Sir Philip Green: Injunctions, Non-Disclosure Agreements and Parliamentary Privilege - RightsInfo

Sir Philip Green: Injunctions, Non-Disclosure Agreements and Parliamentary Privilege

In October, Sir Philip Green was revealed in Parliament as the businessman at the heart of ‘Britain’s #MeToo scandal’. The revelation sparked an intense debate about injunctions, non-disclosure agreements, parliamentary privilege and the relationship between Parliament and the courts. But what does all mean? In this explainer we get to the bottom of it.

Let’s remind ourselves what happened:

  • On 23 October, the Court of Appeal in ABC v Telegraph granted an injunction which prevented the newspaper revealing allegations of sexual harassment and racial abuse of staff. Those allegations had previously been under wraps by way of non-disclosure agreements (NDAs).
  • On 24 October, in compliance with the injunction, The Telegraph ran a story titled ‘The British #MeToo scandal which cannot be revealed’, reporting the investigation without naming Green.
  • On 25 October, Lord Peter Hain stood up in the House of Lords and blew the whole thing wide open by engaging his parliamentary privilege, and naming Sir Philip Green as the person at the centre of the allegations.

First Up – What is an Injunction?

Lord Peter Hain used parliamentary privilege to name Sir Philip Green in the Houses of Parliament

An injunction is an ‘equitable’ remedy, which means that it is a remedy at the discretion of a judge. An injunction comes in the form of a court order and does one of two things. It either compels somebody to do something, for example knock down your garden wall because it has been built too high. Or, it compels somebody to not do something (for example to not build a garden wall in the first place, because it would be too high). The first type of injunction is known as a ‘mandatory’ injunction and the second as a ‘prohibitory’ injunction.

In the example we’re looking at, allegations of sexual harassment and racism were made against Sir Philip Green. He went to court and successfully sought an injunction to prevent The Telegraph from printing those allegations – so this was a prohibitory injunction.

However it was not widely known that Green only obtained an interim injunction, meaning that the injunction would only temporarily preserve the confidentiality of the information pending a full trial.

What this means, is that had Peter Hain not engaged his parliamentary privilege, it may well have been the case that the injunction was later lifted in court, enabling The Telegraph to reveal the identity of Sir Philip Green themselves.

Are Injunctions Only used Against Newspapers?

Although injunctions are most widely-known for being used in a newspaper publishing context, they can in fact be used in a wide range of circumstances.

For example, for victims of domestic violence, injunctions can protect children from being harmed or threatened by the abuser through a ‘non-molestation order’ or can decide who lives in the family home and who can enter the surrounding area with an ‘occupation order’.

In other words, injunctions may have a bad reputation but they are an important and legitimate remedy. If somebody is about to say (or do) something that you object to, and which interferes with your legal rights, such as your right to privacy, or your right to the use or enjoyment of your land,  then in theory, you can go to court and request an injunction to protect those rights.

Next Up, What is a Non-Disclosure Agreement?

Woman silencedCredit: This Is My URL | Pixabay

A non-disclosure agreement (NDA) is a legal contract between two or more parties in which the parties agree to not disclose certain types of information of a confidential nature.  Non-disclosure agreements are often used in a commercial or employment context.

For example, imagine that two companies want to discuss the possibility of doing business together, and in order to accurately demonstrate what they do, they need to share some confidential company data. Prior to those discussions, they might consider entering into a NDA. This will mean that both parties are bound to strict confidentiality terms, even once those discussions are over.

However, in the context of sexual harassment, NDAs become highly problematic and potentially unethical. In the present case, NDAs were used to ensure that the complainants kept the subject matter of their complaints confidential (i.e. their allegations of racial and sexual harassment) and in return they received substantial payments. In 2018, Parliament’s Women and Equalities Committee found that NDAs were being widely used to ‘silence’ victims of sexual harassment in the workplace and

Injunctions and NDAs Sound Similar. What is the Difference?

