English Libel Law (Parliamentary Proceedings) — [Mr. Roger Gale in the Chair]

– in Westminster Hall at 2:30 pm on 21 October 2009.

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Photo of Evan Harris Evan Harris Shadow Science Minister 2:30, 21 October 2009

I am pleased to have secured this debate, which deals with some important issues: parliamentary privilege, the reporting of Parliament, the use of prior restraint in actions relating to libel and, indeed, confidence, the use of so-called super-injunctions that impose restraint on the reporting of the existence of such injunctions, the extent to which public interest is engaged when such injunctions and super-injunctions are issued, and the general approach of libel laws in particular, bound up as they all are. I draw the Chamber's attention to my membership of the international board of Article 19, which campaigns for press freedom around the world.

In the run-up to this debate, I convened helpful meetings with The Guardian and Carter-Ruck solicitors, which several hon. and right hon. Members in the Chamber-as well as Members not here-attended, and we had a useful discussion. I record my gratitude to those people who came to those meetings from Carter-Ruck and The Guardian. I particularly thank The Guardian for its assistance in providing me, other hon. Members and members of the public with background details of the case. I also thank Carter-Ruck for acceding to a request to provide us with the correspondence from its point of view between the dates of the initial injunction and the second injunction.

It may be useful to run briefly through the chronology of events that led to last week's point of order, and of which we are all aware. I will not go into them in detail, because other hon. Members may wish to do so-and I know that many of them want to speak-so I shall try to keep my comments as brief as possible. An injunction was issued by Justice Maddison on Friday 11 September, effectively preventing The Guardian from publishing what it had-a copy of the Minton report relating to the alleged impact of Trafigura's dumping of toxic waste in the Ivory Coast. I imagine that it had a number of other documents as well. Not only was that injunction issued but it had a super-injunction aspect, which meant that it was effectively anonymised, and the respondents were prevented from reporting the existence of the injunction itself. The application was pursued and extended on 18 September. Things changed on 12 October, when The Guardian wrote to Carter-Ruck, which was acting for Trafigura, alerting it to the fact that a series of written questions had been tabled by Paul Farrelly, and indicating that it wanted to publish them, either because they were in the public domain or-and I am not giving The Guardian's view here-because they should not be covered by the injunction itself, being the reporting of parliamentary proceedings.

Carter-Ruck solicitors wrote back on 12 October, objecting to the publication. They stated that the matter was not urgent, and their view that the questions themselves had not placed the contents of the Minton report in the public domain, so that certainly should not be covered. They also stated in a letter to Mr. Speaker their view that publishing the parliamentary questions would place The Guardian in contempt of court, because of the order that prevented-injuncted-the publication of the existence of the injunction, which was the subject of the parliamentary questions tabled by the hon. Member for Newcastle-under-Lyme.

Extended correspondence over the next two days between The Guardian and Carter-Ruck resulted in agreement that a variation to the order would be sought to exclude reporting of parliamentary proceedings. By that time, The Guardian had been prevented on at least one occasion from publishing what it wanted to publish, which was at the very least the existence of the parliamentary questions and what they contained. A number of things flow from that, and I want to cover them briefly. The first is whether an injunction can prevent a matter from being debated in Parliament and/or the reporting of matters in Parliament. The second is whether Carter-Ruck's approach in its correspondence was appropriate to what many hon. Members believe to be the position-that the reporting of Parliament should be freely, truthfully and fairly reportable without any intervention or restriction by the courts or any other party. The third concerns super-injunctions, their frequency, and whether judges are considering the wider public interest when granting injunctions or super-injunctions. The fourth is whether libel laws in this country are too wide, a matter to which the Lord Chief Justice no less referred yesterday.

Photo of Denis MacShane Denis MacShane Labour, Rotherham

I am grateful to the hon. Gentleman-I might call him my hon. Friend in this cause. We were here a few months ago, and sadly nothing has advanced. If the Government had treated the issue more seriously, perhaps we would not be where we are today.

In past years, people who sought to gag Parliament or were held to have behaved inappropriately in relation to Parliament were brought before the Bar of the House and in some cases sent to prison. Do we not need to see Carter-Ruck's partners before the Bar of the House to apologise publicly for this attempt to suborn parliamentary democracy? The threat was withdrawn only after press publicity. Something very serious has happened. The Government will not act to clean up libel law; perhaps we can do so as parliamentarians.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. Before we proceed, for obvious reasons, several hon. Members want to take part in the debate. Please may we have interventions that are interventions and not speeches? Dr. Harris.

Photo of Evan Harris Evan Harris Shadow Science Minister

Thank you, Mr. Gale. I was going to come on to Carter-Ruck's behaviour, a matter on which individuals may have their own judgment.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I congratulate Dr. Harris on his birthday, as I understand that he is 44 today. More importantly, although this debate is about libel, I understand that the injunction was not in libel, but in confidence and privacy law. That is entirely judge-made, and has never been subject to statutory debate in the House. Does the hon. Gentleman agree that we should have proper statutory provision if we are to have privacy and confidence law at all, and we should not simply leave it to the judges to develop these super-injunctions that have pernicious effects way beyond reporting in Parliament?

Photo of Evan Harris Evan Harris Shadow Science Minister

A strong case can be made for that, and certainly parliamentary action is needed. While case law is being settled and developed, it is wrong that Parliament should be silent in the matter. I say that with no disrespect to judges. This area of law is complex, various rights must be balanced, and the right approach must be taken to convention rights. There is greater and greater concern out there that the courts are not dealing fairly with the matter. I suspect that both sides, but particularly defendants-those whose free speech is interfered with-are not happy with the current situation. Part of the point of this debate is to urge the Government to review the law in this area more widely than they have done so far. I recognise that they have completed a consultation on costs in defamation actions which impinge on defendants' ability to afford to defend themselves, and on single publication rules relating to the internet. However, concern goes far deeper than that, and all of this is subject to forensic examination by the Select Committee on Culture, Media and Sport, of which Mr. Whittingdale is Chairman. We all hope that the report makes clear recommendations in that area, and I hope that Mr. Dismore will have some relief in that respect. However, in responding to that report and this debate, the Government should be in no doubt of the wide unease among parliamentarians, the media and free speech organisations that the balance of the judge-made law in respect of these matters is wrong at the moment.

I turn briefly to the conduct of Carter-Ruck. It ought to be said-the company has always been willing to make it clear and to talk about it to us when asked, and also volunteered to meet us-that it was not its intention during any of this actively to prevent the reporting of parliamentary proceedings. That is Carter-Ruck's position. One can accept that at face value. The question is whether what it said in its letters to The Guardian, and indeed what it wrote in its letter to the Speaker, is consistent with that. Essentially, it said that because there was no exemption for reporting parliamentary proceedings in the order made by the judge, The Guardian would be in contempt of court-the implication being that serious penalties would flow from that-if it were to report parliamentary proceedings.

Carter-Ruck did not at any point caveat that with a paragraph stating, "But of course, we understand that no court could or perhaps would ever seek to enforce a contempt action against someone who reported parliamentary proceedings fairly and truthfully." It is the absence of that caveat that could be said to make it look at the very least that it was seeking to intimidate The Guardian on the basis of a threat of being in contempt if it published parliamentary proceedings. Such a threat would, of course, be extremely effective against most defendants, especially those who do not have the means or the legal resources of The Guardian.

