Law Review: Injunctions, law by rule and the Ken Clarke saga

Britain is right to honour this champion of the rule of law

Lawyers and non-lawyers who find law interesting  will need no introduction to Lord Bingham.

[Pic credit: The Guardian]

Peter Oborne, writing in The Telegraph, has a fine piece on Lord Bingham’s considerable influence in our society through his work as Lord Chief Justice and law lord and argues well the point that had it not been for the judiciary under Labour over the last thirteen years (and now under the Coalition) the political elite may have gone – and may now go – far further in eroding our liberties to suit the convenience of their rule by law.

I quote from Peter Oborne’s article: “The emergence of this new elite has done terrible damage to the reputation of Britain as a decent, law-abiding and tolerant country. This damage would have been far greater but for the integrity and independence of the British judiciary. That is why, from a decade marked by its greedy bankers, venal politicians, compromised spymasters and failed generals, Lord Bingham will be remembered as the most admirable and virtuous figure of his time.”

Today, Lord Neuberger MR published his report into Injunctions – the latest act in a play being played out between the competing interests of reasonable privacy and the commercial needs of some sections of the mainstream media.    It is an interesting report and I spent much of the latter part of the morning reading through the 112 pages carefully.

Lord Judge, Lord Chief Justice, welcoming the report said:

“No one, and in particular no judge, doubts that the open administration of justice is a long-standing, treasured principle of our legal system.

“Before 2000 there was in England and Wales no general right to privacy and therefore no right to an injunction to protect or enforce any general claim to privacy. The development of privacy rights since 2000 was an inevitable consequence of the enactment of the Human Rights Act 1998 and the incorporation of the European Court Convention of Human Rights, and in particular article 8 of the Convention, into domestic law. That consequence was indeed clearly explained to Parliament before the Human Rights Act was enacted.”

“Contrary to some commentary unelected judges in this country did not create privacy rights. They were created by Parliament.Now that they have been created judges in this country cannot ignore or dispense with them: they must apply the law relating to privacy matters as created by Parliament, including those relating to the enforcement of privacy rights by injunctive relief, balancing them with the rights underlined in Article 10 and the principle of freedom of expression. The relationship between Parliament and the courts has, for generations, been predicated on mutual understanding and respect.Judges have never asserted, and they are not now asserting, any authority or jurisdiction over Parliamentary proceedings or debate, which are exclusively matters for Parliament.”

Adam Wagner of the UK Human Rights blog was probably first out of the starting blocks with his analysis: Turns out there weren’t that many super-injunctions after all.

David Allen Green, solicitor, and author of The Jack of Kent blog,  tweeted soon after with his observation that Paragraph 6.33 was significant.

I extract 6.33 for your convenience.  The preceding paragraphs of the report make fascinating reading.

6.33
It therefore appears to be an open question whether, and to what extent, the common law protects media reporting of Parliamentary proceedings where such reporting appears to breach the terms of a court order and is not covered by the protection provided by the 1840 Act. What is clear is that unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right.

And @Loveandgarbage brings an element of very real realpolitik to the media frenzied discussion by noting, in the *Fred “The Shred/Bed injunction saga* that yesterday’s use of parliamentary privilege in the House of Lords  by Lord Soneham on behalf of his Liberal Democrat colleague, Lord Oakeshott was….

“…. no great triumph for Parliamentarians over the courts in a battle over the meaning of public interest. The battle over the meaning of public interest was not waged in the court.”

The Ken Clarke saga was well rehearsed / butchered on the Court of Twitter – and, less forgiveably so, by Mr Miliband at PMQs yesterday when he called for Ken Clarke’s head.  Salome Miliband may well come to regret his eagerness.  There is no doubt that Ken Clarke should have been more careful in his use of language on this highly sensitive issue – but he has apologised (an apology which may not be accepted by all) and he wasn’t wildly off-beam in terms of the highly complex use of ‘discounts’ for pleading guilty nor in his reasoning for their use in ensuring that justice is done.

Many have written on the topic – but this piece by Neil Monnery gives a very good parodic analysis of the very real dangers of kneejerkitis and the *Court of Social Meedja*…

Ken Clarke – a trial by modern social media

Barrister, Felicity Gerry… brings some good analysis to the issue… writing in Legal Week: Understanding rape sentencing: Ken Clarke and the ‘guilty plea’ debate


4 thoughts on “Law Review: Injunctions, law by rule and the Ken Clarke saga

  1. “The battle over the meaning of public interest was not waged in the court.”

    Quite why do many in the judiciary seem to think that court hearings have a monopoly on defining what is meant by “public interest”? The “public interest” is surely something that belongs to the populace at large, and the oft-repeated line that judges are immune to public opinion in their judgements on matters of public policy does not incline me to think it’s a very representative process. (Although I have doubts that the judges are quite so immune these days – the Simon Singh libel case is one where I suspect judges had at least half an ear to public, or at least, activist sentiment).

    The fact that I would appear to draw the position of balance between competing rights differently to those of powerful judicial figures (and others with vested interests) is a matter of a difference of opinion, not that there is some ultimate truth.

  2. ken’s gaffe was significant for me, not for his ignorance of some of the sexual offences he discussed (fair enough really; that law stuff is pesky and confusin), nor for his clumsy attempt to talk about how the law defines ‘seriousness’. far more revealing was the fact that his language exposed just how complete is his lack of empathy for women victimised by male sexual violence.
    didn’t surprise me, of course. classic arrogance and unthinking belittling by the tory male in power of the lot of other less important people. not surprising; just depressing.

  3. Steve – public interest belongs to all as a concept. Judges try to reflect that… who else? Parliament to draw up a ‘test’….. they have not done so before… I suspect they will dodge the issue again?

  4. Charon,

    How could this concept of public interest be put to a test?

    I am not a student of the law but as an hypothetical example:

    A Judge issues a judgemnt asserting that xyz public policy in it’s entirety is in the public interest but I wish to appeal on the basis that xyz public policy is not always in the public interest.

    Would this be appeal be allowed?

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