First the super-injunction: the fact of an injunction having been granted cannot be reported. Now the hyper-injunction: a person is forbidden to discuss the issue in question with MPs, journalists and lawyers. For the moment those descriptions will suffice to show that the two things are different, in substance and not merely as a matter of degree. A common factor in their having made the news is that they were revealed by the same MP under the protection of Parliamentary privilege.
Due to the nature of the hyper-injunction, it is very difficult to speculate on the merits in the individual case. We can only infer that as it is a measure of such severity, the court must have had compelling grounds to grant it; it is not the purpose of these remarks to explore those grounds.
The question to be asked before a decision on the merits could even be begun is whether the courts ought to have the power to grant such an injunction at all. And in considering that question, several things need to be borne in mind.
First, the impact on an individual to whom it is addressed. The bare intention may be to cut off any avenue by which the information or opinion – or whatever it is – can reach a forum where it may be public; the impact may well be to deprive the individual of anywhere to turn in the face of some possible and perceived wrongdoing or oppression. That is concerning enough.
Secondly, the constitutional implications. An injunction against speaking to an MP effectively circumvents Parliamentary privilege. If it is difficult or impossible to prevent an MP from using that privilege, the way to defeat that problem of publicity is to stop someone talking to their MP. That there is the theoretical mechanism to outflank a constitutional safeguard is also concerning, as is the fact that that mechanism has been operated.
Thirdly, who is an injunction like this designed to protect? This is a device which would seem to have most relevance for powerful people and bodies, and to be used against individuals. Its purpose is to contain the merest whiff of opprobrium which might or might not attach to them. By comparison, a person accused of a crime rarely has the power to prevent reporting of the charges against them, but must rely on a subsequent acquittal to establish their good name.
Fourthly, in practical terms a hyper-injunction would be available to those who can bring to bear powerful and fast-moving legal teams who can obtain it before the defendant is even properly aware of the need for legal advice.
All this is deeply troubling: so what’s to do? It is always a risky thing to legislate at speed, but there is an urgent need to consider legislation to curtail the grant of injunctions of this nature. (In point of fact, the ‘hyper-injunction’ in question has been in existence for a considerable time, so the need for such consideration ought to have been apparent by now.) Without necessarily thinking specifically in terms of the right of free speech, there is such a flavour of oppressiveness about this draconian measure that Parliament – whose privileges are threatened by this – should step in.