The Lords continued their examination of the Legal Aid, Sentencing and Punishment of Offenders Bill on Monday, starting with Clause 8, which makes provisions about when civil legal services would be made available.

Amendment 21 was moved by Lord Beecham. He said that the bill sought to make legal aid provision a matter of exception rather than of course. Instead of listing only matters that would be eligible for legal aid, they exclude everything except those matters that are contained within the clause. The amendment would reverse the way that the Government are putting matters. It was withdrawn without being put to the vote.

Amendment 22, moved by Lord Faulks, concerned Clause 8(2), which gives the Lord Chancellor the power to modify Part 1 of Schedule 1 so as to omit services from the scope of legal aid and assistance. He said that the power would allow the Lord Chancellor to remove areas from the scope of legal aid without proper debate on the Floor of the House. After debate, he said: “I very much hope that, when this matter comes back on Report, those concerns can be reflected by the Minister. In that guise, I am happy to withdraw this amendment.” Amendments 23 to 27 were not moved.

Consideration moved on to Schedule 1: Civil legal services. Amendment 28 was moved by Lord Lloyd of Berwick, one of a group of amendments concerning clinical negligence proceedings and expert reports. All the amendments were directed towards the retention of legal aid in clinical negligence cases. Lord Wigley said: “Many people involved in cases arising from clinical negligence by a public authority are among the most destitute…Considering the inequality of arms that inevitably arises, having access to expert reports is vital. To put this debate into context, there are about 1 million adverse accidents in the NHS every year.” The debate – described as “very thoughtful” because so many of those who participated had experience, either legal or medical, of cases of this kind – looked at the best way to fund the expert report and resulted in the amendment’s withdrawal pending further figures from the government. Amendments 29 to 31 were not moved.

Baroness Doocey proposed amendment 32, relating to the ability of claimants, the majority of whom are disabled, to appeal against decisions on their entitlement to welfare benefits. She said that the Bill as it stands would remove social welfare cases from the scope of legal aid. “The need for such legal aid is best demonstrated by the fact that nearly 40 per cent of all appeals against work capability assessment decisions are upheld.” After a lively debate and a robust response from minister Lord McNally, Baroness Doocey said: “I really hope that the Minister will reflect again and consider bringing back some hope at Report stage. Meanwhile, I beg leave to withdraw my amendment.”

Baroness O’Loan proposed amendment 33, which sought to restore families with dependent children to the list of those eligible for legal aid and advice. She said: “Some 650,000 of the poorest people will be deprived of the access that they currently have through solicitors, CAB law centres and other advice centres…140,000 children will be affected by the proposed measures as legal aid is withdrawn from the adults who care for them, and…at least 6,000 children will be deprived of legal aid altogether.” In response to the debate, Lord McNally said: “I am not waving a white handkerchief and making specific concessions, but I take the point made by the noble and learned Baroness in closing that this has been an array of experience and expertise that we would do well to consider, and this we will do before we bring these matters back on Report. I ask the noble Baroness, Lady O’Loan, who started this debate, whether she will now withdraw her amendment.” She did.

More to come, with day four scheduled for Wednesday, 18 January.

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Line-by-line scrutiny of the Legal Aid, Sentencing and Punishment of Offenders Bill continued on Tuesday in the House of Lords. Members continued where they left off before the Christmas recess when four amendments to clause 1, which defines the Lord Chancellor’s responsibilities, were debated and then withdrawn without being put to the vote.
Lord Beecham moved another amendment to clause 1 which called upon the Lord Chancellor to review the accessibility and quality of expert advice that is available for civil legal proceedings and ensure that this is maintained or improved. Concern was voiced over creating a two-tier system in which those with money are able to access expertise and those without money have difficulty. It was stressed that an expert is not a luxury, and that there are many technical issues on which a judge would be lost in coming to a proper, conclusive determination of a case without expert evidence to assist him. This amendment was withdrawn, and clause 1 was agreed.