In effect, failure to point out to a defendant that, of course, if it is the view that parliamentary proceedings should not be prevented from being reported, or could not be prevented, letters from a well-resourced law firm acting on behalf of a well-resourced client would have a chilling effect. It is also fair to say that The Guardian was in doubt about its own legal advice on the matter.

That gives rise to my first question for the Minister-and for everyone in the House, including Mr. Speaker. Is it the case, in the Minister's view, that a court could ever take action for contempt of an injunction that did not mention the reporting of parliamentary proceedings and therefore did not give any apparent exemption for reporting parliamentary proceedings in a fair and truthful way? If that is the case, and the Lord Chief Justice went quite far yesterday in response to a question by saying that he could not envisage circumstances in which it would, that is not the certainty to which people are entitled in law.

I hope that the Minister will be able to give the Government's view of whether that is settled, and if so on what authority it is settled; and if there is any doubt, it being such an important matter, that she and the Government would be willing to consider introducing legislation, or allowing the opportunity for legislation, to make the position absolutely clear. We cannot afford for there to be any doubt or debate, as the only people who benefit from that are the lawyers who are asked for their opinion.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

First, I ought to declare an interest. Some years ago, I benefited from the services of Messrs. Peter Carter-Ruck and Partners in a case against the BBC.

Is it the hon. Gentleman's case that no agreement can be reached between parties through the courts of this land to keep a matter confidential? It is my understanding that from 18 September, The Guardian consented to the order, but that it is right for Parliament to be able to overturn an arrangement arrived at in the courts, particularly at the behest of an hon. Member who happened to be a journalist on one of the newspapers concerned?

Photo of Evan Harris Evan Harris Shadow Science Minister

First, I should point out that The Guardian contests whether, or the extent to which, they accepted the order made on 11 and 18 September. Secondly, we are not talking about the ability of a Member of Parliament to overturn a court order. We have sub judice rules that apply. The hon. Member for Newcastle-under-Lyme was able to table his questions within those rules, presumably because they were nowhere near breaching the rules or because of the particular skills that he exercised. That is not the same as stating that the intention, or the intended effect, was to overturn the order, which was at least in part about the publication of the contents of the Minton report. I understand that the legal case to which the Minton report was said to be legally privileged was settled in September, before the hon. Member for Newcastle-under-Lyme tabled his questions. That should be the end of that particular matter.

The key thing is whether we are to have clarity on the point. I ask the Minister whether, in the interim, all court orders that injunct against publication or the passing on of information should make it clear, in what I might call a template, that they do not affect the fair and truthful reporting of Parliament, so that there can be no doubt and no costs incurred in clarifying the matter, and no chilling effect caused by assertions to the contrary. That would be useful.

It is important to deal with the question of super-injunctions. Some people would argue that it is wrong that any injunction should be kept secret, saying that the gagging should itself be made public even if the content of what is to be gagged is not, as it is in the public interest. I do not take that view. I am not an expert, but it does not seem wise to say that the point of an injunction-for example, for privacy of confidential medical information on an individual-could be frustrated by the reporting of the fact that an injunction exists.

It does not necessarily follow that every injunction founded on personal privacy or confidence should be the subject of a super-injunction. Indeed, I know of examples of private individuals having an injunction to prevent the reporting of something. However, as the Lord Chief Justice made clear yesterday in a good example relating to the seizure of assets in a fraud case, there will be cases in which the public interest is clearly served by an injunction restraining publication of its existence. Indeed, there may be cases in which it is arguable, when there is no clear public interest, that the overall balance of private interests is clear. Nevertheless, it seems to me that some cases are currently subject to super-injunctions, particularly in respect of libel, where they are inappropriate; and they may be being granted inappropriately because there is no clear public interest argument for those who wish to be free to publish the existence of the injunction.

The default must be that the public should know about such prior restraint when it is deemed to be appropriate. I would be grateful if the Government clarified their view. Do they believe that the position on super-injunctions is fine and dandy, or do they accept at least that there is a case for the matter to be considered? I believe that senior judges would argue that it is difficult. One has to sympathise with their position, as in the middle of the night-or at least outside the working day-they are sometimes asked to make quick decisions, and default on the side of confidentiality. Such injunctions are extremely restraining of free speech, and there is a concern.

I also ask the Minister whether she accepts that there is a difference with gagging generally but especially libel, between an individual seeking to assert a right-for example, to privacy under the Human Rights Act 1998 or the European convention on human rights-and a corporation doing so. There may well be a public interest in seeking to restrict the reporting in a way that public authorities cannot, but private corporations can. It seems to me that the balance there is wrong.

The other point that I wish to raise is a general concern about the impact of English libel law. It is noteworthy that the Lord Chief Justice said yesterday-I do not quote him directly-that if London is the libel capital of the world, something should be done about it. I hope that I do not misquote him; I do not have his words directly to hand. There is widespread concern. Mr. MacShane secured a debate on that subject a few months ago. Serious concerns were raised then, but in a number of cases since, there has been no reassurance that that is not the case.

Some matters are sub judice-I will be very careful about what I say here-but there is widespread concern about the ability to discuss scientific matters and the nature of the evidence base from, on the one hand, doctors and writers who are interested in the subject and, on the other, those who are promulgating treatments, whether conventional or alternative, and who have an interest in seeking to make claims that could be challenged by scientists. There is widespread concern that such actions are restrained by the reach of the English libel laws. There is a lack of a public interest defence-the burden of proof is placed on the defendant, not on the plaintiff-and there are issues of cost, which the Government would say that they are seeking to deal with. I should be grateful if the Minister accepted that there is a case to be made-and I hope that the Select Committee is investigating this-to show that our libel laws are wrong.

Dr. Ehrenfeld, who is American, was sued in this country by someone from another country for the publication of a book that was mainly published outside this country and sold very few copies. For London to be used in that way cannot be the way forward. There are other examples as well, and there is widespread concern in the writing community. English PEN, Index on Censorship and Article 19 are all concerned about such matters.

I urge the Minister in her response to give us some reassurance that the Government are alive to those concerns, and that they recognise that the case law that has built up in this area may not be appropriate for the sort of freedom of speech that we want to see. There is an argument, and clearly there are grounds, for some protection of reputation, confidence and privacy, but it is time that Parliament had a chance to have a say in such matters, particularly at a time when the reporting of parliamentary coverage of those things has been under threat. It is a curious and unsatisfactory situation, in which Parliament appears to be caught in the crossfire, without ever having a proper chance to debate such matters.

My final question relates to the ongoing problems of English libel law in respect of Trafigura. My understanding is that "Newsnight" is being threatened by the lawyers for Trafigura, Carter-Ruck, if it repeats an allegation against Carter-Ruck that deaths were caused by the dumping of toxic waste in Ivory Coast, even though in 2007 Hansard reported the Transfrontier Shipment of Waste Regulations laid by the Department for Environment, Food and Rural Affairs before Parliament, and a memorandum of explanation to those regulations stated:

"The recent example of the release of toxic waste in the Ivory Coast leading to the deaths of a number of people and the hospitalisation of thousands underlines the risks involved in the movement and management of waste."

How can it be that that can be in Hansard,yet there are still threats of legal action against "Newsnight" if it reports the very same wording that is used in there? That cannot be right. Although there are powerful interests at stake, there is a public interest in the fact that there was a settlement made-hundreds of millions of pounds paid over in that settlement-and yet the public in this country are not allowed to know some of the contents of those news reports. We have a responsible media by and large in respect of such matters, and it is about time that English libel laws and English laws in general caught up with that fact.

