The key question in this debate is ostensibly whether Lord Hain should have exercised his parliamentary privilege to name Sir Philip Green as the recipient of an injunction. However, the larger question is whether the injunction should have been granted in the first place – if granting it was the right decision, Lord Hain made the wrong choice; if it was not, he acted in the public interest.
The idea behind injunctions stopping the media from disclosing alleged events is to protect the reputation of the party applying for the injunction. It was granted in this case primarily because the accusers of Mr Green were subject to Non-Disclosure Agreements. These NDAs – alongside injunctions – have been used increasingly to cover up “bad behaviour”, and have been particularly criticised in the wake of the #MeToo movement after it was revealed that Harvey Weinstein used them to keep a number of alleged victims quiet.
These NDAs can only have come about as part of a settlement negotiation. Such settlements do not appear out of the blue – usually, the victim will have made a complaint. When considering this, we must bear in mind that 79 per cent of female workplace sexual assault victims did not report it to their employer.
It is a fairly common perception that true victims will not accept money as recompense for wrongs done to them – that only justice would suffice. What that fails to take into account is how intimidating the whole process is, especially when the alleged perpetrator is as wealthy and powerful as someone like Sir Philip. The victims are generally junior members of staff who cannot afford legal advice, let alone representation, and many fear that their career prospects will suffer if they make a public complaint.
An NDA buys their silence – but for whose benefit? The alleged perpetrator has the most to gain from the allegations not being made public. This allows people like Max Clifford or Rolf Harris to continue to exist in plain sight, continuing their pattern of predatory behaviour. Disclosing allegations, particularly where they are multiple, is clearly in the public interest to protect future victims. It also allows investigations into patterns not previously identified.
An injunction is a court mandating the non-disclosure of information in much the same way as an NDA. Injunctions, as MP Jess Phillips said, “allow rich and powerful men to do whatever they want as long as they can pay to keep it quiet”. There is a place for due process, and the allegations are not yet proven; but gagging the media from reporting on it at all only helps these things to stay hidden.
Image: Financial Times