One of the most disturbing developments in this country in recent years has been the rise of the "super-injunction": a judicial order suppressing any discussion of an issue by making it a contempt of court – which can be punished by a jail sentence, or the confiscation of assets, or both. The seriousness of the issue has been obscured by the fact that super-injunctions have mostly been invoked to enable the rich and famous to prevent the media from reporting on their sexual peccadillos. It is hard to get worked up about the suppression of public discussion about celebrity bonking – although it is clearly silly that so much earnest judicial reasoning goes into justifying why this or that footballer or banker is entitled to prevent anyone from knowing not just with whom they are having sex, but that they have taken steps to ensure that no one can know. Far more significant, and much more insidious, is the use of super-injunctions to prevent ordinary citizens from talking to their MPs. The right to petition Parliament or the monarch through your MP is one of the oldest and most important that we have. Parliamentary democracy cannot work if MPs cannot respond to their constituents' concerns – or even know what they are. By diminishing citizens' ability to talk to their MPs, super-injunctions diminish democracy. You can't get a much more important matter than that. Why do judges grant super-injunctions that instruct individuals not to raise certain matters with their MP, threatening dire punishments if they do? The demand for secrecy usually (though not exclusively) from the family courts, which are already shrouded from public scrutiny, and whose standard of justice is extremely low as a consequence. Let's grant that there is a strong case for preventing the identification of children who are victims of violence or abuse. Does that justify a super-injunction preventing a parent who believes they have been wrongly accused, or convicted, and who has been separated from their children, from petitioning their MP to try to set the record straight? It certainly does not. Securing anonymity for the children involved is one thing. Preventing discussion of any aspect of the case is quite another. The former can be done independently of the latter, as is proved by rape trials, where details are reported without naming the victims. Given the gravity of the issue, you might expect MPs to be up in arms. But amazingly, not many are. John Hemming, the Lib Dem MP for Yardley in Birmingham, is one of the few campaigning on the issue, but his call for a parliamentary debate appears to be falling on deaf ears: John Bercow, the Speaker, has not been disposed to allow one – which seems extraordinary, given that the rights of Parliament are being undermined. The only effect of the kind of blanket secrecy imposed by super-injunctions is to prevent public scrutiny of what the judges decide. And that only serves to increase the likelihood of bad decisions. As the Master of the Rolls observed recently: "Public scrutiny of the courts is an essential means by which we ensure that judges do justice according to law, and thereby secure public confidence in the courts and the law." Traditionally, in English law, there is a crime worse than contempt of court: contempt of Parliament. MPs have the power to imprison those who are guilty of it in the cells in the tower of Big Ben, and to make them apologise before the House on their knees. Imprisoning the judges who have imposed these super-injunctions is probably a bit excessive – but making them grovel to the Commons would be gratifyingly apt. It would also be a wonderful symbol of Parliamentary sovereignty. MPs have lost the respect of many members of the public, largely because they have seemed to be selfish careerists who don't care about their constituents. What better way to restore that respect than demonstrating their commitment to restoring those constituents' rights?Super-injunctions are suppressing the voters' rights
The judges who prevent voters from talking to MPs are weakening democracy,
says Alasdair Palmer.
Sunday, 10 April 2011
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