MP reveals “hyper” injunctions in name of open justice
20 March 2011
Updated | It all started with the reporting of an injunction, supposedly obtained by former Royal Bank of Scotland chief executive, “preventing him being identified as a banker”. A mildly interesting story, made marginally more so by the fact that the injunction had been breached by an MP during a Parliamentary debate.
But there is more to the story. As bloggers Anna Raccoon, Charon QC and Obiter J have reported, on a Parliamentary debate on Thursday the same Liberal Democrat MP, John Hemming, revealed the details of a number of other (what he called) “hyper” injunctions. The common feature was that courts had ordered not only that the parties to litigation were to be prevented from revealing details of their cases to the public, but also to their MPs.
How did Hemming bypass the otherwise watertight court orders? Normally anyone breaching such an order would be liable to prosecution for contempt of court. But he relied upon a centuries old protection under article 9 of the 1688 Bill of Rights:
Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
He also quoted article 13, which provides:
And that for Redresse of all Grievances and for the amending strengthening and preserveing of the Lawes Parlyaments ought to be held frequently.
His point was that in order for Parliament to “Redress… all Grievances”, MPs need to know what is going on in their constituencies. They cannot know if constituents are threatened with contempt of court for telling them their grievances.
By coincidence, Hemming’s revelations coincide with a potentially groundbreaking speech by Lord Neuberger, the head of the court of appeal, on open justice. He is chairing a working party on so-called “super” injunctions, which have been used to prevent the press finding out salacious details of cases involving celebrities. As Inforrm’s blog points out, he is very much alive to concerns that
they have, as Professor Zuckerman has put it, developed into a form of entirely secret form of procedure. As he put it, ‘English administration of justice has not (previously) allowed’, that is ‘for the entire legal process to be conducted out of the public view and for its very existence to be kept permanently secret under pain of contempt.
Hemming’s worries feed into this, although Neuberger’s nuanced approach in his speech suggests he will not go as far as banning the super-injunction altogether. It will be fascinating to see if more MPs use their Parliamentary privilege to reveal other such “hyper” injunctions, and whether they may end up being breached as a matter of course.
The reason for secrecy injunctions, as pointed out by a commenter below, is that a case should not be prejudiced by public revelations. On the one hand, it is worrying that there are matters which are so secretive that they cannot even reach a Parliamentary representative. On the other, if MPs enthusiastically use their rights of privilege to reveal such orders – and presumably this may sometimes be for political rather than “open justice” motivations – this does appear to prove why they exist in the first place.
Update – The Telegraph have reported the story here
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