Supplementary written evidence from Carter-Ruck (PS 143)

 

Dear Mr Whittingdale

 

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[1] 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"[2] and would draw your attention in particular to paragraph 204. I have also attached a copy of a Memorandum by the Newspaper Society[3] 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.

 

Yours sincerely

 

 

Andrew Stephenson

 

cc: Andrew Dismore MP

Dr. Evan Harris MP

 

November 2009

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[1] Not published here - 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)

[2] Not published here - see paras 203-211, First Report of the Joint Committee on Parliamentary Privilege, Session 1998-99, HC 43-I (http://www.publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/4308.htm)

[3] Not published here - see Memorandum by the Newspaper Society, First Report of the Joint Committee on Parliamentary Privilege, Session 1998-99, HC 43-III (http://www.publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/43ap11.htm)