ANALYSIS: How the Human Rights Act led to super-injunctions

“That’ll be three times I’ve blocked it, then”.

New Labour created the Human Rights Act, failed to live up to its strong points – and thus landed us with super-injunctions.

An MP blithely remarked to me last week that, “Everyone knows who the injuncting footballers are – it’s all over the internet”. Well, she’s wrong – but then, the lady isn’t a soccer fan. There is quite definitely much assertion about the two players involved – but it covers a dozen names….and each opinion is followed by “and that’s definite”. The fact is, lots of journalists know, but most other people don’t.

As for the ‘prominent AV campaigner’ involved in some kind of love-tryst-rat-horror, it could be anyone from Eddie Izzard to Neil Kinnock. Neither of those two have a sex life in the public interest,  but Nick Clegg does – as does Ed Miliband. The trouble is, we don’t know – because some Judge has decided, on an entirely gratuitous (perhaps even political) basis, that the celeb’s interest is more important than ours.

The latest cases follow a plethora of other court actions by actors, footballers and television personalities bagging draconian court orders preventing revelations about extramarital affairs, and much worse. Judges (and the unscrupulous silks appealing to them on behalf of feckless, overpaid idiots) are applying gagging orders using legal instruments originally designed for child murder cases. Some of the justifications are risible – one bewigged twerp last week, for example, declared that the order “was necessary to protect the star’s children from playground bullying”. Maybe the star should’ve thought about his kids before having sex with somebody quite obviously not his wife.

But it’s not just that gagging orders encourage a lack of responsibility, and serve only the rich (poor folks can’t afford them – they simply take the consequences – be they divorce, or having their clothes burnt) it’s the fact that there was a heinous ‘legal’ stage in between child murders and the current obscene exploitation of laws about privacy by the Carter Rucks of this world.


For the last fifteen or more years, the employees and failing management of child welfare departments up and down the land have been hiding behind ridiculously draconian injunctions. These have covered up everything from judicial paedophilia to psychiatric money-motivated scams and systemic social services sexual abuse of the most abhorrent kind. I didn’t want to get dragged into this nasty demi-monde: some of the victims of abuse are themselves unbalanced – or at times incoherent fantasists. But once you’ve been close to a genuine case, the repulsion drags you back in – if only to stop it happening to some other poor wretch.

During their time as, respectively, Ministers for Women and Children, those champions of social justice Harriet Harman and Ed Balls did sweet diddly-squat to right the appalling wrongs being wrought by the Secret Family Courts in which most of the actions occurred. The proceedings often took place in a suspicious rush, and to the bewilderment of those parents who were about to have their lives turned upside down by them.

In Harman’s case, her dereliction was compounded by the fact that she had some involvement in the drafting of a major cause of such mediaeval Star Chamber processes. Unbelievably, this was the Human Rights Act (HRA) of 1998.


Having returned to Office after twenty years in the political wilderness, New Labour was puffed up with hubris about its Human Rights Act. In 1999, centrally-involved Home Office Minister Paul Boateng said:

“[Under the Act] it will be unlawful for any public authority to act in ways which are inconsistent with the Convention rights. The Act does not define “public authority” but this will include central government, local authorities, and courts and tribunals. People whose Convention rights are breached by a public authority will be able to sue them in the courts and seek a remedy – including damages if appropriate….”

I do not know of a single instance of this taking place. Boateng continued:

“The Act will definitely affect the way we make decisions involving children. Look at Article 8, which guarantees the right to respect for private and family life. Any decisions concerning children will have to take account of this right. A court making a residence order in favour of one parent will need to take account of the right to a family life for the child, and for both parents…..”

Seen in the light of later abuses of single-mother rights, this reads like a dick joke at a funeral.

Although one of the original drafters of the HRA, Jack Straw has at least had the decency in the decade or more since its passage to accept that it is badly flawed. In 2008, Straw said, “What we want to do is generate a debate about whether there should be a declaration of responsibilities and rights which grow together, the kind of rights we are owed and the rights which we owe, in a single document”. What Mr Straw meant was that the Act was far too much about freedom to (aka license) when it was supposed to be about the ordinary person’s freedom from the sub-species Homo tabloidus yelling into their letter boxes (or hacking their phones) a week after their kids had been murdered by killers entirely missed by ever-vigilant social workers.

As ever with Black Jack, politics got in the way to stop any further action. But not a peep was heard from Harman. Having promised in 2006 to increase media  access to the Secret Family Courts, in 2009 she declared the Labour legislative programme ‘too crowded’ to allow for this.

