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Judicial committee report says superinjunctions must face ‘open justice’ principle and only be granted when strictly necessary Superinjunctions should only be granted in “very limited circumstances” and normally for short periods of time, according to an influential judicial committee studying privacy orders. In a report that repeatedly stresses the importance of “open justice”, the study headed by the Master of the Rolls, Lord Neuberger, proposes giving the media advance notice of applications for gagging orders. Dismissing allegations that judges have been creating laws beyond the authority of parliament, the committee on superinjunctions nonetheless states that “there was justifiable concern [last year]… that superinjunctions were being applied for and granted far too readily”. The study will be scrutinised carefully by ministers who have sent out mixed signals about whether they believe a privacy law needs to be introduced to provide clearer guidance for judges. While no one knows the precise number of privacy injunctions in circulation, the committee says it is only aware of two genuine superinjunctions — those whose existence cannot even be revealed — having been granted since January 2010. One was set aside on appeal and the other was in force for only seven days. “The principle of open justice is a fundamental constitutional principle,” the report states, “although it is not an absolute principle. It applies to interim injunction applications as it does to trials. “… As they incorporate derogations from the principle of open justice, superinjunctions and anonymised injunctions can only be granted when they are strictly necessary. They cannot be granted so as to become in practice permanent.” The report sets out draft guidance on how applications should be processed in future, allowing third parties, including the media, to take part in or lodge objections to privacy proceedings. It is hoped the presence of other parties in such complex cases will provide reassurance that the cause of justice is being served and that the law is not being exploited by the wealthy to close down debate about matters of public interest. It is acknowledged that new legal procedures will be required to ensure that those who attend such hearings do not divulge details until they are reportable. “… It will be a very rare case where advance notice of such applications to media organisations, which are likely to be affected by any order, can justifiably be withheld.” Lord Neuberger, who is the head of the civil judiciary, said: “Our starting point was the maintenance of the fundamental principles of open justice and freedom of speech. Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice. “However where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice. And where it is ordered, the facts of the case and the reason for the secrecy should be explained, as far as possible, in an openly available judgment.” In a clear rebuff to politicians who have accused judges of inventing novel legal precedents without reference to parliament, the Lord Chief Justice, Lord Judge, welcomed the report and observed: “Contrary to some commentary, unelected judges in this country did not create privacy rights. They were created by parliament [through enactment of the 1998 Human Rights Act]. “Now that they have been created, judges cannot ignore or dispense with them: they must apply the law relating to privacy matters as created by parliament — including those relating to the enforcement of privacy rights by injunctive relief, balancing them with the rights … of freedom of expression. “The relationship between parliament and the courts has, for generations, been predicated on mutual understanding and respect. Judges have never asserted, and they are not now asserting, any authority or jurisdiction over parliamentary proceedings or debate, which are exclusively matters for parliament.” Superinjunctions David Neuberger Privacy Privacy & the media Media law Newspapers Newspapers & magazines Owen Bowcott guardian.co.uk