I am grateful for the opportunity to respond to my hon. Friend on an issue that I know is of considerable concern in this House as well as to the public and the media. The Government believe that freedom of speech is a cornerstone of our democracy, and that it is of the greatest importance that people should be able to discuss and debate issues as freely and openly as possible. This includes those occasions when freedom of speech is exercised provocatively, as it is supposed to be in a free country.
Plainly, however, there are also occasions when an individual is entitled to have their privacy protected. There is a balance to be struck and this is reflected in our existing legal framework. The Government recognise the importance of finding the correct balance between individual rights to privacy on the one hand and rights to freedom of expression and transparency of official information on the other. We also recognise that there are widely differing views on what that balance should be. It is in no one’s interest to rush to judgment on this.
The complexity of the issue and the lack of consensus are some of the reasons why the report of the Master of the Rolls’ committee on the procedural aspects of super-injunctions and anonymity injunctions published last Friday is to be welcomed, and why we will want to take on board its carefully thought through recommendations. It reaffirms that open justice is a fundamental constitutional principle, and that exceptions are permissible only to the extent that they are strictly necessary in the interests of justice. While such decisions will necessarily be made in each particular case, dependent on the facts of that case, it does offer a likelihood of some greater clarity.
The report indicates that when some degree of secrecy is necessary, the facts of the case and the reason for secrecy should be explained, as far as possible, in an openly available judgment. It also emphasises that super-injunctions—where the fact that there is an injunction, as well as the substantive issues, has to be kept secret—are now only being granted for very short periods where secrecy is necessary to ensure that the whole point of the order is not destroyed. We hope that its analysis and recommendations should help to allay concerns that super-injunctions were being granted far too readily and about their potential open-endedness.
Of course, a range of wider issues has been raised by the events of the past few months and especially the past weekend. We take seriously the need to ensure that we have the correct balance between privacy and freedom of expression. Today, the Prime Minister will write to my hon. Friend Mr Whittingdale recommending that a Joint Committee be established to consider how current arrangements can be improved. Such a Committee will be able to use representation of both Houses and the considerable expertise that Select Committees have to examine whether the current arrangements are working and to consider whether we might make any changes that would make things work better.
In the meantime, it is right to emphasise that just as any change in the law is a matter for Parliament, the interpretation of the law is a responsibility placed on the judiciary. Legal mechanisms exist to review individual decisions that may be mistaken. If we believe in the rule of law, it is our duty as parliamentarians to uphold those principles.
I welcome the report from the committee of the Master of the Rolls, which contains a number of sensible recommendations, and also the Prime Minister’s decision to establish a Committee to examine all the issues surrounding the granting of injunctions and super-injunctions. Does my right hon. and learned Friend accept, however, that matters are developing very rapidly? Does he accept that the revelation on Friday of some of the details of the injunction granted to Sir Fred Goodwin raised important issues of public interest, and that that raises the question of why the injunction was granted in the first place? Does he agree that he would virtually have to live in an igloo not to know the identity of at least one premier league footballer who has obtained an injunction, and that the actions by thousands of people who posted details of it on Twitter are in danger of making the law look an ass?
In the report by the Master of the Rolls, doubt is cast once again on the right of the press to report the proceedings of Parliament. Does that not have worrying implications for the rights of Members of the House of Commons, and for parliamentary privilege?
More than a year ago, the Select Committee on Culture, Media and Sport called for the Parliamentary Papers Act 1840 to be replaced by a clear and comprehensive statute upholding the fundamental rights of the press to report what is said in this place. Will he ensure that that, too, is considered by the Prime Minister’s Committee as a matter of urgency?
Let me respond to my hon. Friend’s reference to individual cases by saying that he will not be surprised if I am not drawn into commenting on the matter. What I can say is that widespread public interest and, indeed, disquiet have been expressed about the events of the past few weeks and days, and that—as the report by the Master of the Rolls clearly showed—they raise the question of how a person’s privacy can be balanced against the requirement for the public to be properly informed, and also the question of how injunctions may be enforced. I would add, however, that the courts have power to punish those who breach injunctions, and those who decide flagrantly to do so should bear that in mind when they embark on such a course.
