Recently our learned editor posted on the serious matter of the use, or rather misuse, of the Super Injunction and the Hyper Injunction:

To be clear, “Super Injunction” refers to an order of the High Court to the effect not only that the details of litigation may not be revealed, but that it may not be publicly revealed that the proceedings have been issued or an injunction made. Its justification is said to be that in some circumstances the dissemination of the knowledge of the fact that the injunction has been made would undermine the protection afforded by the injunction itself.

In a typical example, for example, if it is reported that married Footballer A has obtained some form of injunction against glamour model Miss T, even if the precise terms of the injunction are not made known, it may be pretty clear what has been going on and what it is Footballer A wants to prevent getting out into the press.

The notion of such an injunction should ring immediate alarm bells in the heart of any decent lawyer or constitutionalist, and a brief cross reference of those where the existence of the injunction has been for various reasons revealed (it’s a leaky old place, the internet) suggests they are the particular plaything of the rich and ruthless.

The “hyper injunction” goes even further. The hyper injunction specifically purports to prevent the subject of it discussing his case not just with journalists or lawyers other than the subject’s own legal team, but with Members of Parliament:

But is an order of the Court which bars a citizen from speaking to his MP even lawful?

In my opinion, such an order is of highly questionable legality and a court should not make an order in those terms. To do so seriously violates the role of the MP and the Parliamentary Privileges which go with that function.

To give a proper analysis of why in my opinion this is so one need to understand the constitutional status role of Parliament and its relationship with the courts – the principle of “comity” or, in simple terms, where the line of authority between each is drawn. In order to do that, one needs a little context. In this article I hope to give the background against which the issue has to be determined.

There is a certain story about Lord Denning, whom I had the privilege to meet briefly, a long time ago. The story goes that he had very few law books in his study, but a great number of history books. When he was asked why, his answer was to the effect that you cannot understand the law without understanding Britain’s history first. He was completely and absolutely correct, and in my opinion it is a distinct failing of many of our political and indeed legal establishment that they have no such knowledge.

It is France or America which are often held up as the poster boys or girls of Revolutions. But whilst theirs may have been the most glamorous of revolutions, they were not the first, nor possibly the most shocking. The stolid, deferent, long suffering English have a surprisingly radical and violent history and got in first.

The ultimate crucible which forged the basis of Parliamentary Democracy as we know it today was the 17^th Century; the Civil Wars (strictly there were at least two) and the Glorious Revolution of 1668. A full century before our French and American cousins, Britain was the real hotbed of radical politics.

Time and space forbid, but broadly the 17th Century saw the final clash of the ideology of Absolutism and the Divine Right of Kings (linked at the time to Catholicism) on the one hand; and Protestantism and the right of those who are taxed to free and proper representation in Parliament on the other.

Charles I sought to uphold and enforce the latter by force, and the ultimate result was that he was impeached before a grand committee of Parliament, tried and beheaded. As far as I am aware it was the first revolutionary act of Regicide in European history. That is, it is important to understand this was not a coup in which one monarch was killed in battle or murdered and replaced by a rival candidate for the throne, but a genuine revolution in which the people – or a section of the people – said: we shall have no king at all. Later in the Century James II would have gone the same way had he not fled into exile in what became known as the Glorious Revolution of 1688, to be replaced by a foreign King and Queen more sensitive to the rights and privileges of Parliament and the mainly Protestant views of those who sat there.

These events form the backdrop of the constitutional status and rights of Parliament.

As every law student knows, it is not true to say that Britain does not have a written constitution. Rather it has a constitution that is partly written, partly established by custom and precedent, and partly by pure political pragmatism, capable of moving with the times. It contains ambiguities and apparent contradictions, and deliberately so. It thus reflects a subtle blend of the revolutionary and the conservative.

To write on the constitution demands more time and space than a blog allows. But the crux of the position can be summarised as follows.

First, Parliament is sovereign. By this is meant that the duly constituted Parliament of both Houses supplemented by the presence and authority of the Crown is the supreme legal authority. The presence of the Crown is recognised as symbolic, and real power is vested by various mechanisms and conventions in the Commons. Parliamentary sovereignty is the bed rock of the constitution. It is the fact of this sovereignty which gives rises to real problems with Britain’s relationship with Europe, because on a strict view it cannot be eroded and given away. That is for another day, perhaps.

