Philip Green verdict is a big win for the under scrutiny ECHR
Sir Philip Green tried to sue the UK, but Strasbourg said ‘no’ — in a move that not only “reaffirms” Parliamentary privilege but shines a telling light on the European Court of Human Rights (ECHR).
Parliamentary privilege, a right that has existed since 1689, grants certain legal immunities to members of Parliament and the Lords, including freedom of speech.
There have been several high-profile examples of this practice, including in 2011, when a Lib Dem MP revealed footballer Ryan Giggs’s injunction over an alleged affair.
While Giggs was playing away from home, Sir Philip’s name was linked to much more serious allegations.
The Daily Telegraph ran an article in 2018 titled “The British #MeToo scandal which cannot be revealed.” This “leading businessman” was granted an injunction against the paper, meaning it couldn’t name him.
The “businessman” allegedly used NDAs to silence staff and shut down accusations of bullying, sexual harassment, and racial abuse.
The nameless person turned out to be Sir Philip. We know this because Lord Peter Hain named him in the House of Lords in October 2018.
Sir Philip denies the allegations.
The retail tycoon, who now lives in the tax haven of Monaco, already had a tattered reputation following the collapse of BHS in 2016, which left 11,000 people without jobs and a near £600m pension deficit.
He took a legal challenge to the ECHR; among his claims, he argued that Article 8 — the right to respect for private and family life — was breached by Lord Hain’s actions.
However, on Tuesday, the eight ECHR justices rejected his case.
The ECHR declared that it is “for national parliaments to assess the need to restrict conduct by their members.”
“The ECHR reaffirms the long-held principle that the UK has no obligation at all to stop Parliamentary privilege being used to circumvent a court order and that it is up to member states to manage their own legal frameworks in this regard,” stated Andrew Gilmore, partner at Grosvenor Law.
Meanwhile, Ernest Aduwa, partner at Stokoe Partnership Solicitors, added:
“The decision may disconcert those seeking to shield reputational interests through legal artifice, but it underscores the enduring principle that public accountability cannot be subjugated to private confidentiality — however well-financed or meticulously litigated.”
Politicians may welcome the ECHR’s decision, but it comes at a time when the UK’s membership of the Strasbourg court has been under intense political scrutiny.
Only last month, former Prime Minister Rishi Sunak argued in an interview with BBC Political Thinking that Britain should leave the ECHR “unless it is reformed”.
The topic of the ECHR came up frequently during his tenure, particularly after the Strasbourg court blocked his first Rwanda-bound flight carrying asylum seekers.
Chloe Flascher, associate at Withers, explained that while the court decided not to interfere, it emphasised the need for prior and subsequent controls to be kept “under regular review” at the domestic level.
“The ruling does contain a word of caution to the UK government to keep the position under regular review,” she said, adding, “What constitutes ‘regular’ review remains to be seen, but one might expect it to include review of — or amendments to — Parliamentary Codes of Conduct.”
“Considering we’re in a time when MPs have in fact been advocating for leaving the ECHR, a Strasbourg decision finding in favour of Sir Philip would certainly not have been met with delight in Parliament,” Flascher added.
In the end, for all Sir Philip’s legal manoeuvres, the UK’s control over Parliamentary privilege remains firmly intact — while the ECHR manages to give itself some rare good press.
Eyes on the Law is a weekly column by Maria Ward-Brennan focused on the legal sector.