Several hon. Members:


Photo of Roger Gale Roger Gale Conservative, North Thanet

Before we proceed, let me make my intentions known. I intend to call the first Front-Bench spokesman at half-past 3. There are nine Members in the Chamber looking as though they might wish to contribute, so brevity is the order of the day.

Photo of Paul Farrelly Paul Farrelly Labour, Newcastle-under-Lyme 2:53, 21 October 2009

I congratulate Dr. Harris on securing this debate. To say that it is timely is an understatement. I also congratulate Mr. Speaker for strongly exercising his discretion in allowing this debate to go on in the face of objections by the now even more infamous firm of libel lawyers, Carter-Ruck.

I am a former journalist, which has been mentioned, with Reuters, The Independent on Sunday and the Observer, which, of course, is owned by the Guardian Media Group. I am also a member of the Culture, Media and Sport Committee, which is producing a report on press standards, privacy and libel. I do not want to pre-empt that report, but I want to make a few remarks, having tabled the parliamentary question last week which revealed the existence of this super-injunction obtained by Carter-Ruck on behalf of the oil trader Trafigura.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

Will the hon. Gentleman tell us how he came by this information that TheGuardian was about to publish? Is he aware that Carter-Ruck knew nothing about his question until it received a fax from The Guardian? Was he in cahoots with The Guardian, having been formerly employed by the Guardian Media Group?

Photo of Paul Farrelly Paul Farrelly Labour, Newcastle-under-Lyme

Strangely enough, I anticipated that question from the hon. Gentleman. As a former journalist, I would never reveal my sources. The issue has been alive on the internet for weeks for people to see, but not the British newspaper-reading or television-watching public. The Chairman of the Select Committee-I am glad to see him in his place-and I were at a media lawyers' conference a week last Friday. When I was talking to people, this latest super-injunction was one of the hot topics of the day. It was not difficult to discover that the injunction was in place.

The injunction suppressed the internal Minton report into the toxic oil waste dumping and the reporting of the injunction. There was also a further level of secrecy. Trafigura was granted anonymity by the court, and its name and that of a subsidiary were replaced on the injunction's title by a random set of initials, RJW and SJW. Ironically, that further level of secrecy may have been Carter-Ruck's undoing. I was aware of the injunction but not of the full anonymous title. My question only named Trafigura and Carter-Ruck and not The Guardian. I assume that the Table Office Clerks doing their usual rigorous sub judice checks simply could not find the injunction and, therefore, the question was accepted. That prompts the question of what might have happened if the injunction had been found, and if the courts could have informed the Clerks that the injunction was in place because of the secrecy. I might return to that matter in my concluding remarks.

What is really important here is that last Monday legal advice on both sides, The Guardian's counsel and Carter-Ruck for Trafigura, agreed that the scope of the injunction would have prevented the media from reporting the question as part of the proceedings of this Parliament. That was an extraordinary state of affairs-that this conclusion could be reached notwithstanding common and statute law that enshrine qualified privilege for the media reporting of Parliament in a free society.

Equally extraordinary is the statement by Carter-Ruck in its letter to Mr. Speaker last week, which said that

"when the order was made (and endorsed by the High Court) none of the parties or the court had in contemplation the possibility of this matter being raised in the UK parliament. If they had, the Order may well have been formulated in such a way as to allow for such reporting."

How magnanimous and generous of them!

The injunction has been published in full on the website of The Guardian-without my collusion-and on my own website. It has also been circulated by the hon. Member for Oxford, West and Abingdon. The circumstances in which it was issued are important. It was granted in the High Court on 11 September by vacation duty judge Mr. Justice Maddison, who has no known specialism in media law. The Guardian was given just a few hours' notice of the hearing and no time to marshal a defence. Was the injunction drafted by the judge or the clerks of the court? No, it was very helpfully presented to the judge by Carter-Ruck-presumably run off in standard form from a file of precedents of "super-injunctions" that the High Court has granted before.

What this affair shows is that orders, injunctions and super-injunctions, which have been developed from sparing use in cases involving individual privacy, are being granted all too often, easily and pre-emptively on the grounds of confidence to big corporations or powerful figures seeking to avoid embarrassment. Of course, all the arguments, including that of "public interest", can be aired in court at a full trial, challenging the injunction. However, here is the rub: the costs are simply enormous and the likes of Carter-Ruck know that full well.

The Guardian estimates that challenging the Trafigura injunction at full trial might have cost as much as £300,000. Private Eye in an earlier case involving Michael Napier had £500,000 on the line if it had lost its challenge, which, thankfully, it did not. So money for multinationals and the likes of Carter-Ruck is no object, but it is for the likes of The Guardian, which is currently making redundancies. Could a newspaper such as that, a very responsible newspaper, justify spending that sum of money even as a matter of principle? I would argue not. That is where the effect of such injunctions lies. What this affair shows, too, is that aggressive lawyers such as Carter-Ruck are given too much freedom of manoeuvre by the courts. They draft the injunctions themselves, and that says almost all I need to say. They are out of control-in this case, so much so that they overreached themselves by trying to put themselves above freedoms that have been time-honoured since the 1688 Bill of Rights, and, indeed, above the law. They are unquestioned and unfettered, and in instances such as this we would have not the rule of law but the rule of lawyers, backed up by expensive legal threats that are as predictable as clockwork, and that are often made to hon. Members of the House going about their business without the protection of privilege in the House.

In this case, however, Carter-Ruck has clearly received a bloody nose; so much so that last Friday, having already caused so much further embarrassment to its clients, it backed down and consented to the reporting of the Minton report after all, and the injunction, because of the rights asserted in this House, crumbled. By the way, the Minton report was freely available overseas and on the internet, which makes a further mockery of the Court's decision to grant the injunction in the first place. However, this is just one case, and one battle does not win a war. It is really important to have proper reform of these procedures in the courts, and I would welcome the Minister's comments on that when she winds up.

So far, I welcome the confirmation by the Secretary of State for Justice and Lord Chancellor that he is addressing this issue and will be meeting newspaper and other media editors. I particularly welcome the statement that the Lord Chief Justice made yesterday on his concerns about the way these injunctions are being issued and his view that parliamentary privilege should not be constrained in any way. However, it is important that these sentiments are followed through in practice. One of the other benefits of this affair, of course, is that there are now plenty more people watching, and I am sure they will be only too ready to alert Members of this House to what they feel are abuses against Parliament's privileges and the right of the public to know.

This case highlights one other important issue for the House. Parliamentary privilege cannot be seen to be something that just lies in textbooks and is taken for granted, and yet is eaten away at all the time by over-confident lawyers such as Carter-Ruck. Our time-honoured rights are only as strong as their assertion, and in the last 10 days they have been strongly asserted in this House; importantly, because of our separation of powers, they were reasserted yesterday by the Lord Chief Justice.

However, there are issues for the House to resolve, or at least to clarify, regarding its own sub judice rules. That goes back to the question that I raised earlier: what would have happened if the Table Office had been advised of the injunction or been unable to find it, and had left the parliamentary question in limbo? There is a technical but important argument about when court proceedings are active in terms of the House's rules. Carter-Ruck, in seeking to prevent this debate from happening, sought to argue that the existence of the injunction itself means that proceedings are active. Of course, The Guardian, which was not resolved to go to full trial because of the cost, would argue the contrary: that an injunction is a finite action and no proceedings are under way.