Lord Bach moved a new clause calling for a pre-commencement impact assessment of the effect of the legal aid changes. After a full debate he said that the Government have clearly not done the work that should have been done before bringing in such controversial and fundamental legislation. “It is not too late for them to start doing it now, and I would encourage them to do so” he said. The amendment was withdrawn. So were two amendments to clause 2 – which deals with arrangements – proposed by Lord Beecham, and the clause was agreed, as was clause 3.

Clause 4, which covers the new post of Director of Legal Aid Casework, was the subject of an amendment moved by Lord Pannick. The amendment arises out of the transfer of responsibility for the allocation of legal aid from the independent Legal Services Commission to the Lord Chancellor’s Department. Decisions on legal aid in individual cases will be taken by a civil servant, who will be designated by the Lord Chancellor. Lord Pannick concluded: “Noble Lords prefer the drafting of Clause 4 to contain clear limits on the powers, in this context, of the Lord Chancellor and clear safeguards of the independence of the director. I hope that the Minister will be able to ask his officials to look again at the wording of Clause 4 so as to achieve these objectives, otherwise we will undoubtedly be returning to this matter on Report. For the time being, I beg leave to withdraw this amendment.” Clause 4 was agreed.

Lord Bach moved an amendment to insert a new clause on appeals following a decision made by the Director of Legal Casework in respect of eligibility for legal aid. He said: “The principle of being able to appeal against a decision made in this case by a civil servant who has been appointed by the Lord Chancellor is very important. I beg leave to withdraw the amendment, but we may come back to this on Report. If we are coming back to the earlier independence issue, we shall have to come back to this one as well.” Clauses 5, 6 and 7 were agreed.

Sixteen amendments were up for consideration on Tuesday. Eight were not even moved and the remaining eight were withdrawn without being put to the vote. It all had the feel of preliminary skirmishing with the main events still to come. The committee stage resumes on Monday, 16 January, when perhaps some of the red meat will be reached. The Lords may then exercise their muscle as they did with the government’s Welfare Reform bill on Wednesday.

Michael Foot once memorably described him as a ‘semi-house trained polecat’ in recognition of his fierce right wing views. So when the same Norman Tebbit, now ennobled, proposes what can only be described as liberal minded amendments to the current Legal Aid bill it is a moment of significance.

He has put his name down to two, linked amendments that would ensure children, or parents on their behalf, will be entitled to legal aid if they need to pursue medical negligence claims. In relation to depriving claimants under the age of 18 from having access to legal aid for medical negligence claims, he told the ‘Guardian’: “In that area [the bill] may be going too far. I want to hear all the arguments. It’s right that it should be debated.” He had taken up the cause, he said, because: “I have listened and read the arguments …and I think there’s sufficient in it that we ought to [examine]. It’s nice to be on the side of the angels for once.”

At the same time the embattled Ken Clarke contributed an article in the ‘Guardian’ in which, almost apocalyptically, he said: “There should be no doubt that the system is facing an existential crisis.” He went on to say: “So for any reasonable individual it is not a question of whether we reform legal aid, but how. My approach has been to take a methodical, first-principles look at the system. The logic is simple: to determine carefully which types of cases most urgently merit scarce resources, to encourage people to use non-adversarial solutions to their problems where appropriate, and to speed up and simplify court processes where not.” He concluded: “The threat I want my reforms to pose is to a failing system, outdated methods and unreformed working practices, not to the needy.”

He will not have been pleased to hear the right wing former MP for Chingford, a supporter of the government’s draconian spending cuts, say that he feared that some of the economies proposed by the Ministry of Justice may be “going too far.”
The bill came to the House of Lords at committee stage on Tuesday. The debate got no further than amendments to clause 1, which defines the Lord Chancellor’s responsibilities. Four amendments were debated but all four were withdrawn without being put to the vote. Once again, reading the debate, it was noticeable that, apart from the ministerial team, the government had not put up anyone to speak in favour of the legal aid proposals. Committee stage continues on 10 January when further amendments will be discussed.

And finally, may I wish you all a merry Christmas and a happy New Year.

Image courtesy of The Freedom Association’s photostream on Flickr

On Monday the Legal Aid, Sentencing and Punishment of Offenders Bill came before the Lords for its second reading. In eight hours there were over fifty contributors to a high quality debate.

