Yesterday afternoon there was speculation that John Hemming MP was planning to “break a superinjunction” in the House under cover of Parliamentary privilege.

Then, not long after 5 o’clock, John Hemming made a point of order in the Commons [update: hyperlink removed – see comment 12 below], naming a woman, and a local authority, who he said had tried to imprison her for speaking at a meeting in Parliament. I’m not going to name either of them: as I explain below, I’m not sure it’s in the public interest to do so. I ask you not to name them in comments and to avoid writing anything that could identify them.

John Hemming (Birmingham, Yardley) (LD): On a point of order, Mr Speaker. [******] … , was the subject of an attempt by [******] council to imprison her for speaking at a meeting in Parliament. There was discussion earlier today as to whether that case was sub judice. An application was made to the court, a copy of which I have provided to your office. Additionally, I have provided to your office a copy of the court order in which it was deemed that she would not be jailed. I assume, therefore, that the case is not sub judice, in accordance with sub-paragraph (b)(ii) of the relevant resolution:

    “Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding.”

Mr Speaker: I am grateful to the hon. Gentleman for his attempted point of order and for notice that he was to raise the matter this afternoon. I do not intend to have a discussion on the Floor of the House, notwithstanding what he said about documents that have been deposited, on whether a particular case is or is not sub judice. One of my duties is to uphold the resolution of the House with respect to sub judice issues. As far as this particular matter is concerned, I am perfectly prepared to discuss it privately with the hon. Gentleman. I will not take any further points of order on this matter today, and I feel sure that he will take his cue from the clear response that I have given.

Some interpreted this as the Speaker having “gagged” Hemming.

Later, John Hemming posted about his point of order on his blog, saying “Gag Removed – Job Done” [update: hyperlink removed – see comment 12 below] and making clear his objective was to identify the parties in the case.

So what was going on here? And is there any cause for concern?

It’s worth remembering that yesterday’s news agenda was dominated by Andrew Marr – bringing “superinjunctions” into the media spotlight yet again. This was the day John Hemming chose to make his point of order, and although the case he mentioned doesn’t involve a superinjunction at all (applying John Hemming’s own definition of that term [update: hyperlink removed – see comment 12 below]) reporting of what he did makes the connection. We can only speculate about how anyone came to make a link between what Hemming was planning and the issue of superinjunctions, and how they came to think he was planning to “break” one. Admittedly, Hemming went on in a second point of order to mention the case of AMM, but as the fact that I am able to link you to the ruling shows, that case didn’t involve a superinjunction either. To be fair, Hemming apparently indicated a few days ago that he intended to raise this case in the House, so his timing may not have been opportunistic. But the apparent connection undoubtedly increased the attention he was able to draw to a case that’s probably in truth (as I explain below) about the “family court secrecy” he campaigns against.

The first important question is whether the full letter and spirit of the House’s own rule on sub judice has been respected in this case. The House has resolved – this is not something imposed by law or the courts –  that subject to the Speaker’s discretion,

Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question.

See the House’s Standing Orders (page 181) and this House of Commons Library note from 2007. The principle served by the rule, as the Joint Committee on Parliamentary Privilege said in 1999 (see the Library note, page 3) is that

the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions.

John Hemming said, in relation to the local authority case,

There was discussion earlier today as to whether that case was sub judice

which is enigmatic but may be a reference to a discussion between him and the Speaker or a clerk. Hemming seems to have taken steps to demonstrate to the Speaker that the case is not sub judice, and said he assumes it is not, relying on paragraph 1(b)(ii) of the House’s resolution:

Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding

but from what the Speaker said, it seems he thought the matter is not so clear, and that his duty to uphold the sub judice rule led him to require the matter to be dealt with privately.

By the time the Speaker had said this, though, the case had in fact been mentioned – with the risk that rights could be prejudiced, and the working of the courts interfered with.

I commented at LibCon yesterday, asking John Hemming questions including these:

Normally, shouldn’t an MP wanting to discuss a current court case ask the Speaker, privately, to exercise his discretion in favour of allowing the case to be debated – and wait for that ruling before raising the case in the House? Let me know if I’ve got that wrong, or if I’ve misunderstood where things are up to in your discussion of the case with the Speaker.

What I’m concerned about is whether, by raising the case today in the way you did, and by naming the council and the person involved, you effectively pre-empted the Speaker’s decision and circumvented Parliament’s own rules on sub judice, which are intended precisely to avoid court cases being affected by publicity, and people’s rights being prejudiced.

Can you reassure us that you’ve not circumvented proper Parliamentary procedures?

John Hemming has said to me today in response to those concerns that:

There is no abuse of parliamentary procedure.

Is that a satisfactory answer? I’m not sure. Also in response to my inquiries today, a spokesman for the council involved said that

This is a matter which is before the court and the council must keep this matter as confidential as it can to protect the individuals involved in the case. For that reason the council cannot comment further.

So they seem to think the matter is active. Yet it was raised in the House without, apparently, the Speaker or House authorities having ruled whether it was sub judice, and whether even so it could be debated.

Secondly, it’s worth asking what John Hemming is attempting to do more broadly in relation to this case, and whether what he’s doing is in the public interest.

The meeting at which the woman spoke, and which apparently led to her being threatened with prison, must I think have been this meeting of the All Party Parliamentary Group on Family Law on 29 March. The APPG’s website says

Audio from the Questions & Answer session and the full meeting audio will be available soon … Due to legal reasons some content has had to be edited from the original recording.

The meeting seems from the photos to have been chaired by John Hemming himself. Did he invite the woman to attend? When I put that question to him earlier, this was John Hemming’s reply:

I did not list a number of people and specifically invite them although formal invitations were sent out to people who expressed an interest.

What we know about the case is that a local authority is involved, and that the woman involved apparently discussed it at a meeting about family law. We also know that John Hemming campaigns against “family court secrecy” and has been known to complain about the conduct of local authorities in child care cases. Is it obvious, then, that keeping this case confidential implies some wrongdoing by the council or the court? Or might there just conceivably be a good reason why the council, or the court, or someone else, would want her not to discuss it at a public meeting?

The council spokesman I quoted above said it

must keep this matter as confidential as it can to protect the individuals involved in the case.

It seems, from what John Hemming has said, that the woman he named is subject to an order made by a judge which prevents her from discussing the case in public. And since this appears to be a family case involving a local authority, it’s reasonable to suspect it’s a child care case in which section 1(1) of the Children Act 1989 applies. The court probably therefore had the welfare of a child at the front of its mind when making that order. That’s why, in spite of John Hemming’s view, I’m not sure it’s actually in the public interest to name either her or the council involved.

I’m not sure either that it’s in the public interest for an MP, in his self-imposed role as a critic of the family justice system (as Lord Justice Wall put it), to use Parliamentary privilege in this way.