I hope that Mr. Speaker and, indeed, the Ministry of Justice and the Leader of the House will take a look at the rules of the House. Of course, application of those rules is subject to the discretion of the Speaker or that of a Chairman. However, it would be perverse, following this affair and the controversy it has caused, if the parliamentary Clerks, on whom we rely for so much advice, became more conservative in their approach to the questions they accept for tabling. In newspaper terms, the Speaker is the editor, who always has the final say, but the parliamentary authorities-the Clerks-play the role of the newspaper lawyer. All of us who have been involved in journalism know that there are media lawyers who want to help get a story out, however difficult that may be, and those who prefer not to take too many risks if they can help it.

I will draw my remarks to a close. Mr. Gale, with your permission and discretion I was going to try to use this debate to finish off this perverse injunction for good, in the public interest, by reading into the record some of the damning extracts from the Trafigura report. Thankfully, after last Friday that is no longer necessary. Instead, I just want to conclude with a quote from a lawyer who appeared in front of us at the Select Committee on Culture, Media and Sport, with Mr. Gerry McCann, the father of young Madeleine McCann, who disappeared so tragically in Portugal. It was in large part the press behaviour in the McCann case that prompted the Select Committee inquiry that Mr. McCann appeared before. I will quote just one part of the evidence from the lawyer who accompanied Mr. McCann:

"I am primarily a claimant libel lawyer, but I am a huge fan of newspapers. I think they perform an extremely valuable role in our society. I love reading them."

Those are the words of Carter-Ruck's Adam Tudor, who was advising Gerry McCann but who is also the Carter-Ruck partner advising Trafigura.

Because of the costs involved, without MPs using traditional rights of privilege and without the Speaker asserting those rights, the British newspaper-reading and TV-watching public would not be aware of a report commissioned by a multinational oil trading firm that is scathing of its own safety practices in dumping toxic waste in a very poor part of Africa. I hope the Minister will assure us this afternoon that those rights will be upheld in the face of assault from the likes of Carter-Ruck and the clients whom they actively recruit to use our libel and judge-made confidence laws and our courts.

Photo of John Whittingdale John Whittingdale Chair, Culture, Media and Sport Committee, Vice-Chair, Conservative 1922 Committee 3:04, 21 October 2009

As has already been said, the Select Committee on Culture, Media and Sport, which I have the privilege of chairing, has been conducting a lengthy inquiry into press standards, privacy and libel, and we hope to publish our conclusions shortly.

During the course of that inquiry, we received evidence about the chilling effect on journalism of the use of conditional fee agreements and about the tension between articles 8 and 10 of the European convention on human rights and how that has led to the growth of a body of privacy law in this country without Parliament ever having properly legislated in that area. We have also received evidence on libel tourism, which has been referred to-indeed, we met Dr. Rachel Ehrenfeld. We have looked at whether corporations should be able to sue for libel and whether the offence of criminal libel should remain on the statute book, and we have also looked at the use of super-injunctions. Those are all wider questions than this debate, but I hope that the report, when we publish it, will provide an opportunity for a much wider debate in the House on the need for reform of our libel laws.

During the course of the inquiry, we took evidence from the Lord Chancellor, the Master of the Rolls, editors of newspapers and a very large number of media lawyers, acting both for plaintiffs and for defendants. As well as the formal submissions that we received from media lawyers, we have also been in receipt of several letters from solicitors' practices that relate to our own proceedings, and which touch on parliamentary privilege. I shall refer to two such letters. The first was from a solicitor's practice questioning whether it was appropriate for two members of our Committee to participate in a particular session that involved taking evidence from a newspaper, and referring to the code of conduct for Members of Parliament. When we took advice on the matter, we were advised by Speaker's Counsel that the letter in itself verged upon improperly interfering in the proceedings of the Committee's work.

The second letter challenged the Committee's right to accept from a witness written evidence that included repetition of allegations that had been subject to libel proceedings. On the advice of Speaker's Counsel, I responded to that practice, quoting article 9 of the Bill of Rights. I must say that I then received a response from that solicitor's practice, which said:

"You refer to Article IX of the Bill of Rights, but I assume - please forgive me if I am mistaken - you have the Human Rights Act 1998 in mind."

I did not reply. Speaker's Counsel replied and he made it clear that the reference was to article IX of the Bill of Rights, which he quoted:

"the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament".

He went on to quote the judgment in Prebble v. Television New Zealand, in which

"the Judicial Committee of the Privy Council noted that the law had long been settled that the interest in ensuring that the legislature can exercise its powers freely on behalf of its electors with access to all relevant information was an interest which must prevail."

I will not quote the whole of that judgment, but it absolutely confirms the absolute privilege of Members of Parliament, and indeed of those giving evidence to Select Committees. The importance of Select Committees is that privilege does not just cover their members but also people giving either written or oral evidence to them.

That seemed to be the end of the matter, although I am still slightly concerned at another letter that I received from the Clerk of the Journals, who said:

"A key aspect of privilege protecting freedom of speech in Parliament is that the freedom is exercised responsibly. If it is not, there is a risk of damage to the reputation of the House and of undermining that freedom itself. There is always a danger that an individual, criticised under the protection of privilege, will go to court complaining that they have no right of reply. This is not a theoretical point - it has happened before the European Court of Human Rights in the case of A v UK...Although the judgment supported freedom of speech in Parliament it did raise issues about the protection of the rights of individuals."

There is still a question about this area and perhaps it is something that the Minister would like to address.

However, this particular debate relates to the reporting of proceedings in Parliament. It had seemed to me, until the written question tabled by Paul Farrelly, that the law was pretty clear. A question has arisen as to whether proceedings in Parliament put a matter in the public domain. We have seen the advent of televising, and most of our sessions have been televised and streamed on the web. Indeed, during the recess, the BBC devoted an entire day to the proceedings of my Committee's inquiry-the broadcast lasted for about eight hours, which probably tested the patience of even the keenest observer. There is, therefore, no question but that what is said in a Select Committee is now in the public domain.

Despite that, the hon. Gentleman's experience has flagged up the question of whether an injunction should apply to proceedings in Parliament unless it is specifically varied to allow parliamentary proceedings to be reported. What has concerned me, particularly in the two meetings organised by Dr. Harris, is not just that it was the view of Carter-Ruck that a variance would be required for The Guardian not to be in contempt if it published information about the existence of the parliamentary question, but that that also appeared to be the view of The Guardian.

We now have a copy of the letter sent by The Guardian to Carter-Ruck, which mentioned the fact that the question had been reported by The Spectator, on Guido Fawkes's website and, indeed, by the leader of the Liberal Democrats on his website. The letter says:

"In light of these developments please can you confirm by 12pm today to a variation of the order that will allow our client to publish information about this parliamentary question."