Part 2 (litigation funding and costs) and part 3 (sentencing and punishment of offenders) did not feature greatly in the exchanges, and were largely approved. Overwhelmingly the debate concerned part 1 of the bill – legal aid. And overwhelmingly the contributors opposed the government’s proposals.

Baroness Scotland said: “Justice should be available in times of good and ill. In times of ill, it is more necessary than ever.” She quoted the late Lord Bingham when he argued “that one of the ingredients of the rule of law itself was that ‘means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties are unable themselves to resolve.” Lord Bingham went on to say that “denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law.” Lord Pannick looked back to the speech of Sir Hartley Shawcross, the Attorney-General, when he introduced the Legal Aid and Advice Bill in December 1948. He said: “His concern and the concern of the Labour Government in those days was that the doors of the courts were in theory open to ordinary people, ‘just as the grill room at the Ritz Hotel is open to all’, but obtaining and acting on legal advice were ‘luxuries which were beyond their reach’.”

Viscount Simon was concerned that taking clinical negligence out of the scope of legal aid will prevent vast numbers of people ever having their case properly investigated. “Because the vast majority of clinical negligence victims are harmed at the hands of a state body – the NHS – there is a strong moral argument that the state should ensure that these people have access to justice,” he said. Baroness Gould said: “The Bill is discriminatory and will entrench inequality for women, people from minority ethnic groups, disabled people and other groups facing discrimination, all of whom will be disproportionately affected.” Drawing on some 25 years’ experience of legal aid litigation, Lord Clinton-Davis said: “The real trouble with this Bill is that there will be no savings: indeed, the very reverse. Unrepresented persons will appear before courts and tribunals and many, through no fault of their own, will make false and incoherent points. Time will be wasted.”

Baroness Kennedy expressed concern that “having ready access to a lawyer will be replaced by a telephone hotline, a sort of call centre. We all know the problems that we have with call centres in every other area of our lives; imagine it when you are in distress and in need of decent legal advice.” Lord Elystan-Morgan asserted that “unless a Government of the future pass a one-clause Bill to abolish legal aid completely, the contents of this Bill and the proposals surrounding them must constitute the most savage and most deadly attack upon the institution of legal aid in the 62 years of its existence.”

As chief prosecutor, Lord Macdonald had seen the extent of the scourge of domestic violence, its impact on those who suffered it, who were mainly women, and its impact on the children, who usually witnessed it. He said: “An inevitable consequence of the Bill’s approach to domestic violence is that more people – again, mainly women and children – will be trapped in more abusive relationships with no succour at all from our law. I venture to suggest to noble Lords that that is a situation that would bring shame upon our entire legal system.” On means testing at the police station he said: “Are we really to say that no interview is going to take place before a means test is considered, no charge may be preferred until the financial forms are filled out and passed – mortgage payments, rents, wage slips, debts, assets and all the rest of it? It is – I choose my words carefully – a foolish notion. Who is going to calculate the cost of this in wasted time and disruption to the forensic process?”

Replying to the debate, minister of state Lord McNally said: “It is not true that we brushed aside the Law Society’s wonderful ideas for saving the money in different ways. We considered its proposals very carefully…A great deal of its proposals were shuffling responsibilities and costs around Whitehall or producing new taxes, which is not the same as making savings.”

The Bill was read a second time and committed to a Committee of the Whole House, on a date to be arranged. That’s when the serious business of attempting amendments to the bill will take place.

As justices of the supreme court express fears that legal aid cuts will cause a courts logjam, a Manifesto for Family Justice has been published by an alliance of organisations which represents the rights and needs of women, children, families and victims of domestic abuse.