The question of parliamentary privilege is not a new issue. While it is fully recognised that we have complete privilege in this Chamber to say what we like—and the Lord Chief Justice reiterated that in the clearest and most unequivocal terms in his comments last Friday— the question of the extent to which communication between a constituent and a Member of Parliament is covered by parliamentary privilege remains uncertain. What is entirely clear is that—from the judiciary’s point of view as much as those of the Government and Parliament—that is an undesirable state of affairs, which is undoubtedly susceptible to both clarification and rectification if the will is there for that to be done.
Until now, the Government’s position on this issue has been a muddle. The Attorney-General may be aware that I raised the issue last week during Justice questions, when I reminded the Lord Chancellor about the importance of balancing freedom of expression with an individual’s right to privacy. I also asked the Government to give clarity and guidance on an issue that has become increasingly confusing and where Parliament has been slow to act. In response, the Lord Chancellor said that
“it is probably right that Parliament passing a privacy Act might well be the best way of resolving the issue”.—[Hansard, 17 May 2011; Vol. 528, c. 137.]
However, on the following day the Culture Secretary said:
“I don’t believe a privacy law is the way forward.”
The Government appear to be at sixes and sevens on their policy on privacy injunctions and freedom of the press. Will the Attorney-General clarify their position?
Does the Attorney-General believe that a new privacy law is needed? If so, how will it differ from article 8 of the Human Rights Act 1998? He will be aware that super-injunctions and anonymised orders should apply only in exceptional cases. There is a concern that they are being applied for, and granted, too readily. Does the Attorney-General believe that this report will address those concerns, and how soon will the Committee report?
Does the Attorney-General believe that the sanctions for those who break injunctions are sufficient? What are the Government’s views on how the right to privacy can be balanced with the growing usage of internet-based communications such as Twitter?
Finally, being able to speak freely in the House of Commons and House of Lords is an essential part of parliamentary scrutiny. Can the Attorney-General confirm that the Government will not allow this principle to be undermined in any way?
I shall deal, so far as I can, with each point in turn. First, the Government have made it clear that it will be a Joint Committee, and have asked
“Business Managers to establish a Joint Committee of both Houses to consider these issues. The remit will be to advise the Government on how current arrangements can be improved and put on a more sustainable footing, aiming to report in the autumn.”
The Government have also
The right hon. Gentleman’s second question was about privacy law. It is undoubtedly the case that it would be open to this House to enact a privacy law, if it wished. However, I have to say to the right hon. Gentleman that he misquoted my right hon. Friend the Culture Secretary, as what he actually said was:
“We’re not minded to have a new privacy law but we’re not ruling out the need for legislative changes.”
If I may say so, it is possible to have legislative change without necessarily having a full-blown privacy law, and this seems to me to be precisely the sort of issue that the Committee will need to consider, and in a measured and sensible fashion.
The right hon. Gentleman rightly raised the question as to whether a privacy law would make any difference to the existing arrangements. That, too, is an interesting subject for both legal and political debate, and it is precisely because that needs to take place that the suggestion has come forward that this is the best way in which to proceed.
Finally, the right hon. Gentleman asked a number of questions about enforceability. It has been clear for some time in a number of different spheres that the enforceability of court orders and injunctions presents a challenge now that information can rapidly be posted on the internet, but that does not necessarily mean that the right course of action is to abandon any attempt at preventing people from putting out information that may, in some circumstances, be enormously damaging to vulnerable people or, indeed, be the peddling of lies.
May I press my right hon. and learned Friend further on the second issue raised by my hon. Friend Mr Whittingdale: the protection of parliamentary privilege? Last week in the report and the subsequent press conference, the Master of the Rolls and the Lord Chief Justice intimated that they wanted the House of Commons to extend the sub judice rules in order to restrict the use of freedom of speech under parliamentary privilege in this House and/or the reporting of it. Had that applied in 2009, the public would not be aware today of the Trafigura super-injunction and this whole issue would not have come to light. Can my right hon. and learned Friend please ensure that these proposals by the Master of the Rolls and the Lord Chief Justice do not in any way restrict either our rights or the rights of the press to report?
