May 23, 2011 10:49 pm

Disclosure poses direct challenge to courts

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John Hemming may not be a household name, but the Liberal Democrat MP brought to a head on Monday a growing constitutional struggle between parliament and Britain’s judges.

By identifying Ryan Giggs as the footballer at the heart of the super-injunction row, Mr Hemming was not only putting on the public record a legal secret expressed in bawdy terms on Twitter and at football grounds around the UK – he was issuing a direct challenge to the courts.

The Birmingham Yardley MP used parliamentary privilege to assert what he believes is the right of MPs to speak out on issues of public interest.

In doing so, he was challenging Lord Judge, the lord chief justice, who warned the media about reporting such comments, and urged them to “think whether it’s a very good idea for our lawmakers to be, in effect, flouting a court order”.

Lord Neuberger, master of the rolls, said last week that media reports of debates in parliament that breached injunctions might not be protected by parliamentary privilege – a move that angered many MPs.

The Lib Dems have been at the forefront of the battle with the judges; Lord Oakeshott, a Lib Dem peer, tabled a question last week revealing that Sir Fred Goodwin, the former RBS boss, had obtained a privacy super-injunction to prevent publication of details of an alleged affair with a senior colleague.

“How can it be right for a super-injunction to prevent the Treasury or the regulator from receiving information about the possible very serious breach of corporate governance at RBS?” Lord Oakeshott said.

“I do hope that judges in future considering secret injunctions will give weight to the needs of 30m taxpayers as well as to wealthy bankers.”

On the day Mr Hemming identified Mr Giggs as another public figure seeking protection from the courts, David Cameron was also airing his concern that judges were usurping the role of legislators.

“The danger is that judgments are writing a new law which is what parliament is supposed to do,” the prime minister told ITV1’s Daybreak.

Earlier this month, Mr Cameron expressed similar misgivings, saying: “I think there is a question here about privacy and the way our system works.

“What’s happening here is that the judges are using the European Convention on Human Rights to deliver a sort of privacy law without parliament saying so.”

How will this dispute be settled? Mr Cameron has no ready answer, although he suggested that the Press Complaints Commission could have a role as an arbiter.

However, more substantial action could follow after the prime minister asked parliamentary grandees to have a look at the issue through a joint committee of MPs and peers.

Sir Alan Beith, chairman of the Commons justice committee, and John Whittingdale, chairman of the Commons culture committee, will convene the body with instructions to report by the autumn.

“This whole issue raises some fundamental points about freedom of expression and privacy and it is a complex issue,” said Mr Cameron’s spokesman.

Jeremy Hunt, the culture secretary, has already rejected the idea of a privacy law to resolve the dispute, but other options – including the issuance of guidance to the courts – could be on the table.

Mr Whittingdale called for an urgent change to the law to ensure the media can report proceedings in parliament.

“Not only is it essential that MPs should be allowed to raise matters in parliament,” he said. “It is as important that the media should be free to report MPs’ comments. We need to change the law to make it clear that reporting is allowed.”

In any event, there were few at Westminster or along the Strand in London’s legal fraternity who would dispute Mr Cameron’s view that the impasse has to be broken or his understated assertion: “It is a rather unsustainable situation.”

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