CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 avril 2025

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margin-left:19.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.18pt; font-family:Arial; text-transform:uppercase } .s448F0C15 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s3E39F0D2 { width:24.22pt; display:inline-block } .sA0993303 { width:139.09pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } FOURTH SECTION CASE OF GREEN v. THE UNITED KINGDOM (Application no. 22077/19)   JUDGMENT   Art 8 • Positive obligations • Private life • Use of parliamentary privilege by a Member of Parliament to disclose on the floor of the House the applicant’s identity subject to an interim privacy injunction pending trial • Disclosure with serious consequences for the applicant • First and foremost for national parliaments to assess the need to restrict their Members’ conduct • Rule on parliamentary privilege not entirely devoid of ex ante and ex post controls • Parliamentary privilege, in the majority of Member States, afforded absolute protection from external legal actions to statements made by parliamentarians in Parliament or in the exercise of their parliamentary duties • Wide margin of appreciation not exceeded • Lack of sufficiently strong reasons to justify requiring the introduction of further ex ante and ex post controls to prevent Members of Parliament from revealing information subject to privacy injunctions • Respondent State to regularly review the need for appropriate controls, given serious impact of disclosure of information subject to privacy injunctions   Prepared by the Registry. Does not bind the Court.   STRASBOURG 8 April 2025 FINAL   08/07/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Green v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lado Chanturia , President ,   Tim Eicke,   Lorraine Schembri Orland,   Ana Maria Guerra Martins,   Anne Louise Bormann,   Sebastian Răduleţu,   András Jakab , judges , and Simeon Petrovski, Deputy Section Registrar, Having regard to: the application (no.   22077/19) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Philip Nigel Ross Green (“the applicant”), on 23 April 2019; the decision to give notice to the United Kingdom Government (“the Government”) of the complaints concerning Article 6, Article 8 (in respect of the regulation of parliamentary privilege) and Article 13 of the Convention and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 4 March 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     Invoking parliamentary privilege, a Member of the House of Lords made a personal statement in the chamber identifying the applicant as the subject of an anonymised newspaper article even though the Court of Appeal had granted an interim injunction and anonymity orders to prevent the publication of his identity. 2.     Before the Court the applicant relies on Articles 6 § 1, 8 and 13 of the Convention. THE FACTS 3.     The applicant is a British national who was born in 1952 and lives in Monaco. He is represented before the Court by Mr I.R. Burton of BCL   Solicitors in London. 4.     The Government were represented by their Agent, Mr S. Linehan of the Foreign, Commonwealth and Development Office. 5 .     The facts of the case may be summarised as follows. 6 .     The applicant was a well-known businessman and chairman of the Arcadia Group, a multinational retail company which had a number of major high street brands, including Topshop. 7.     On 16 July 2018 Arcadia was contacted by a journalist working for the Telegraph Media Group Limited (“the Telegraph”), who intended to report details of serious allegations of sexual harassment and bullying made against the applicant by former employees of Arcadia and Topshop. 8 .     The applicant, Arcadia and Topshop had previously settled actual and potential employment proceedings with former employees. Under the settlement agreements (referred to as “NDAs”, or “non-disclosure agreements”), both sides had undertaken to keep information related to the complaints and the settlement confidential, although the employees remained able to make legitimate disclosures (including reporting any criminal offences) if they chose. The employees had each had independent legal advice in relation to the settlement agreements. 9 .     On 18 July 2018 the applicant, Arcadia and Topshop (“the claimants”) sought an injunction to prevent the Telegraph from publishing material disclosed to it in breach of confidence. Their cause of action was for inducement of breach of contract and breach of confidentiality. They also sought an interim injunction preventing disclosure pending trial. 10 .     On 23 July 2018 the High Court refused the interim injunction following a private hearing but preserved the confidentiality of the information pending any appeal. The claimants duly sought leave to appeal. 