I have to say to my right hon. Friend that my reading of what was said is rather different. In the clearest and most unequivocal terms, both the Lord Chief Justice and the Master of the Rolls spelled out the existing fact: that the privilege we have under article 9 of the Bill of Rights is unimpeachable in any court in respect of what is said in this Chamber. The control mechanism that is put in place is, in fact, entirely dependent on yourself, Mr Speaker. That then raises the question of the extent to which there is a necessity, by convention, for comity, whereby this House, through Mr Speaker’s authority, respects the rulings of other courts, being a court itself. As I understand it, there has never been any suggestion that any of the proposals being put forward call into question those basic principles. Indeed, as I pointed out in an earlier answer, the evidence is pretty overwhelming that where there is a lack of clarity in this area in terms of communication between constituent and Member of
Parliament, there seems to be a universal view that it would be well if we could clarify things, and the Government recognise that.
We welcome the Attorney-General’s clarification, but is it not a fact that if we continue to use parliamentary privilege to usurp court orders, we are not only bringing Parliament and the courts into conflict, but interfering with the separation of powers. Is that desirable or is it not?
I would assume that across the House it would be considered that the abuse of parliamentary privilege to subvert court orders made with the express intention of implementing Parliament’s legislation through the courts is improper. Ultimately, however, that is a matter for this House and Mr Speaker to regulate, and it is through our own mechanisms that we do so; that is the right and privilege we have. I certainly agree with the hon. Gentleman that it is a privilege that must not be abused.
We would expect a Joint Committee to uphold the necessary rights of Parliament and defend them, but would any Committee not also have to look at the separate question of whether it can be right for someone to use Twitter or electronic media of other kinds to place something in the public domain with the express intention of allowing it then to be reported?
The right hon. Gentleman raises an important point, but it ties in with the earlier point about how all this can be enforced. As I said earlier, however, those who take an idea that modern methods of communication mean that they can act with impunity may well find themselves in for a rude shock.
I, too, welcome the establishment of this Joint Committee, which is sensible in view of the difficulties in interpreting the law. There are reports that the Attorney-General is considering prosecuting an individual for a breach of one of these injunctions. Is that the case? Is he considering such a prosecution?
Does the Attorney-General accept that the fault in this case lies with Parliament itself in not repealing the Human Rights Act 1998? As the then shadow Attorney-General, I advocated doing that and it remained Conservative policy until the general election. Does he accept that it is about time that we legislated on our own terms in Westminster to deal with these matters, and in terms of parliamentary privilege, to ensure that the British voter actually sees legislation that is what he wants and that we have British law for British judges?
My hon. Friend raises a perfectly legitimate issue, which may doubtless be the subject of debate in this Chamber. Like me, he will recall that when we enacted the Human Rights Act the issue of the balance between privacy and freedom of expression was extensively debated. Indeed, not only was it extensively debated, but its detail was looked at, as were its possible implications in respect of introducing a privacy law into our national legal framework. Therefore, it cannot be said that the consequences that flow from it can be unexpected; I strongly suspect that he predicted them at the time, and I believe I did too.
I hope that the Attorney-General will acknowledge the independence of the Scottish courts. Will he confirm that no application was made for an interdict at the Court of Session on the news reported in the Sunday Herald yesterday and will he assure the House that no legal action will be taken against the newspaper or its staff?
Order. Let me just say to the hon. Gentleman—although I know that he has already done it—that occasions such as this are for raising the issues of principle involved, not for seeking to flout orders for whatever purpose. If the hon. Gentleman wants to finish his question in an orderly way, he may do so.
I should like to return to the response to the question asked by my hon. Friend Sir Stuart Bell. Although it is right that we do not have a strict separation of powers in this country, we adhere to the principle to some degree as it is accepted that we write the laws and the courts interpret and apply them. In that context, does the Attorney-General agree that Members of this House should exercise extreme caution when, as we have in some senses just witnessed, they take it on themselves to breach court orders using parliamentary privilege when they are not fully apprised of all the evidence in the way that the judges who hear the cases are appraised? We have the power, after all, to change the law if we see fit.
May I take a contrary view? Members of this House have absolute privilege that they use responsibly and for judges to criticise Members of this House seems to me to be an abuse of their power. Will the Attorney-General spell out quite clearly that judges should butt out?
