Superinjunctions and the Rule of Law

by Naomi Colvin

Much has been written this week about the ability of social media to make the more dubious parts of the UK legal order look rather ineffective. Neither the power of social media to overturn official British secrecy, nor the desire of individuals to find out information that has been concealed from them comes as any surprise to this blogger.

Lord Neuberger’s report into the use of superinjunctions (which the media are not allowed to allude to the existence of) and anonymising injunctions (which prevent the reporting of the names of those involved) makes for very interesting reading. Lord Judge’s comments on the perceived unreliability of information that comes from outside the approved channels of mainstream journalism have been widely covered – here, clearly, is a man who has not read the New York Times recently – so I would like to turn instead to what I feel is an equally interesting part of the report.

One of the more significant events of the past few days has been the use of Parliamentary privilege to partially overturn an injunction taken out by former RBS head Sir Fred Goodwin to prevent reporting of certain events leading up to that bank being bailed out by the taxpayer to the tune of £4.5 bn. It has been reported that Sir Fred was carrying on a relationship with a senior colleague, whom he promoted twice – possibly not to the benefit of the effective management of the bank. Lord Stoneham’s actions in the House of Lords were not criticised directly in the report: indeed, Neuberger acknowledged that Parliamentarians had “an absolute right” to discuss whatever they wished within the Commons or the Lords, although he suggested an “accommodation” might be reached on sub judice issues. However, Neuberger does suggest that, should such occurences happen in future, the mainstream media should note that “unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right”, and that their existing rights to report on Parliamentary proceedings under the 1840 Parliamentary Papers Act are constrained by the need to be acting “in good faith and without malice.”

Quite apart from the practical absurdities of putting obstacles in the way of discussing events which are, in Hansard, already on the public record
(as if we hadn’t been through this already with Trafigura) – and the onus this would put on citizen journalists to risk incurring Lord Judge’s displeasure by discussing such events widely, perhaps as they are reported in Scotland – this is also an issue which strikes right at the heart of the constitutional settlement in the United Kingdom. There is an argument (one powerfully put forward by Professor Vernon Bogdanor in his 2006 Magna Carta lecture) that the traditional understanding that Parliament is sovereign and subject to no higher power is no longer the case. This issue has become particularly acute since the incorporation of the European Convention on Human Rights into domestic law with the Human Rights Act of 1998.

The Human Rights Act does not quite give judges the ability to overrule Parliament and strike down legislation – instead, should they judge that a piece of British legislation be in conflict with the ECHR, they may issue a “statement of incompatibility” for Parliament’s consideration. There is no outright obligation for government to review the piece of legislation concerned in the light of this, but the gentlemanly expectation upon which so much of our constitutional order rests is that they will do so. In effect, what such a judicial statement is saying is that, if a case were brought to the European Court of Human Rights on the basis of the legislation concerned, then the judgement might very well go against the United Kingdom. Judgements made in Strasbourg are binding on the British Government, however much they might try to pretend otherwise (see, for example, the recent case of prisoners’ electoral rights, an episode that does the Coalition no credit at all).

Past judgements of the Strasbourg Court have produced fundamental shifts in the UK’s observance of human rights. In 1978, the Court ruled that the way the British were treating Irish Republican dissidents amounted to “inhuman or degrading treatment” in violation of Article 3 of the Convention. Incidentally, recent observers have argued that, if the circumstances were repeated today, the Court would be much more likely to say that what the British were doing was “torture.” It is not for nothing that Gareth Peirce argues that the abuses perpetrated on those detained by the United States on suspicion of threatening their national security owe something to the example of the British in Northern Ireland a few decades before. In any case, the European judgement definitively changed British practice in this area.

More recently, cases brought by some of those detained without charge in Belmarsh prison – and subsequently held under house arrest under control orders – have conclusively determined that any attempts by the United Kingdom Government to opt out or derogate from particular clauses of the ECHR on the grounds of national security are unlikely to be judged lawful. In all three of these cases, a higher power has determined that national government has to go back and think again about what it legislates and how it applies that legislation.

This is not quite the end of the matter, however. In his excellent book on The Rule of Law, the late Lord Bingham makes a strong case for Parliamentary sovereignty remaining the overriding law of the land, with the proviso that “there are some rules which no government should be free to violate without legal restraint.” It is clear from Lord Bingham’s argument that he regards the protection of human rights, as granted in the European Convention and other international legal instruments, as being one of those rules. Superinjunctions and anonymising injunctions are usually taken out with the aim of safeguarding the personal privacy of an individual and their family – and privacy is indeed a right of individuals, one safeguarded under the eighth article of the ECHR. But these legal measures to protect privacy are not open to just anyone – they are open to those who can afford to pay a substantial amount of money in order to keep matters they find embarrassing out of the public eye.

I would argue that, precisely because they are selective in this way, the use of anonymising injunctions in itself offends one of the constituent parts of the rule of law as defined by Lord Bingham: that of equality before the law.

Most British people today would, I think, rightly regard equality before the law as a cornerstone of our society. There should not be one law for the rich and another for the poor… we would also accept that some categories of people should be treated differently because their position is in some important respect different.

There are clearly some examples of injunctions that reflect that “some categories of people should be treated differently” and I think it is significant that the public outrage against the use of superinjunctions does not typically extend to these cases. On the contrary, this outrage appears to be restricted to those who are perceived to be paying for the right to be afforded a greater level of privacy than most people enjoy. I am tempted to argue that this public discontent stems from the perception that a fundamental rule of public life has been breached and that all who are subject to the law should be equal before it. The individual’s right to privacy is important, but if additional protections are seen as necessary, and this is to come under the purview of the courts, it needs to do so as part of a legislative regime aimed at protecting the rights of everyone, not just those with the ability to take out extraordinary judicial orders.

Update

I’ve just noticed MTPT’s post, which highlights that those involved in criminal cases – even if they’re just related to the victim – do not have anything like the same expectations of their privacy rights being respected as those who can pay for access to the civil courts:

In developing the law of privacy in the UK, the civil judiciary have in practice (given the reality of the costs of civil litigation) created a privileged position for wealthy claimants, and for participants in family court proceedings. Participants in criminal cases, or those who cannot afford to spend several thousand pounds on legal advice and representation, do not have proper access to the law of privacy that has been developed.


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Update II

As most people reading this will know, when Ryan Giggs’ identity was revealed on Monday afternoon, this was also achieved through the exercise of Parliamentary privilege. John Hemming MP has justified his actions on radio 4 this afternoon as follows:

think there is an important point. If there is oppression going on, we should be willing to speak out about oppression … If you are jailing people for gossip … The step has started, the first step of identifying who people are has started. And there are people are jailed in secret in this country. We really have got to put a stop to jailing people in secret.

Fleet Street Fox also makes for interesting reading today.

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