Parliamentary Supremacy, Privilege and the Hyper Injunction, Part 2

by Gildas the Monk on April 3, 2011

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A couple of weeks ago I posted on the topic of the so called “Super Injunctions” and “Hyper Injunctions.”

This has been a topic highlighted by our learned editor.

Where La Raccoon leads The Times follows, and this weekend the issue has featured on the front page and in the Leader section

The purpose of my earlier piece was to lay the foundations for a discussion of the legality of the so called “Hyper Injunction” – an order of the court which forbids the recipient from discussing the matter in question even with their MP.

Central to the issue of the relation between the courts and Parliament is the issue of “comity.” That is simply the concept that each respects the exclusive constitutional rights of the other in certain defined areas.

To take an example, a Member of Parliament is protected by Privilege and may speak freely on any matter at all within the Chamber of the House. But if an MP was to make comments about, say, a criminal trial which was ongoing so that might interfere with and prejudice a fair trial that would be an abuse of that privilege. By convention MPs avoid doing so. Equally the Courts are very clear that they should not trespass on the workings of Parliament. The problem comes in defining where the limits of the province of each lies.

Let me now explain how arguments for the Super or Hyper Injunction are put forward.

Imagine that I am an anarchist. I concoct a plot to destroy the Coca Cola Company. I decide to allege that there is proof that Coca Cola causes cancer, and I even manufacture some bogus but convincing evidence to this effect.  If this information is spread about it might wreck Coca Cola’s lawful business, or at least cause a lot of damage to its reputation. Coca Cola will sue for trade libel (and other matters) and are entitled at the start of the action to apply for what is referred to as an “interim injunction” to prevent me from spreading these rumours. An interim injunction is simply a temporary one, granted at an early stage proceedings, intended to preserve the position of the parties until trial when a final decision and order can be made.

Broadly the argument for a Super Injunction or Hyper Injunction which Coca Cola will make at the beginning of the case will be something like this:

  • Even if the Court can’t decide at this early stage whether there is any substance to my allegations, there is a serious case that I am defaming Coca Cola unjustly
  • If the accusations are spread about they will cause great damage to its business
  • Because I am a noted activist and trouble maker it is quite likely that I will try to raise these spurious allegations in the press, or even dupe my MP into raising the matter in the House of Commons under the protection of Privilege
  • Also, if word of the action gets out, it will damage Coca Cola’s business no matter if it is vindicated at trial. People will say there is “no smoke without fire”
  • If I intend to vindicate the allegations I will have the chance to do so in court at a fair trial when all the evidence is heard
  • Therefore the “balance of convenience” (the phrase the Courts use) favours making an order which has the effect of “gagging” me from telling anyone not only about  my allegations, but in terms which forbids the press reporting the fact that Coca Cola have brought the action, and even purports to stop me telling my MP about it.

Once it gains its injunction, Coca Cola would then proceed to trial, my lies would be exposed on the full hearing of the evidence and the injunction will made permanent.

As I mentioned in the previous piece, many of the cases in which the press are gagged about revealing the fact that an action has been brought are cases in which “celebrities” have brought an action based on “breach of confidence” – a legal term which usually means someone wants to suppress knowledge of their infidelity or drug use. The argument here is that if it gets out that footballer Mr X has brought an action against glamour model and “wannabee” star Miss Y, then everyone will put two and together and, quite reasonably, make four. So the press are restrained from reporting that the action even exists.

At least in the case of the Coca Cola example I hope you can see how reasonably and persuasively the argument can be put. However, to explain the extreme danger of such orders let me give two more “hypotheticals”

I am an investigative journalist. I discover information which suggests a drug being prescribed to pregnant women can cause terrible deformity in the unborn child. The drug company with millions invested in research argues cogently that their drug is safe and I should not be allowed to report this matter. It brings proceedings to stop me publishing the story or even telling an MP about it using the arguments I have set out above.

The name of the drug is Thalidomide.

Or take another example. Let us imagine that I am a very successful businessman and Press Baron and someone is making horrid accusations about my honesty. They allege that I am a thief, a crook, and a liar who is conning his shareholders and plundering the company. I bring proceedings to stop them making these defamatory statements using, of course, the cleverest and most expensive lawyers.

My name is Robert Maxwell.

