Parliamentary Supremacy, Privilege and the Hyper Injunction, Part 1
Gildas the Monk [ a pseudonym ], a loyal Englishman explains
QUOTE
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...........
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”.
UNQUOTE
This is well worth reading in its entirety. Gildas
knows of what he writes. I wait eagerly for the second part - and here it is:-
Parliamentary Supremacy, Privilege and the Hyper Injunction, Part 2
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
http://twitpic.com/4ft21a 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: 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.
QUOTE
by Gildas the Monk on 3 April 2011
A couple of weeks ago
I posted on the topic of the so called “Super Injunctions” and “Hyper
Injunctions.”
UNQUOTE
Power is the power to abuse power. Secret law
is not justice. It gives the power to abuse power.
