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21 Oct 2009 : Column 277WH—continued
"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.
Mr. Roger Gale (in the Chair): 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.
2.53 pm
Paul Farrelly (Newcastle-under-Lyme) (Lab): I congratulate the hon. Member for Oxford, West and Abingdon (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.
Mr. Gerald Howarth: 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?
Paul Farrelly: 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.
3.4 pm
Mr. John Whittingdale (Maldon and East Chelmsford) (Con): 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 the hon. Member for Newcastle-under-Lyme (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 the hon. Member for Oxford, West and Abingdon (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.
3.11 pm
Peter Bottomley (Worthing, West) (Con): 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
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