In a special report on the workings of the supreme court, the ‘Guardian’ outlined the concerns of some of the justices. Lord Hope, deputy president of the supreme court, said that as a product of the absence of legal aid the court of appeal is being deluged by litigants in person, which creates a logjam in itself. Lord Dyson, another supreme court judge, said he was very worried about access to justice for those who wanted to take judicial reviews or challenge tribunals. He added: “There are some very good litigants in person but there are an awful lot who, understandably, don’t know what they are doing. They feel frustrated, angry. They are not lawyers. They take masses of bad points. They waste a lot of the court’s time. And it’s a growing trend.” Lord Mance said that he couldn’t comment on the particular governmental policy, but added: “One way or other, we have to take very seriously the question of access to justice.” Lady Hale, the only woman justice in the supreme court, said that the judges worry about the extent to which denying people access to legal representation and legal advice will “change radically the role of the court in seeking to do justice.”
In its manifesto, sent to all MPs, the alliance of organisations has called upon the Government to protect vulnerable women and children; to listen to the experienced practitioners who work in family justice and who understand that mediation will not resolve a significant number of cases; and to consider with care whether the decision to remove legal aid from private family law cases will save the Government money or, in fact, cost more and lead to poor outcomes.

The chairman of the Family Law Bar Association, Stephen Cobb QC, said: “We have come together as a broad cross section of organisations deeply concerned by the consequences of the government’s proposals. The civil legal aid cuts will be bad for children, bad for women and bad for families. We are facing a disturbing new landscape in which 600,000 people will no longer receive legal aid, 68,000 children will be affected by the removal of legal aid in family cases, 54,000 fewer people will be represented in the family courts annually and 75% of existing private family law cases will no longer attract legal aid. We face the very real prospect that many children and women who have been victims of domestic abuse will have to endure the further trauma of being cross-examined by their alleged perpetrator, who will not be eligible for legal aid.”
The manifesto criticises the narrow definition of domestic abuse used in the bill, which will limit legal aid to victims of certain types of abuse. Shadow home secretary Yvette Cooper said women and children were “bearing the brunt of this government’s actions.” She added: “Denying victims of domestic violence legal support, or increasingly making victims endure cross-examination by their assailants, will remove the vital protection many vulnerable women depend upon.”

The alliance comprises the Association of Lawyers for Children, the Bar Council, Co-ordinated Action Against Domestic Abuse, the Children’s Commissioner, the Family Law Bar Association, Gingerbread, Liberty, the National Federation of Women’s Institutes, Resolution and Women’s Aid.

The legal aid, sentencing and punishment of offenders bill, which will save £350m a year from the legal aid budget, has completed its committee stage in the Commons and will be debated on the floor of the house next week.

Ken Clarke’s Ministry of Justice faces a legal challenge over its controversial plan to
scrap legal aid for victims of clinical negligence. The charity Action against Medical Accidents (AvMA) has issued legal proceedings for a judicial review of the decision.

AvMA Chief Executive Peter Walsh said: “Scrapping legal aid for clinical negligence is completely irrational whatever way you look at it, as well as grossly unfair. Ken Clarke’s department might save a little money, but the cost will simply be heaped on the NHS. Some of the most vulnerable people in society injured by negligent treatment at the hands of a State body will be denied access to justice.”

The Legal Aid Sentencing and Punishment of Offenders Bill may have been steamrollered through the Commons but the action of AvMA is but one instance of continued resistance. The Commons proceedings have become close up and personal. Jonathan Djanogly is the justice minister piloting the plans to cut legal aid and curb payouts, which could benefit the insurance industry to the tune of £1bn a year. The ‘Guardian’ reports that Djanogly has investments worth at least £250,000 in companies with insurance arms, and that his brother in law also stands to gain. Labour’s justice spokesman, Andy Slaughter, has written to cabinet secretary Gus O’Donnell calling for an investigation into Djanogly. Slaughter points to conflict of interest claims given that the minister has neither resigned or removed himself from discussions from which he could personally profit.

