Supplementary written evidence from Carter-Ruck (PS 143)
We spoke briefly after the Freedom of
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
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
There is and never has been any suggestion on the
part of my firm, nor, I am sure, have the
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
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
With regard to the Parliamentary Papers Act 1840,
These questions, however, are moot. On Monday 12
October 2009, the
If I can assist further, please let me know.
Yours sincerely
Andrew Stephenson
cc: Andrew Dismore MP Dr. Evan Harris MP
[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) |