Stephen Sedley, writing of parliament’s freedom of speech and action, says it has “for centuries reciprocated by respecting court decisions and orders” (Letters, 19 December). This is to forget, for example, the 2011 naming, in defiance of court orders, of Ryan Giggs and Fred Goodwin, the origins of which lay in the Trafigura controversy of 2009, when solicitors who had claimed MPs were covered by a gagging injunction withdrew their claim after an MP referred to the injunction in a written question.
The reality is that although the Commons has a rule restricting references in the house to current court cases (the “sub judice” rule), it reserves the right to defy judges who threaten to ignore their duty to respect parliamentary free speech. The same also applies to judicial attempts to undermine parliament’s ability to protect itself from people who illegitimately interfere with its work.
Parliament should exercise its rights with moderation and restraint, but judges should also show moderation and restraint when their rulings might restrict democratic decision-making. Parliamentarians might be finding moderation and restraint difficult to achieve in the current overwrought state of politics, but that is no excuse for judges to abandon those qualities, which lie at the heart of any reasonable conception of the rule of law.
David Howarth
Professor of law and public policy, University of Cambridge; MP for Cambridge 2005-10
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