11 .     On 25 September 2018 the Court of Appeal heard the appeal in private. On 23 October 2018 it allowed the appeal and granted an interim injunction and anonymity orders pending an expedited trial. Closed and open judgments were handed down. 12 .     In its open judgment the Court of Appeal examined in detail the balance to be struck between the Article 8 and Article 10 rights at issue in the case. It considered it likely that substantial and important parts of the information which the Telegraph wished to publish had been passed to it in breach of a duty of confidence to the claimants. Underlining the important and legitimate role played by non-disclosure agreements in the consensual settlement of disputes, the Court of Appeal disagreed with the High Court that publication would necessarily be in the public interest. It found no evidence that any of the settlement agreements had been procured by bullying, harassment or undue pressure by the claimants. It also noted that the employees had been independently advised by lawyers and that each settlement agreement contained provisions authorising disclosure to third parties, including to regulatory and statutory bodies. Finally, it considered that there was a real prospect that publication by the Telegraph would cause immediate, substantial and possibly irreversible harm to all of the claimants due to adverse customer reaction. There was therefore a sufficient likelihood of the claimants defeating a public interest defence at trial to justify the grant of an interim injunction. 13.     On 24 October 2018 the Telegraph published a story detailing the nature of the information subject to the injunction but respecting the order made. 14 .     On 25 October 2018, after the conclusion of a debate on an unrelated issue in the House of Lords, Lord Hain, a life peer and former labour Member of Parliament, took the floor to make a short personal statement in the following terms: “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 that it is 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.” 15.     After Lord Hain had finished making his statement the House moved on to discuss other unrelated business. 16.     Lord Hain’s statement was widely reported. The orders for anonymity, having become pointless, were later discharged by consent. However, Lord Hain’s disclosure did not include details of the underlying information, which therefore remained protected by the interim injunction (see paragraph 11 above). 17.     On 29 October 2018 the Lord Speaker of the House of Lords (see paragraph 25 below) made a statement in the following terms: “I would like to make a short statement about parliamentary privilege in the light of representations I have received. A robust and healthy democracy such as ours rests upon a number of common and shared features. Two of the most important are the freedom for members of the legislature to speak freely, without repercussion, and respect by the legislature for the independence of the courts and the rule of law. As we know, this is not the case everywhere in the world. The relationship between these two should not be one of conflict but one of mutual respect. As parliamentarians we should be keen to respect the proper business of the courts, just as we expect the courts to respect the authority of Parliament. In particular, we should be careful that in exercising our undoubted right to free speech in Parliament we do not set ourselves in conflict with the courts or seek to supplant them.” 18.     On 31 October 2018 the applicant’s legal representatives lodged a formal complaint against Lord Hain with the House of Lords Commissioner for Standards (“the Commissioner” – see paragraph 26 below). Complaints were also made by members of the public. They alleged that Lord Hain had violated the House of Lords Code of Conduct (see paragraph 26 below) by, inter alia , breaching the sub judice rule and by abusing parliamentary privilege (see paragraphs   32-33 below); and that he had failed to declare his role as a Global and Governmental Adviser to the law firm acting on the behalf of the Telegraph Media Group Limited. 19 .     Following a preliminary assessment of the complaint, the Commissioner found that she could not examine allegations concerning the sub judice rule and parliamentary privilege since they did not fall within the House of Lords Code of Conduct (see paragraph 26 below) and were therefore outside her remit. She launched an investigation into the claim that Lord Hain had failed to declare his connection to the law firm representing the Telegraph but ultimately accepted Lord Hain’s account that he had not read the court judgment and was therefore unaware of the connection. 20.     