Central to Parliament’s function are the amorphous bundle of rights and immunities which attach to the office of Member and the functioning of the Palace of Westminster known as “Parliamentary Privileges”.

These are the immunities which Parliament deemed necessary for the protection of its members and itself in the struggle for constitutional ascendancy which I have referred to above and which probably form the bedrock of any working democracy.

The great Bible of constitutional law, Erskine May, defines the concept of Parliamentary Privilege is as follows:

“The sum of the peculiar rights enjoyed by each House collectively as a consultant part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. This privilege, though part of the law of the land, is to a certain extent and exemption from the general law.”

Now stop there, and read it again. Notice anything odd about that? I am sure all sharp eyed Racoonistas will have picked up the point. The most important phrase is “The High Court of Parliament,” words which my brilliant Constitutional Law tutor years ago gently slipped into my subconscious.

For as an aspect of its Sovereignty, properly understood, Parliament is also the highest court in the land. In day to day legal terms this was reflected by the delegation of the hearing of day to day matters of law to its judicial committee in the House of Lords. Hence the time honoured phrase “an appeal to the House of Lords.”

Those with an eye on matters legal may have noted that the “House of Lords” has recently been reconstituted as “the Supreme Court”. Leaving aside the fact that this was an excuse for a junket and unnecessarily spending millions on a plush building, I cannot help but feel that this was an attempt to detract from that position, out of ignorance or deliberate spite.

However, should Parliament wish to constitute itself as a court and sit as such it has the right, and the absolute right, to do this as an aspect of its Sovereign status. In my opinion, it has the power to call before it any citizen and try them for any offence, including an offence against the State, and that includes if necessary the Monarch. The process is known as impeachment, and that is exactly what happened to Charles I. But I digress.

The key Parliamentary immunities and privileges are as follows:

• Freedom of speech.
• Freedom from arrest
• Exclusive cognisance
• The power of contempts

I propose to elaborate briefly upon each these. Remember, each was forged in the revolutionary hotbed of the 17^th Century in which the very existence of Parliament as recognised today was under threat, with from time to time the King’s (and Cromwell’s)  troops forcibly interrupting proceedings with various degrees of success.

Freedom of speech within the Palace of Westminster is reflected by and established in the Bill of Rights drafted in 1688, and accepted by William of Orange in 1689.  Specifically, Article IX  of the Bill of Rights provides:

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

This is absolute and unconditional. There are issues about what constitutes “proceedings within Parliament.”  For example, if a Member writes a letter which contains or refers to a defamatory remark and posts it in his “out tray”, will the privilege apply when and  where it is received? Most of this is piffle. The key point is a member may not be impugned for what he says in debate in the Chamber or in any of the Houses’ committees.

Freedom from arrest is understood to mean freedom from arrest on the grounds of civil, not the criminal law. For example, no MP would be immune from freedom from arrest in respect of an allegation of murder or theft, but it would prevent a member from being harassed by old civil laws (now mostly abolished) which could give rise to being arrested. Most importantly, however, the immunity clearly extends to protect from arbitrary arrest and detention at the hands of the State – a critical issue in the conflict between Charles I and Parliament.

Exclusive cognisance is simply the right for Parliament to be free from interference with its own procedures and processes. For example, the Courts may not inquire into and “judicially review” its decision as they may with a Minister of the Crown.

And finally there is the power of contempts. This is an often forgotten but important power. It is the power to exercise a penal jurisdiction in contempt against anyone who improperly interferes with its actions. Erskine May’s definition is this:

“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”

It is fair to point out that this power has not been exercised regularly since the 19^th Century and in 1977 the House of Commons resolved that the jurisdiction should be used as sparingly as possible and only when the House of Commons is satisfied that it is essential to act to provide reasonable protection from improper obstruction causing or likely to cause interference with its functions.  Modern Parliaments have preferred to take a more relaxed view of threats to their authority, but in my opinion the power unquestionably exists. A report of the Committee on Parliamentary Privileges in 1967 recommended that it be confirmed by statute. According to custom, the House may commit an offender to  prison for the remainder of the term of the Parliament.

