Brexit and the sovereignty of parliament: a backbencher’s view

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Brexit is a constitutional, legal, and political challenge of a size the UK has not seen in decades and will have consequences that are both uncertain and long-lasting. In this post, Dominic Grieve offers his distinctive perspective on Brexit, discussing the concept of parliamentary sovereignty, the role of international courts in UK law, and the more troubling aspects of the Withdrawal Bill itself. 

The EU and the sovereignty of parliament

My Brexiter colleagues have in varying degrees signed up to the view that EU membership undermines the sovereignty of parliament in a manner which is damaging to our independence and our parliamentary democracy. This certainly fits in with a national (if principally English) narrative that can be traced back past the Bill of Rights 1688 to Magna Carta in 1215.  This narrative has proved very enduring; it places parliament as the central bastion of our liberties.

But it can also be used merely as an assertion of power, particularly when the executive has effective control over parliament. It is with that power that parliament enacted the European Communities Act 1972, which gave primacy to EU law in our country. It was parliament that chose to allow what is now the Court of Justice of the European Union (CJEU) to override UK statute law, so as to ensure our conformity with EU law in all areas in which it has competence.

The justification for requiring that supremacy was that without it, achieving adherence to the treaties and convergence between member states in implementing EU law would be very difficult. This was not an unreasonable argument; but it is hard to avoid concluding that the supremacy of EU law lies at the root of the feeling of powerlessness felt by sections of the electorate and reflected in the referendum result. This feeling has been encouraged by the habit of successive UK governments to hide behind decisions of the EU as a justification for being unwilling to address problems raised by its own electors. But where the lawyer and politician in me parts company with the views of my Brexiter colleagues is in the extent to which they appear oblivious to the extent to which parliamentary sovereignty is not – and never has been – unfettered. Continue reading

Courting a Liddle Contempt?

Following the publication of an article by Rod Liddle, the Spectator has been referred to the Attorney General, Dominic Grieve, for possible contempt of court.  Mr Justice Treacy, presiding over the trial of Gary Dobson and David Norris for the murder of Stephen Lawrence in 1993, also warned the press not to republish any part of the article.

The key issue is whether the article had the potential to prejudice the trial; if so, Liddle could face action and the Spectator could be fined. The Contempt of Court Act 1981 created a ‘strict liability rule’, which relates to ‘active’ court proceedings. Strict liability means that the publisher’s intention is completely irrelevant: the rule applies in cases where a publication creates ‘a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.’

Grieve has certainly been more active than his predecessors in pursuing those newspapers who report irresponsibly: this July, The Sun and the Daily Mirror were fined £18,000 and £50,000 respectively for their coverage of the investigation of Joanna Yeates’ murder in Bristol, particularly in relation to the “vilification” of her landlord, Christopher Jeffries, who was arrested but released without charge shortly afterwards. In addition, Grieve has brought contempt proceedings against Sky (for allegedly breaching an injunction relating to the kidnapped couple Paul and Rachel Chandler), as well as the Daily Mail and Daily Mirror (for their reporting of Levi Bellfield’s murder of the schoolgirl Milly Dowler).

Having seen the article it is not easy to sympathise with either Rod Liddle or the Spectator. How such a hubristic article was allowed to be published is difficult to fathom. Given the Attorney General’s zeal for pursuing reckless newspapers, the Spectator will have to quickly locate its lawyers…

Injudicious Talk?

So it’s finally happened. The dogs on the street knew the identity of CTB, the footballer who held a super-injunction prohibiting publication of details of an alleged affair. Yesterday afternoon,in the course of a Commons debate on privacy, John Hemming MP used the protection of parliamentary privilege to name CTB as Ryan Giggs. [http://www.bbc.co.uk/news/uk-13516941] As a result the media (and this blog) have been freed to repeat this information without threat of legal sanction. This is one of several similar incidents recently. In March, Mr. Hemming used privilege to reveal the existence of an injunction held by Sir Fred Goodwin and last week Lord Stoneham stated in the House of Lords that the injunction in question related to an allegation of an affair.

These incidents suggest that parliamentarians may be starting to assert a direct role in interpreting the appropriate boundaries between privacy and freedom of expression and in challenging rival judicial interpretation of the balance of these values. There is nothing wrong with this as a matter of constitutional principle. Parliament has always acted as supreme constitutional authority (just as judges have always made law). However, direct challenges to the authority of the judiciary are unusual because if Parliament doesn’t like the wider implications of a judicial decision it can simply change the law (but of course Parliament doesn’t appear to be sure quite what an alternative privacy law should look like, and doesn’t want to court media criticism any more than do judges).