Until now, my understanding has been that that did not require a variation of the order and that the publication of proceedings in Parliament-whether a question on the Order Paper or evidence given to my Committee-would be covered by privilege, and that any injunction or attempt to enforce one would be thrown out on that basis. It is therefore extremely worrying that not only the solicitors for the plaintiffs, but The Guardian'sin-house lawyer appear to think otherwise. That is a matter of deep concern to Members of the House, and I hope that the Minister will address it.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West 3:11, 21 October 2009

By way of a declaration of fact, I should say that I have had four successful claims against newspapers for libel, but that was in cases where what was said was untrue, damaging and not privileged. As I understand it, there is not really a question of whether what is in the Minton report is untrue. To say that hydrogen sulphide in low concentrations is easily detectable, but that at high levels it is not and leads to death is a matter of chemical and biological fact.

We have to remember, of course, that it is the population near Abidjan who are the real sufferers. Although the parliamentary issue and the newspaper issue are important, the reason why such waste dumping is illegal throughout the European Union is that it is dangerous, and replicating some kind of refining process on board a ship on the way to Africa is wrong-no one tries to defend it. However, I think that I am right in saying that Trafigura claimed after the second settlement that the waste

"could at worst have caused a range of short-term, low-level flu-like symptoms and anxiety."

All that is contradicted by the Minton report, which is available at https://secure.wikileaks.org/wiki/Minton_report:_Trafigura_toxic_dumping_along_the_ Ivory_Coast2C_14_Sep_2006.

Three years on from the report that Minton and colleagues were able to produce within a week of being asked what was likely to have happened, I am not sure on what basis the injunctions were sought or what other court proceedings the injunctions were linked to. If it turns out that no serious proceedings would follow, other than the injunctions, we are talking purely about a matter of confidentiality and/or privacy, and actually just embarrassment and, possibly, commercial cost to the principals.

That said, I can believe that the judge and the applicants-the solicitors for Trafigura-obtained an order that they did not expect would cover Parliament. Indeed, they did not even think of Parliament, and that may be understandable. What is clear, however, is that from the day that Trafigura's solicitors wrote to the Speaker and to all Members of Parliament, they knew that it did cover Parliament. They did not put their hands up and say, "We're going to withdraw it straight away." They waited another day and took instructions before trying to go along with The Guardian to vary the terms of the injunction. Even then, they did not drop the injunction.

I therefore want to make a request, although I am not sure whether I should make it to the Minister and/or the judges and/or the House authorities, including the Speaker. Every injunction in the High Court and every secret injunction should be logged in the High Court so that we no longer get the reply, "We don't know how many injunctions there are." If we do not know how many there are, we do not know what they are. If there is no central register of injunctions, it is time that there was. There should also be a notification of all injunctions that make an injunction secret; otherwise, how can people check whether they exist.

When I intervened on the Prime Minister a week ago, I said that in cases that involved children or that involved not just national security, but grave national security, some kind of inhibition on what people say or-where something has been said-on what is reported is appropriate. I am sure that there are House rules covering that, which would make the Speaker, in effect, the super-editor of Hansard.

The senior judges should get together, preferably in the open and without waiting for a Law Commission report or even for Select Committees, other than the one that my hon. Friend Mr. Whittingdale has spoken about. They should say that the super-injunction process will be rolled back and used only when it is absolutely essential-not just when it is desirable, not just when people ask for it and not just when a newspaper agrees to it, but when there is some overwhelming reason why it should exist. I do not think that would happen in cases of libel, because there is a pretty good process for post-act claim.

We should get away from the idea that a newspaper is a defendant. A newspaper is a respondent. What we are talking about is not a criminal act at the moment. As far as I understand it, we are talking about civil actions.

There are many other things that I should like to say, but the key one is this. Health and safety issues-as this case was in its foundation-should not be secret. In aviation, we are perfectly used to having reports of near-misses. If there is ever an air crash, there is an investigation, and the same thing applies on the railways. The number of people put at risk by Trafigura's actions was enormous and swamps all the deaths that we have had in aviation in a year. The processes involved are so well known that they were barred not only in this country, but in Europe.

We must share information, and newspapers and the media have a responsibility to make available to all what is known to a few. If we do not establish that principle, those of us in this House will not just look pretty stupid, as we have until now on this issue, although we have made a recovery, but we will fail those for whom we are supposed to be working. We will end up with worse situations, with more people getting away with things for longer, and we will fail to save the lives or improve the well-being of those for whom we should feel responsible-the citizens not just of this country, but of other countries around the world.


The correct Wikileaks link is https://secure.wikileaks.org/wiki/Minton_report%3A_Trafigura...

Submitted by Matthew Somerville

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence) 3:18, 21 October 2009

Let me say at the outset that I yield to no one in my enthusiasm and support for parliamentary privilege. It is an absolutely vital tool, which enables all of us in the House to carry out our ancient constitutional duty of addressing the grievances of our constituents. It allows us freely to do that without being intimidated by powerful vested interests of whatever sort-perhaps the powerful interests these days are the press, who are in the van of the campaign to support parliamentary privilege.

I make no comment on the report about Trafigura's activities, for I do not know about them. I came here simply because I read the Carter-Ruck letter on my way to the House yesterday, and it raises serious issues. My hon. Friend Peter Bottomley is absolutely right to say that the Minton report clearly raises matters of huge concern to all of us as parliamentarians. My hon. Friend Mr. Whittingdale, who is struggling, with his Committee, to try to define how to frame a law of privacy in this country, is in my view up against the most enormous challenge. I wish him well in trying to find a way through.

I want to raise one question: to what extent this House should be able to disrupt commercial arrangements that are the subject of resolution in the courts. It is no more, no less than that. When I read the letter of Carter-Ruck's yesterday it concerned me that, as I understand it, Paul Farrelly-I am very happy for him to intervene if he wants to put me right-tabled a question that clearly had some bearing on the injunction, which I understand The Guardian consented to. It seems to me that we have to allow commercial parties-and in this case a newspaper is a commercial party-to resolve differences by reference to the court, if necessary: clearly, a last resort.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

My hon. Friend is making his point reasonably, but it is worth pointing out that the PEN and Index on Censorship briefing, which is available today, but which he may not have seen, gives a full chronology. It is not clear exactly what court issues still had to be determined, other than the injunction itself.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

As I understand it, the substantive proceeding had not been set down. The hon. Member for Newcastle-under-Lyme mentioned the costs-£300,000, I think-of going to a substantive hearing. That is clearly a huge amount of money and I am bound to say, making a political point, that I recognise that The Guardian does not have a lot of money, which is why it has closed down offices of the Aldershot News in my area: it has sucked them dry to fund The Guardian itself, which does not make money, whereas my local newspapers, and many others around the country, did. We need to consider whether, having failed in the court to obtain its desires, it then resorted to other means.

I understand that the court made an anonymity order because it appeared to it that

"publicity revealing the identity of the Applicants is likely unfairly to damage the interests of the Applicants", and that that was accepted by The Guardian. I also understand that the view of leading counsel for The Guardian was that the effect of the order as it stood would be to prohibit The Guardian from reporting the hon. Gentleman's question, and that therefore it required variation. It would appear to me-I may be wrong-that there is a certain amount of agreement between the parties as to how the court proceedings should be resolved.

I think it entirely legitimate for this House to be able to say that in exceptional circumstances there are overriding issues that affect our constituents and the wider public interest, and which require us to intervene. This may be one such case-I do not know; but I think that we have, as a House, to consider fairly carefully the number of times we might think it right to interfere in decisions of the court, whose job it is to try to reconcile the differences between the parties. In this case the court clearly found that making an injunction was the right thing to do.