Of this more later, but before dealing with the specific issues of the super and hyper injunction, let me try to bring this abstract analysis back to back to modern and specific events try to illustrate how there is a complicated relationship with the courts – which is the core of the problem in respect of the hyper injunction.

We have recently seen for example how certain MP’s have, for want of a better word, fiddled their expenses. Some of these involved invoked Parliamentary privilege and argued that it was exclusively matter for Parliament to decide if there had been wrong doing.

So, the question is: who decides if that is constitutionally right or wrong? The answer is that Parliament, almost invariably as part of this subtle constitutional mix, cedes that decision to the Courts. Who decided, quite rightly, that the MP’s were not protected by Parliamentary Privilege because it was a purely criminal matter.

But take a different example. In November 2008 police entered the precinct of the Palace of Westminster. Their reason was that they had received complaints from the Cabinet Office about leaks of government information on the issue of immigration. Leaks which had been taken up and used by then shadow immigration minister, Damien Green MP. Police invaded his office, searched it, and arrested him on suspicion of the crime of “conspiring to commit misfeasance in a public office”.

Legal? No. In my opinion, a spectacular contempt of Parliament. This was a put up job, clothing a fishing expedition in the MP’s private office with the veneer of a bogus criminal investigation.

At the time the police gained access to the House the Serjeant at Arms, responsible for the security of the House, was the perhaps appropriately named Jill Pay, a former civil servant and general non entity. Pay, presumably being intimidated by Inspector Knacker and ignorant of her role or the constitution, supinely allowed the forces of “the law” entry. And the ultimate apparatchik, former speaker “Gorbals Mick” Martin took no action either.

The default setting of the Serjeant at Arms in the face of such patently questionable  intrusion into the affairs of a Member of Parliament should be that the agents of the State may not enter the Palace of Westminster and interfere with the activities of a member at the very least without a warrant from a Court, and possibly not without permission from the House in any event. Pay’s proper constitutional response was clear. She should politely but firmly insisted that the police leave at once and referred the matter to the Speaker, who in turn should have dealt with it or referred to the House. And frankly, if the police attempted forced entry, her duty was to physically resist by whatever means available.

Of course Green was guilty of no such offence. He was harassed because a mole was proving distinctly inconvenient to the Government of the day. Green was harassed by the agents of the State because he knew stuff they didn’t want him to know. It is exactly what  he should be protected from by Parliamentary privilege.

Consequences? Green was exonerated and various persons including the Cabinet office supremo criticised. There was a resolution that police should not be allowed to enter Parliament without at least a warrant. And there the matter lay.

The correct response in my opinion would have been for the House to convene a  Committee on Privileges and have brought before it those agents of the State who invaded the Palace of Westminster and charged them with contempt of the High Court of Parliament.  But in the fag end days of the last government the matter was left to drift.

Having set out the scene at some length, next: comity, and the dividing line between the Courts and Parliament.

To be continued.

Gildas the Monk

Span
Ows March 29, 2011 at 18:09

“The alternatives to parliamentary supremacy are ugly and foreign”

http://blogs.telegraph.co.uk/news/danielhannan/9758526/The_alternatives_to_parliamentary_supremacy_are_ugly_and_foreign/

And the quote from my previous message by Enoch Powell to the Royal Society
of St George in 1961 (from the link above)

Span
Ows March 29, 2011 at 18:07

They would tell us too of a palace near the great city which the Romans
built at a ford of the River Thames, to which men resorted out of all England
to speak on behalf of their fellows, a thing called ‘Parliament’; and from
that hall went out their fellows with fur trimmed gowns and strange caps on
their heads, to judge the same judgments, and dispense the same justice, to
all the people of England.

Span
Ows March 29, 2011 at 11:52

I concur with many of the previous comments in that (a) I almost didn’t
read it and (b) it is very interesting and easily understandable. Would be
nice to be able to use it as big stick to beat Labour around the head with but
one assumes the Coalition would play similar games given the same
circumstances.

Rarm March 29, 2011 at 11:43

Para 11.

Correct elsewhere.

Rarm March 29, 2011 at 11:26

1688.