The claimants subsequently sought damages in the underlying court proceedings against the Telegraph for the consequences of Lord Hain’s statement (see paragraph 14 above), seeking to attribute to the Telegraph responsibility for the making of that statement. The Telegraph’s defence was that, having regard to Article   9 of the Bill of Rights (see paragraph 27 below), the issues raised were non-justiciable as they invited investigation of a parliamentarian’s source for something said in proceedings in Parliament. The claimants resisted that proposition and made clear that they intended to press on to determine, if they could, who provided the applicant’s identity to Lord Hain, and what role (if any) the Telegraph played in that disclosure. 21.     In a judgment of 23 January 2019 the judge addressed the issue as follows: “42.     After hearing from Counsel, I determined that I should draw these issues to the attention of the Lord Speaker, in order to give the Parliamentary authorities an opportunity, if so advised, to make representations on questions of Parliamentary Privilege. I have therefore written to Lord Fowler accordingly ... The issue may need to be revisited at the Pre-Trial Review next Tuesday, 29 January 2019.” 22 .     On 28 January 2019 the applicant and Arcadia issued a statement confirming their decision to discontinue the claim against the Telegraph on the basis that they considered it pointless to continue following Lord Hain’s actions. The claimants applied to the High Court for permission to discontinue the legal proceedings, explaining to the court that “there is insufficient confidentiality left in the information concerned in this case ... to justify the risk, and the staff time and disruption, involved in pursuing it”. 23.     According to the judgment of 8   February 2019: “23.     ... Following [the judgment of 23 January 2019], the clerk to the Parliaments wrote to the Court submitting that an investigation into Lord Hain’s source(s) would infringe Parliamentary Privilege. The claimants accepted that Lord Hain himself was immune from suit in respect of what he had said.” RELEVANT LEGAL FRAMEWORK AND PRACTICE REGULATION OF CONDUCT IN THE HOUSE OF LORDS 24 .     The House of Lords, the upper house of the Parliament of the United Kingdom, is self-regulating. This means that the preservation of order and the maintenance of the rules of debate are the responsibility of the House itself. Like the House of Commons, it has mechanisms for disciplining Members whose behaviour improperly interferes with its performance of its functions, such interference being known as “contempt of Parliament”. 25 .     The House does not recognise points of order. It elects a Lord Speaker to preside over proceedings in the Chamber. However, the Lord Speaker has no power to rule on matters of order. As explained in the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (25 th   edition, 2017 – “the Companion”), the Speaker’s function is to assist and not to rule. 26 .     There is a Code of Conduct which regulates the conduct of Members of the House of Lords. It is principally enforced by the Commissioner for Standards and the House of Lords Committee on Privileges and Conduct. The Code of Conduct contains no provisions on parliamentary privilege or discussion of sub judice matters (see paragraphs 32-33 below). PARLIAMENTARY PRIVILEGE Law and practice 27 .     Article 9 of the Bill of Rights 1689 states (in modern English): “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.” 28 .     The Companion (see paragraph 25 above) explains [references omitted]: “ Freedom of speech 12.03     Members need to be able to speak freely in the House and in committee, uninhibited by possible defamation claims. Freedom of speech is guaranteed by article   9 of the Bill of Rights 1689 ... Article 9 affords legal immunity (‘ought not to be questioned’) to members for what they say or do in ‘proceedings in Parliament’. The immunity applies in ‘any court or place out of Parliament’. The meaning of ‘proceedings in Parliament’ and ‘place out of Parliament’ has not been defined in statute. ... 12.05     In order to prevent abuse, freedom of speech is subject to self-regulation by Parliament. Thus, for example, by the sub judice rule the two Houses ensure that court proceedings are not prejudiced by discussion in Parliament.” 29 .     The domestic courts have consistently recognised the privilege conferred by Article 9 of the Bill of Rights (see paragraph 27 above) as a “provision of the highest constitutional importance”, pursuant to which Parliament should be permitted to regulate the business conducted in Parliament, including the conduct of its Members, without external interference. The principle, and its importance, were articulated by Lord   Browne-Wilkinson in Prebble v. Television New Zealand Ltd [1995] 1   AC 321 in the following terms (at 322): “In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made as to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges....As Blackstone said in his Commentaries on the laws of England, 17th ed. (1830), vol. 1, p.163: ‘the whole of the law and custom of parliament, has its original form in this one maxim, “that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.”