Photo of Paul Farrelly Paul Farrelly Labour, Newcastle-under-Lyme

Clearly, from what has happened this week, it is not only Parliament that shares these concerns, but the Lord Chief Justice, the most senior judge in the land. Has the hon. Gentleman read his comments of yesterday-it is very rare that the Lord Chief Justice issues a press release-on super-injunctions? What is the hon. Gentleman's view about the concerns that the Lord Chief Justice has raised?

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

No, I have not read the comments of the Lord Chief Justice, and will happily do so, in order that I may be better informed. However, there has always been a perhaps uneasy relationship between the legislature and the judiciary and it seems to me that this is one area in which that has been exposed. It may well be that the case is such as to raise issues on which there should be more opportunities for Parliament to intervene, but I think we have got to be fairly careful to ensure that we allow the law to have its role, where it can examine the cases that come before it, perhaps in more detail than we are able to do, and decide what is, in its view, the best way to proceed.

The fact is-this is what came out of the letter that Carter-Ruck sent to all of us, and it stood out to me-that The Guardian has got form here and has on a number of occasions, not just this occasion, got Members of Parliament to stand up in the House and make statements under privilege, which enable The Guardian to repeat them in the paper the following day.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

It is an impertinent intervention, but there are only four minutes left for Back Benchers to speak in the debate. I should be very grateful.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

My hon. Friend makes an extremely good point and I am happy to sit down now. I hope that I have made my point and that the hon. Member for Newcastle-under-Lyme will take it in the spirit in which I have made it. I shall certainly have a look at the suggestions of the Lord Chief Justice.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills 3:26, 21 October 2009

I am very grateful to my hon. Friend Mr. Howarth for enabling me to have a brief shot at this debate.

Article 9 of the Bill of Rights was not a matter of light spluttering on our constitution. It followed on a century when the authority of the Executive-power controlling the courts-could stop or threaten people who spoke freely. It is followed by the Americans in the articles attached to the constitution, in their Bill of Rights, almost to the letter. It is fundamental to freedom of expression and the constitutional development of our own country. Anyone who believes in freedom must know that the concept of prior restraint is a very sensitive and difficult area, but the principle that underlies it is "publish and be damned".

In our moderate world we normally look carefully into such things, but I have also had a conversation with a former Lord Chief Justice-about anonymity of witnesses. That was developed in the courts, where now an application can be made for witnesses to be held to be anonymous, so that defendants are not necessarily aware of who is accusing them. I said, "Why that was not picked up? We have been told that there are 300 cases outstanding now in which as a routine matter there is an application for anonymity of witnesses." He said, "Well, I didn't know about it. There is no way of tracking it." That was a question on which my hon. Friend Peter Bottomley made a very good point. We now have the east European-sounding Ministry of Justice, but does it monitor what happens in the courts, if the judges are not in a position to monitor it?

Developments are going on that strike profoundly at our sense-certainly my sense-of liberty. How many prior restraint orders in non-national security cases are being granted? That should be recorded and the intent and purpose behind it should be examined.

I should declare an interest. I am a parliamentary co-chairman of the Campaign for Freedom of Information. One of the major issues in our country was to find out who was polluting rivers and causing noxious wastes. That was shrouded by section 2 of the Official Secrets Act. No officer who knew about a pollution could necessarily put it in the public domain. This is about the public domain. Mature democracy must know what is happening in its courts so that it can make judgments. How can we reason but from what we know?

Thanks to Paul Farrelly and Dr. Harris, who also sits on the Joint Committee for Human Rights, we have had the opportunity to express some of our concerns adequately-respected Members of the House present here have done so moderately, much more moderately than I ever conceive of-and to strike out and stand up for principles fundamental to the workings of a free society. I expect the Ministry of Justice to monitor the case closely.

The principle is enunciated that, certainly on the Floor of the House of Commons, there should be no question of restraint. I remember when Lord Rooker-then Jeff Rooker, Member of Parliament for Birmingham, Perry Barr-raised a subject that caused great concern to a number of Members in the House. He got it wrong, unfortunately for the individual to whom he referred. He made the most gracious apology for his mistake, but without the ability to raise such issues, as this one was raised the other day on the Floor of the House of Commons by way of a question, we are lost. We need to know in order to be able to regulate and have an opinion on the development of our society and laws.

Photo of David Heath David Heath Shadow Leader of the House of Commons 3:31, 21 October 2009

This is an important matter in both constitutional and legal terms, and I am pleased that my hon. Friend Dr. Harris secured this timely debate. We have always known, and been proud of the fact, that we have the right to speak our mind in Parliament without fear or favour and without consequences outside this place. That is enshrined in the Bill of Rights, and it is an important right. We also believed that a battle was fought and won in the late 18th and early 19th century to ensure that proceedings in this House were made available to the British public-originally against the views of many in this House. It was protection against Parliament, not others, which sought to fetter the reporting of Parliament. Nevertheless, that battle was won. That is what is in question today.

I am pleased that we had meetings with TheGuardian and with Carter-Ruck. It clarified a lot of issues for me. I did not realise initially, for instance, that the action was not a defamation action but was based on confidence and that it had been held before a commercial rather than a libel court, so the honourable Justice Maddison perhaps had less experience of that field of work.

I also had not realised that the initial super-injunction made no attempt to fetter the discretion of Parliament-it was a catch-all injunction as to the terms under which it could not be reported-but that The Guardian later questioned whether it could report proceedings in Parliament in the context of the order, and was told that it was Carter-Ruck's firm opinion that The Guardian could not, that it would need a variation, and that to do so would be contempt of court.

As we know, various things happened after that. I tabled an urgent question on the day, and there was a great deal of action on Twitter and blogs around the nation, for which I am grateful. Points of order were raised, and on that day, the application for confirmation of the injunction was withdrawn.

The key question is whether the Carter-Ruck lawyers were right that such an injunction could apply to the reporting of parliamentary proceedings. It is interesting that the Guardian lawyers acquiesced in that view and thought that it might have substance. I have my doubts. I am not a lawyer, but I have read the Parliamentary Papers Act 1840, which appears to be the crucial legislation. It is written in the style of 1840s Acts, but I will read part of it:

"It shall and may be lawful for any person or persons who now is or are, or hereafter shall be, a defendant or defendants in any civil or criminal proceeding commenced or prosecuted in any manner soever, for or on account or in respect of the publication of any such report, paper, votes, or proceedings by such person or persons, or by his, her, or their servant or servants, by or under the authority of either House of Parliament"-

I think that covers the case in point-to apply to the Speaker or the Clerk of the House for a certificate that such a report is a report authorised by Parliament.

If that is presented to the court,

"such court or judge shall thereupon immediately stay such civil or criminal proceeding; and the same, and every writ or process issued therein, shall be and shall be deemed and taken to be finally put an end to, determined and superseded by virtue of this Act."

That seems to show pretty conclusively that the legal advice was wrong, but perhaps I am wrong and there is something that I do not understand about it.

The second issue is whether such super-injunctions are right in any case. That point has been made by my hon. Friend the Member for Oxford, West and Abingdon and others. The idea that we have somehow lost the principle of open court, and can now not only stop the publication of a particular piece of information by prior restraint but prevent from being known even the fact that it has been before a court, seems a very suspect legal development of recent years, and I question it.

