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English Libel Law (Parliamentary Proceedings)

Strangely enough, I anticipated that question from the hon. Gentleman. As a former journalist, I would never reveal my sources. The issue has been alive on the internet for weeks for people to see, but not the British newspaper-reading or television-watching public. The Chairman of the Select Committee—I am glad to see him in his place—and I were at a media lawyers' conference a week last Friday. When I was talking to people, this latest super-injunction was one of the hot topics of the day. It was not difficult to discover that the injunction was in place. The injunction suppressed the internal Minton report into the toxic oil waste dumping and the reporting of the injunction. There was also a further level of secrecy. Trafigura was granted anonymity by the court, and its name and that of a subsidiary were replaced on the injunction's title by a random set of initials, RJW and SJW. Ironically, that further level of secrecy may have been Carter-Ruck's undoing. I was aware of the injunction but not of the full anonymous title. My question only named Trafigura and Carter-Ruck and not The Guardian. I assume that the Table Office Clerks doing their usual rigorous sub judice checks simply could not find the injunction and, therefore, the question was accepted. That prompts the question of what might have happened if the injunction had been found, and if the courts could have informed the Clerks that the injunction was in place because of the secrecy. I might return to that matter in my concluding remarks. What is really important here is that last Monday legal advice on both sides, The Guardian's counsel and Carter-Ruck for Trafigura, agreed that the scope of the injunction would have prevented the media from reporting the question as part of the proceedings of this Parliament. That was an extraordinary state of affairs—that this conclusion could be reached notwithstanding common and statute law that enshrine qualified privilege for the media reporting of Parliament in a free society. Equally extraordinary is the statement by Carter-Ruck in its letter to Mr. Speaker last week, which said that""when the order was made (and endorsed by the High Court) none of the parties or the court had in contemplation the possibility of this matter being raised in the UK parliament. If they had, the Order may well have been formulated in such a way as to allow for such reporting."" How magnanimous and generous of them! The injunction has been published in full on the website of The Guardian—without my collusion—and on my own website. It has also been circulated by the hon. Member for Oxford, West and Abingdon. The circumstances in which it was issued are important. It was granted in the High Court on 11 September by vacation duty judge Mr. Justice Maddison, who has no known specialism in media law. The Guardian was given just a few hours' notice of the hearing and no time to marshal a defence. Was the injunction drafted by the judge or the clerks of the court? No, it was very helpfully presented to the judge by Carter-Ruck—presumably run off in standard form from a file of precedents of "super-injunctions" that the High Court has granted before. What this affair shows is that orders, injunctions and super-injunctions, which have been developed from sparing use in cases involving individual privacy, are being granted all too often, easily and pre-emptively on the grounds of confidence to big corporations or powerful figures seeking to avoid embarrassment. Of course, all the arguments, including that of "public interest", can be aired in court at a full trial, challenging the injunction. However, here is the rub: the costs are simply enormous and the likes of Carter-Ruck know that full well. The Guardian estimates that challenging the Trafigura injunction at full trial might have cost as much as £300,000. Private Eye in an earlier case involving Michael Napier had £500,000 on the line if it had lost its challenge, which, thankfully, it did not. So money for multinationals and the likes of Carter-Ruck is no object, but it is for the likes of The Guardian, which is currently making redundancies. Could a newspaper such as that, a very responsible newspaper, justify spending that sum of money even as a matter of principle? I would argue not. That is where the effect of such injunctions lies. What this affair shows, too, is that aggressive lawyers such as Carter-Ruck are given too much freedom of manoeuvre by the courts. They draft the injunctions themselves, and that says almost all I need to say. They are out of control—in this case, so much so that they overreached themselves by trying to put themselves above freedoms that have been time-honoured since the 1688 Bill of Rights, and, indeed, above the law. They are unquestioned and unfettered, and in instances such as this we would have not the rule of law but the rule of lawyers, backed up by expensive legal threats that are as predictable as clockwork, and that are often made to hon. Members of the House going about their business without the protection of privilege in the House. In this case, however, Carter-Ruck has clearly received a