‘” 30 .     The extension of the immunity beyond freedom of speech in the House was recently confirmed by the Supreme Court in R (SC) v. Secretary of State for Work and Pensions [2022] AC 2233 at § 165: “165.     ... the law of Parliamentary privilege is not based solely on the need to avoid any risk of interference with freedom of speech in Parliament. It is underpinned by the principle of the separation of powers, which, so far as relating to the courts and Parliament, requires each of them to abstain from interference with the functions of the other, and to treat each other’s proceedings and decisions with respect. It follows that it is no part of the function of the courts under our constitution to exercise a supervisory jurisdiction over the internal procedures of Parliament. That principle was affirmed by this court in R (Buckinghamshire County Council) v. Secretary of State for Transport [2014] 1WLR 324, in my own judgment at para 110 and in the judgment of Lord   Neuberger PSC and Lord Mance JSC at paras 203—206, where they observed (at para 206) that ‘Scrutiny of the workings of Parliament and whether they satisfy externally imposed criteria clearly involves questioning and potentially impeaching (i.e.   condemning) Parliament’s internal proceedings, and would go a considerable step further than any United Kingdom court has ever gone.” 31 .     However, the Supreme Court confirmed in R. v. Chaytor and Others   [2010] UKSC 52 that while parliamentary privilege is essentially a matter for Parliament itself, the scope of parliamentary privilege is a matter for the courts. In assessing in that case whether the submission of fraudulent expenses claims by Members of Parliament was protected by parliamentary privilege, Lord Phillips said: “47.     In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament. ... 61.     There are good reasons of policy for giving article 9 a narrow ambit that restricts it to the important purpose for which it was enacted – freedom for the Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown’s judges. The protection of article 9 is absolute ... Its effect where it applies is to prevent those injured by civil wrongdoing from obtaining redress and to prevent the prosecution of Members for conduct which is criminal ...” The sub judice rule 32 .     The sub judice rule is set out in a resolution passed by each of the two   Houses of Parliament. The relevant resolution of the House of Lords was passed on 11 May 2000. It provides that, subject to the discretion of the Lord   Speaker, cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question. However, where in the opinion of the Lord Speaker a case concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in motions, debates or questions. 33 .     The Companion (see paragraph 25 above) explains that the privilege of freedom of speech in Parliament places a corresponding duty on Members to use the freedom responsibly. This, it says, is the basis of the sub judice rule. The Companion also provides that the Lord Speaker must be given at least twenty-four hours’ notice of any proposal to refer to a matter which is sub judice , and that the exercise of his discretion may not be challenged in the House. Personal statements in the House of Lords 34.     As to the making of personal statements in the House of Lords, the Companion (see paragraph 25 above) explains: “6.01     Members may by leave of the House make a short factual statement of a personal character, such as a personal apology, a correction of information given in a speech made by them in the House or a reply to allegations made against them in the House. Personal statements are usually made at the beginning of business and are not debatable.” Reports of parliamentary committees 35 .     In 1997 a Joint Committee of both Houses of Parliament on Parliamentary Privilege was appointed and tasked with reviewing parliamentary privilege and making recommendations. In its Report on Parliamentary Privilege 1999 (Session 1998-99, HL 43, HC 214), it explained [references omitted]: “12.     Freedom of speech is central to Parliament’s role. Members must be able to speak and criticise without fear of penalty. This is fundamental to the effective working of Parliament, and is achieved by the primary parliamentary privilege: the absolute protection of ‘proceedings in Parliament’ guaranteed by article 9 of the Bill of Rights 1689. Members are not exposed to any civil or criminal liabilities in respect of what they say or do in the course of proceedings in Parliament. There is no comprehensive definition of the term proceedings in Parliament... Proceedings are broadly interpreted to mean what is said or done in the formal proceedings of either House or the committees of either House, together with conversations, letters and other documentation directly connected with those proceedings. ... “37.     ... The modern interpretation is now well established: that article 9 and the constitutional principle it encapsulates protect members of both Houses from being subjected to any penalty, civil or criminal, in any court or tribunal for what they have said in the course of proceedings in Parliament...” 36.     After analysing parliamentary privilege, the Report recommended that a Parliamentary Privileges Act be enacted to codify parliamentary privilege as a whole. However, the Government of the time saw no need for such codification. 37 .     A Joint Committee of both Houses of Parliament on Privacy and Injunctions was appointed in 2011. The Committee published its report in March 2012 (Session 2010-12, HL 273, HC 1443). It noted that there had been examples in recent years of information subject to injunctions being revealed in Parliament, but considered such examples to be rare. It continued [references omitted]: “214.     Article IX [of the Bill of Rights] means that it would not be constitutionally possible for a court order, including an injunction, to apply to Parliament. It follows that it is not a contempt of court for a parliamentarian to reveal in parliamentary proceedings information subject to an injunction. 215.     Whilst it may be legal for parliamentarians to reveal information in this way, some witnesses suggested it was not appropriate to do so. Injunctions are granted by a judge after hearing evidence and representations from both sides. A parliamentarian who does not conform to the injunction can be seen as in effect placing him- or herself in the shoes of the judge, and overruling the decision to grant anonymity. Once the name has been revealed in Parliament, and subsequently reported in the media, anonymity cannot be regained: the effect of the anonymity order is set at nought. Moreover, there is no redress for the individual whose identity or private information has been revealed; Article IX prevents them taking proceedings against the member.” 38 .     It concluded: “230.     We regard freedom of speech in Parliament as a fundamental constitutional principle. Over the last couple of years a few members have revealed in Parliament information covered by injunctions. We have considered carefully proposals for each House to instigate procedures to prevent members from revealing information subject to privacy injunctions. The threshold for restricting what members can say during parliamentary proceedings should be high. We do not believe that the threshold has yet been crossed. 231.     If the revelation of injuncted information becomes more commonplace, if injunctions are being breached gratuitously, or if there is evidence that parliamentarians are routinely being ‘fed’ injuncted material with the intention of it being revealed in Parliament, then we recommend that the Procedure Committees in each House should examine the proposals made to us for new restrictions with a view to implementing them.” 39 .     In April 2012 the Government published a Green Paper on Parliamentary Privilege. A Joint Committee on Parliamentary Privilege was subsequently appointed by both Houses of Parliament to consider the Green Paper. The Committee published its Report on Parliamentary Privilege on 3   July 2013 (Session 2013-14, HL 30, HC 100). It explained at the outset: “20.     The possibility of tension between parliamentary privilege and the rule of law means that Parliament’s claim to exclusive cognisance should be strictly limited to those areas where immunity from normal legal oversight is necessary in order to safeguard the effective functioning of Parliament. It is agreed that immunity applies to that core work itself, to things said or done as part of proceedings in either Chamber or in a select committee of either House – the ‘proceedings in Parliament’ whose immunity from challenge is enshrined in Article 9. The difficulty lies in assessing how far such immunity applies to ancillary matters, to things said or done outside proceedings themselves, but which are necessarily connected to those proceedings.” 40 .     The members of the Committee did not consider that there was a need to codify parliamentary privilege as a whole. On the specific question of breaches of court injunctions by Members of either House in parliamentary proceedings, it noted that this had been addressed at length by the Joint Committee on Privacy and Injunctions (see paragraphs 37 and 38 above). It considered that there had been no significant developments since, and endorsed the conclusions reached by that Joint Committee. BREACH OF AN INTERIM INJUNCTION 41.     