Privacy law could help judges decide over gagging orders, says Ken Clarke

Justice secretary says he will consider legislation, but admits there may be quicker, less controversial ways of tackling issue A privacy law could provide judges with clearer guidance when deciding whether to grant gagging orders, the justice secretary has told the Commons. In the clearest signal yet that the government is considering legislation to resolve the controversy over superinjunctions and anonymised court orders, Ken Clarke appeared to accept the necessity of drafting a bill. But, he cautioned, the difficulty of deciding in individual cases where freedom of speech justifies publication means there will never be a simple, legal solution. Referring to the recent spate of gagging orders taken about by Premier League footballers, Clarke said he did not “necessarily need to know about the sex life of each of the players” every time he watched a match. At Commons question time, the Clarke was asked by his Labour counterpart, Sadiq Khan, to provide “clarity and guidance” to British judges. There have been complaints that the judiciary is introducing a privacy law without reference to parliament through their interpretation of the European convention on human rights in granting injunctions. The names of some of those said to have obtained privacy injunctions have this month been posted on Twitter and other social networking sites in defiance of court contempt orders. “We will consider these matters,” Clarke told MPs, “and indeed it is probably right to say that parliament passing a privacy act might well be the best way of resolving it. “But I think we need to get somewhat nearer to a consensus and one needs to know exactly how you’re trying to strike this balance before something is submitted to the judgment of parliament. “It may well be that we don’t have to wait for a long controversial process like that, we can find some other way of tackling it. We are considering this issue and we’ll come back in due course.” Khan, the Labour MP for Tooting, said there was growing “public disquiet about the use of the anonymity injunction and the superinjunction – both its abuse or alleged abuse – but also the circumvention by use of, for example, Twitter. The current situation is not satisfactory.” On Friday, Lord Neuberger, the master of the rolls, will issue a report by a committee of legal experts on the use injunctions. It is expected to recommend procedural changes but not call for fresh legislation. “The government is going to have to study it,” Clarke said, “and decide whether or not there is a case for intervening. “There’ll never be unanimity on all these judgments, precisely because it is so difficult to balance the competing parts of the convention on human rights [freedom of speech and a right to privacy] and the competing interests involved.” “There have been cases where we certainly need to know, where people are disposing of waste material that they’re dumping off the coast of Africa, which is easy in one direction. “On the other, every time I watch a football team I don’t think I necessarily need to know about the sex life of each of the players.” Clarke’s comments suggest there may have been second thoughts in cabinet over the need for a privacy law. Earlier this month the prime minister, David Cameron, told Radio 4′s Today programme : “By all means let’s debate it, but I think there is still more to be done through the Press Complaints Commission.” John Whittingdale, the Conservative chairman of the culture, media and sport select committee, had earlier in Tuesday’s Commons debate warned that the courts were not doing enough to protect the freedom of the press. He asked Clarke: “Are you concerned that the very large number of injunctions that appear to be granted on a routine basis might suggest that the courts are paying insufficient regard to section 12 of the Human Rights Act, which was supposed to protect press freedom? “Given this and the huge speculation on the internet about the identities of those who have obtained injunctions, do you feel that the time is approaching when parliament might need to revisit this area?” Clarke said it was unclear whether the number of injunctions was increasing. The Ministry of Justice has said it is researching the frequency of their use. “As far as I’m aware, there have been two superinjunctions since the John Terry case but the word ‘superinjunction’ gets used very widely,” the justice secretary said. (“Superinjunction”, used correctly, refers only to those few cases where it has been illegal even to report the existence of a court order). However, Clarke said he recognised that there was mounting concern about their use. “I believe in the freedom of the press and the freedom of speech in this country, even when sometimes it’s exercised provocatively, as it’s supposed to be in a free country. But I also think there are areas of privacy where an individual is entitled to have it protected.” The Liberal Democrat MP John Hemming, who represents Birmingham Yardley, said some injunctions prevented people from passing information to the police or other regulators. He asked: “Do you believe that the law should be changed so that regulators should always have information?” Clarke replied: “That’s one of the arguments that no doubt the judge who decides whether to grant the injunction or not has in mind.” But in his judgment on a privacy case involved the Big Brother star Imogen Thomas and an anonymous footballer published on Monday, the judge, Mr Justice Eady, made it clear that legislation might not make much difference. “One can rarely arrive at the answer in any given case merely by reference to generalities,” he declared. “It must all depend upon the particular facts of the case. “It follows too that there can be no automatic priority accorded to freedom of speech. The relative importance of the competing values must be weighed by reference to the individual set of circumstances confronting the court.” •

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