Supplementary written evidence submitted
by Carter-Ruck
We spoke briefly after the Freedom of Expression
Round Table discussion held by the Joint Committee on Human Rights
last week, when I promised that I would let you have my thoughts,
in particular, on the Minister's response to your question concerning
the advice given by my firm and by the Guardian's lawyers,
and on the continued applicability of the Parliamentary Papers
Act 1840.
ARTICLE 9 BILL
OF RIGHTS
1688
Regrettably, it is apparent from statements
made both within and outside Parliament that there has been misapprehension
in certain quarters of the effect of the court Orders in the Trafigura
case. This misapprehension does not arise from anything that my
firm has either said or done. I suspect that it originates with
the article published by the Guardian on 13 October 2009
"Guardian gagged from reporting Parliament" the
opening paragraph of which states "the Guardian has
been prevented from reporting parliamentary proceedings on legal
grounds which appear to call into question privileges guaranteeing
free speech established under the 1688 Bill of Rights"
[My emphasis].
On reviewing the transcript of the debate "English
Libel Law (Parliamentary Proceedings)" on 21 October 2009,
I fear that you and the Minister may have been at cross-purposes.
The Minister, picking up an issue you had raised earlier in the
debate regarding two letters received by your Committee from solicitors,
one of which apparently displayed an ignorance of Article 9 Bill
of Rights 1688, said, "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."
In response, thereafter, to your question "Is it the Minister's
view that the advice given by Carter-Ruck and by the in-house
lawyer of the Guardian was incorrect? " the Minister
replied "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."
There is and never has been any suggestion on
the part of my firm, nor, I am sure, have the Guardian's lawyers
ever been under the misapprehension, that the interim Orders made
in the Trafigura case could or would have the effect of restraining
debate within Parliament itself. Under Article 9 Bill of Rights
1688 no court order could have such an effect.
As my firm made clear in its letter to the Speaker
dated 14 October 2009, in relation to proceedings in Parliament,
because of Article 9 of the Bill of Rights, it is entirely within
the discretion of the Speaker, for example under Parliament's
"self-denying" sub judice rules which provide
that "matters awaiting adjudication in a court of law should
not be brought forward in motions, debates, questions or supplementary
questions ..." whether to allow debate on any matter within
Parliament. The court has no jurisdiction to intervene.
REPORTS OF
PARLIAMENTARY PROCEEDINGS
The issue which arose in the Trafigura case,
as I appreciate both you and the Minister understand, was not
whether the court Order might have prevented debate in Parliament,
but whether, as it stood, it had the effect of restraining the
Guardian from publishing a report of a written parliamentary
question tabled by Paul Farrelly MP, which is an entirely different
matter, governed not by the Bill of Rights, but by subsequent
statutes and by common law, and therefore subject to the jurisdiction
of the courts. Our opinion, which the Guardian has since
confirmed was also the opinion of its Leading Counsel, was (and
remains) that the interim Orders required variation to allow the
Guardian to report the terms of Mr Farrelly's question.
The issue is not new, either to the courts or, for
that matter, to Parliament. I have attached a copy of a note dated
March 2005[115]
submitted by the then Attorney-General, Rt Hon Lord Goldsmith
QC, to the Select Committee on Procedure following oral evidence
which he gave on 19 January 2005; the note refers briefly to a
number of cases which you may find of interest. Previously, the
1999 First Report of the Joint Committee on Parliamentary Privilege
addressed the position where a court at the conclusion of proceedings
has made a "no publicity" order; I have attached a copy
of the section of the Report headed "Breaches of Court Injunctions"[116]
and would draw your attention in particular to paragraph 204.
I have also attached a copy of a Memorandum by the Newspaper Society[117]
to the Joint Committee dated 20 January 1998, which refers to
the need which arose in the "Spycatcher" case for an
injunction to be varied expressly to permit reporting of Parliamentary
proceedings.