Breach of an interim injunction can constitute contempt of court which is punishable with imprisonment of up to two years or a fine of up to 2,500 pounds sterling. THE HUMAN RIGHTS ACT 1998 42 .     Section 4 of the Human Rights Act 1998 provides as follows: “ Declaration of incompatibility. (1)     Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2)     If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ... (6)     A declaration under this section (“a declaration of incompatibility”) — (a)     does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b)     is not binding on the parties to the proceedings in which it is made.” COMPARATIVE LAW MATERIAL 43 .     The Court carried out a comparative-law survey of the operation of parliamentary immunity in the legal systems of forty-one of the forty-six member States of the Council of Europe. [1] 44 .     The basic principle of parliamentary non-liability (meaning absolute immunity from any legal action for parliamentary votes and utterances in the exercise of the parliamentary mandate) was found in all the surveyed States. The primary point of divergence in national constitutional provisions concerning the material scope of parliamentary immunity was whether non ‑ liability applied to opinions expressed “in the exercise of parliamentary duties” or was limited to those expressed “in Parliament.” 45 .     In roughly half of the surveyed States (Armenia, Austria, Belgium, Bosnia and Herzegovina, France, Georgia, Greece, Hungary, Italy, Latvia, Luxembourg, the Republic of Moldova, Montenegro, the Netherlands, Poland, Portugal, Romania, Serbia, Spain, Sweden, Türkiye and Ukraine), national legislation referred to freedom of expression in the context of the “exercise of parliamentary duties”. In the other half (Albania, Bulgaria, Croatia, Czech Republic, Cyprus, Denmark, Estonia, Finland, Germany, Iceland, Ireland, Liechtenstein, Lithuania, Malta, North Macedonia, Norway, San Marino, Slovakia and Slovenia) freedom of expression applied only to opinions made “in Parliament”. 46 .     In most States parliamentary non-liability protected any statements made by parliamentarians in Parliament or, more broadly, in the exercise of parliamentary duties from external legal actions. This was the case in Armenia, Belgium, Bosnia and Herzegovina, Cyprus, Denmark, Estonia, France, Georgia, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, the Republic of Moldova, Montenegro, the Netherlands, North Macedonia, Norway, Portugal, Romania, San Marino, Serbia, Slovakia, Spain, Sweden, Türkiye and Ukraine, in respect of criminal, civil and administrative liability, and in Bulgaria, Croatia, Finland, Hungary and Slovenia, in the case of criminal liability only. In Denmark, Finland, Iceland, and Sweden immunity could be lifted by the respective parliament. 47 .     In some States, however, parliamentary non-liability was subject to restrictions which excluded certain types of remarks. This was the case in Albania, Austria, Germany, Greece, Hungary, Latvia, Lithuania and Poland. There was no common model governing which categories were exempted; this varied from State to State. However, the rationale behind these provisions was often the exclusion of defamatory or otherwise particularly offensive statements. In most jurisdictions providing exclusions to the protection of non-liability (Austria, Germany, Greece, Hungary, Latvia, Lithuania and Poland), external legal action could only be initiated with the consent of Parliament, effectively requiring a waiver of immunity. In Austria, Croatia, Hungary and Latvia, Parliament’s decision was not subject to review by a court, whereas in Germany (to a narrow extent) and also in Italy, the Republic of Moldova, Spain and Türkiye it could be subject to a constitutional complaint. 48 .     In the Czech Republic non-liability did not cover statements that were directed outside Parliament, i.e. not made in connection with the exercise of a parliamentarian’s mandate, even if they were made during parliamentary sessions and, in order to be protected, a parliamentarian’s statement had to contribute to political discussions in Parliament and be part of the normal parliamentary debate process. 49.     It would appear that in some states, such as Croatia, Spain and Ukraine, non-liability, while seemingly absolute, did not necessarily protect parliamentarians if they abused their parliamentary privileges. 50 .     