In summary, the report emphasises the principles of open justice and the right to freedom of speech, and that courts should “ensure that any derogation from open justice is the minimum necessary to secure the proper administration of justice”. It recommends that Civil Procedure Rule 39.2 (concerning public hearings) should be amended to make reference to the strict necessity test.
Whilst the report makes recommendations and tweaks to the current practice directions, it makes clear at the outset that
It is not… the function of this Committee or this report, and indeed it would be inappropriate for this report, to express a view on these important issues of substantive law and policy… The establishment of a Commission to examine a British Bill of Rights may well prove to be a forum or catalyst for considering the substantive law in this area
Super-injunction are court orders enforcing a person’s privacy in relation to a particular issue. What sets them apart from ordinary injunctions is that their very existence cannot be reported by the press. And
until early 2010, there were justifiable concerns that a form of permanent secret justice was beginning to develop. However, that concern should be dispelled by the decision in the Terry case.
The John Terry case imposed a requirement that
super-injunctions and anonymised injunctions must generally contain a return date ensures that such injunctions cannot in practice become permanent, save in the very, very rare cases where it may be justified
Since January 2010, contrary to speculation in the media and on Twitter, the Neuberger committee only found evidence of two such injunctions granted. They are “rarely applied and rarely granted”. The committee reminds us that courts have a discretion which is “without limit” and which can be exercised in support of any legal right or the application of equitable principles. Nevertheless, the committee recommends that any open-ended super-injunctions (that is, those which don’t have an end-date) should be reported to the courts.
But not all injunctions are super, and in fact most of the injunctions which bother the media and public are not super at all. On the connected and also controversial issue of the law of privacy and the correct balance between the sometimes competing human rights to privacy and freedom of expression, the committee has published draft practice guidance for interim non-disclosure orders, or gagging orders as they have been called (see page 89).
The committee also sensibly recommends the collection of court data by the Ministry of Justice and the Courts and tribunal service, to be published annually. This should at least serve to cool allegations of an unknown mass of secret injunctions created by judges not subject to public scrutiny.
As to the vexed issue of MPs breaching existing super-injunctions in Parliament, most notably in the Trafigura case, the courts and Parliament should “consider the feasibility of a streamlined system for answering sub judice queries from the Speakers’ offices“. In other words, a mechanism whereby MPs can find out about super-injunctions without necessarily breaching them. Whether this will keep MPs such as John Hemming from campaigning against injunctions remains to be seen.
On “hyper-injunctions”, a term which Hemming has coined to describe injunctions restricting a constituent from revealing an injunction to their MP, “No super-injunction, or any other court order, could conceivably restrict or prohibit Parliamentary debate or proceedings.” In other words, this is an issue which will have to be left to Parliament, who contrary to some MPs’ views, still set the law of the land.
Super-injunctions have become an important public issue as a result of the irresistible combination of secrecy paid for by sporting celebrities and a concerted media campaign against the so-called gagging orders. The Prime Minister has even expressed his unease about the rise of “a sort of privacy law”. A number of people have allegedly broken the injunctions on Twitter, complicating the debate further.
Almost alone in the debate, a number of legal bloggers have asked whether scrapping the right to privacy, which developed by the common law but was then incorporated into UK law by the Human Rights Act, would truly be a victory for freedom of speech.
Lord Neuberger’s report, on an initial reading, is characteristically balanced and practical. It emphasises that judges did not invent privacy law, but rather that it was the Human Rights Act, as passed by Parliament in 1998. It recommends practical ways in which fears of open-ended privacy injunctions can be allayed, although it goes nowhere near recommending that judges’ discretion to grant such orders should be constrained. The report will hopefully deflate some of the media hype surrounding injunctions, although it is unlikely to hold back the wider debate on privacy law. Perhaps the Bill of Rights Committee, due to report by the end of 2012, will have more to say on this super-hot but probably overinflated topic.
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