bloody nose; so much so that last Friday, having already caused so much further embarrassment to its clients, it backed down and consented to the reporting of the Minton report after all, and the injunction, because of the rights asserted in this House, crumbled. By the way, the Minton report was freely available overseas and on the internet, which makes a further mockery of the Court's decision to grant the injunction in the first place. However, this is just one case, and one battle does not win a war. It is really important to have proper reform of these procedures in the courts, and I would welcome the Minister's comments on that when she winds up. So far, I welcome the confirmation by the Secretary of State for Justice and Lord Chancellor that he is addressing this issue and will be meeting newspaper and other media editors. I particularly welcome the statement that the Lord Chief Justice made yesterday on his concerns about the way these injunctions are being issued and his view that parliamentary privilege should not be constrained in any way. However, it is important that these sentiments are followed through in practice. One of the other benefits of this affair, of course, is that there are now plenty more people watching, and I am sure they will be only too ready to alert Members of this House to what they feel are abuses against Parliament's privileges and the right of the public to know. This case highlights one other important issue for the House. Parliamentary privilege cannot be seen to be something that just lies in textbooks and is taken for granted, and yet is eaten away at all the time by over-confident lawyers such as Carter-Ruck. Our time-honoured rights are only as strong as their assertion, and in the last 10 days they have been strongly asserted in this House; importantly, because of our separation of powers, they were reasserted yesterday by the Lord Chief Justice. However, there are issues for the House to resolve, or at least to clarify, regarding its own sub judice rules. That goes back to the question that I raised earlier: what would have happened if the Table Office had been advised of the injunction or been unable to find it, and had left the parliamentary question in limbo? There is a technical but important argument about when court proceedings are active in terms of the House's rules. Carter-Ruck, in seeking to prevent this debate from happening, sought to argue that the existence of the injunction itself means that proceedings are active. Of course, The Guardian, which was not resolved to go to full trial because of the cost, would argue the contrary: that an injunction is a finite action and no proceedings are under way. I hope that Mr. Speaker and, indeed, the Ministry of Justice and the Leader of the House will take a look at the rules of the House. Of course, application of those rules is subject to the discretion of the Speaker or that of a Chairman. However, it would be perverse, following this affair and the controversy it has caused, if the parliamentary Clerks, on whom we rely for so much advice, became more conservative in their approach to the questions they accept for tabling. In newspaper terms, the Speaker is the editor, who always has the final say, but the parliamentary authorities—the Clerks—play the role of the newspaper lawyer. All of us who have been involved in journalism know that there are media lawyers who want to help get a story out, however difficult that may be, and those who prefer not to take too many risks if they can help it. I will draw my remarks to a close. Mr. Gale, with your permission and discretion I was going to try to use this debate to finish off this perverse injunction for good, in the public interest, by reading into the record some of the damning extracts from the Trafigura report. Thankfully, after last Friday that is no longer necessary. Instead, I just want to conclude with a quote from a lawyer who appeared in front of us at the Select Committee on Culture, Media and Sport, with Mr. Gerry McCann, the father of young Madeleine McCann, who disappeared so tragically in Portugal. It was in large part the press behaviour in the McCann case that prompted the Select Committee inquiry that Mr. McCann appeared before. I will quote just one part of the evidence from the lawyer who accompanied Mr. McCann:""I am primarily a claimant libel lawyer, but I am a huge fan of newspapers. I think they perform an extremely valuable role in our society. I love reading them."" Those are the words of Carter-Ruck's Adam Tudor, who was advising Gerry McCann but who is also the Carter-Ruck partner advising Trafigura. Because of the costs involved, without MPs using traditional rights of privilege and without the Speaker asserting those rights, the British newspaper-reading and TV-watching public would not be aware of a report commissioned by a multinational oil trading firm that is scathing of its own safety practices in dumping toxic waste in a very poor part of Africa. I hope the Minister will assure us this afternoon that those rights will be upheld in the face of assault from the likes of Carter-Ruck and the clients whom they actively recruit to use our libel and judge-made confidence laws and our courts.