Lord Neuberger’s report on super-injunctions, perhaps inadvertently, has opened a new front in the judiciary’s war with the press over privacy law. As a by-product of his detailed researches for the report, his lordship has discovered that newspaper editors, for so long regarded as pillars of our community, should actually be mostly banged up in jail. Their crime? Publishing reports of Parliament.
Neuberger was a property lawyer and hence a bit of a black letter man by all accounts. So imagine his discomfiture when he could find nothing authoritative in written form giving the press full legal immunity to report whatever parliamentarians choose to say in Parliament – including material covered by super-injunctions.
This opens the possibility that in reporting John Hemming MP and Lord Stoneham on the Fred Goodwin affair and now the Ryan Giggs affair the press has laid itself open to contempt of court proceedings, meaning big fines or editors behind bars.
Neuberger is concerned about the sub judice rules and the arrangements for Parliamentarians to avoid breaching them (given injunctions are often anonymised). A parliamentary database of all such super-injunctions and anonymised injunctions is his answer so parliamentarians will know what they must not talk about.
But this is just skirting around the big issue – those such as Stoneham purposely breaching injunctions (and hence, on the face of it, sub judice rules) where they regard a matter of public interest is involved. Their statements are reported in the media on the basis that they are covered by parliamentary privilege, meaning neither the politician nor the media organization can be hauled in by a judge for contempt of court. It is this belief that Neuberger has now questioned.
The Master of the Rolls was accompanied at the launch of his report by his minder, Lord Judge, who said to the gathered members of the press: “You need to think, do you not, whether it is a very good idea for our law makers to be flouting a court order just because they disagree with a court order, or for that matter because they disagree with the law of privacy which Parliament has created.”
The Lord Chief Justice comes across as a bit of a bruiser. “I might send the boys round,” he is saying, “Things might get broken. People might get hurt – but no pressure.” He is acknowledging that parliamentarians can speak freely, but suggesting it might be wise if Parliament were sometimes to curb them – not because judges had told it to do so, you understand. Just because it might be better that way. He is reported by Neuberger as saying that “if Parliament took this course, it would not be because ‘a court has sought to order it, but because Parliament has chosen in the public interest not to insist on its privileges’ ”.
Paradoxically the original principle of parliamentary privilege was that those outside should not hear of the proceedings in Parliament. Reporting was banned, the monarch was supposed to ignore anything that came to his ears, and the courts could not question anything that came up in debates. In the words of the Bill of Rights 1689: “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”. This gave no freedom to report those debates.
Neuberger says the Parliamentary Papers Act of 1840 extended qualified privilege to media summaries of Hansard, meaning immunity from civil or criminal prosecution for publication in good faith and without malice. So whether the Act covers the reptiles crawling around the Palace of Westminster simply trying to get a good story, possibly with malice in their hearts, is a moot point.
But Neuberger’s main contention is this: there is “no question that a super-injunction, or for that matter any court order, could extend to Parliament, or restrict, or prohibit parliamentary debate or proceedings”; however, “it is unclear whether it [reporting] would be protected at common law from contempt proceedings if it breached a court order” since there have been no cases on this. So Stoneham is in the clear – but those reporting his words may well be in contempt of court.
Neuberger says: “There is an argument that the common law should adopt the same position in respect of reports of parliamentary proceedings as it does in respect of reports of court proceedings.” Just as the press would not report the words of the judge or lawyers in the court, nor would they be able to report the words of the politicians talking about the same case in Parliament.
There is also an argument, though (here Neuberger refers to the 1999 Joint Committee on Parliamentary Privilege) that it would be absurd that the public could go to Hansard for those racy bits of contempt of court but could not read them in their Daily Mirror.
Neuberger’s consideration of the exposure of the Trafigura toxic dumping case treats that as part of the problem of the press freely reporting Parliament rather than a victory for the free press thanks to the intervention of Paul Farrelly MP in the Commons. Had Neuberger’s system been in place, Trafigura would be on the sub judice database and Farrelly would have been advised he could not table his question on the matter. Neuberger notes, too, that the Guardian’s legal advice was that it could not report Farrelly, and so it didn’t. The Guardian was banned from reporting Parliament on this issue – until all hell broke loose the day after thanks to Twitter and other social media. The Guardian gagging order was lifted.
If Neuberger and Lord Judge wish to add fuel to the already blazing row between the media and judiciary over injunctions and “judge-made privacy law”, what better way than trying to ban them from reporting Parliament in the manner they have done as a matter of custom and practice, apparently covered by privilege, or banning politicians (sorry: getting them to ban themselves) from raising matters of public interest in Parliament. The Sun, not normally an organ concerned with the intricate detail of constitutional matters, has made its views known already: “M’Ludicrous: Storm at free speech threat”. No doubt Kelvin MacKenzie is already sharpening his pencil to offer his considered view on the matter. See An issue of judicial underwear for the likely tenor of his contribution to the debate.
Note: A pdf of the Neuberger report on super-injunctions is here