The absurdity of having no written constitution, not even a British bill of rights, was on display at 4pm on Monday 23 May, as the media were left confused about whether they could exercise their most fundamental constitutional right, namely to tell the people what had just been said in parliament. After John Hemming MP had uttered the taboo words "Ryan Giggs", it took a little time for Sky News to repeat them, while the BBC - presumably having received less robust legal advice - continued to withhold the name for another hour, and then refused to link it to that day's court proceedings. So, what is the constitutional position?
No risk, no fear
The power of the High Court of Parliament to defy even the king was on display back in 1642, when Charles I stormed into the House in an attempt to arrest John Pym and John Hampden but left empty-handed, pursued by cries of: "Privilege! Privilege!" In 1688, the Bill of Rights provided in Article 9 that freedom of speech in parliament could not be "impeached or questioned in any court or place outside parliament". That conclusively protects MPs, and it should logically protect any reporting of their protected speech. Lord Denning proclaimed, in a 1973 case involving the Times, that anything said in parliament "can be repeated in the newspapers without any fear of an action for libel or proceedings for contempt of court". This is certainly true of libel thanks to another celebrated case involving the Times in the 19th century. As a result, the press reported an MP's claim that Kim Philby was a Soviet spy without libel risk or fear of the Official Secrets Act.
Yet Lord Neuberger's report on injunctions, published on 20 May, raised as an "open question" whether the media might nonetheless be prosecuted for contempt of court by reporting an MP's speech that deliberately defied a court order. This was because, the weight of Denning's opinion notwithstanding, there is no case that conclusively decides that the press is immune from contempt - but only because no attorney general has ever dared to bring one.
There is, after all, a very powerful precedent that the Neuberger report did not analyse fully. In 1977, the state launched the "ABC case", an oppressive prosecution against a soldier and two Time Out journalists (Duncan Campbell and Crispin Aubrey), for publishing details about GCHQ, the government's signal intelligence centre. Its "expert" was said to be a man whose work and position were so secret he could never be named, though it was quickly discovered that "Colonel B's" work and position had featured quite publicly in magazines available in any self-respecting KGB library. But the government prosecuted the Leveller for publishing the man's name, and the police rushed to the beach at Whitley Bay during a National Union of Journalists conference on hearing that it had been written in the sand. (The tide had obliterated the evidence by the time they arrived.)
Then, on a quiet afternoon in Westminster when the Speaker was dozing after lunch, four MPs, led by Chris Price and the young Robert Kilroy-Silk, rose in turn to ask questions that named Colonel Johnstone. The director of public prosecutions immediately issued a statement threatening any media outlet with prosecution for criminal contempt of court. Almost every newspaper and broadcaster ignored this threat. In the ensuing constitutional rumpus, many MPs demanded that the DPP should himself be prosecuted for contempt of parliament. Enoch Powell memorably pointed out that parliamentary privilege could not by definition be "abused" - it could only be used.
In the event - on a matter of national security rather than the promiscuity of a footballer - no prosecution was brought. Nor should any self-respecting attorney general contemplate one: the media must be free to report parliament even if it means flouting a court order. This is the common-sense position now that parliament is simultaneously broadcast, tweeted and YouTubed. None of this means that publicity-seeking MPs should be free from appropriate reprisal from their parliamentary peers for deliberately breaching court orders. Such behaviour subverts the rule of law and is unfair to those who go to court to obtain orders in the expectation that they will be obeyed.
The course that the attorney general took in 1977 was to refer the outspoken MPs to the Commons privileges committee, and that is the course Dominic Grieve should take now. MPs have a fundamental constitutional right to act according to conscience even if it means subverting a court order, but parliament has a duty to judge, and where appropriate to deprecate, their actions after it has given them an opportunity to defend themselves. If MPs use what Erskine May called the "coward's cloak" of parliamentary privilege to defame or ridicule citizens, fairness demands that those they attack be entitled to a right of reply - an invitation to the Bar of the House, perhaps, to answer their attacker under the same parliamentary privilege that has been deployed to denigrate them.
The parliamentary privilege issue is a by-product of the topsy-turvy growth of privacy law as celebrities take advantage of incoherent rulings from the European Court which, regrettably, the Human Rights Act endorsed. The media themselves must share the blame: cut-throat competition has prevented them from making common cause in order to appeal injunctions and take a test case to the Supreme Court. The government has reached for the time-honoured delaying device of a parliamentary committee, doubtless made up of politicians who would be happy to injunct the tabloids to cover up their own affairs. Do not expect sensible reform any time soon.
Geoffrey Robertson, QC is the co-author of "Media Law", published by Penguin (£40). He defended Duncan Campbell in the ABC case