In either case should it be lawful to prevent bringing the complaints to the attention of an MP who may, if he thinks necessary, raise the matter with the protection of Privilege? The answer, of course, is “no.” It should be noted that, as I recall, the manufacturers of Thalidomide did try to suppress The Times’ reporting of the effect of the drug by injunction. And it is a matter of record that the bullying Maxwell resorted to every legal trick to suppress the rumours and complaints about his conduct.

One of reasons the argument for such an injunction seems reasonable is that it can be argued that a defendant will always have the chance to vindicate himself at trial. But in practice this is not true. The costs of litigation are notorious, oppressive and terrifying to an ordinary person. Lawyers for the wealthy and powerful use the costs or potential costs of litigation as a weapon with which to crush the resolve and destroy the resources of the ordinary citizen. Litigation is a game only the super rich can play.

Also litigation is slow. No matter what the courts may say about it, able litigants can usually string it out if they wish to. One of the cases which brought the issue of the Super Injunction to the fore, the Trafigura case, has been going on since 2006, I believe.

How does all this relate to constitutional theory?

Technically the High Court can make any order it thinks fit to police and manage a matter before it. The power is statutory under the Supreme Court Act 1981 and also said to be inherent, in essence stemming from the Court’s original historical authority vested in it by the Crown.

It is clear that the Super Injunction, if not unconstitutional, is highly undesirable and prone to abuse. On balance, in my view, the risks of such a complete gag on the press are too high to be worth the risks of such a precedent.

However, I have said that I think there is a good argument that the Hyper Injunction at least is unconstitutional and should not be made in any circumstances. This is because it offends the principle of “comity”, because it strays into an area where the Courts should not venture and offends aspects of Parliamentary Privilege.

First there is the right of free speech within the Palace of Westminster, statutorily enshrined in Article IX of the Bill of Rights of 1689:

“Freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”

On a narrow view this principle simply protects the MP from an action in slander – or, in my view, contempt of court – for anything said in the Chamber. But on a wider view an order which stops a matter being communicated to a Member of Parliament offends it. It is hard to see how a Member can freely speak or debate if he is denied knowledge of the issue.

Further, as I pointed out in the earlier piece, a further aspect of Parliamentary Privilege is the power of “contempts”. A contempt being:

“Any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or  officer in the discharge of his duty, or which has a tendency, directly or indirectly, produces such result”

Again, historically this has been construed along the lines of matters such as lying to select committees, but it seems to me that this fits the bill quite nicely. What is the job of an MP? It is not just to vote on the government’s legislation. It is also to represent. A person who is denied the right to communicate with an MP is being denied representation, and whether directly or indirectly the function of MP is being obstructed.

Finally, as I pointed out, the highest court the land is, in fact, Parliament. Thus, as it seems to me, informing a Member of that court of a matter cannot be contempt of a lower court. All that one is doing is bringing the matter to the attention of the superior court. What that Member wishes to do with that is a matter for that Member and the superior court.

For all these reasons, I think it can be cogently argued that the Hyper Injunction offends aspects of Parliamentary Privilege and as such could not or should not be made by the High Court.

But if all if that is wrong, then I suggest a simple solution. Let there be an extra clause in the Bill of Rights as follows:

“It shall not be lawful to impede or prevent a citizen from communicating his concerns upon any matter to an elected Member of Parliament”

Mr Speaker, I so move.

Finally, you may have noted that I have made no reference at all to the Human Right Act. That is because I do not believe it is necessary. The constitution works just fine without it – if it is properly understood and engaged. In these two pieces I have tried to relate and argue dispassionately, but please permit me one polemic. If I wanted to cobble together an argument under that Act I could. Just as I could create an argument that my Human Rights are being abused by the fact that I might not be allowed to vote whilst being banged up in prison for stabbing a pensioner, or because I am a bit broke, or because in school I never got to go out with Penny from the Lower Sixth (very upsetting, that, plenty of trauma).

The Human Rights Act is a junket, the self serving illegitimate love child of sloppy euro-intellectualism and deeply unpleasant, extremely greedy lawyers.  It is ironic that the source of many of the Super Injunctions is the “right to privacy” which it creates, a right which seems to involve essentially covering up the serial adultery and drug taking of “celebrities”, footballers and the Great and the Good.

That’s just a personal view.

On a wider front, if the Judges themselves do not get a grip and stop the tide of draconian orders which threaten to undermine fair reporting and free speech, Parliament must act to re-assert its Sovereignty. Lawyers and judges like to think they are the bastions of freedom. In this case they are acting to suppress those freedoms. They must be checked now.

©Gildas the Monk

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