Privacy and Injunctions - Evidence - Parliament

Sir William McKay—Written evidence
inadvertently or without the most serious parliamentary consideration of the
consequences.
9. The Houses’ existing sub judice rules will apply to interim injunctions at times when
proceedings are active. They will not apply to inactive proceedings or superinjunctions,
those which may in the interests of justice include provisions for party
anonymity and a prohibition on disclosing the fact of the substantive order and
proceedings. 292 Obviously parliamentary officials need to be aware of the status of
vulnerable proceedings in order to advise Lords and Members and so avoid
unnecessary collisions between the courts and the Houses.
10. This has long been a matter of practice. Officials of both Houses contact the Ministry
of Justice and HM Courts and Tribunals Service to establish whether a question or
motion proposed to be tabled by a Lord or Member is sub judice or covered by an
injunction. In chapter 5 of the report of the Committee on Super-Injunctions, the
Master of the Rolls put forward suggestions to solve the more difficult issue of
identifying cases where anonymised or super-injunctions have been obtained.
11. A Lord or Member of the Commons may however be unwilling to take advice that a
motion or question should be redrafted or not tabled, or may be determined to raise
in debate matter covered by an interim injunction not otherwise sub judice or the
existence of a super-injunction without giving any warning of his or her intention. It
did not seem practical to the Joint Committee on Parliamentary Privilege to demand
that a Lord or Member who wished to raise in debate a matter covered by an
injunction should seek prior clearance. It would risk bringing the Speaker into an area
of acute political controversy and by practice the Lord Speaker does not rule on
matters of order. Another possibility was a requirement that a Member who
knowingly breached the terms of an injunction (or revealed the existence of a superinjunction)
should, after the event, be required to justify his or her conduct before a
committee or risk punishment for misconduct. The Joint Committee on Privilege
warmed to neither approach, at any rate while the number of such cases remained
small. 293
12. It seems to me that the best way forward would be to add injunctions where
proceedings are not active and super-injunctions to proceedings covered by the sub
judice resolution familiar in both Houses. The sub judice rule is well-understood and
rarely if ever deliberately flouted. Some elaboration would probably be required (for
example to define when proceedings are active) but the basic framework might remain.
13. If it were anticipated that the inclusion of injunctions in the sub judice resolutions was
not an adequate defence against abuse or – the other side of the coin – too restrictive
of freedom of speech in Parliament, a Commons Member who felt it his or her
parliamentary duty to raise an issue covered by an injunction might be required to
make formal application to the Speaker for the exercise of his discretion under the
(amended) resolution. The Joint Committee on Parliamentary Privilege (paragraph 11
above) was concerned that a procedure on similar lines might risk drawing the
Speakership into the political struggle. To meet that concern, the Speaker might be
292 There is a full definition at paragraph 2.14 of the report of the Committee on Super-Injunctions.
293 HL 43-I, HC 214-I (1998-99) paras 203-211.
583