The reality is that the judicial position that underpins the jurisprudence on privacy in Britain is entirely defensible. Of course it is possible to disagree with it, but is it so far beyond the pale that it deserves the kind of criticism it has received? Only last Friday, Lord Judge suggested that MPs should think carefully before using privilege to frustrate injunctions in this way. [See the press conference for Lord Neuberger’s report on Super-Injunctions: http://www.judiciary.gov.uk/Resources/JCO/Documents/110520-superinjunctions-transcript.pdf] And yesterday morning a fresh application to discharge Mr. Giggs’ injunction had already been rejected by the High Court (a second application after Mr. Hemming’s statement was also rejected). Given the timing, Mr. Hemming’s statement thus represents something of a challenge to the authority of judges; a minor one, perhaps, but a challenge nonetheless. Depending on one’s point of view, this may also amount to a challenge to the rule of law. Is it really worth having a constitutional crisis over an alleged celebrity affair?

There is an interest in privacy – particularly in respect of the most intimate aspects of family life – that tends to go unspoken for in this debate. Partly, this is because the media has a professional (and pecuniary) interest in making secret things public and because, to some extent, politicians follow agendas that are set by the media. The widespread media position that super-injunctions amount to press censorship is of course literally true, but insufficiently fine-grained. The media account of the privacy debate significantly underplays the damage that publication causes to families. The super-injunction granted to Trafigura in 2009 (which prevented publication of a report into the dumping of toxic waste in Africa) [http://www.guardian.co.uk/media/2009/oct/20/trafigura-anatomy-super-injunction] was orders of magnitude more worrying than an order that suppressed some celebrity gossip about a footballer and a Big Brother contestant. The balance of interests in the first case is not the same as that in the second (not least because companies don’t have family lives). And it’s not as though it’s hard to see the qualitative difference between these two kinds of story – the common ‘slippery slopes’ argument that tends to blight discussion of freedom of expression and privacy is not always well founded. (Readers may want to see Conor Gearty’s more extensive argument about privacy and the Max Mosley case on the UK Constitutional Law Group Blog available at: http://ukconstitutionallaw.org/2011/05/16/conor-gearty-max-mosley-in-strasbourg/).

Of course, it might be reasonable to argue that the balance of interests was changed in this case by the fact that Mr. Giggs’ name was already public knowledge through circulation on Twitter and the internet more generally. It is possible that we are in a world in which privacy is impossible for people who are in the public domain (and perhaps for private citizens too). In that context a privacy injunction might be as effective as an injunction that water should run uphill and simply not worth having. Nonetheless the courts appear to have been receptive to the argument by Mr. Giggs’ lawyers that there were important differences between publication on Twitter and publication in the print and TV media, with all that the latter could entail [see:  http://www.thetimes.co.uk/tto/law/article3030225.ece]. A thoughtful Guardian editorial makes a similar point today: http://www.guardian.co.uk/commentisfree/2011/may/24/privacy-high-politics-low-gossip.

All of that said, Mr. Hemming has not had things all his own way. The response from fellow parliamentarians has been notable in its lack of support for his position, with a number expressing regret or emphasising that privilege should not be used in this way. Responding yesterday in the same Commons debate to a suggestion that the judiciary should ‘butt out’, Attorney General Dominic Grieve MP said that ‘I have to say to my hon. Friend that I am not quite sure what they are supposed to butt out from. If he is suggesting that they should butt out from doing their duty and following the judicial oath that they take, I am afraid I disagree with him.’ And in the Lords, former Lord Chancellor Lord Falconer commented that: ‘There is something quite ugly about unpopular people being named in Parliament despite the fact that a judge has thought that they are entitled to privacy,’ and noted also that the issue of privacy had been the subject of significant debate when Parliament enacted the Human Rights Act. Even Mr. Hemming’s own party leader, Nick Clegg, (speaking today) was critical. [http://www.thetimes.co.uk/tto/news/politics/article3037640.ece]

No one is suggesting that the general authority of the judiciary is likely to crumble over this. But there is a very public challenge here from some parliamentarians and from the media and so far the judiciary appear to be sticking to their guns. The Attorney General has announced a joint committee to investigate this issue. It will be interesting to see what happens next.

Lord Neuberger’s report on Super-Injunctions is available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/super-injunction-report-20052011.pdf