Judges challenge use of parliamentary privilege
MP who raised Sir Fred Goodwin's injunction in the Commons accuses senior judges of trying to gag parliament
The lord chief justice, Lord Judge, said MPs were effectively flouting court orders when they revealed details of injunctions under parliamentary privilege. Photograph: Ian Nicholson/PA
The most senior judges in England and Wales veered towards confrontation with parliament on Friday when they challenged the media over reporting statements made by MPs and peers to prise open privacy-protecting injunctions.
The row erupted after the lord chief justice, Lord Judge, said the media "need to think whether it's a very good idea for our lawmakers to be in effect flouting a court order because they disagree with the order or, for that matter, because they disagree with the law of privacy which parliament has created".
He was commenting on the report by the committee on superinjunctions, chaired by the master of the rolls, Lord Neuberger, which said media reports of debates in parliament that breached injunctions might not be protected by parliamentary privilege.
John Whittingdale, the Conservative chairman of the Commons culture select committee, called for an urgent change to the law to ensure the media can report proceedings in parliament. "Not only [is] it essential that MPs should be allowed to raise matters in parliament," he said, "it [is] as important that the media should be free to report MPs' comments. We need to change the law to make it clear that reporting is allowed."
Whittingdale also defended the right of MPs to use privilege to speak out on public interest matters. "If there is a clear public interest, they should be able to speak about that issue," he said.
John Hemming, the Lib Dem MP who first raised banker Sir Fred Goodwin's injunction in the Commons, accused judges of attempting to gag parliament. "They're arguing that issues like poisoned water should not be debated publicly," he said. "I think they're wrong."
On Thursday, the Liberal Democrat MP Lord Stoneham asked a further question in the Lords revealing more details of the injunction which led to it being partially lifted.
The main recommendation of the committee's report was that superinjunctions should only be granted in "very limited circumstances" and normally for short periods of time.
Repeatedly stressing the importance of "open justice", the study proposes giving the media advance notice of applications for gagging orders. It admitted "there was justifiable concern [last year] ... that superinjunctions were being applied for and granted far too readily".
The study will be scrutinised carefully by ministers who have sent out mixed signals about whether they believe a privacy law needs to be introduced to provide clearer guidance for judges.
David Cameron's official spokesman said: "We think this is a very useful report and it is something we will be considering very carefully."
While no one knows the precise number of privacy injunctions in circulation, the committee says it is only aware of two genuine superinjunctions – those whose existence cannot even be revealed – having been granted since January 2010. One was set aside on appeal and the other was in force for only seven days.
"The principle of open justice is a fundamental constitutional principle," the report states, "although it is not an absolute principle. It applies to interim injunction applications as it does to trials."
The report adds: "As they incorporate derogations from the principle of open justice, superinjunctions and anonymised injunctions can only be granted when they are strictly necessary. They cannot be granted so as to become in practice permanent."
The report sets out draft guidance on how applications should be processed in future, allowing third parties, including the media, to take part in, or lodge objections to, privacy proceedings.
It is hoped the presence of other parties in such complex cases will provide reassurance that the cause of justice is being served and the law is not being exploited by the wealthy to close down debate about matters of public interest. The report acknowledges new legal procedures will be required to ensure those who attend such hearings do not divulge details until they are reportable.
"It will be a very rare case where advance notice of such applications to media organisations, which are likely to be affected by any order, can justifiably be withheld."
Neuberger, the head of the civil judiciary, said: "Our starting point was the maintenance of the fundamental principles of open justice and freedom of speech. Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice.
"However where secrecy is ordered, it should only be to the extent strictly necessary to achieve the interests of justice. And where it is ordered, the facts of the case and the reason for the secrecy should be explained, as far as possible, in an openly available judgment."
The row erupted after the lord chief justice, Lord Judge, said the media "need to think whether it's a very good idea for our lawmakers to be in effect flouting a court order because they disagree with the order or, for that matter, because they disagree with the law of privacy which parliament has created".
He was commenting on the report by the committee on superinjunctions, chaired by the master of the rolls, Lord Neuberger, which said media reports of debates in parliament that breached injunctions might not be protected by parliamentary privilege.
John Whittingdale, the Conservative chairman of the Commons culture select committee, called for an urgent change to the law to ensure the media can report proceedings in parliament. "Not only [is] it essential that MPs should be allowed to raise matters in parliament," he said, "it [is] as important that the media should be free to report MPs' comments. We need to change the law to make it clear that reporting is allowed."
Whittingdale also defended the right of MPs to use privilege to speak out on public interest matters. "If there is a clear public interest, they should be able to speak about that issue," he said.
John Hemming, the Lib Dem MP who first raised banker Sir Fred Goodwin's injunction in the Commons, accused judges of attempting to gag parliament. "They're arguing that issues like poisoned water should not be debated publicly," he said. "I think they're wrong."
On Thursday, the Liberal Democrat MP Lord Stoneham asked a further question in the Lords revealing more details of the injunction which led to it being partially lifted.
The main recommendation of the committee's report was that superinjunctions should only be granted in "very limited circumstances" and normally for short periods of time.
Repeatedly stressing the importance of "open justice", the study proposes giving the media advance notice of applications for gagging orders. It admitted "there was justifiable concern [last year] ... that superinjunctions were being applied for and granted far too readily".
The study will be scrutinised carefully by ministers who have sent out mixed signals about whether they believe a privacy law needs to be introduced to provide clearer guidance for judges.
David Cameron's official spokesman said: "We think this is a very useful report and it is something we will be considering very carefully."
While no one knows the precise number of privacy injunctions in circulation, the committee says it is only aware of two genuine superinjunctions – those whose existence cannot even be revealed – having been granted since January 2010. One was set aside on appeal and the other was in force for only seven days.
"The principle of open justice is a fundamental constitutional principle," the report states, "although it is not an absolute principle. It applies to interim injunction applications as it does to trials."
The report adds: "As they incorporate derogations from the principle of open justice, superinjunctions and anonymised injunctions can only be granted when they are strictly necessary. They cannot be granted so as to become in practice permanent."
The report sets out draft guidance on how applications should be processed in future, allowing third parties, including the media, to take part in, or lodge objections to, privacy proceedings.
It is hoped the presence of other parties in such complex cases will provide reassurance that the cause of justice is being served and the law is not being exploited by the wealthy to close down debate about matters of public interest. The report acknowledges new legal procedures will be required to ensure those who attend such hearings do not divulge details until they are reportable.
"It will be a very rare case where advance notice of such applications to media organisations, which are likely to be affected by any order, can justifiably be withheld."
Neuberger, the head of the civil judiciary, said: "Our starting point was the maintenance of the fundamental principles of open justice and freedom of speech. Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice.
"However where secrecy is ordered, it should only be to the extent strictly necessary to achieve the interests of justice. And where it is ordered, the facts of the case and the reason for the secrecy should be explained, as far as possible, in an openly available judgment."
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