It would also appear that in most states surveyed there was no specific sub judice rule, although such a rule did exist in Ireland and, to a certain extent, Serbia. In Ireland, pursuant to Standing Order 70 of the 2024 Standing Orders of the Dáil Éireann, a parliamentarian is not prevented from raising in Parliament any matter of general public importance, even where court proceedings have been initiated, unless it related to a case where notice had been served and which was being or was to be heard before a jury, or where it appeared to be an attempt to encroach on the functions of the courts. The Committee on Parliamentary Privileges and Oversight enforced compliance with Standing Order 70 and could make such recommendations as it considered appropriate and report to Parliament thereon.     The Committee decisions in this context, however, are also non-justiciable except in truly exceptional circumstances where “the very basis of the constitutional architecture might be under threat”. In Serbia, there was a parliamentary code of conduct governing what parliamentarians could say about ongoing criminal proceedings. Any natural or legal person could file a complaint about a violation of a provision of the code, and such a complaint would be decided by an internal board of the Parliament which could give a warning or impose a fine. THE LAW         PRELIMINARY REMARKS 51.     The applicant complains under Article 6 § 1 of the Convention that his right to a fair trial was violated because the statement by Lord Hain (see paragraph   14 above) rendered his claim for breach of confidence against the Telegraph futile, and that there was a breach of his right of access to court because he was not able to bring proceedings against Lord Hain for breach of an injunction. He further complains under Article 8 that his reputation was harmed as a direct consequence of the rules permitting disclosure in Parliament of information subject to an injunction. Finally, he complains under Article 13 that he had no effective remedy in respect of his Articles 6 and 8 complaints since he was unable to bring a claim against Lord Hain and the Government failed to implement effective controls on parliamentary speech. 52.     The Court has primarily considered cases brought by individuals who suffered harm due to the actions of parliamentarians, which were protected by parliamentary privilege, from the standpoint of Article 6 § 1 of the Convention (see A. v. the United Kingdom , no. 35373/97, ECHR 2002-X; Cordova v. Italy (no. 1) , no. 40877/98, ECHR 2003-I; Cordova v.   Italy   (no.   2) , no. 45649/99, ECHR 2003-I (extracts); Zollmann v.   the   United Kingdom (dec.), no. 62902/00, ECHR 2003-XII; De Jorio v.   Italy , no.   73936/01, 3 June 2004; Tsalkitzis v. Greece , no. 11801/04, 16   November 2006 ; and Bakoyanni v. Greece , no. 31012/19, 20 December 2022). Where those applicants also complained under Article   8 of the Convention, the Court did not carry out a separate assessment of that complaint, since in its view it raised the same issues as the Article 6 § 1 complaint (see A. v. the United Kingdom , §§ 102-03, and   Zollmann , both cited above). 53.     In the present case, however, the applicant does not challenge the principle of parliamentary privilege itself. Instead, he is seeking a declaration that 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. The gravamen of his complaints is therefore that the respondent State was in breach of a positive obligation to have in place a legal framework that ensured that injunctions preventing the disclosure of confidential information were respected by third parties, including those otherwise protected by parliamentary privilege. For the Court, such a complaint sits most comfortably under Article 8 of the Convention. Therefore, it will first examine the applicant’s complaints from the standpoint of that Article, before turning to his complaints under Article   6 § 1 and Article   13 of the Convention. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 54.     The applicant complained that the absence of ex ante and ex post controls on the power to use parliamentary privilege to reveal information subject to an injunction breached Article 8 of the Convention, which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and, freedoms of others.” Admissibility Exhaustion of domestic remedies 55 .     The Government expressly conceded that the applicant had exhausted domestic remedies in respect of his Convention complaints.   While the meaning of “proceedings in Parliament” had not been defined in statute, and the boundaries of privilege were matters for the courts (see paragraphs 29-31 above), according to the Government there was “no doubt at all that the words spoken by a Parliamentarian, in Parliament, in the course of a speech or debate on the floor of the House of which they are a member fall squarely within the scope of the privilege conferred by Article IX”. Words spoken on the floor of the House formed part of the “core or essential business” of Parliament and it would not have been open to the applicant to argue that Lord Hain’s disclosure fell outside the scope of parliamentary privilege. 56 .     