Andrew Duffin
March 29, 2011 at 09:31

Thank you for this.

I knew some of it from Civics lessons in school, which were taken by a
great Headmaster who made a point of teaching every first-year class once a
week (tell that to a modern “Head Teacher” who never comes out of his
office!).

But I didn’t know all of it, of course.

And it’s NOT a “dense” piece of writing; it’s a very clear exposition of
some pretty complicated and subtle things, no more densely written than a
newspaper article would have been a hundred years ago. Why did we allow
ourselves to be dumbed down to such an extent?

Thanks again, looking forward to the rest.

Gildas theMonk
March 29, 2011 at 10:17

Thank you very much!

Big Fat Trucker
March 28, 2011 at 22:30

Gildas is probably right when he regards the Supreme Court as a downgrading
of the Law Lords. Consider this: a Law Lord is appointed from the judiciary,
and by convention does not speak in debate or vote. However, as a Peer, in
theory he or she could debate and vote. Of course, this would immediately
vitiate any independence, but the fact remains that a judge who considered a
matter to be of such importance it would be worth throwing away his career on
the Bench could do so. That possibility has now gone, and most likely for this
reason:
“…the supremacy of Parliament is still the general principle of our
constitution. It is a construct of the common law. The judges created this
principle. If that is so, it is not unthinkable that circumstances could arise
where the courts may have to qualify a principle established on a different
hypothesis of constitutionalism.” per Steyn LJ in Jackson v Attorney General
[2005] UKHL 56

The old system was unsatisfactory from the point of view of separation of
powers, but the Supreme Court is ultimately the creature of the new-look Lord
Chancellor.

Gildas theMonk
March 29, 2011 at 06:49

Thank you for that. I shall have to read that case. that sounds like a
constitutional heresy to me. I could see this coming. I have the sense that
the name of the game is to overturn Parliament in favour of rules decide d
by the lawyers themselves, or in Strasbourg.

Dennis March 28, 2011 at 22:09

There is, I agree, a need to establish an absolute privilege which allows a
constituent to discuss any matter with his or her MP.

I don’t agree with you on the Damian Green matter, and prefer Bogdanor’s
analysis. Indeed, a Committee on Issue of Privilege was convened which found
there had been no contempt of Parliament.

SadButMadLad
March 28, 2011 at 22:31

Bogdanor’s analysis totally ignores the political issue of why the police
were called in the first place. This from a government that when in
oppostition itself was more than happy to receive and use leaks from civil
servants. One member of the government at the time actually stating on TV
that he made us of leaks.

Dennis March 28, 2011 at 22:48

I think it’s fair to say that the letter from the Cabinet Secretary was
misleading in that it referred to matters of national security and, of
course, there were no such matters leaked to Mr Green. However, once the
investigation had a reasonable suspicion, then, as Prof. Bogdanor points
out, Parliament is not a sanctuary.

If, on the other hand, you are suggesting there was a conspiracy
between the executive and the police, then that is another matter and one
of which I have no knowledge.

SadButMadLad March
28, 2011 at 23:17

The police had an opportunity to do some initial investigation, and
given anyone with experience in the matter (not me, I’m using the
benefit of hindsight) should have realised that civil servants leak
loads of stuff to opposition politicians. So the case with Damian Green
was not so clear cut to be a criminal case – which parliament is not a
sanctuary from. It’s was a conspiracy (I always err on the side of fuck
up whenever in doubt), but it was a case of the the cabinet secretary
trying it on and succeeding in taking it to the police when in all
likelyhood they knew that it wasn’t criminal because they had done
exactly the same thing themselves (using leaks). The police were victims
just as much as Damian Green.

Dennis
March 28, 2011 at 23:25

I think you need to look beyond the specific of the leaks. You
might consider what the police thought (wrongly, as it turned out)
about the relationship between Mr Green and Mr Galley.

Jeremy
Poynton March 29, 2011 at 05:41

Brown in opposition bragged of the leaks he received.

Zaphod March 28, 2011 at 22:09

I almost didn’t read this post, it looked dry. I’m glad I did though, it
was fascinating and well explained.

Snaptophobic March 29, 2011 at 09:24

Hear, hear!

