The most senior judges in England and Wales have been accused of trying to gag the media after criticising politicians who have deliberately disclosed the content of privacy cases covered by injunctions.
Lord Chief Justice Lord Judge questioned whether it was a good idea for MPs and Lords to be “flouting a court order just because they disagree with a court order or for that matter because they disagree with the law of privacy which Parliament has created”.
Lord Neuberger, the Master of the Rolls and the most senior civil judge, also warned that reports of comments which intentionally contravene court orders may not be protected by parliamentary privilege.
Speaking at the launch of a year-long review of injunctions by top judges and lawyers, Lord Neuberger said the law surrounding the issue was “astonishingly unclear”, which was “very unsatisfactory”.
It comes after Liberal Democrat MP John Hemming recently highlighted two cases in parliament.
He asked in the House of Commons about an order obtained by former Royal Bank of Scotland chief Sir Fred Goodwin, which banned the media from calling him a banker, and about another order which banned a constituent from talking to his MP.
A gagging order obtained by Sir Fred was partially lifted by the High Court yesterday after allegations that he had an affair were made public by Liberal Democrat peer Lord Stoneham of Droxford in the House of Lords.
Mr Hemming said the review was an “attempt to gag the media in discussing the proceedings in parliament” and was a “a retrograde step”.
“What I find disappointing is that there does not seem to be any recognition by the committee that perhaps there is too much secrecy.”
Earlier, addressing the media at the Royal Courts of Justice in central London, Lord Judge said: “It is, of course, wonderful for you if a Member of Parliament stands up in Parliament and says something which in effect means an order of the court on anonymity is breached.
“But you do need to think, do you not, whether it’s a very good idea for our law makers to be flouting a court order just because they disagree with a court order or for that matter because they disagree with the law of privacy which Parliament has created.
“It’s a very serious issue in my view.
“There has never been any question, in any of these orders, not in any single one of them, of the court challenging the sovereignty of parliament.
“That’s not the issue. We are following the law, as best we understand it, at the level of the judiciary where the issues have been canvassed.”
He added that senior judges would be holding talks with the speakers of the Commons and the Lords over the issue.
While no right to privacy existed before 2000, the implications of the Human Rights Act 1998 and the European Convention on Human Rights were “indeed clearly explained to Parliament before the Human Rights Act was enacted”, he said.
“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.”
Under new rules for judges, any members of the media who would be subject of an injunction would be told beforehand.
They would be subject to a confidentiality agreement, but would also have the chance to contest applications before they were granted.
But the judges admitted that bloggers and users of social network sites such as Twitter would not necessarily be covered.
The internet had “by no means the same degree of intrusion into privacy as the story being emblazoned on the front pages of newspapers”, which “people trust more”, Lord Neuberger said.
Lord Judge also warned that society should consider other ways to tackle problems posed by Twitter and other internet sites.
“Modern technology is totally out of control. Anybody can put anything on it,” he said.
“I’m not giving up on the possibility that people who peddle lies about others through using technology may one day be brought under control, maybe through damages, very substantial damages, maybe even injunctions to stop them peddling lies.”
Lord Neuberger added: “Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice.
“However, where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice.”
Injunctions should never be permanent and should always be kept under review, the judges said.
The review also found there were only two known super-injunctions granted to protect information said to be private or confidential.
“As far as the committee is aware, applicants now rarely apply for such orders and it is even rarer for them to be granted on anything other than an anti-tipping off, short-term, basis.”
Justice Secretary Ken Clarke said the report contained “important recommendations which will ensure that injunctions are only granted where strictly necessary”.
Shadow justice secretary Sadiq Khan said it was important to “get the balance right between the fundamental rights of freedom of speech and an individual’s right to privacy”.