We have been enjoying Lord Neuberger MR’s report on super-injunctions. It’s a fascinating read. Not enough pictures in it for some, but you can illustrate it yourself with pictures of people who tried not to be in the news and are anyway. One recently such ‘outed’ person was Imogen Thomas, of whom there are hundreds of photos on the internet. They left us none the wiser as to why she’s associated with a super-injunction. One informant suggested it’s to do with her new musical career, he having heard that she’s been doing gigs in Manchester.
The issue, as explained by the Master of the Rolls, is that Parliament (which is a court) has its own sub judice rules, under which the Houses of Parliament do not discuss matters that are before the courts. Thus, each refrains from trespassing on the other’s province to ensure that the rule of law is not undermined and that a citizen’s right to a fair trial is not compromised.
The problem with super-injuctions came to light in 2008, when a question was tabled in the House of Commons on a subject that, because of the super-injunction in force at the time, the House office could not know was the subject of an injunction. A super-injunction restrains a person from both publishing the information that concerns the applicant and informing others of the existence of the order and the proceedings. A super-injunction, in other words, makes the ‘original’ injunction secret.
Had the House office been aware that there was an injunction, there would have been some behind the scenes discussion with the MP as to how to proceed. The House sub judice rules would have been considered and the matter probably not aired at that time. In any event, courtesy of the Bill of Rights (an ancient declaration sneered at by low-grade policemen and their present and former lackeys, and the judge at Ed Beck’s St. Alban’s appeal), Parliament cannot be gagged by the courts. To quote from Para 9 of Lord Neuberger’s report: “Article 9 of the Bill of Rights 1689 recognises and enshrines a longstanding privilege of Parliament: freedom of speech and debate. It is an absolute privilege and is of the highest constitutional importance.”
As it was, the injunction’s very secrecy caused it to be exposed in the House of Commons, leading to the second problem—media reporting of Parliamentary proceedings. This is protected by the Parliamentary Papers Act 1840, which provides an absolute immunity in respect of civil or criminal proceedings for Hansard—the official report of Parliamentary proceedings—and any other publication made by order of Parliament. That privilege extends to other publications reproducing what is said in Hansard with a ‘qualified’ or more limited immunity, if published in good faith and without malice. So there is a basic problem—particularly for those fond of injunctions, but also for the constitutional separation of powers between the judiciary and the legislature. If a matter under injunction is raised in Parliament, the media can then quote the official report, thus undermining the purpose of the injunction.
Since the Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law—and specifically Article 8, which accords respect for privacy and family life—the courts (as Parliament anticipated) have developed the common law in light of the Convention and its jurisprudence, trying to find a balance between what should be kept private and what should not benefit from the right to a private life. In all cases, injunctions are usually temporary and are imposed to prevent publicity that could prevent a fair hearing at a later date.
It is clear that Lord Neuberger doesn’t think that the Bill of Rights has been amended. Indeed it can’t be, since it’s only a restatement of the common law. And if that’s the case, then the whole Bill of Rights remains in force. And that includes your rights to protect yourself as necessary, and to bear arms.
Lord Neuberger says (Para 6.6): "...whether an injunction granted by the courts can extend to Parliament is most easily answered by reference to Article 9 of the Bill of Rights, 1689. Article 9 is declaratory of a longstanding privilege of Parliament: freedom of speech in debate. It provides the final legal recognition of the constitutional principle 'That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.'"
Lord Brown-Wilkinson said in Pepper v. Hart (1993 AC593 at 638): '…the plain meaning of Article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to discuss.'
That judgement is best remembered for opening Parliamentary debates to the courts to help a court decide what Parliament meant by a piece of legislation. It enables us to look at the debates for clues as to their intentions where the wording of the legislation is woolly or ambiguous. It is useful when you look at the debates in 1920 when firearms legislation was first enacted, but it didn’t help us much with the 1988 Firearms (Amendment) Act. Each time the committee debates got to a difficult point, Douglas Hogg, the minister steering the bill through Parliament, said that what the wording meant could be left to the courts to figure out.
Sooner or later, and preferably sooner, either Parliament or the judiciary, or both, will have to consider the conflict between the Bill of Rights and the way the Home Office interprets firearms legislation. That will make interesting reading.
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Lord Neuberger’s report, Super-Injunctions, Anonymised Injunctions and Open Justice, can be downloaded from
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