Jeremy Poynton
March 28, 2011 at 22:07

“And the ultimate apparatchik, former speaker “Gorbals Mick” Martin took no
action either.”

Mick Martin allegedly told one senior MP: ‘I did not come into politics not
… I did not come into politics not to take what is owed to me”. As a good
Socialist does, he rose to the Lords at the first flash of ermine

He also left his constituency the same shithole it was when he became their
MP. Said constituents, who must struggle to work out whether it is socks or
shoes first, again elect another Labour MP.

I like Richard Norht’s oft repeated question.

“Why do we not rise up and slaughter them all?”

Why indeed?

Jeremy Poynton
March 28, 2011 at 21:54

Thank you so much for this. Regarding the paragraph which reads

“Those with an eye on matters legal may have noted that the “House of
Lords” has recently been reconstituted as “the Supreme Court”. Leaving aside
the fact that this was an excuse for a junket and unnecessarily spending
millions on a plush building, I cannot help but feel that this was an attempt
to detract from that position, out of ignorance or deliberate spite.”

I would hazard that it was spite. It was, after all, the odious and vile
Jack Straw who made this change. The same Jack Straw (the straw man who blows
which ever way the political wind blows, so principled is he) who has more
than once made clear his profound distaste for the English. Hence to break any
of the struts which comprise the edifice of our constitution would be right up
his street.

Is our country FUBAR? It seems so to me.

Matt March 28, 2011 at 21:46

Brilliant post. Thank you

Not “consultant part of the High Court of Parliament,” by the way.

Constituent part

Derek March 28, 2011 at 20:44

When the Supreme Court was first introduced, I was of the opinion that it
was an action by which the justice system could be removed from parliament,
and the crown. I am now waiting for a ruling that our Supreme Court is
answerable to the European Supreme court, not our elected representatives, and
ultimately the Crown. This is the start of a Europe wide single judicial
system.

Joe Public March 28, 2011 at 20:07

Thanks for lesson 1 Gildas.

Gildas theMonk
March 28, 2011 at 20:15

And thank you for the video kind sir. Various matters have diverted
me.

Gildas theMonk
March 28, 2011 at 19:27

Thank you for the kind comments on what is a rather dense piece of writing.
As it happens I had superb teachers and a brilliant tutor of constitutional
law at University – one of the great academic minds of his generation and a
good teacher to boot.

Jose March 28, 2011 at 22:13

I take it he has taken out a superinjunction to prevent you naming
him!

Gildas
theMonk March 29, 2011 at 07:08

John Hopkins

Jose March 29, 2011 at 08:07

¡Gracias Señor!

Dave H March 28, 2011 at 18:41

Have you been reading the recent Westminster Hall debate proceedings on
Hansard?
I’m guessing yes, given some of your tags.

Grumpy Old Man
March 28, 2011 at 18:13

Thanks, Gildas for taking the time and effort to make such a post.

Michael March 28, 2011 at 17:45

Fascinating stuff.

Richard B March
28, 2011 at 16:46

This stuff isn’t taught in schools any more. I wonder why.

Great post, btw.

Jeremy Poynton
March 29, 2011 at 05:40

Nothing is taught in schools any more. Teachers don’t “teach” subjects,
they teach pupils “how to learn”. Indeed, the education system would seem to
me to have contributed hugely to the mass dumbing down of the UK we have
witnessed over the past could of decades. Were it all to be reversed
overnight, we would still be looking at a couple of generations of
schoolkids passing through the system before we saw any beneficial effects.
How can we have anything resembling a credible democracy when the nation is
happy with the X-Factor, pizza and the gant’s piss that is Carling Black
Label.

Pericles
March 30, 2011 at 11:32

How strange !  If asked, I should have said the exact
opposite :  that to-day’s children are taught by numbers — to
learn a succession of ‘facts’ — and discouraged from thinking.  Only
active thought gives rise to true learning.

I agree with Jeremy that the damage resulting from several decades of
‘progressive’ education will take a long time to reverse ;  for
one thing, let us not forget that the teachers of to-day themselves are
the product of this failed educational system.

(En passant, Jeremy, try not to piss in your glove :  makes
an awful mess.)

ΠΞ