I have to say to my hon. Friend that I am not quite sure what they are supposed to butt out from. If he is suggesting that they should butt out from doing their duty and following the judicial oath that they take, I am afraid I disagree with him.
The hon. Lady is absolutely right and it is therefore open to this House and the Government to consider those issues. To return to where I started in my answer to the urgent question, a mechanism has been put in train that will, I hope, allow, on the basis of some cross-party consensus, a sensible view to be taken of how the law can be improved in this area.
Does my right hon. and learned Friend agree that some important issues of principle and of the constitutional rights of Members of Parliament are under discussion, as some of the exchanges have already demonstrated? Is it not now time for either the Joint Committee that he mentioned or a special Select Committee of the House of Commons to determine the boundaries of privilege in the modern day and age, some of which were touched on by the special Select Committee that examined the case of Mr Damian Green in the last Parliament?
May I reassure the right hon. and learned Gentleman that that matter is in the Government’s programme? Indeed, there should be a draft Bill on that very subject before the end of the Session.
The internet heralded the age of information abundance, whereas once newspapers could enforce information scarcity. Our dilemma is caused by our failure to respond to that challenge as a Parliament, so I welcome the review. Given that at least one person who took out a super-injunction is also talking to solicitors about the illegal hacking of their phones, does the Attorney-General not think that to balance this up we must consider the massive covert and illegal invasion of individuals’ privacy so that we can have a framework of laws that protects people from technological invasion of their privacy while also allowing freedom of the press?
As the hon. Gentleman will be aware, the question about phone hacking is currently the subject of criminal investigation. For that reason, I am sure he will appreciate why it is not a subject on which I wish to comment further in any detail, but I will say that the Government are perfectly aware of the issue.
Surely, we cannot have a situation in which celebrities court positive publicity to gain sponsorship and other endorsements and then rush to take out super-injunctions when negative publicity comes their way. There are not many cases of people taking out injunctions regarding positive publicity. Does the Attorney-General therefore agree that what we do not need are more privacy laws, of which we seem to have plenty at the moment, and that we need freedom-of-speech and freedom-of-the-press laws?
May I say to my hon. Friend that our laws already provide very substantial protection for the freedom of the press? The question arises as to how a balance should be struck. Even before the operation of the Human Rights Act, the power of the courts to protect the vulnerable and children, for example, was well established in our law. In that sense it is not a novelty. That balance is always going to be a subject of legitimate debate and I hope that, as a result of the steps that the Government are taking, that debate will take place.
The Attorney-General has rightly concentrated on matters of law but does he agree that equally important, arguably, are matters of technology? If it is not technologically possible to enforce a particular law, there is hardly any point in having that law in the first place.
I am not sure that I entirely agree with the hon. Gentleman. Ultimately, the enforceability of any order made by a court depends first on people obeying the law and, secondly, if people do not obey the law, on the capacity to bring them to justice and to make the court’s order felt on them. That is a slightly different issue but, as I acknowledged earlier and as was acknowledged by the Lord Chief Justice when he gave his press statement last Friday, the multiplicity of available communication media certainly do pose a particular challenge for the courts.
I wonder whether my right hon. and learned Friend could assist me with a point raised by the Neuberger report—the change allowing members of the media to be present when applications are made. Am I right in presuming that the press will be able to report unsuccessful applications with full details? If so, will that perhaps serve as a further check on the makers of these applications in future?
I think that will be very much a matter for the discretion of the judge hearing the case. I do not think that one could make some kind of blanket pronouncement as to how it would operate in practice, but clearly the merit of the course of action being proposed is that it would remove the element of total secrecy, which—I can well see this argument—fuels speculation and in some cases, I have little doubt, a lack of understanding as to why the application was made in the first place, whether it was successful or not.
I think that we all agree in the House that the law should be used to protect the vulnerable and not to hide the misdemeanours of those with large cheque books, but does my right hon. and learned Friend agree that we have found ourselves in this situation because of the behaviour of some of the newspaper press? Super-injunctions have emerged because of the ineffectual and impotent way in which the Press Complaints Commission works, but we can regulate that and give ourselves greater protection from abuse.