The Sound Off for Justice campaign has revealed that the family of Milly Dowler asked the Prime Minister David Cameron and his deputy Nick Clegg to stop the “unjust and unfair” legislation that will significantly weaken the ‘no win no fee’ mechanisms they used to fight their case against News International. Writing an open letter to the Prime Minister and Deputy Prime Minister, the Dowlers said that they could not have reached a settlement without a ‘no win, no fee’ agreement. Their letter concluded: “We are sure that you do not want to go down in history as the prime minister who took rights away from ordinary people so that large companies could print whatever they like and break the law without [anyone] being able to challenge them.” Des Hudson, Chief Executive of the Law Society said: “After all they have been through we welcome – and are humbled by – the intervention of the Dowler family in this debate. They have succeeded in making it clear to the Prime Minister that it is ordinary families with terrible life challenges that will be impacted the most. They will be the losers. As a society we need to protect them and their access to justice.”

Dominic Grieve, the attorney general, has entered the arena. He attended a national meeting hosted by the Bar Council and the Family Law Bar Association on 17 September on “The Legal Aid Bill – What is the future for Family Justice.” According to Joshua Rozenberg, writing in the ‘Guardian’, as a result of that meeting Grieve is to tell Ken Clarke that the lord chancellor’s proposals will clog up the courts with unrepresented litigants. Grieve was told that the government’s legal aid reforms would result in 54,000 fewer people a year being represented in the family courts, affecting 68,000 children at the centre of traumatic family breakdown. Rozenberg concludes: “Without lawyers, courts become slower and more expensive. If Grieve can persuade the lord chancellor that his reforms will cost money rather than save it, he will have well served the interests of justice.”

Now the battleground moves to the Lords. According to the ‘Law Gazette’, Liberal Democrat Lord Carlile of Berriew believes there is enough support from all sides to push for changes. He said that there are enough people in the Lords who feel strongly about some of these issues to “fight the good fight”, although he regretted that the Lords may end up scrutinising the bill in more detail than the Commons. His hope is that the House of Lords may yet drive through significant amendments to the legal aid and civil litigation reforms.

At meetings of the Public Bill Committee considering the Legal Aid, Sentencing and Punishment of Offenders Bill on 6th and 8th September opposition amendments were comprehensively rejected.

Opponents wanted to return the large areas of law that the government has sought to exclude, including welfare benefits, clinical negligence, disability, education and housing law, into the scope of legal aid. Shadow justice minister Andy Slaughter told the Commons committee that the amendments went to the heart of their opposition to the Government’s strategy of restricting legal aid. He said: “Legal aid was devised to allow those who are impecunious and cannot afford access to legal advice to get their cases into court to reach a fair resolution, to be put on a level peg with those who have such resources…The Government’s intention [is] very clear: to be as restrictive as they can possibly get away with being in the provision of social welfare legal aid and to allow exceptions only where they believe it is untenable not to, either for public relations reasons or for reasons of simple morality. Otherwise, they will do their level best to close down those options for legal aid that have grown over time.” 

He went on to say: “We are saying through these amendments that we wish to stay potentially with the status quo. That does not mean things should not be reviewed. On the contrary, the point I am making is that if we want to constantly review what is and is not appropriate, we should not set up a system so restrictive that it will give little justice to anybody who is seeking that in any of the areas currently in scope.”
Justice minister Jonathan Djanogly responded that: “The amendments are contrary to the basis of our whole programme of reform and would increase the cost of legal aid dramatically at a time when we are seeking to focus it on the highest priority cases.” The voting was always close, usually by 11 or 10 to 9, but sufficient to leave the relevant clauses unamended. Any hopes that the two Liberal Democrat members of the committee might be persuaded to vote against the government were dashed.

According to the ‘Law Gazette’, speaking out of committee Andy Slaughter said: “Reading out pre-prepared scripts in response to every amendment and failing to answer questions undermines the ability of the committee to properly scrutinise this legislation and insults lawyers, advisors and volunteers in the sector that are watching us and hoping their voices are heard.” The Parliamentary timetable provides for the third reading of the bill next month before it is passed on for debate in the House of Lords.

Last week the government announced its intention to ban the payment of referral fees in personal injury cases. In their view the current arrangements have led to high costs, encouraged a compensation culture and led to the growth of an industry – estimated elsewhere to be worth £3bn a year – which pursues claimants for profit.

