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21 Oct 2009 : Column 283WH—continued
"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 the Member for Maldon and East Chelmsford (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.
3.18 pm
Mr. Gerald Howarth (Aldershot) (Con): 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 the Member for Worthing, West (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 the Member for Maldon and East Chelmsford (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, the hon. Member for Newcastle-under-Lyme (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.
Peter Bottomley: 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.
Mr. Howarth:
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.
Paul Farrelly: 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?
Mr. Howarth: 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.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): 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.
Mr. Howarth: 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.
3.26 pm
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I am very grateful to my hon. Friend the Member for Aldershot (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 the Member for Worthing, West (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 the hon. Member for Newcastle-under-Lyme (Paul Farrelly) and the hon. Member for Oxford, West and Abingdon (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.
3.31 pm
Mr. David Heath (Somerton and Frome) (LD): This is an important matter in both constitutional and legal terms, and I am pleased that my hon. Friend the Member for Oxford, West and Abingdon (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.
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