The Labour peer and former cabinet minister, Peter Hain, has used parliamentary privilege to circumvent a court injunction preventing the Daily Telegraph from naming a prominent businessman who has been accused by five of his employees of bullying, intimidation and sexual harassment.  

The five had signed non-disclosure agreements (NDAs) in return for financial settlements and the Court of Appeal ruled that this justified an interim injunction while it decided whether or not the public interest required the NDAs to be overridden. But Lord Hain thought it was in the public interest to name the businessman and used parliamentary privilege to do so. The man he named, as the whole world knows by now, is Sir Philip Green. He ‘categorically and wholly’ denies the allegations,  Is it right for parliamentarians to be able, in effect, to pre-empt the decision of a court?

Earlier this year the Daily Telegraph started to investigate reports made by five employees of Sir Philip’s Arcadia group of his alleged unlawful behaviour towards them. This included allegations of bullying, intimidation and sexual harassment. In July the paper approached Sir Philip for his comment. He denied the allegations and sought an injunction preventing the paper from publishing details of the case. A high court judge threw out the request, saying that the allegations amounted to ‘discreditable conduct’. That judgement was appealed and the Court of Appeal issued an interim injunction, preventing Sir Philip’s name being published.

The appeal court judges ruled that the case for public disclosure was ‘compromised by the settlement agreements’ but it still had to rule whether, even so, the public interest for disclosure trumped the legal agreement for non-disclosure. That’s why the injunction was merely an interim one.

The following day the Daily Telegraph reported details of the story and the allegations, referring merely to a prominent businessman and using an unidentifiable silhouette in place of a photograph.

On Thursday the identity of the businessman was revealed in the House of Lords when Lord Hain named him as Sir Philip Green. Lord Hain was using the ancient privilege of parliamentarians to say what they like, including naming people in relation to alleged wrongdoing, without being liable to prosecution themselves as they might be if they were to speak so freely outside Parliament. It is a privilege that exists to enable free debate.

Lord Hain said he ‘felt it his duty’ and ‘the right thing to do’ to name Sir Philip. He had been approached by someone ‘intimately involved’ and said ‘what concerned me about the case was wealth, and the power that comes with it, and abuse’.  

His point was that NDAs, which are quite commonly and properly used to protect commercial and other forms of confidentiality, seem to be increasingly deployed by rich people as a means of covering up allegations of criminal behaviour. The rich are able to use both their money and their power to avoid disclosure of alleged unlawful activity because they are often in a position to force employees making allegations to sign the NDAs whether they really want to or not.

The whole issue of NDAs being used in this way has become a matter of urgent political concern. When she was asked about it at Prime Minister’s Questions on Wednesday, Theresa May promised to bring forward a consultation ‘to seek to improve the regulations around NDAs and make it absolutely explicit to employees when an NDA does not apply and when it cannot be enforced’. The issue is especially sensitive for politicians because the House of Commons has itself spent about £2.3m on such gagging clauses in contracts since 2013.

Lord Hain’s action has been backed by some newspapers and by fellow politicians, including Jess Phillips, a Labour member of the Commons Women and Equalities Committee and Sir Vince Cable, the Liberal Democrat leader. Others have taken a much more critical line. Alan Johnson, the former Labour Home Secretary, warned that there ‘had to be a very good reason for a parliamentarian to break the decision of three senior judges who had seen the evidence’. And others protested that Lord Hain, for all his talk of ‘duty’, did not have such a justification.

Dominic Grieve, a former attorney-general and sitting Conservative MP, accused Lord Hain of acting ‘entirely arrogantly’ and being ‘plainly wrong’. His argument was that Lord Hain had ‘driven a coach and horses’ through the proper legal process still in train. It had been for the appeal court, not an individual parliamentarian, to decide whether Sir Philip’s legal contracts with his five accusers to keep their allegations out of the public domain should have primacy or not over any public interest case for disclosure. The appeal court had still to pronounce on this,  but Lord Hain’s exposure of Sir Philip’s name removed its ability to do so and deprived Sir Philip of the right any citizen should have for the courts and the courts alone to decide such a issue. Lord Hain had acted ‘capriciously’ putting his own views before the proper working of the justice system.

This view was echoed by Lord Judge, a former Lord Chief Justice, who said that the use in general of NDAs to cover up criminal offences was clearly against the public interest but that it was up to the courts rather to parliamentarians to decide in any specific instance whether an NDA was against the public interest: Lord Hain’s circumventing this due process had taken away Sir Philip’s entitlement to have the validity of the NDAs in his case properly adjudicated.

In short, his critics accuse Lord Hain of an abuse of parliamentary privilege that risks undermining the rule of law, while his supporters claim he has stood up for those who may be less able to stand up for themselves in a legal system they believe stacked in favour of the rich.

Who’s right?

Let us know your views.

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