Sir Stephen Sedley, recently retired from the Court of Appeal, has written a fascinating piece on the “Superinjunction Spring” in the most recent issue of the London Review of Books. Entitled the “Goodwin and Giggs Show” it highlights, in particular, the important constitutional issues arising from the “May Events”. This is the first analysis of these issues from a judicial perspective and should be required reading for the army of “privacy pundits” who have commented on these issues in the media.
Sir Stephen begins by drawing attention to the 17th century constitutional compromise which resulted in a clear demarcation between the role of Parliament and that of the Courts:
“The sovereignty of Parliament as the final source of law and the sovereignty of the courts in interpreting and enforcing the law are the twin pillars on which democracy and the rule of law in the UK rest“.
He then moves on to consider the position of the MP and Lords who have recently breached privacy injunctions
“When a member of either House, protected by the privilege which prevents his being prosecuted for it, consciously breaks a High Court injunction by naming an individual who has been anonymised by court order, it suggests two possibilities. One is that he does not understand the constitution; the other is that he does and has set out to transgress it. In spite of protests from members of both Houses who understand very well what is at stake, neither speaker appears at present to have taken any steps against the offenders.
He is clear about what has taken place: “It is a simple breach of a simple constitutional principle“.
Next, he turns to the genesis of the “super-injunction” – the order which forbids the mention of its own existence. He makes it clear where the blame for all this lies:
“some newspapers would name the claimant and hint unmistakably at what was being alleged. When the courts in consequence began to suppress the name of the claimant, the papers would instead spell out the allegations and sometimes run adjacent stories or pictures which made it not too hard to guess who the claimant was. Hence the super-injunction forbidding both, which is anathema not only to the press but to any system of open justice, but was forced on the courts by the repeated undermining of their orders”.
After dealing with the history and development of privacy law, Sir Stephen draws attention to the analogies between the justification for media privacy intrusion and state surveillance (discussed in a post on this blog earlier this month)
“Observers with a sense of history have noted that the tabloids’ self-justification, advanced in the name of press freedom, mirrors that of the authoritarian state. The Sun columnist Jane Moore admonishes errant public figures: ‘If you don’t want your private life splashed all over the papers, then behave yourselves.’ Or, as it was once put, if you have nothing to hide you have nothing to fear – for there is only one way the state or the Sun can know whether you are behaving yourself“.
The issues are, as he says, large:
It can be credibly said that the fourth estate is close to being a state within the state, unregulated except to the modest extent that it chooses to regulate itself and alternately feared and pandered to by public figures. Its merchandising of voyeurism might be worth debating if that were the way it was promoted; but the eye at the keyhole is presented as that of the public moralist: because stars are role models, it is argued with a straight face, the exposure of their promiscuous sex lives will appropriately harm their image and deflate the young’s perception of them. The near certainty that the exciting prospect of being able to have sex with anyone you choose will add to the glamour of being a professional footballer does not appear to enter the mind of the tabloid moralist, for whom double standards are what somebody else has.
Finally, Sir Stephen returns to the breaches of constitutional principle which have taken place as a result of the “naming” of privacy injunction claimants. He points out that the conventions have been repeatedly broken in recent times as ministers in the Major and Blair governments attacked “not only decisions they found objectionable but the judges who had given them“. Nevertheless, the naming of injunction claimants is on a different plane:
“because it disrupts the historic equilibrium between the judiciary and the legislature. The media may present themselves as amused spectators, but it is they who have provoked and exploited the breakdown of an element in the democracy they themselves inhabit”.
This is a powerful and well argued piece which brings a historical and constitutional perspective to the current issues. Although Mr Hemming and Lord Oakeshott may appear to be harmless self-publicists providing public entertainment for tabloid readers their activities have caused serious constitutional damage. We commend the full article to our readers.
Lord Oakeshott?
Oh dear.
Lord Oakeshott put down the question which was asked on his behalf by Lord Stoneham (see Hansard, 19 May 2011). Lord Oakeshott subsequently defended what had taken place on the Today Programme.
With all due respect to the judiciary, most of whom are likely distressed at recent events, there appears to be little wrong with the occasional public spat and disagreement with members of Parliament. That is democracy in action and should be welcomed when one branch of government believes another is exercising too much power. This is not an everyday occurrence. As John Hemming said, someone had to lance the boil.
With regard to the historic equilibrium between the judiciary and the legislature, it need not have been disturbed if the superinjunctions appeared to be justly made. Gagging the press and others is a very serious matter indeed. It has clearly appeared to me, and I speak from personal experience, that the creeping privacy at the High Court is out of control and members of Parliament are right to question the orders. If justice is being done in secret, for the benefit of the few for dubious reasons, how can the public have confidence in the legal system?
I am not sure this has as much to do with the tabloid press and celebrities’ sexual lives as many suggest. Sure, they made fun of the orders, but that is because the orders looked ridiculous in the first instance and worse thereafter. What has since been revealed about Ryan Giggs in particular is shocking stuff. Most of those seeking superinjunctions are not only trying to cover up their sex lives, they are also trying to cover up their mistreatment of others, often women, though not exclusively, as Trafigura clearly showed.
I say this fully believing, as it appears does everyone else minus the tabloid press, that Max Mosley’s privacy was grossly invaded and Mr. Justice Eady’s judgment was right in this instance. I actually think the damages should have been much higher. As for what happened to Lord Browne and its relation to the current superinjunction discussion, that would be a very interesting analysis, as Mr. Justice Eady touched on in his recently published interview. It clearly appears his claim gave birth to the privacy superinjunction and the creeping secrecy at the High Court.
A line must be drawn somewhere when a superinjunction is granted, such as whether the person seeking it benefits in some way from a public image of their whole self that is not a true reflection of their whole self and/or if they are trying to cover up something that is related to that image, such as abuse of power or lying to the court. Will another’s right to freedom of expression or access to justice be compromised by granting the person a superinjunction or similar privacy order?
The balancing of rights needs more parameters, even more so if libel is now to be considered an Article 8 right, as suggested by Mr. Justice Eady in his recently published interview.