According to the Government, the only remedy available to the applicant had been to seek a declaration under section 4 of the Human Rights Act 1998 (see paragraph 42 above) that the operation of Article 9 of the Bill of Rights (see paragraph 27 above) was incompatible with his Convention rights. However, the Government, referring to Burden v. the United Kingdom ([GC], no. 13378/05, §§ 39-40, ECHR 2008), conceded that applicants were not required to seek a declaration of incompatibility before the domestic courts in order to satisfy the requirements of Article 35 § 1 of the Convention. 57.     The Court reiterates that its usual practice – where a case has been communicated to the respondent Government – is not to declare the application inadmissible for failure to exhaust domestic remedies unless the matter has been raised by the Government in their observations (see Y   v.   Latvia , no.   61183/08, § 40, 21 October 2014, with further references; see also Navalnyy v. Russia [GC], nos.   29580/12 and 4 others, §   62, 15 November 2018). In the present case, the Government have not objected that domestic remedies have been exhausted and the Court will not examine the matter of its own motion. Other inadmissibility grounds 58.     The Government did not raise any other plea of inadmissibility in respect of the Article 8 complaint. 59 .     The Government do not, therefore, appear to dispute that Article 8 was applicable to the facts of the case. While the Court is not prevented from examining this question of its own motion (see Béláné Nagy v.   Hungary   [GC], no. 53080/13, § 71, 13 December 2016, and Vegotex International S.A. v. Belgium [GC], no. 49812/09, § 59, 3 November 2022), it sees no reason to doubt that the disclosure of the applicant’s name in the House of Lords, linking him to allegations of “serious and repeated sexual harassment, racist abuse and bullying” (see paragraph 14 above) in defiance of an interim injunction and anonymity order granted by the Court of Appeal, attained a sufficient level of seriousness as to harm his reputation (see, for example, Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; see also Narbutas v. Lithuania , no. 14139/21, § 224, 19 December 2023). The Court therefore concludes that Article 8 is applicable to the facts of the present case. Conclusion 60 .     As the applicant’s Article 8 complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article   35 of the Convention, it must be declared admissible. Merits The parties’ submissions (a)    The applicant 61 .     At the outset, the applicant made it clear that he did not seek to challenge the principle of parliamentary privilege itself, but rather the absence of ex ante and ex post controls on the power to use it to reveal confidential information that was subject to an injunction. 62 .     According to the applicant, the United Kingdom had a positive obligation to ensure that parliamentary privilege could not be used to circumvent a court injunction. He was not asking the Court to impose an obligation on Parliament to implement controls to ensure that court orders were not breached in the course of parliamentary debate. Rather, he was seeking a declaration that in the circumstances of the case at hand the absence of ex ante and ex post controls gave rise to a situation in which his Convention rights were violated. The nature, design and implementation of those ex   ante and ex post controls would be a matter for Parliament. 63 .     For the applicant, the current legal framework could not be justified by reference to maintaining the separation of powers, since it allowed parliamentarians to undermine a judicial decision. Speech which violated the terms of a court injunction designed to protect confidential information was not the sort of meaningful debate that parliamentary privilege was designed to protect. The need for comity and respect for the rule of law placed an onus on the legislature and its Members to act compatibly with the separation of powers. 64.     Furthermore, the current legal framework did not strike a fair balance between the interests protected under Article 8 of the Convention, on the one hand, and Article 10, on the other. The applicant submitted that the following considerations were of particular relevance when considering the balance between the right to privacy and right to freedom of expression: the Court of Appeal had granted an interim injunction on the basis that disclosure of the applicant’s identity would cause “immediate, substantial and possibly irreversible harm to all the claimants”, and publication of that information would not be in the public interest (see paragraph 12 above); the information had been subject to a number of confidentiality orders and undertakings and would have remained confidential but for the statement of Lord Hain; the information had been disclosed to, or obt