Secret injunctions: Ruck knows how many of them are out there
“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we now know we don’t know. But there are also unknown unknowns. These are things we do not know we don’t know.”- Donald Rumsfeld, 12 Feb 2002
On Tuesday I joined a meeting of the UK Parliament’s Joint Committee on Human Rights which focussed on “super-injunctions”. This is the name given to a legal order which not only bans a particular issue from being covered in the press, but also bans any reference to the ban.
It was one of these orders that had, notoriously, been used by controversial law-firm Carter Ruck, on behalf of oil-trader Trafigura, to suppress coverage of the now-famous “Minton report”, until the ban was circumvented by the online media. It was this that stirred the interest of the JCHR.
The meeting included journalists, editors, MPs, Lords and lawyers, including both the Guardian’s legal chief and two senior partners from Carter Ruck. The discussion was so wide-ranging that it would take more than one blog post to do it justice, but there were a couple of details that really stood out.
The first is that no-one knows how many secret super-injunctions are currently in force. While the UK state seems bent on meticulously recording every detail of its citizens’ phone, email and web-browsing habits, it is positively lackadaisical about tracking its own media gagging orders. Although each individual super-injunction is (we have to hope) being kept on file somewhere by the judiciary, no-one, anywhere, is collating information about the overall picture.
When asked about this issue in Parliament, the government’s response was simply that:
“The information requested is not available. The High Court collects figures on applications, however injunctions are not separately identifiable, and there are currently no plans to amend databases to do so.”
So there’s no way of knowing, on a global scale, how many of these gagging orders are being handed out, or for what sorts of purposes, or on whose behalf. It’s thus difficult to see how anyone could independently verify that the law is actually being applied fairly and proportionately. What we effectively have is a secret state whose bans on media coverage are almost entirely beyond public scrutiny.
Individual newspapers will obviously know how many injunctions they’ve each received (the Guardian has reportedly had 12 this year alone), but as they’re forbidden from discussing the details, it will be impossible for newspaper editors to build up a global picture by talking to each other.
This lack of scrutiny seemed to be a real concern for members of the Committee, and there was much discussion about how they could determine the size of the problem and address it. One point I tried to make was that there is at least one group of people who could in theory tell us quite a lot about the number of super-injunctions being issued – the law firms like Carter Ruck who are involved in securing them.
At the moment we seem to have a situation where the only people who have any idea of about the numbers, are the same people who are profiting so handsomely from the UK libel/censorship system.
The second thing that stood out for me in the meeting was a discussion around “libel tourism”. It seems that our taxes may be helping to subsidise the activities of Carter Ruck, Shillings and their ilk, in this area. But more on that next time…