Wednesday, 25 May 2011

Privacy and superinjunctions - some facts

Superinjunctions have been in the news again. A superinjunction comprises two injuctions rolled into one. First there is an injunction preventing some often truthful facts being publicised; secondly there is a supplementary injunction precluding the granting of the first injunction from being mentioned. They are most commonly seen in privacy cases, but can be issued in other cases (they featured in the Trafigura litigation, for example).

There have been claims and counter-claims about their constitutionality. Following the "outing" of a football player in Parliament by John Hemmings MP, some have claimed that a constitutional crisis is in the making. Professor Victor Bogdanor has been writing in the Times today, saying that Parliament ought to be subject to the "rule of law" (that is, the courts) by analogy with countries with written constitutions, whilst recognising that in the UK at present it is not.

This article does not express any views on the propriety of either superinjunctions, or of members of Parliament ignoring them. It attempts only to dispel or confirm some of the statements of fact (rather than opinion) which have been propagated about them.

Statement 1: John Hemmings can say what he wants, whatever the courts say or think about it

True, provided it is done in the course of proceedings in Parliament.

Article 9 of the Bill of Rights 1689 provides 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". Claims that John Hemmings is in contempt of court are incorrect since the statement was made during a debate in the House of Commons. Only the House of Commons can sanction him, or otherwise, for his actions. So far neither the Committee of Privileges nor the Speaker has seen fit to recommend an inquiry into whether the House (by a resolution passed on the floor of the House) should sanction him.

Statement 2: In issuing superinjunctions, the courts are just doing what Parliament has told them to do in the Human Rights Act 1998

False on a strict analysis, but this is nuanced.

The Human Rights Act 1998 imports, with limitations, the European Convention on Human Rights into the law of England and Wales, Scotland and Northern Ireland. Article 8 of the Convention as so imported provides that "everyone has the right to respect for his private and family life, his home and his correspondence". This right to privacy is to be balanced with the right conferred by Article 10, which provides that "everyone has the right to freedom of expression". That balance is held by the courts, who are in the first instance (by virtue of the 1998 Act) the domestic courts of the UK, and in the last resort the European court at Strasbourg.

However, ostensibly the 1998 Act is only concerned with what is called "verticality", namely rights to be asserted against public authorities. It was not intended to act "horizontally", that is in proceedings between private individuals or bodies, and for that reason Article 13 of the Convention, giving the right to an effective remedy, is not a Convention right applied by the 1998 Act. That is reserved to Parliament for implementation and can in the absence of a judicial coup d'├ętat only be litigated by proceedings in the European court.

Plainly numerous privacy cases do involve injunctions against non-state bodies, and in particular all the notorious ones involve injunctions against the press.

The courts in England and Wales have for a number of years been establishing a law of privacy by extending the common law on confidentiality, which is judge made law. The courts have in effect taken the view that, since on matters concerning privacy and the state Article 8 now applies, it would be odd not to extend the common law on confidentiality in a similar direction when dealing with relations between private individuals or bodies. I explored this in my article on Privacy, human rights and horizontality.

Statement 3: The judiciary are creating a privacy law on the hoof

True, see the answer to 2 above.

However, this is mainly because Parliament has been silent on the matter. John Hemmings standing up in the House of Commons and asserting his immunity from an injunction of the High Court of England and Wales is not the same as Parliament passing a privacy enactment.

If politicians think that the judges should not be making privacy law, they should accept their responsibilities and make the law themselves. They have been ducking their responsibilities on this.

Statement 4: In countries with written constitutions, it is the courts and not the legislatures which have the final say on human rights

True up to a point, but (i) this is only up to a point, and (ii) it does not lead to the conclusion that proceedings in the UK Parliament should be subject to the jurisdiction of the courts.

In countries with written constitutions, the courts are not in fact normally the arbiters of the law of human rights as such, but arbiters on the legal effect of the constitution, and most constitutions say something about human rights, including freedom of expression. Given the breadth of most constitutional propositions, this gives substantial scope for invention by the courts having responsibility to interpret and apply them. Thus, the principles of freedom of expression in the first amendment of the US Constitution (also called the Bill or Rights) and in the European Convention are similar, but the conclusions reached by the respective judicial authorities about their effects are markedly different.

In countries with written constitutions the voters, the legislatures or both remain the final arbiters on fundamental norms, because constitutions can be amended by them. For an amendment, most constitutions require a significant majority of the legislature in favour (often 2/3rds) and some constitutions require this to be confirmed by a referendum of the electorate. The courts have to give effect to the constitution as it stands from time to time, not as they would like it to be; they are therefore not the ultimate masters of the law.

Here lies the difficulty with ever making the courts in the UK supreme on constitutional matters as our constitution currently stands, namely that there is no way, short of an Act of Parliament, to put them back in their places where they have erred on matters of public policy. Given a fundamental disagreement of principle between the judiciary, who are not elected, and Parliament, which is, under our constitutional arrangements it is inevitable that it is Parliament which must prevail.

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