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Saturday, April 23, 2011

Superinjunctions: The rich man's gag

Superinjunctions: The rich man's gag

The rulings appear to place the power of the courts at the disposal of the rich and famous (and male)

The Guardian, Saturday 23 April 2011

The relationship between the courts, the press and parliament has been severely shaken over the past week by a froth of injunctions protecting the identity of allegedly unfaithful footballers and other celebrities. In the process, some of the tensions within the current evolution of the British state have been exposed. Though it may seem far-fetched this sunny Saturday morning, future historians could judge that the wives and girlfriends, so long the objects of prurience and mockery, were indirectly the catalyst of a significant realignment.

There is a long back-story to these developments, but the pace quickened 18 months ago when the courts granted a gagging order against the Guardian that could not be reported in any way despite the evident public importance of the story. This newspaper was barred from printing not just the details of an account of claims of damaging activities by the oil-trading company Trafigura but also anything said in parliament about it – a plain breach of parliamentary sovereignty as defined by the Bill of Rights 1689. The order was rapidly rescinded. But the episode showed how the courts were increasingly using their powers, in secret hearings, in ways that allowed the right to privacy to prevent the press from reporting matters in the public interest. By their very nature, it is hard to judge how many such superinjunctions exist, but there appear to be at least 30, including several that are plainly of public significance, including one relating to allegations of water pollution, and another to a right-to-die case.

These superinjunctions, distinguished by their total secrecy, are different in kind but not in effect from the ones that have generated this week's lurid headlines about the sex lives of unnamed celebrities. In each, the court held that the privacy of the individual (or, in one case, their children) outweighed freedom of expression. The rulings appear to place the power of the courts at the disposal of the rich and famous (and male), to the considerable disadvantage of the women in these cases, some of whom have been brutally exposed to public derision. This granting of anonymity is beginning to look like a trend, interrupted only when the England captain John Terry failed in an attempt to protect his identity after the court held that he was less interested in privacy than in the commercial value of his reputation.

This week David Cameron joined in, admitting his own unease about the rulings and blaming the Human Rights Act for allowing judges to develop a law of privacy in place of parliament. This is a largely spurious claim. In fact, English common law has long been used to protect both confidentiality and the privacy of children, while the European convention on human rights has been an available remedy for breach of privacy for more than a generation. Less partisan observers suspect that the sudden surge of cases may simply be a lawyers' market response to a lucrative new fashion.

Meanwhile some MPs are alarmed at the way the courts appear to be interfering with the right to raise important issues in parliament and, more expressly, with MPs' right to discuss them with concerned constituents. The Lib Dem backbencher John Hemming is at the forefront of a campaign to challenge the courts, in a way that jeopardises the fragile relationship between them and parliament. Equally, senior judges are unhappy at the spread of secrecy: the master of the rolls, Lord Neuberger, will soon publish the findings of his inquiry into the use of superinjunctions. In a speech in March his commitment to open justice was unequivocal, his defence of injunctions to protect privacy equally so. How, he asks, can privacy be sustained if the press reports the claims before the court can rule. Expect a report strong on procedure (time-limited injunctions, perhaps, and submissions from all those with an interest) but one that looks more likely to defend the right to privacy than the freedom of the press.

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