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21 Oct 2009 : Column 289WH—continued
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.
3.39 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): First, I must declare an interest as a barrister. I congratulate the hon. Member for Oxford, West and Abingdon (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 the Member for Worthing, West (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. The right hon. Member for Rotherham (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?
Dr. Evan Harris: Will the hon. Gentleman give way?
Mr. Bellingham: I will give way only once because people want to hear the Minister, not me.
Dr. Harris: 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.
Mr. Bellingham:
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.
Peter Bottomley: 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?
Mr. Bellingham: 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.
The hon. Member for Somerton and Frome (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 the hon. Member for Newcastle-under-Lyme (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 the Member for Aldershot (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.
3.50 pm
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): I will do my best to be robust and brave, but I accept the view of the hon. Member for North-West Norfolk (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.
The hon. Member for Aldershot (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 the hon. Member for North-West Norfolk (Mr. Bellingham) that it is not possible to fetter Parliament and parliamentary discussion.
Mr. Heath: 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.
Bridget Prentice: 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 the hon. Member for Maldon and East Chelmsford (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.
Mr. Whittingdale: Is it the Minister's view that the advice given by Carter-Ruck and by the in-house lawyer of The Guardian was incorrect?
Bridget Prentice: 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.
Dr. Evan Harris: 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?
Bridget Prentice: 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. The hon. Member for Somerton and Frome (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 the hon. Member for Oxford, West and Abingdon (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.
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