Sir Philip Green, then chairman of the Arcadia Group, a multinational retail company which owned a number of major high street brands such as Topshop, obtained an interim injunction in 2018 which prevented The Telegraph from naming him in a story about the allegations made by former employees.

The day after an anonymised version of the story was published, a member of the House of Lords took the floor after a parliamentary debate and made a short personal statement identifying Sir Philip as “the powerful businessman using NDAs and substantial payments to conceal the truth about serious and repeated sexual harassment, racist abuse and bullying”.

Lord Hain said that he was exercising his parliamentary privilege and that it was his duty to name Sir Philip, given the injunction preventing the media from publishing the story.

His comments were widely reported and the orders for anonymity, having become pointless, were discharged by consent.

Sir Philip subsequently launched legal action against The Telegraph, which he later abandoned, and filed a formal complaint against Lord Hain with the House of Lords Commissioner for Standards, which was unsuccessful.

In April 2019, he began proceedings at the European Court of Human Rights, relying on Article 8 (right to respect for private life) to complain of the lack of controls on the use of parliamentary privilege to reveal information subject to an injunction.

He also relied on Articles 6 § 1 (right to a fair trial) and 13 (right to an effective remedy) to complain that he had not been able to bring proceedings against Lord Hain whose statement rendered his claim for breach of confidence against The Telegraph futile.

In yesterday’s Chamber judgment in Green v. the United Kingdom, the court held unanimously that there had been no violation of Article 8.

While acknowledging that there had been an interference with Sir Philip’s right to respect for his private life, as the impact on his reputation had undoubtedly been serious, the court said it was up to the UK parliament to decide what controls there should be on the use of parliamentary privilege.

“As the United Kingdom Parliament is aware of the problem of parliamentary privilege being used to frustrate injunctions and has addressed the need for further controls… the court considers that for the time being it may be left to the respondent state, and Parliament in particular, to determine whether and to what extent ex ante and ex post controls might be necessary to prevent its members from revealing information subject to privacy injunctions,” the court said.

“However, given the serious impact that the disclosure of such information may have on the privacy of the individual concerned, not to mention the implications for the rule of law and the separation of powers within the United Kingdom constitution of parliamentarians usurping the role of judges, who have considered it necessary, after viewing the evidence before them, to grant an injunction, the court considers that the need for appropriate controls must be kept under regular review at the domestic level.”

As it found there were not currently “sufficiently strong reasons to justify the court substituting its view for that of Parliament and requiring it or the respondent state to introduce further ex ante and ex post controls on freedom of speech in Parliament”, the court concluded that there had been no violation of Article 8.

The court also held by a 5-2 majority that the complaints concerning Articles 6 § 1 and 13 were inadmissible.

In respect of his complaint under Articles 6 § 1, the court found that the conduct of the proceedings against The Telegraph “cannot be impugned” and that there was no suggestion that the domestic courts had failed to take appropriate measures to protect his anonymity pending trial.

In respect of the Article 13 complaint, the court pointed out that it “does not go so far as to guarantee a remedy allowing a contracting state’s primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention”.

A partly dissenting opinion was issued by Judge Răduleţu, joined by Judge Guerra Martins, who said he disagreed with the majority decision that the Article 6 § 1 complaint was “manifestly ill-founded”.