In doing so, Harriet Harman laid herself open to some pretty unpleasant accusations.


Harman was a newly qualified solicitor in 1978 when she became legal officer for the National Council for Civil Liberties (NCCL).  The Paedophile Information Exchange (PIE) had been affiliated to the NCCL for about four years. PIE’s members openly argued for the abolition of the age of consent. It is perhaps not surprising that, finding herself in this environment, Harman argued for the age of consent to be lowered to 14, and the decriminalisation of incest.

When the Protection of Children Bill was put before Parliament in order to tighten the laws on child pornography by banning indecent images of under-16s, Harman was at the forefront of the NCCL response.  Signed by Harriett Harman in April 1978, the NCCL’s formal response to the Government proposals to reform sex laws argued that,

“…childhood sexual experiences, willingly engaged in, with an adult result in no identifiable damage…Although this harm may be of a somewhat speculative nature, where participation falls short of physical assault, it is none-the-less justifiable to restrain activities by photographers which involve placing children under the age of 14 (or, arguably, 16) in sexual situations. We suggest that the term ‘indecent’ be qualified as follows: – A photograph or film shall not for this purpose be considered indecent (a) by reason only that the model is in a state of undress (whether complete or partial); (b) unless it is proved or is to be inferred from the photograph or film that the making of the photograph or film might reasonably be expected to have caused the model physical harm or pronounced psychological or emotional disorder.”

Harriet Harman in 2011 with friend and Southwark Labour campaigner John Friary – arrested in February on suspicion of grooming under-age girls for sex.


While others seek for signs of some odd sexual dimension to Ms Harman herself in this past history, I don’t. The problem remains that she is an extreme sex and gender reformer who, like her great-uncle Lord Longford, never gives any thought to the consequences. Or as otherwise liberal bisexual actor Rupert Everett once said of Harriet, “She is just another f**king New Labour idiot”. Worse still, even when faced with adverse consequences, she refuses to budge.

Ever since its passage – in contrast to her colleague Straw – Harman has been implacably opposed to changes to the Human Rights Act. And in fairness, it as to be pointed out that only last year Nick Clegg said in the Commons that people would “tamper with the Human Rights Act at their peril”.

Yet it is perfectly clear that most recent super-injunctions have been based on the following word for word Article 8 in the Act:

(1) Everyone has the right to privacy for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

There are two very obvious points to make about the above. The first is that there are so many caveats to these ‘rights’, like much of the old Weimar Republic’s legislation, at the very least they are create a gap just waiting for any Nazi coach and horses to blast a way through it. Such is the result when politicians are given access to the drafting of citizen safeguards: controlling by instinct and training, they cannot bear to give any real freedoms out at all.

Second – and this is the acid test – look at some of the abuses that have occurred despite the words ‘Everyone has the right to privacy for his private and family life, his home and his correspondence’. Words like Hackgate spring to mind. And what of the phrase ‘There shall be no interference by a public authority with the exercise of this right’ in the light of Secret Family Courts and ‘legalised’ child napping? Above all, the exploitation of the Act’s wording by those of dubious morals, execrable ethics and great power has been shocking to behold.


For once, the Conservative Party was right in 1998: it opposed the Human Rights Act, a stand that allowed the Left to depict the Tories as a sulphurous collection of wicked hobgoblins. But that was the pre-Cameroon Conservative Party. In August 2007 and again in February 2009, Cameron pledged to repeal the Act. That, in turn, was before Nick Clegg started to champion it.

Now Coalition Dave is reduced to ‘expressing doubts’ about recent super-injunction judgments, and waffling about a Bill of Rights to replace the Act. Worryingly, however, he has quite brazenly said that he thinks a family ‘leg up’ in getting on career-wise is OK by him. He would say that, given his mother-in-law got him a first job at Carlton TV. So much for meritocracy.

I accept as much as the next person that Coalition government requires compromise. But there is a difference between compromising, and being compromised. On the subject of citizen rights and responsibilities (otherwise known as liberty) equality before the law, judicial separation from politics, and meritocracy in health and career, I stand for no compromise: these are the only absolutes I recognise for what constitutes civilisation. All this needs to be written down and enshrined not in a Bill of Rights – for such things are seen to apply to the citizenry, with an exemption for their governments – but in a Constitution just as binding on the lawmakers as those being asked to obey such laws.

Master of the Rolls Lord Neuberger is currently carrying out a review of the rights and wrongs of the use of super-injunctions. The report, due next month, could lead to a change in the law.

The Americans began with ‘No taxation without representation’. A new beginning for Britain should be ‘No exemption from deserved illumination’.