Last updated at 11:00 AM on 21st May 2011
An unprecedented attack on Parliamentary privilege: Lord Neuberger would gag MPs and peers
Yesterday, Britain's most senior judges had the opportunity to curb the inexorable rise of the rich man's privacy injunction and take a stand for the treasured principle of open justice.
The long-awaited publication of the report by the Master of the Rolls, Lord Neuberger, did neither: instead, it delivered a chilling exercise in judicial activism, self-delusion and – most worrying – a constitutional attack on Parliamentary sovereignty and free speech.
Strikingly, given how readily our unelected judiciary has created a back-door privacy law, the report seeks to absolve the courts of any blame for the fact that barely a week passes without a celebrity with a carefully-cultivated family image winning a secrecy order to hide his adulterous behaviour.
Instead, the judges disingenuously contend they were only implementing Labour's insidious Human Rights Act.
Yes, the legislation enshrined the right to privacy into British law. But, equally, the Act establishes the right to 'freedom of expression'. It was left to judges to decide where the balance between these two competing interests should lie.
And, overwhelmingly, they have ruled the right to privacy enjoyed by extremely wealthy philanderers desperate to protect their commercial contracts should trump free expression and the public interest in exposing hypocrisy and wrongdoing.
If any proof were needed, look no further than the judiciary's appalling stance over ex-RBS chief executive Sir Fred Goodwin.
At the very least, the fact he was having an affair with a senior colleague raises legitimate questions about whether his mind was elsewhere while RBS was spinning towards disaster.
Yet, had a Lib Dem peer not used parliamentary privilege to break the injunction granted to Sir Fred, taxpayers who bailed out RBS to the tune of 45billion would have been kept in the dark.
Fred the bed: Former RBS chief Sir Fred Goodwin's injunction barring publication of details of an affair with a junior colleague was broken by a Lib Dem peer
That is why Lord Neuberger's proposal to gag MPs and peers who wish to break an injunction in the Commons or the Lords is so disturbing.
For, with an arrogant disregard for the separation of powers between Parliament and the judiciary, senior judges intend to lecture the Speakers in both houses on what is or is not an acceptable topic for discussion.
The judges are not only seeking to bully our elected representatives – they are challenging one of the very cornerstones of democracy: the 170-year-old right of MPs and peers to speak without the threat of legal interference.
Meanwhile newspapers and broadcasters could be threatened with contempt of court proceedings if they report speeches made in Parliament which do breach the terms of a privacy injunction – driving a coach and horses through the principle of open political debate in this country.
Lord Neuberger's report did at least concede that too many injunctions have been issued in recent times.
But it ducked any meaningful attempt to reduce their number, or end the farce of the mainstream media being barred from reporting information which is in open circulation on Twitter and the internet.
Thus, we can today report that a Premiership footballer is suing Twitter for revealing details of an affair he had with a Big Brother contestant, but still can't say who he is – even though his identity is known the world over.
The Neuberger report was not only a wasted opportunity to fix this mess: it was an alarming example of an over-powerful, activist judiciary raging against the will of Parliament and the people to introduce greater transparency to our justice system.
By seeking to tie the hands of the media, MPs and peers even further, the judges made yesterday a very good day for wealthy adulterers determined to hide their hypocrisy from view.
For open justice and the freedom of expression, it was a very dark day indeed.
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