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    Friday, 11 March 2011

    Asking Turkeys to vote for Xmas?, or Reflecting on the abuse of parliamentary privilege

    The Guardian has reported the comments made yesterday in the House of Commons by a Liberal Democrat MP (col 1069) that appear to circumvent a supposed 'super-injunction' concerning Fred Goodwin (formerly of the Royal Bank of Scotland). The suggestion is that the injunction in question precludes the identification of Mr Goodwin as a 'banker', and as such, that it is entirely facile.

    The details published suggest that Mr Goodwin may have been the beneficiary of one of the recent 'DFT orders' (labelled in line with their use by Mrs Justice Sharp in DFT v TFD [2010] EWHC 2335 (QB)), and not in fact a super-injunction per se. Such orders are designed to preclude 'jigsaw' identification of individuals whose privacy the courts have seen fit to protect.

    John Hemming, the MP in question, has called for a debate in Parliament on the issue of super-injunctions, over-looking the fact that just such a debate was held in Westminster Hall within the last eighteen months. He also failed to acknowledge - as Afua Hirsch notes in her Guardian piece - that an inquiry instigated by Lord Neuberger - the Master of the Rolls - into the award of interim injunctions in publication cases is currently ongoing. The phrasing of his question to the Minister - "will the government have a debate or a statement on freedom of speech and whether there's one rule for the rich like Fred Goodwin and one rule for the poor?" - suggests that he may have been put up to the job by some friends in the media who have pushed this line hard. Or perhaps his concerns merely mirror those of the newspapers who regularly decry legal restrictions imposed upon them to protect the private information of individuals.

    MPs can circumvent injunctions by relying on parliamentary privilege to avoid any legal repercussions. The Guardian - and others (1,2,3,4) - can no doubt pray in aid the right to report proceedings in Parliament. All very principled, but nonetheless it stinks. The MP's comments imply that judges of the High Court are somehow failing properly to value open justice and freedom of expression in their balancing of such factors against privacy concerns, and this even after the attention given to the risks in public debate. Even the barest reading of recent judgments on these points - for summaries, see Inforrm generally and most recently this piece by Charlotte Harris - would demonstrate quite how deeply considered such competing interests and values are.

    As it is, such comments stand as a craven insult to public-spirited - and in many cases quite brilliant - professional judges meted out by ill-informed show-ponies.  Notably, the minister responding to Hemming's question - Sir George Young MP - commented that "the matter that he has just raised... seems to impinge on the responsibility of the courts and any Minister would be cautious about commenting on that". Such abuse of parliamentary privilege must be addressed by Parliamentary authorities (someone pass the Erskine May). Otherwise, their honourables should be debating the extent of their own freedoms alongside the use of anonymising injunctions.