“What did the President know,” the Senate committee investigating the Watergate scandal asked of Richard Nixon, “and when did he know it?” Were the same question asked of the British public today, the answer far too often would be “too little, if they were allowed to know it at all”. At every turn the public’s right to know is being chiselled away by courts who prize privacy too readily over public discourse and free speech.
The menace of the superinjunction — a gag that has been rendered all the more toxic for the media being prevented from reporting that it even exists — was given a novel and sinister twist this week when a rich financier made British legal history by winning anonymity in a libel case.
The man, who can be identified only as Mr Z, claims that he has been defamed, and threatened with blackmail, by two relatives in a row over a multimillion-pound family trust. This statesanctioned secrecy effectively grants anonymity to alleged blackmailers that they would not enjoy had Mr Z pursued his case in the criminal court.
Such is the inflation in the currency of secrecy that these twin injunctions have been joined by a gagging order so restrictive that it has been dubbed a hyperinjunction. It is a gag that seeks to prevent its subject discussing his case not just with journalists or lawyers (other than his own), but with any MP, lest the Member use parliamentary privilege to make the matter public. This amounts not only to a brake on free speech, but also a contempt of Parliament. Many question whether it is even lawful to bar a citizen from speaking to his or her MP.
Tackling this new sinister assault on the erosion of open justice and free debate has been made more pressing after the recent use of parliamentary privilege by the Liberal Democrat MP John Hemming to identify Sir Fred Goodwin, the former chief executive of Royal Bank of Scotland, as having obtained a superinjunction.
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It is beyond time that this tide of secrecy was reversed. Even Donald Rumsfeld would be shocked at how the British public are being kept in the dark. As judges grant more super-injunctions to frisky millionaire footballers, high-flying bankers and tycoons that enable these men (and they are mostly men) to shield their affairs from the public’s gaze — for no better reason than that it would embarrass them, or might dent their sponsorship deals were their affairs to come to light — the public not only don’t know who these people are, they don’t even know they don’t know.
We at The Times do know. But we are not allowed to let you in on the secret. So today we can publish a breakdown compiled by us of 30 cases of privacy injunctions granted by judges, but without identifying the applicants. Who knew that a right to privacy, spawned in the family courts to protect children, would come to be exploited by powerful bankers, footballers and celebrities to stifle public discourse and public understanding?
When recently giving the annual lecture to the Judicial Studies Board, Lord Neuberger of Abbotsbury, the Master of the Rolls, acknowledged concerns about how superinjunctions had developed into an “entirely secret form of procedure”. The courts have pitched themselves against the free press, the rights of Parliament and, worst of all, sided with the privileged few against the public. Injunctions; superinjunctions; now hyperinjunctions. A handful of judges, unelected and uncontested, are creating a culture of secrecy in Britain.