John Hemming (Birmingham, Yardley) (LD): Thank you, Mr Deputy Speaker.
Hon. Members will be aware that I have a long-time concern about secrecy in court processes, which was highlighted in the story in The Guardian today. We have no true freedom of speech when people can be jailed for complaining about their problems. This country seems to have a penchant for covering up problems that would be discussed openly in others.
Florence Bellone, a Belgian journalist, recorded an interview with Carol Hughes and Lucille O’Regan in Ireland, which was broadcast on RTBF in Belgium. A copy was placed on YouTube, but access in the UK is now blocked as a result of what YouTube calls a “government request”. What can be so frightening about that interview that people in the UK are not allowed to see it, but it can be broadcast in Belgium?
The policy of international websites varies. The Twitter account containing the names of lots of people subject to super-injunctions is still there, and will remain there for some time, yet newspapers in the UK are not allowed to refer to it by name. It is clear that in the UK people are now recognising the oppressive nature of court secrecy in this country. For instance, I wrote and released a song about this in 2008, the lyrics of which would have been in contempt of court had they not already been spoken in the House. Since then, however, things have got even worse, with the force of money being used to prevent women from complaining about their ex-boyfriends. One woman who received a super-injunction said to me:
“The process is terrifying…For the first 2 months I shook! And I shake now when talking about it to someone”.
Questions have been raised about whether I should have discussed the row between Ryan Giggs and Twitter yesterday. I am not a party to the privacy case. I have not been served with the injunction. I have not actually seen the injunction and cannot guarantee that it actually exists. I have read his name in the Sunday Herald, and on Wikipedia and Twitter. I could obviously stand on a soapbox in Scotland and say what I said in the House of Commons. I believe I could probably say it on Hyde park corner, because it is in the public domain. For me to have abused parliamentary privilege, I would have had to use it in the first instance, but I do not think that the case has been made that it would have been contempt of court outside the House.
I remain concerned, however, that the process of issuing contempt of court proceedings has been kicked off against users of Twitter. Someone should not be able to hide behind anonymity to take action against others. I am completely unsure what the legal position is in respect of naming Giles Coren. I do not think it would be contempt of court to name him outside the House, yet The Times was worried enough yesterday not to identify him—and he is one of its journalists. I will not identify the footballer whom, it is rumoured, would like to see him prosecuted for tweeting.
Adam Afriyie (Windsor) (Con): I fully approve of the hon. Gentleman’s campaign to ensure that injunctions and super-injunctions do not interfere with our constituents’ ability to contact us and speak to us about issues. However, will he explain to the House why he thinks he is judge and jury on whether certain people under court order should be named in this place? Why does he feel he has the right above anybody else? It seems very strange to use privilege in such a way.
John Hemming: I explained that those details were already in the public domain and accessible in Forbes Magazine, the Sunday Herald and many other places, so I do not think it would have been contempt of court outside the House. However, I accept the Speaker’s ruling on this issue.
I refer hon. Members to a story in The Guardian today relating to another injunction. I shall read out the first paragraph:
“A wealthy British financier is seeking to have his sister-in-law secretly jailed in a libel case, in the latest escalation of the controversy over superinjunctions and the internet, the Guardian can disclose.”
What we have here is true secret justice: somebody is being prosecuted in secret; they cannot be identified; and the person prosecuting them cannot be identified. As a rule, the Attorney-General does not prosecute civil cases, which the privacy cases are; one of the parties usually prosecutes.
John Cryer (Leyton and Wanstead) (Lab): That has nothing to do with what the hon. Gentleman did yesterday.
John Hemming: Actually, it has everything to do with what I did yesterday, because Giles Coren was subject to similar contempt proceedings. There is a great danger that a secret form of jurisprudence will develop that aims to jail people in secret and keep their identities out of the public domain for relatively trivial issues.
The law of confidentiality and privacy, as being developed by the courts, seems to be in opposition to the views of Parliament about whistleblowing. That is an important point. A number of the court orders in place act to prevent people from reporting issues, whether to the police, the General Medical Council, coastguards or whomever. The rule of law is undermined by the court orders preventing that information from being given. That is another important issue.
Mr Richard Bacon (South Norfolk) (Con): Will my hon. Friend confirm that judges have also issued court orders naming Members of Parliament as people who cannot be spoken to?
John Hemming: Indeed. The issues of freedom of speech are not just about what goes in the newspapers; they are also about who communicates with whom and how tightly controlled things are. Some of the court orders issued prevent people from complaining to friends about what has been done to them; some prevent them from complaining to Members of Parliament; and others prevent them from going to the police with information. A dangerous system is developing. It is wrong to think that there is a difference between the ZAM case reported in The Guardian today and that of Giles Coren, because he could have faced exactly the same process.
John Cryer: What about Giggs?
John Hemming: The point I was making about Giggs was that his name was in the public domain already, so it would not have been contempt of court to name him outside the House. That is quite straightforward, and it does not, therefore, involve the use of privilege.
However, there is an argument about privilege where the legal position is uncertain, as it can be at times. We do not want to be unable to debate things because working out whether we can talk about them is so complex. Privilege is important and it needs to be used responsibly—there is no question about that—but my argument is straightforward. To have abused privilege, I would have to have used the name in the first instance, yet no one has evidenced to me the basis on which it would have been contempt of court for me to say outside the House what I said yesterday in it, and if it was not contempt of court outside, it cannot be an abuse of privilege within—
Nick Boles (Grantham and Stamford) (Con): Why did you not say it outside then?
John Hemming: Because it would not have been reported.
Anyway, the accountability of judicial processes depends not only on there being a public judgment, but on people having the ability externally to challenge the evidence that the courts are using. The problem with secrecy is that this all breaks down. Indeed, the report in The Guardian today about the secret committal of the sister-in-law is an example of exactly that situation, where there is no possibility of checking externally the evidence for whether the assumptions are correct. There are great questions about the reliability of much of the expert evidence provided in the family courts. If we cannot rely on the expert evidence, we will have difficulty relying on the conclusions.
There are many, many problems, and I will obviously be submitting a detailed report to the Joint Committee on the difficulties with the various injunctions. We also have a difficult day today, so I will not use up all my time. The issue of secret jailing is one that we cannot drop. Obviously we cannot do much more about it over the recess, but we cannot allow a process to continue whereby attempts are made to commit more and more people in secret proceedings. This all arises from the objective of protecting relatively trivial secrets, but it is not even close to open justice. The balancing act has completely failed when we are trying to balance somebody’s liberty on one side against something relatively trivial on the other.