The third element is whether companies have the right to that protection of privacy in any case. I understand that article 8 of the Human Rights Act 1998 provides for the right to reputation, but how does that apply to a corporate body? How does it apply to a company that appears-as alleged-to have acted in a totally disreputable way? How can it be right that that is considered a matter of privacy and subject to prior restraint? It worries me that a jurisprudence, not just in libel but in confidence, is developing without recourse to Parliament. It is effectively translating defamation into a tort of negligence, to some extent, but it is certainly developing in a way that encourages the application of prior restraint super-injunctions. That is a key concern. Are we in Parliament satisfied that the laws of libel and privacy should be developed by judges rather than by statute? My answer is no. We need to look at it.

The Minister will respond to some of my questions, some she may pass on to others. First, I would like the Speaker of the House to make it plain that he will certify under the Parliamentary Papers Act 1840 anything written within parliamentary proceedings under any circumstances whatever, so that there should be no question of an injunction applying to parliamentary papers. Secondly, I want the sub judice provisions, which are at Parliament's discretion, not to be defeated by prior injunction. Again, that is a matter for the Speaker.

I want the Minister to make a declaratory statement that the provisions of the Parliamentary Papers Act 1840 still hold, that it is the right of people in this country to know what happens in their Parliament and that the Lord Chancellor will hold to that right, so that every judge and solicitor out there hears that declaration. If that is not sufficient, I want a protocol in every single injunction that says, "This will not, of course, apply to parliamentary proceedings." In that way, there will be clarity.

If none of that succeeds, we need changes in statute law. It is such an important matter of principle that we cannot afford to allow the legal lottery system to affect which judge hears a case and under what circumstances. The matter must be beyond peradventure. I hope that we will return to the provisions at a later stage and reconsider them. The Select Committee report may be exactly the right vehicle to encourage that debate, and we will want to participate fully in it.

What we should not stand by and allow is any diminution of the rights of Parliament, not because we are pompous parliamentarians but because the rights of Parliament are the rights of citizens in this country. If we allow them to be diminished, we are not serving our country and our people correctly.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice) 3:39, 21 October 2009

First, I must declare an interest as a barrister. I congratulate Dr. Harris on securing this debate. He has been proactive on this issue over a number of years and many hon. Members admire his effort and tenacity.

My hon. Friend Peter Bottomley touched on the detail of the Trafigura saga. It was an appalling set of circumstances. That said, however reprehensible Trafigura's actions, it had every right to come to our courts to seek a remedy and every right to instruct a law firm. Mr. MacShane went over the top in criticising Messrs. Carter-Ruck for taking the case. Trafigura had every right to come to our courts and Carter-Ruck had every right to use our procedures.

Carter-Ruck should have been more careful in what it said in its correspondence. For example, its letter to Mr. Speaker of 14 October said:

"In response we pointed out that the threatened publications would breach the terms of the injunction Order and indeed that, absent a variation to the Orders, would place The Guardian in contempt of Court. That being the case, we sought The Guardian's confirmation that they would not so publish."

Carter-Ruck should have included the caveat that nothing that the court had said could prevent the reporting of parliamentary proceedings. It was a mistake not to do so.

In the letter that The Guardian wrote to Mr. Speaker the following day, Mr. Rusbridger pointed out:

"Carter-Ruck could have replied to the effect that they had no intention to gag parliamentary reporting and that they had no objection to us doing so.

Instead, their letter unequivocally asserted that the Guardian would be in contempt of Court and sought an immediate undertaking that we would not publish."

There was certainly an error on the part of Carter-Ruck and it is a great pity that the caveat was not in the letter.

Carter-Ruck's letter to the legal department of The Guardian on 12 October, which discussed the public domain and anonymity, stated:

"It is not obvious to us that the reporting of this written question on the Parliament website places the existence of the injunction in the public domain. That is a matter which we wish to consider and take instructions on."

Carter-Ruck could have rung up any one of about 8,000 barristers who would have given it the answer. I find that somewhat bizarre.

I turn to Mr. Justice Maddison's injunction and the super-injunction. As a number of hon. Members have said, at the stage of the initial injunction, none of the parties imagined that the publishing of parliamentary proceedings would arise. It would be helpful if the Lord Chief Justice spoke to the judge in question. There is now a much more open relationship between Parliament and the judiciary. Perhaps the Lord Chief Justice could find out what the judge's reaction would have been had one of the parties raised what would have happened if the terms of the injunction and its contents were discussed in Parliament or were the subject of a parliamentary question. Perhaps the Minister could facilitate such a discussion.

I agree with my hon. Friend the Member for Worthing, West that super-injunctions should be used only as the last resort. They are being used far too frequently. The Lord Chief Justice should issue tighter guidelines on super-injunctions. The qualification in Mr. Justice Maddison's original injunction that resulted in the so-called super-injunction is pretty far reaching. Page 3 of the order makes it clear that there would be draconian consequences for anyone involved in proceedings who let the identity of the applicant-Trafigura-be known to anyone. Such far-reaching injunctions should be used only in rare cases.

I have not seen the transcript of evidence. The order states:

"Upon it appearing to the Court (i) that the action is one likely to attract publicity,"- for goodness' sake, it was always going to attract publicity. It continues:

"(ii) that publicity revealing the identity of the Applicants is likely unfairly to damage the interests of the Applicants".

I would have thought that in all such cases publicity is bound to damage the interests of the applicants. They go to court in the first place to prevent something from being published because they are concerned about previous actions and events with which they were involved. What is the Minister's view of super-injunctions? Can the Lord Chief Justice issue tougher guidelines to the judiciary on the use of such injunctions before we consider passing legislation?

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I will give way only once because people want to hear the Minister, not me.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful to the hon. Gentleman for his remarks. I urge him and other hon. Members to think carefully about whether we should pick on super-injunctions as the particular problem. If the purpose of the injunction is to protect confidentiality or to prevent libel, and the reporting of that injunction frustrates the point of it because the internet is used, the real problem is the initial injunction. My argument, at least in part, is that there should be a higher threshold before injunctions granting prior restraint are granted, especially in libel cases. The public interest should be more of a key consideration for judges. We should not pick on just the super-injunction aspects.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I quite agree. That could be the subject of a debate lasting many hours. The Culture, Media and Sport Committee will consider the matter. I did not touch on it because I wanted to cover super-injunctions, which have been discussed by a number of hon. Members. I would like the Minister to comment on super-injunctions. We cannot expect her to solve the problems with libel law in this country in 10 minutes, but I hope that she will answer the point about super-injunctions.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

I do not think that this is a libel case. Does my hon. Friend agree that it would be helpful if Trafigura spelled out what was the subsequent court action for which the injunction and super-injunction were contemplated?

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

My hon. Friend has made his point very well.

In my two remaining minutes, I wish to say a little about parliamentary sovereignty. Can Parliament ever be gagged or muzzled? The answer, manifestly, is no. Parliamentary privilege is one of the cornerstones of our ancient democracy. It is a vital part of Parliament's sovereignty as the highest court in the land. Without it, we would not be able to hold the Executive to account or stand up for our constituents.

Mr. Heath gave us a fascinating history lesson on the reporting of Parliament. Of course, everything in Parliament has to be reported. With television and radio, nothing that is said in Parliament will ever go unreported. Cynics would say that the best way to keep a secret would be to announce it in the Chamber, given the interest that some of the parliamentary press take in parliamentary proceedings.

