Monday, 23 May 2011

Lancing the boil

So, John Hemming MP. Publicity whore or principled defender of free speech? In some circles, he is unpopular, partly because of his longstanding campaign against secrecy in the family courts, which has led him onto occasionally treacherous ground. He is not an MP who has exaggerated respect for the courts or for the delicate balance of privileges and conventions that maintain the separation of powers. He has named unnameable people in the past - Fred Goodwin, Vicky Haigh - and had threatened to do so again. So it was predictable that if any MP was going to be the one to name Ryan Giggs, it would be him.

Hemming almost defines the term "loose cannon". But then, in a democracy, that's what you get. It is the presence of John Hemming and his kind that make the difference between a functioning democracy and a technocracy, rule by experts. Or, in this case, lawyers. Hemming was elected. He owes his legitimacy not to his wisdom, his competence or his responsibility, but to the voters of Birmingham Yardley - and to the local Liberal Democrats who made him their candidate. Some MPs are idiots, others are ill-intentioned, self-interested or merely uninspiring. But all are equally elected, and all have an absolute right to represent their constituents as they see fit. That is what democracy is all about.

On PM tonight, Eddie Mair noted the fact that Hemming had been rebuked by the Speaker for using a Parliamentary question to deliberately defy a court order, reaffirmed by Mr Justice Eady not half an hour before. "It's not my job to make the Speaker happy", he replied. Indeed it's not. Nor is it his job to make Schillings happy, or Mr Justice Eady happy, or - for that matter - to make Rupert Murdoch happy. He is a representative of the people, not of the legal or political establishment. If many MPs sometimes forget this, Hemming does not. Perhaps he is a publicity seeker - certainly he seeks publicity for the causes he champions. But you need a few loose cannons, a few publicity seekers, to prove that democracy still subsists. John Hemming is one of the lamps that show that freedom lives.

Today, with malice aforethought, he ended the increasingly farcical situation that forbade the media, though almost no-one else, from naming Ryan Giggs. In doing so he unilaterally invalidated the still-drying ink on Eady's latest ruling, which had upheld the injunction on the grounds - it would appear - that while he couldn't prevent Giggs' name being discussed, he could still help the Man U star avoid the worst excesses of tabloid exposure. It was a principled gesture, but a futile one. And it would have proved counterproductive. As for Speaker Bercow, he must have suspected what was about to happen when he called Hemming to speak. The man has form.

But it was bound to happen eventually. And it was probably going to happen today. Hemming's critics should reflect that he didn't name Giggs last week, or last month. Only after Twitter exploded at the weekend - in response to Schillings' clumsy attempt to draw attention to alleged online breaches of the injunction - and after the Sunday Herald in Scotland had turned the court order into an international joke, did the MP stand up in Parliament and speak a name that almost everyone by then knew.

Does anyone think that the Sun would have obeyed this latest ruling in spirit as well as in letter? Does anyone think that the story would not have continued to circulate online, and in pubs and workplaces, in family homes and in the foreign press? Does anyone imagine that the continuance of the legal ban on naming Giggs would have prevented the taunting chants of fans being even louder at every subsequent football match in which he took part, would have stopped schoolfellows of the Giggs children from knowing all about it - if they didn't know already - and that the forbidden nature of the knowledge would merely encourage the bullies among them to tease and torment? Every day that passed would have piled on more agony for Giggs, for his wife Stacey, for his children. This much is obvious. It might not be obvious to Ryan Giggs or his lawyers - no less motivated by profit than the Murdoch press, be it not forgotten - or to Mr Justice Eady. But it was obvious to everyone else in the country.

John Hemming has lanced the boil. Thanks to his intervention, things are slightly less ridiculous tonight. Someone had to do it. A hundred thousand Tweeters couldn't do it, but a lone rogue MP could. Such is the constitution we live under. Don't blame the messenger.

PS. Perhaps it's not quite over. Tonight Mr Justice Tugendhat, taking over from Eady (not sure why) upheld the injunction for the second time today. The judge said:

"If a court can stop one person or five people – not 50,000 – from naming him, is there not something to be achieved?"

This would seem to be a novel principle, and rather a ludicrous one. Plainly, the answer is No. Previously, courts have acknowledged that when a person has been named in Parliament and that news has been reported, there is no longer any purpose in maintaining anonymity. Indeed, the test applied by Eady J in this very case was whether the name was yet sufficiently in the public domain for the injunction to be unworkable. He concluded last week and earlier today that that point had not been reached. But that was before Giggs was widely and irrevocably named.

Matt Wells writes on Andrew Sparrow's Guardian blog:

We are in the realms of the bizarre. In strict legal terms, I can't name the subject of the injunction that has just been upheld. The injunction prevents that. If I am only reporting details if the injunction, no names can be mentioned. But if I move on, as I am doing in this sentence, to reporting the proceedings of parliament, I can quite legally tell you that an MP today named the footballer Ryan Giggs as the subject of that injunction.


I'm lost for words.