Though the MoJ stress there is no universally recognised definition of ‘referral fees’, their press release gives the following example:

• You have an accident and you are induced through a TV advert or SMS text message to make a ‘no-win, no-fee’ claim.
• Your claim is passed between claims management companies (who advertise compensation claims for accidents), insurance companies, lawyers and others who charge each other a referral fee for ‘referring’ the claim up the line.
• The lawyer sues for compensation. If he wins, he can recover his costs and his “no-win, no-fee” mark-up on his costs from the losing defendant (or often the defendant’s insurance company) which will cover the amount he paid out as a referral fee. So the lawyer may pay hundreds of pounds as a referral fee because he knows he can get the money back.
• To cover the loss, losing insurance companies are forced to raise premiums, private companies are forced to put up prices, and public authorities pass the burden on to the taxpayer.

Justice minister Jonathan Djanogly said: “Honest motorists are seeing their premiums hiked up as insurance companies cover the increasing costs of more and more compensation claims. Many of the claims are spurious and only happen because the current system allows too many people to profit from minor accidents and incidents. People are being encouraged to sue, at no risk to themselves, leaving schools, business and individuals living in fear of being dragged to the courts for simply going about daily life.”

The announcement has been received with almost universal approval by the insurance industry. Shadow justice minister Andy Slaughter said Labour supported the ban, particularly when applied to road accidents. But Neil Rose, writing in legalweek.com, reckoned that the ban was politics not policy, made for show and for headlines. He said: “If ministers really want rid of claims management companies, then ban them, not referral fees. But they know they can’t do that, because these businesses will just become alternative business structures and do the whole case themselves, a move that was likely anyway but that this announcement will surely speed up.”

The justice minister said finding a definition of referral fees was challenging, but he hoped to get the provisions included in the Legal Aid, Sentencing and Punishment of Offenders Bill, possibly by Easter next year. The government’s current proposals before Parliament in clause 41 of that bill focus on stopping losing defendants having to pay a ‘success fee’ to reimburse the claimant’s lawyer for unconnected cases he may have lost. In future the person making the claim will have to pay the success fee rather than the defendant, and that fee will be capped. Legal costs overall should fall, meaning lower costs to pass on to customers.

Margaret Thatcher’s priorities for the police were always clear. They were cosseted. Numbers, pay, overtime, the sky seemed to be the limit. Cynics would say that it was insurance for her contentious domestic policies, whether taking on the miners or introducing the poll tax.

David Cameron has been very different. It is almost as if he is determined to be confrontational, with swingeing cuts in budgets and numbers and a pay freeze. There have been critical speeches about police performance, culminating in the unseemly and very public spat about the initial reaction to the recent urban riots. Not to mention the blame game of the phone tapping scandal.

So there was perhaps an element of fence mending in home secretary Theresa May’s hastily arranged speech to police leaders on Tuesday. She went out of her way to praise the police for the handling of the riots. “We owe all police officers a debt of gratitude,” she said. “They risk their own safety day in, day out to protect ours. And I want to take this opportunity to pay tribute to our police leaders, who made those changes that led to the restoration of order on our streets. They worked tirelessly in leading their officers through a difficult time, and they deserve much credit for that.” But there was no resiling from the proposed cuts. “ The police are going to have to take their share of the burden. People often say there will be twenty per cent police cuts.  And that’s true”, she said.

The home secretary then dealt with extra powers for the police to deal with any future disturbances. In a key section of her speech she said: “We have already said that we will give the police new powers, including new gang injunctions for young people and the right to remove face coverings, as well as considering new curfew powers.  For example, under existing laws, there is no power to impose a general curfew in a particular area, and while curfew conditions can be placed on some offenders as part of their ASBO, criminal sentence or bail conditions, there are only limited powers to impose them on somebody under the age of sixteen.  Those are the sorts of changes we need to consider. So we will make sure the police have the powers they need.”