Looking at the matters that have been complained of recently, it seems to me fairly noteworthy that the press appear generally to observe the terms of injunctions against them. Indeed, from that point of view the injunction system appears to be quite effective; it is in other respects, such as the blogosphere and Twitter, that the difficulty emerges. What is absolutely clear is that breaches of court orders should not take place.
Following on from that question, does the Attorney-General agree that members of the Press Complaints Commission are the last people who should be policing this area—an idea that has apparently been floated by the Prime Minister—given their feeble record and complete failure over the phone-hacking scandal?
The question of what role the Press Complaints Commission may play is clearly another subject that the House may wish to consider. I am not sure that I entirely subscribe to the right hon. Gentleman’s very pessimistic view of the Press Complaints Commission. I have seen examples where, it seems to me, it has operated quite effectively. That is a further reason why that may be a sensible area for debate.
I welcome the review, but does the Attorney-General share with me the concern at the deeply sinister and Kafkaesque prospect, under the present super-injunction regime, that an unnamed journalist could be imprisoned in a secret court for having revealed the name of a hitherto anonymous personality who had a lot of money to bring that legal action? That is more like the actions of a state such as North Korea or Zimbabwe than the United Kingdom.
Does the Attorney-General agree that in seeking a solution we need to balance sensitively the right to respect for private and family life with freedom of expression and fair and public hearing, but we must avoid rushed legislation and we must as far as possible future-proof the legislation against any technological changes?
Does my right hon. and learned Friend agree that although we must use the naming of individuals in the House with great caution, a quick trip into the blogosphere and the Twittersphere, to use his words, would have revealed the names of those two individuals? Does he agree that what is happening in relation to injunctive law is bringing the law into wide public disrepute? Although I welcome the setting up of the committee, does he agree that ultimately there will be a need for a change in the law to clarify the matter?
As I indicated at the outset, it is possible for Parliament to enact changes to the law. The fact that the courts may not be able to and may not seek to control everything that might be said in breach of an injunction does not necessarily mean that that injunction does not have a valid purpose. It can at least limit the circulation of the damage, even if it cannot stop it. So for those reasons—we do not live in a perfect world—I do not think that the fact that an injunction can be breached and may be breached by some individuals invalidates it, although a point can sometimes be reached where a matter becomes so public and the currency so total that the existence of the injunction becomes pointless.
I welcome the review. Twittergate is just the latest example of judicial legislation distorting the balance of human rights under article 8 of the European convention. There have been other examples recently, including the defeating of deportation orders under article 8 in relation to convicted criminals. The Attorney-General rightly points out that there is a big difference between judges interpreting the law and judges making new law, which is for elected representatives. Does he agree that the Human Rights Act has at least contributed to undermining that separation of powers?
In constructing the Human Rights Act, I do not think Parliament can be described as anything other than open-eyed as to what it intended to do about privacy law. It debated the issue extensively, there was a great deal of polemic on the Floor of the House, and it put in section 12 to try to emphasise that the balance should be in favour of freedom of expression. I am well aware of the fact that the way that interpretation has taken place has come in for criticism. It is also true, and the point was made by the Lord Chief Justice on Friday, that a remarkable feature of many of these orders is that they have never been appealed or taken further once they have been granted, so the development of case law in this area has as a result, on some of the matters complained of, not necessarily taken place. We clearly set out a framework and asked the judiciary to interpret it. Whether we were right or wrong to do that is a matter of legitimate public debate.
I agree with the Attorney-General that there is a balance to be struck between privacy and freedom of expression, but does he share my grave concern that how that balance is struck seems to depend more on the wealth of the individual concerned than on the facts of the case? Will he make sure that in any legislation or any other changes that happen, all people have access to the law, regardless of their wealth, whether in this area, libel reform or any other aspect?
As my hon. Friend will appreciate, that is ultimately a matter for my colleagues in the Ministry of Justice, with regard to the legal aid framework, but it is right to say that the vulnerable in our society do enjoy legal aid in order to bring cases before the courts and, indeed, to get the help necessary to do so. It is perhaps also worth pointing out, as the Lord Chief Justice said on Friday, that a slightly odd feature of these cases, although an understandable one, is that those people in whom the media have an interest appear to be those who are very wealthy.