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The publication of the consultation draft of the new PPS confirms the Government's commitment to conservation of the historic environment. When it is finally produced, it will be a much more focused document that will set out core policy principles on how the planning system should take account of the historic environment. It will be supported by draft guidance produced and prepared by English Heritage. The guidance is being consulted on at the same time, as part of the consultation package.
The principles that guide the new PPS are brigaded under the three Government objectives for planning for the historic environment: we have to apply the principles of sustainable development to proposals involving the historic environment; we have to conserve and, where appropriate, enhance England's heritage assets in a manner appropriate to their significance; and we have to contribute to knowledge about and understanding of our past. Those three good principles will guide the new PPS, which will also emphasise the need to establish the significance of an historic asset. I can see that being useful regarding the need for character appraisals. Significance is defined as the value of the place to this and future generations because of its heritage interest, whether archaeological, artistic, architectural or historic. It is only when the significance of the asset has been established that sensible policies can be devised to conserve the asset, and sensible decisions taken on proposals that might impact on its significance. The draft PPS recognises that establishing significance is particularly important for larger historic assets-conservation areas or world heritage sites, such as Ironbridge or Stonehenge-because their different elements make differing contributions to their significance.
The consultation period runs out on 30 October, so I have given my hon. Friend and the residents' association just a small window of time in which to prepare their arguments and put them into a consultation that will shape policy for the next decade.
I should like to leave my hon. Friend with the following messages. Planning for the historic environment is a Government priority that is underlined by the concern and care that we are putting into the new PPS. The legislation is there to help preserve and enhance conservation areas already in place. Most importantly, the onus is on each local planning authority to devise the policies needed to ensure the protection of its conservation areas. Those authorities have a continuing obligation to do this, because proper protection does not begin and end with the designation of an area: it is a work in progress. Planning authorities must involve the local community when developing suitable policies and determining planning applications. Only by doing this can a true sense of ownership and a true sense of place be achieved.
Dr. Evan Harris (Oxford, West and Abingdon) (LD): 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 the hon. Member for Newcastle-under-Lyme (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.
Mr. Denis MacShane (Rotherham) (Lab): 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.
Mr. Roger Gale (in the Chair): 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.
Mr. Andrew Dismore (Hendon) (Lab):
I congratulate the hon. Member for Oxford, West and Abingdon (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?
Dr. Harris: 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 the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale) is Chairman. We all hope that the report makes clear recommendations in that area, and I hope that the hon. Member for Hendon (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.
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?
Dr. Harris: 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. The right hon. Member for Rotherham (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:
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