Lord Goldsmith in his note refers to the Contempt
of Court Act 1981, which was passed following the conclusion of
the Distillers case. The Act provides at Section 4 (1) that "a
person is not guilty of contempt of court under the strict liability
rule in respect of a fair and accurate report of legal proceedings
held in public, published contemporaneously and in good faith"
and at section 5 that "A publication made as part of a
discussion in good faith of public affairs or other matters of
general public interest is not to be treated as a contempt of
court under the strict liability rule if the risk of impediment
or prejudice to particular legal proceedings is merely incidental
to the discussion" there is no provision to exclude reports
of Parliamentary proceedings. The Act further states at section
6 (c) that none of its provisions "restricts liability
for contempt of court in respect of conduct intended to impede
or prejudice the administration of justice."
Under the Parliamentary Papers Act (1840) Section
1 any proceedings, criminal or civil, brought in respect of the
publication of "any such report, paper, votes, or proceedings
... by or under the authority of either House of Parliament",
will be stayed upon the production, with a verifying affidavit,
of an official certificate from, for example, the Speaker of the
House of Commons. This affords complete protection, for example,
to Hansard. Section 2 applies to the publication of authenticated
copies of such material. Section 3 provides a defence in proceedings,
civil or criminal, brought in respect of the publication of "any
extract from or abstract of" such material; however,
under this section, the obligation rests with the defendant to
show that "such extract or abstract was published bona
fide and without malice." The Act has been extended to
cover the broadcast of parliamentary proceedings by radio television
and the internet. Whilst it is the case that the Joint Committee
on Parliamentary Privileges in 1999 recommended that it should
be replaced with a modern statute, it remains in force.
CONCLUSION
As my firm has made clear in our letter to the
Speaker dated 14 October 2009 at the time the interim Orders were
made, none of the parties nor the Court had in contemplation the
possibility of the matter being raised in the House of Commons.
If they had, then the order may well have been formulated (as
was done, it appears on the initiative of the Court of Appeal,
in the Spycatcher litigation) to allow for such reporting. However,
on the wording of the Order as it then stood, it was clear to
us that, absent a variation of its terms, it would amount to a
breach and therefore a contempt for the Guardian to publish,
as it proposed, information about Mr Farrelly's parliamentary
question, referring to the existence of the injunction.
With regard to the Parliamentary Papers Act 1840,
the Guardian did not contend that the information which
it proposed to publish would be confined to material within the
scope of Section 3 of the Act; even had it been, it would still
beg the question whether a newspaper which is subject to an injunction
can claim to be acting "bona fide" within the definition
of the Act if, rather than seek a variation, it chooses to publish
material in breach of the injunction. Likewise, with regard to
the Contempt of Court Act 1981, where a court has made an interim
Order, restraining a newspaper from publishing material pending
a full hearing, the question arises as to whether it may be considered
"conduct intended to impede or prejudice the administration
of justice" for that newspaper, absent a variation of
the Order, to publish such material.
These questions, however, are moot. On Monday
12 October 2009, the Guardian drew our attention to Mr
Farrelly's parliamentary question and informed us that they proposed
to publish information about it that night. The same day we wrote
to them pointing out that publication of an article referring
to the existence of the injunction would, absent a variation to
the Orders, amount to a contempt. In response, the Guardian
submitted to us (by fax timed at 17.52) its proposed wording
for the variation of the Orders, to which we responded the same
evening, stating that we would take instructions from our clients,
and revert the next day (the Tuesday—Mr Farrelly's written
question being due to be answered on the Wednesday). On 13 October,
the parties agreed a variation that nothing in the Orders should
prevent the Guardian from reporting upon proceedings in
Parliament. In the meantime, the Guardian published its
article "Guardian gagged from reporting Parliament"
to which I refer above.
If I can assist further, please let me know.
November 2009
115 Ev not printed-see Ev 55 of First Report of the
Procedure Committee, Session 2004-05, The Sub Judice Rule of the
House of Commons, HC 125 (http://www.publications.parliament.uk/pa/cm200405/cmselect/cmproced/125/125.pdf) Back
116
Ev not printed-See First Report of the Joint Committee on Parliamentary
Privilege, Session 1998-99, HC 43-I paras 203-211 (http://www.publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/4308.htm) Back
117
Ev not printed-See First Report of the Joint Committee on Parliamentary
Privilege, Session 1998-99, HC 43-III Memorandum by the Newspaper
Society (http://www.publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/43ap11.htm) Back
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