Giggs's privacy and MPs' freedom from interference
There is more than one parliamentary privilege. As John Hemming's controversial revelation yesterday demonstrates, MPs enjoy a right to freedom of speech beyond that of mere mortals, unconstrained by the laws of defamation.
But the "ancient and undoubted rights and privileges of the Commons" as proclaimed by the Speaker at the beginning of each new Parliament also include a 'right of freedom from interference'. Our politicians effectively demand a private life.
The secretive world of the Palace of Westminster in which Members of Parliament retain the right to punish "strangers" for contempt of their rules, contains all the contradictions and tensions that judges must weigh up when considering applications for an injunction: where does the right to speak freely stop and the right to privacy begin?
At about tea-time yesterday afternoon there was an interesting shift in the debate, from argument about the reputation of the court injunction to the reputation of parliamentary privilege. Mr Hemming's intervention, designed to demonstrate the futility of a judge's privacy order, served to focus attention away from the Royal Courts of Justice and upon the Palace of Westminster.
Abuse of rights
A sizeable number of the Liberal Democrat's parliamentary colleagues expressed considerable unease at an MP using the special powers and privileges of the Houses of Parliament deliberately to defy an order of the High Court of England and Wales.
There has always been a concern that members might abuse their exceptional rights: freed from concerns about defamation laws, an MP could make damaging allegations without, perhaps, ensuring those claims have a strong foundation.
Mr Hemming, for example, made his revelatory remarks without having attended the proceedings at which the injunction he breached was issued. He may feel confident that he is aware of all the arguments that led the judges to grant Ryan Giggs anonymity and concluded in his own mind that they were wrong. Some lawyers, however, would ask whether the backbencher fully understood the implications of his actions.
Judges have become aware that it is the "secret" nature of hearings at which injunctions are discussed and issued that undermine public confidence. The press, which has a particular interest of its own don't forget, paints a picture of the rich and famous using their cash to gag the papers from revealing their sins. The judiciary, however, argues that the legal arguments upon which such matters are based are more complex and nuanced. That is why they have agreed to allow journalists in to watch the process.
Judges also want to stress that injunctions are not the exclusive preserve of wealthy bankers and footballers who have problems with the notion of marital fidelity.
Yesterday's ruling from Mr Justice Tugendhat made the point: "In this case the claimant is a footballer, and the injunctions granted in this court are sometimes reported as being disproportionately of benefit to footballers and other sportsmen. But...there is no stereotype which can be used to categorise claimants in privacy actions, and many of them are women." The judge then quotes a privacy case in which all of the claimants "were women or children, some rich, and some not rich."
While there may be public and certainly tabloid anxiety at the court's view that citizens "have a reasonable expectation of privacy in relation to sexual relationships; sexual conduct being 'an essentially private manifestation of the human personality'", there is also a question as to whether all of us, rich or poor, famous or otherwise, can also enjoy the privilege afforded to Members of Parliament: the right of freedom from interference.