Injunctions

Revealed: Britain's best-known secret

 

Four weeks of speculation, legal wrangling and mass civil disobedience on the internet came to an end yesterday when an MP used parliamentary privilege to name Ryan Giggs as the Premier League footballer at the centre of the super-injunction fiasco. John Hemming named the Manchester United player only hours after a High Court judge had ruled that a ban on naming him should stand. Last night, Mr Justice Eady refused to lift the injunction despite the intervention – raising the prospect that Mr Giggs could sue news organisations who have named him for damages. To murmurs of disapproval from fellow MPs, the Liberal Democrat said: "With about 75,000 people having named Ryan Giggs on Twitter it is obviously impracticable to imprison them all.

He was immediately interrupted by the Speaker, John Bercow, who rebuked him for flouting the law. "Let me just say to the honourable gentleman, I know he's already done it, but occasions such as this are occasions for raising the issues of principle involved, not seeking to flout for whatever purpose."

However, it was too late, and within minutes Mr Giggs' name was being reported not only by individuals on Twitter but by mainstream news websites and television channels.

Mr Hemming, who previously used parliamentary privilege to name former Royal Bank of Scotland chief executive Sir Fred Goodwin as the subject of an injunction, said afterwards it was "not his job to make the Speaker happy".

"I really don't think that we should allow a situation where people are prosecuted and potentially jailed for two years, and it all happens in secret and you can't know who it's being done to or what's being done," he said.

The exposure of Mr Giggs who, it can now be reported, allegedly had an affair with Big Brother contestant Imogen Thomas, is unlikely to put the issues surrounding super-injunctions to rest. About 60 of them are still in force and pressure is mounting for disclosure in at least three other cases.

Yesterday, Dominic Grieve, the Attorney General, announced that the Government was setting up a joint committee of both Houses of Parliament to look at what changes to the law were needed in the light of the widespread flouting of the injunctions.

Such a move could, for the first time, result in some form of privacy legislation being passed by Parliament. "The Committee's remit is to advise the Government on how the current arrangements can be improved and put on a more sustainable footing," Mr Grieve told the House. "It is undoubtedly the case that it would be open to this House to adopt a privacy law...[and] it is possible to have legislative change without having to have a full-blown law."

He added: "It is quite clear that the enforceability of court orders and injunctions where the internet exists does present a challenge. But that does not necessarily mean that the right course of action is to abandon any attempt at preventing people from putting out information which may be enormously damaging to vulnerable people."

However, the Attorney General gave his full backing to a recent report published by the Master of the Rolls which suggested that super-injunctions should, in future, be "granted for very short periods where secrecy is necessary to ensure that the whole point of the order is not destroyed".

Earlier in the afternoon, Mr Justice Eady had rejected a fresh application by News Group Newspapers (NGN) on behalf of The Sun to discharge the privacy injunction relating to CTB – the initials used to identify Ryan Giggs to the court – on the basis that to continue it would be "futile", given recent widespread publicity about his identity. But rejecting the application, Mr Justice Eady said: "It is fairly obvious that wall-to-wall excoriation in national newspapers is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the internet.

"It may be thought that the wish of NGN to publish more about this 'story', with a view to selling newspapers, demonstrates that coverage has not yet reached saturation point. This factor tends, therefore, to confirm my impression that the court's attempts to protect the claimant and his family have not yet become wholly futile." Speaking yesterday, before the injunction was breached, David Cameron indicated he also knew Mr Giggs' identity "like everybody else".

"It is rather unsustainable, this situation where newspapers can't print something that clearly everybody else is talking about, but there's a difficulty here because the law is the law and the judges must interpret what the law is," he said. "The danger is that judgments are effectively writing a new law, which is what Parliament is meant to do."

The Prime Minister suggested that one route might be to strengthen the Press Complaints Commission. "It's not fair on the newspapers if all the social media can report this and the newspapers can't, so the law and the practice has got to catch up," he added.

Labour leader Ed Miliband said he agreed that the privacy law situation "does need to be looked at".

You name it...

* When the Speaker, John Bercow, called John Hemming to put a question to the Attorney General on super-injunctions, he must have known it was pretty likely he would name Ryan Giggs.

Mr Hemming has named previous celebrities with super-injunctions in the Commons and got away with it – allowing the mainstream media to follow in his footsteps. This is because since 1689, Members of Parliament have enjoyed total immunity from legal proceedings for anything they say in Parliament, under Article 9 of the Bill of Rights.

The media in turn are believed to have privilege from prosecution by the courts if they fairly and accurately report what an MP has said in the House. This rests on the Parliamentary Papers Act 1840, which stipulates that any "extracts or abstracts" of official reports of parliament will be protected from legal liability if it can be proved that "such extract or abstract was published bona fide [in good faith] and without malice".

However, a recent report by the Master of the Rolls on super-injunctions appeared to cast doubt on this defence. "Where media reporting of parliamentary proceedings does not attract qualified privilege, it is unclear whether it would be protected at common law from contempt proceedings if it breached a court order," it stated.

Mr Hemming, who himself had an extramarital affair, has reinvented himself as an unlikely crusader for freedom of expression and is unlikely to stop now. He previously used parliamentary privilege to name Sir Fred Goodwin as the subject of an injunction and appears determined to flout the will of the courts at any opportunity.

During his intervention yesterday, Mr Bercow did not step in until after Mr Hemming had named Ryan Giggs and also the Times journalist Giles Coren – one of those who tweeted the name of another footballer with a super-injunction. Afterwards, Mr Bercow was asked whether the press would be covered by privilege if they were reporting on the exchanges that took place. He replied: "The answer to that is 'yes'."

Oliver Duggan and Oliver Wright

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