On the sub judice rule, we have Clerks to advise the Speaker and the Chairmen of Committee and Westminster Hall sittings, such as you, Mr. Gale. It was open to the Clerks in the Table Office to point out to Paul Farrelly that his question could have been subject to the sub judice rule. They decided not to do so. Perhaps the correspondence we are discussing has given Mr. Speaker an opportunity to clarify how the sub judice rule affects parliamentary proceedings. A number of recent cases have troubled me. In some cases, Mr. Speaker has been advised to shut the Member up and in others, the Member has been allowed to speak about a case or proceedings that affect his or her constituents. We need clarity on that point.

I hope that the Minister will be robust and brave and say without any equivocation or doubt that Parliament cannot be fettered in this way. I hope she makes it crystal clear that no court order in the land can delay or interfere with parliamentary proceedings or the reporting of them. As my hon. Friend Mr. Howarth mentioned, with the rights and powers that hon. Members have come responsibilities and duties. All hon. Members must be incredibly discerning and responsible when it comes to exercising those rights and privileges, which is why judgment, common sense and statesmanship are the order of the day.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice 3:50, 21 October 2009

I will do my best to be robust and brave, but I accept the view of Mr. Bellingham that I will not be able to solve the libel laws in the next 10 minutes.

My right hon. Friend the Secretary of State for Justice is very much a parliamentarian-a parliamentary figure-and he will take on board every single issue that hon. Members have raised today. In that sense, this debate is only part of something that will continue, and I want to go through some of the areas that we have already started to process and some of the other issues as quickly as I can.

Mr. Howarth had not heard what the Lord Chief Justice said, so I shall read it into the record:

"I should need some very powerful persuasion indeed-and that, I suppose, is close to saying I simply cannot envisage-that it would be constitutionally possible, or proper, for a court to make an order which might prevent or hinder or limit discussion of any topic in Parliament. Or that any judge would intentionally formulate an injunction which would purport to have that effect."

Those are extremely strong words from the Lord Chief Justice, and I want to put it on the record that I go beyond the phrase "very powerful persuasion" and say in response to Mr. Bellingham that it is not possible to fetter Parliament and parliamentary discussion.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I hope that the Lord Chief Justice has made himself aware of the fact that the issue is not what happens in Parliament; it is the reporting of what happens in Parliament. He does not make specific reference to that; perhaps the Minister can do so.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I was just about to come to article 9 of the Bill of Rights. I am astonished that lawyers around the country are not aware that there is a difference between article 9 and the European convention, and so on. However, perhaps this will be an opportunity for them to be educated in that respect. Article 9 makes it clear that parliamentary questions, both oral and written, are proceedings in Parliament, and they are protected by absolute privilege. Article 9 provides that

"proceedings in Parliament ought not to be impeached or questioned in any court".

It can hardly be clearer. That means that MPs and Peers receive absolute protection from court proceedings for things said or done when engaged in their parliamentary duties. As Mr. Whittingdale said, that is also the case for witnesses who give evidence before Select Committees.

The reporting of parliamentary proceedings, like that of judicial proceedings, is protected by qualified privilege, which centres entirely around fair and accurate reporting-in other words, the material can be published, provided that it is fairly reported. In particular, reports that are motivated by malice would not be protected by privilege. Any reporting of Parliament that is fair and accurate is protected by that privilege. Mention was made of the sub-judice rule.

Photo of John Whittingdale John Whittingdale Chair, Culture, Media and Sport Committee, Vice-Chair, Conservative 1922 Committee

Is it the Minister's view that the advice given by Carter-Ruck and by the in-house lawyer of The Guardian was incorrect?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

It is most certainly my view that the advice given by both-no doubt eminent-lawyers was incorrect. I am happy to ensure that we send them a copy of article 9, so that they can read and peruse it at their leisure.

Photo of Evan Harris Evan Harris Shadow Science Minister

I will be quick because I think the Minister is about to move on. What she says is helpful, but it is not a cure for the problem, unless she envisages that this debate and her remarks will be read by every lawyer and, indeed, every judge. Will she or her colleague suggest a cure for the problem that either provides a template or states something further than what she has just said, so that the matter can be put to rest in all future cases?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I am going to come to some of the things that need to happen in future.

The sub judice rule is an expression of the ability of the House to restrain Members who, in exercising the absolute privilege of freedom of speech, might offend the House. It also protects the administration of justice, so that, while the courts cannot restrain parliamentary debate, Parliament in turn refrains from airing matters in proceedings that are active and awaiting adjudication in the court.

On the issue of the super-injunction, again, the Lord Chief Justice made reference in his remarks yesterday to occasions when that is useful. The intention is for a super-injunction to be used where there would be a detrimental effect on cases that have national security implications or perhaps on child protection issues-I think that the Lord Chief Justice gave a simple example in relation to fraud. We are very concerned that super-injunctions are being used more commonly, particularly in the area of libel and privacy. The Secretary of State for Justice has already asked senior officials in the Department to discuss the matter with lawyers from the major newspapers. We are also involving the judiciary in a consultation. We are looking specifically at how the use of super-injunctions has had an effect and what we therefore need to do on that.

The hon. Member for Maldon and East Chelmsford raised the issue of criminal libel, and I should say that, as we speak, the Coroners and Justice Bill is going through the other place. We have tabled amendments to the Bill that will abolish criminal libel in terms of defamatory, seditious and obscene libel, along with the offence of sedition, which the hon. Member for Oxford, West and Abingdon mentioned on the Floor of the House when the matter was debated there. We are removing those obsolete offences from the statute book.

We have also recently published a consultation paper on the effects of the multiple publication rule. As has been referred to during the debate, we are also about to set out a response to the consultation we have done on controlling costs in defamation proceedings and what further steps are needed. Our commitment to freedom of expression is clear, but as the hon. Member for North-West Norfolk said, it is not an absolute right. Freedom of expression has duties and responsibilities attached to it, including the protection of the rights or reputations of others. In that context, it is important that people have an effective right to redress through the law of libel, where their reputation has been damaged as a result of the publication of defamatory material.

In the short time available to me, let me respond to some of the issues that have been raised. Yes, I will certainly take back to both the Secretary of State for Justice and the Lord Chief Justice the message that it might be appropriate for further guidelines to be sent out to the judiciary and that we need to consider whether or not defamation has to be tightened up in any other way. Mr. Heath asked me to declare whether the Parliamentary Papers Act 1840 still holds. Yes, it does-I make that statement as clearly as I possibly can.

Concerns have been expressed about libel tourism, and we had a debate about that not very long ago in Westminster Hall. Of course, the only way in which an English court can hear such a case is if it can show that it has sufficient grounds for jurisdiction. I will not go into the detail of the Brussels regulation because, frankly, we will all lose the will to live. The Justice Secretary gave evidence to the Select Committee on Culture, Media and Sport during its inquiry, and we will, of course, take seriously any recommendations that the Committee makes that would apply to the courts or to the Ministry.

I am grateful to hon. Members for raising the issue, particularly to Dr. Harris. I do not believe that the debate stops here. I will ask my right hon. Friend the Secretary of State for Justice, the Leader of the House and the Speaker to come together to look at how we can reinforce what we know to be true of the rights and proceedings of Parliament. Although I cannot decide the business of the House, I hope that, at some point in future, we will be able to come back to the House with definitive responses to the different questions that have been raised. Finally, parliamentary privilege is an old and important right, and it is one that we should guard absolutely.