The Value of Democracy: A Challenge to the ‘Hyper-Injunction’?

One could understandably become very confused by all the new terminology English Media Law has had thrown at it these days. First we had ‘super-injunctions’, described by Lord Neuberger’s report as:

 “…an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, ii) publicising or informing others of the existence of the order and the proceedings (the ‘super’ element of the order)”

 Next we have been introduced to ‘hyper-injunctions’, which in addition to the above, explicitly prevent parties from complaining about matters to their local MP. This is designed to forestall claiming of Parliamentary Privilege in disclosing the information to the House of Commons. Apparently however, this does not prevent MPs from discussing the details of cases off their own bat. The distinction between hyper-injunctions and super-injunctions is not conceptually deep; essentially they are the same juridical tool, the difference is one of specificity.

What could be next? Are we to see the rise of the ‘mega-injunction’ that, after it has placed a sock in the mouths of everyone in sight, combines with other injunctions to fight giant monsters? One scarcely dares to dream of ‘ultra-injunctions’…

Perhaps this would be getting ahead of ourselves. Before we think about the next stage, it pays to seriously consider the implications of the behemoths we are currently struggling with. This blog will look at distinguishing feature of the hyper-injunction in the context of the political value of democracy.

The democratic issue is whether access to an MP is a fundamental democratic right and/or whether it can be reasonably restricted. Lord Neuberger’s report, quoting the famous constitutional scholar Erskine May, is relatively clear that Parliamentary Privilege does not extend to communications between members of Parliament and constituents (at least in normal circumstances). That should not be enough for either academic or practicing lawyers. We need to ask the further theoretical question: is this appropriate?

As members of a representative democracy, our right of access to the members of Parliament that represent us is a particularly important one, constituting the most traditional political means of holding the executive to account. Indeed, given the unique concerns that various individuals will hold there is even a case for claiming that this right is more democratically important than the right to vote in elections. Whilst the former leads to direct individual participation in government, the latter confers very little discursive power or direct redress.

Set against this is another democratic concern, namely the rule of law and the notion that democracy guarantees effective justice in addition to participation. In Lord Neuberger’s report on super-injunctions, his Lordship’s Committee is careful to point out that the justification for closed proceedings is commensurate with open justice: both principles are instrumentally valuable to effective justice. In the case of the latter the justification is clear. If justice is seen to be done it is demonstrably being done. In the case of the former the reasoning is more subtle, but no less sound. When the purpose of the substantive rights guaranteed in law would be frustrated by public scrutiny, for example in blackmail, privacy and cases touching on sensitive aspects of childhood, a closed proceeding or interim injunction is adopted so as not to frustrate justice through the over application of the latter principle. In order to assess the general merit of the hyper-injunction therefore, we must consider the relationship between guarantees of effective justice and participation as components of the value of democracy.

This debate could obviously be as complex as one cared to make it. Without setting out a full and exhaustive argument here, I will present one attempt to commensurate the two arguments that provides an answer as to the democratic validity of the hyper-injunction.

We need to ask what the value of participation is to democracy. There are two justifications that immediately spring to mind. The first is the operation of political checks upon the power of the executive. The second is the importance of self-governance as a liberal principle (or, if you prefer, the value of autonomy through and/or in spite of legitimate governance). The former clearly has limited application in the case of the hyper-injunction unless the subject matter refers to a matter of political concern, in which case a hyper-injunction would not be granted based upon the nature of the substantive law of Articles 6, 8 and 10 ECHR and Section 12 HRA (see Lord Neuberger’s Report). The more important question is the latter. By restricting participation in democracy by not guaranteeing a right to discuss matters with a local MP, do hyper-injunctions threaten the freedom of the subject to engage in the process of collective self-governance?

The immediate answer seems to be no. Given the subject matter that hyper-injunctions apply to, there seems to be no direct danger to self-governance, even broadly understood. However, even assuming that an issue did arise, would such a value act so as to ‘trump’ considerations of effective justice? In my opinion this would not be the case. The value of self-governance stems from the importance of being able to determine one’s own destiny. However, it is (or at least should be) a commonly accepted principle that liberty, does not denote freedom in an absolute physical sense. In simple terms, just because one can do something doesn’t mean that one should be so permitted. Do we really consider our liberty to be infringed by the prohibition on murder or theft? Self-governance must therefore always be read in the context of morally permissible action. As Lord Tennyson said of freedom:

“That her fair form may stand and shine,
Make bright our days and light our dreams,
Turning to scorn with lips divine
The falsehood of extremes!”

With this more sophisticated understanding of self-governance at our disposal, we can see a way to make the demands of effective justice (and so limitations on open justice) commensurate with the value of participation. Self-governance only protects those aspects of our action that are objectively morally permissible or, which might make my point clearer, those which are ‘just’. As a result of this, the demands of effective justice are entirely commensurate with the value of participation and so by induction, the value of democracy. On this interpretive theory there is no conflict between the hyper-injunction, in so far as it upholds effective justice by preventing the frustration of the substantive law of privacy, and the value of democracy.

This is of course one of many possible avenues of argument that need to be properly explored. However, we might do well to resist the urge to jump on the bandwagon of popular frustration as to these new creatures of English law until we have had a full debate as to the appropriate way of addressing the values at play here.

ALEXANDER GREEN

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