Apart from practical implications – can you imagine local curfews in Olympics year? – this approach has met with some opposition. Mairi Clare Rodgers, Director of Media Relations at Liberty, said that more inclusion, fairness and equal treatment before the law, not less, is the only way to build personal and social responsibility. Politicians should listen when police chiefs tell them that new powers – on curfews, dispersals and face-coverings – are unnecessary. “We fail to see how leaning on magistrates to lock up youngsters and evicting entire families – innocent siblings and all – from their homes – is justified. Crude spite is flawed, both in theory and practice, and will lead to more problems than it solves. Shutting down entire phone and social media networks – punishing innocent users and those warning others of violence – is as useless as it is disproportionate”, she said.

Maria Fort, of Big Brother Watch, said that, while individual curfews are acceptable, blanket curfews are more controversial. “It springs images of war-time suppression and martial law on societies.  Even in crises of public order, there is no justification for denying the general public such basic liberties, particularly when the vast majority of the public are law-abiding individuals.”

The full text of the home secretary’s speech can be found at:
http://www.homeoffice.gov.uk/media-centre/speeches/urgent-need-reform

Photo courtesy of nikolaasB’s photostream

When Ryan Giggs and Imogen Thomas embarked on a brief relationship they could not have imagined that it would develop from kiss-and-tell to a legal battle and now into a constitutional crisis.

On 14 April Mr Justice Eady granting a privacy injunction to Ryan Giggs. When Giggs’s anonymity was blown on Twitter, Thomas, now supported by the “Sun” (NGN), headed back into court to challenge the injunction. Mr Justice Eady released a trenchantly-worded judgment, explaining why he had made the initial ruling to keep the identity of the footballer secret, in which he concluded there was “ample reason not to trust” the young woman. The judge noted that evidence before the court “appeared strongly to suggest that the claimant [the anonymous footballer] was being blackmailed.” Eady did not reach a final conclusion on the point but, in refusing the application, he added: “It is important always to remember that the modern law of privacy is not concerned solely with secrets: it is also concerned importantly with intrusion”.

Within the hour John Hemming MP named Giggs in the House of Commons under parliamentary privilege. NGN immediately made a further application for the anonymity of the claimant to be removed on the basis that the name had been repeated thousands of times on the internet. In a brief, three paragraph ruling, Mr Justice Tugendhat refused the application. The third paragraph is worth repeating in full, confirming that privacy expands to cover intrusion and harassment:
“It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.”

There has been fury in some parliamentary quarters, with indignation that the judiciary was usurping the legislative rights of parliament. Senior legal figures and politicians warned that super-injunctions have been rendered pointless by Twitter and other social networking sites, leaving the law on so-called gagging orders in a “complete mess”. But Eady was doing what parliament had asked the courts to do when it passed the Human Rights Act (HRA), which is to weigh up privacy and freedom of expression as embodied in articles 8 and 10 of the HRA. David Cameron said that Parliament had not provided judges with sufficient guidance, forcing them to rely on legislation from the European Courts. He said: “I think judges are saying, look there is a European Convention of Human Rights which we can use. And because Parliament has not discussed this enough, they feel they are filling a gap…We have such extensive social media and internet access that everything becomes more intense.”

The Lord Chief Justice, Lord Judge, weighed into the debate. He said: “Contrary to some commentary, judges in this country did not create privacy rights. They were created by Parliament. Now they have been created, judges cannot ignore them – they must apply the law.” He warned MPs that hiding behind ¬parliamentary privilege was not a clear cut defence for flouting court orders. He admitted that bloggers and users of social networking sites such as Twitter would not necessarily be covered by injunctions. But he added that the internet had “by no means the same degree of intrusion into privacy as the story being emblazoned on the front pages of newspapers”, which “people trust more.” Society should consider other ways to bring Twitter and other internet sites under control. He said: “Anybody can put anything on it, modern technology is totally out of control. I’m not giving up on the possibility that people who peddle lies about others through using technology may one day be brought under control, maybe through damages, very substantial damages, maybe even injunctions to stop them peddling lies.”

Following the publication by the Master of the Rolls, Lord Neuberger, of the findings of his committee on injunctions, Attorney General Dominic Grieve announced that a joint committee of peers and MPs would investigate the use of court injunctions to protect privacy. He said it would examine whether the current system was working following recent controversy over super-injunctions.

Photo courtesy of  Edwin. 11 photostream on Flickr