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Friday, March 18, 2011

Gagging orders to stay

This morning's Daily Telegraph contains the disturbing news that super-injunctions will not be scrapped despite being described as the worst example of “secret justice” for almost 400 years:

Lord Neuberger, the country’s second most senior judge, said the highly restrictive injunctions, dubbed gagging orders, have developed in to an “entirely secret form of procedure” which “questions the boundaries of open justice”.

But the Master of Rolls said that at times “publicity must yield” if the administration of fair justice is at risk.

He said it would be “literally absurd” if open justice meant that the press could report that a man at the centre of a sex story had taken out an injunction preventing that story from being published.

That may well be the case but there are wider constitutional issues at stake here, best illustrated by the Trafigura scandal when a super-injunction prevented the reporting of allegations that the company had released toxic waste in Côte d'Ivoire that in turn led to 108,000 people seeking medical attention.

As this article in the Daily Telegraph said back in October 2009, for the first time in more than 200 years outside war, newspapers found themselves unable to report on the open proceedings of Parliament:

A court injunction prevented the Guardian from giving details of a question tabled by an MP and printed on the House of Commons Order Paper. At lunchtime yesterday, the newspaper obtained a loosening of the gag which curtailed its reporting of the Trafigura affair – the alleged dumping of toxic waste off the coast of West Africa.

But although newspapers are now free to report the existence and the contents of the written question, a wider issue needs to be addressed: the growing propensity of the courts to impose, at the behest of large corporations or wealthy celebrities, "super-injunctions" – blanket prohibitions on the media that stop almost any information being published (even though it can often be found on the internet).

The rights of the press to report Parliament were hard-won and the courts have over-reached themselves in seeking to restrict them. Judicial activism is also threatening to establish a law of privacy by the back door, usurping the proper role of Parliament. This must stop.

It is not the sex scandals that concern me, it is the use of these super-injunctions to prevent the reporting of matters of legitimate public interest. Surely even the Master of the Rolls can see that needs to be addressed.
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