentary activity. Such a conclusion, it argued,  would run counter to the operation of parliamentary privilege. The Court considered that such an oversight could amount to an indirect control over free speech, as it would inevitably involve the Court, at least to some extent, in evaluating statements made in Parliament. To the ECtHR, it is for Parliament to decide whether and to what extent ex ante or ex post controls are necessary to prevent Members from disclosing information subject to privacy injunctions.

The Court, therefore, held that the State did not exceed the margin of appreciation afforded to it on parliamentary privilege, nor violated Article 8 of the ECHR—although it emphasized the need to regularly review controls at the domestic level.