The key difference between injunctions and NDAs is that the first is a court order and the second is an agreement. Party A can go to court and apply for an injunction against party B, and the decision as to whether it will be granted lies with the court. With a NDA, both parties have to agree to the terms and enter into the contract, and the court has nothing to do with it.

What is Parliamentary Privilege?

 

On 25 October 2018, Lord Peter Hain stood up in the House of Lords and made the following statement:

“My Lords, having been contacted by someone intimately involved in the case of a powerful businessman using non-disclosure agreements and substantial payments to conceal the truth about serious and repeated sexual harassment, racist abuse and bullying, which is compulsively continuing, I feel it’s my duty under parliamentary privilege to name Philip Green as the individual in question, given that the media have been subject to an injunction preventing publication of the full details of a story which is clearly in the public interest.”

Parliamentary privilege means that Members can speak and debate freely during proceedings in parliament without fear of legal action.

In the UK, parliamentary privilege is a legal immunity that is enjoyed by Members of the House of Commons and the House of Lords. Parliamentary privilege is designed to allow Members of both Houses to “perform their duties without interference from outside of the House”.

This includes various immunities, such as the right of both Houses to regulate their own affairs. For present purposes, we are most concerned with freedom of speech: fundamentally, parliamentary privilege means that Members can speak and debate freely during proceedings in parliament without fear of legal action (on the grounds of, for example, defamation).

The current debate is whether Lord Hain’s actions constituted an abuse of his parliamentary privilege.

Key Issue: the Jurisdiction of the Courts

https://commons.wikimedia.org/wiki/File:UK_Supreme_Court.jpgThe Supreme Court at the Royal Courts of Justice, London      Credit: Wikimedia Commons

The first issue, is that this matter was in the process of being dealt with in the courts. In reaching its decision, the Court of Appeal would have had all the facts and the evidence upon which to reach their decision.

For example, a key factor in this case is that two of the five complainants supported the injunction and did not want Green to be named. This may well have been through fear that they themselves could then be identified from the details of the complaints and a need to protect their right to privacy.

Further, the injunction was interim. This means that it was temporary, pending a full trial. In their judgment, the Court of Appeal made it clear that this trial should be “speedy” and expedited. So, because the injunction was interim and not final, it may well have been that following trial, the injunction could have been lifted and the Telegraph would have been free to report their investigation.

Key Issue: Did Peter Hain Flout the Sub Judice Rule?

https://beta.parliament.uk/media/Auw95kcGLord Peter Hain     Credit: Parliament

Secondly, given that the injunction was an interim one and the court proceedings were ongoing, the second issue worth considering is the ‘sub judice’ rule. This rule prevents Members or Lords from referring to a current or impending case that is active in the courts.

The sub judice rule is intended to defend the rule of law and our right to fair trial. It is not an absolute rule, and the Speaker may under certain circumstances relax the rule at his discretion. What is not clear, is whether Hain’s actions flouted the sub judice rule, and if so, whether this incurs any ramification.

What Now?

flickr.com/photos/uk_parliament/6165874456The House of Lords    Credit: Parliament UK | Flickr

As much as we need to tackle issues around sexual harassment, racial abuse, and unethical use of non-disclosure agreements in the workplace, I’m not convinced that Lord Hain standing up in the Lords and naming Sir Philip Green was the answer.

This abuse of parliamentary privilege fosters confusion and makes a mockery of both parliament and the courts.

With a little more time, it may well have been that his name was revealed anyway. At least that way the judicial process would have run its course, we would have retained respect for the rule of law, and we would have been left with a greater sense of trust that our constitutional framework is all in good order.

This abuse of parliamentary privilege fosters confusion and makes a mockery of both parliament and the courts.

Featured image: Tina Flour | Unsplash

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About the Author

Gemma McNeil-Walsh

Writer
Gemma is a Research Assistant at the British Institute of International and Comparative Law, and is a qualified barrister. She is interested in the intersection between the rule of law, human rights, technology, and the challenges of the Internet age. View all posts by Gemma McNeil-Walsh.
Sir Philip Green: Injunctions, Non-Disclosure Agreements and Parliamentary Privilege
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