Trafigura: MP Farrelly's censored questions

I. Trafigura, Carter-Ruck, Press Freedom and Privilege in Reporting Parliament

Comments from Paul Farrelly MP (13 October 2009)

‘The issuing by the courts of so-called ‘super-injunctions’ is rightly controversial and
a matter of growing concern. That is why, using parliamentary privilege, I tabled these questions to Jack Straw at the Ministry of Justice as a matter of urgency.’

‘The practice offends the time-honoured ‘rule against prior restraint’, which safeguards freedom of expression in this country. It also fails to protect whistleblowers, acting in the public interest. The huge legal bills involved in fighting cases, too, have a chilling effect on legitimate investigative journalism.’

‘So often the beneficiaries are big corporations. The fact that the press is also barred from reporting the existence of these gagging orders is doubly pernicious. It is a subject the Select Committee will be addressing in our current enquiry into the press and the way the law works in Britain today.

‘Following The Guardian’s front page story today, I telephoned the newspaper to ask whether the MP they referred to – and felt constrained in reporting – was me.

‘The chain of events, I understand, was that The Guardian wrote to Trafigura’s solicitors Carter-Ruck yesterday alerting them to its intention to report my questions.

‘Carter-Ruck then responded in writing warning of further legal action, if they did so.

‘Absolute privilege in reporting parliament has been established since the Bill of Rights in 1688. It is a fundamental freedom for the press and it is vital that neither lawyers nor the courts seek to attack this time-honoured right.

That is why I immediately contacted the Speaker’s office today and raised the issue as a point of order in the House this afternoon.

Text of point of order (reporting of which is also naturally covered by privilege)

‘Mr Speaker, I want to raise a point of order regarding a chain of events which may be of concern to the House.

Today, The Guardian reported that it had been prevented from reporting a written question tabled by a Member of Parliament.

This morning, I telephoned the Guardian to ask whether the MP was myself.

The question was printed on the order paper yesterday and relates to the activities of Trafigura, an international oil trader at the centre of a controversy regarding toxic waste dumping in the Ivory Coast – and to the role of its solicitors Carter-Ruck.

Yesterday, I understand, Carter-Ruck quite astonishingly warned of legal action if The Guardian reported my question.

Mr Speaker, in view of the seriousness of this, will you accept representations from me over this matter and consider whether Carter-Ruck’s behaviour constitutes a potential contempt of parliament?’

* * *

II. Select Committee Enquiry – Progress of reviews, issue of ‘super-injunctions

The following parliamentary questions appear on the House of Commons order paper today, 12th October, 2009 and attract privilege.

They are to Jack Straw, Secretary of State for Justice, and concern the progress of various reviews relevant to the current Select Committee enquiry into Privacy, Libel and Press Standards and also the issue of so-called ‘super-injunctions’, which have been the subject of growing recent controversy.

For answer on Wednesday, 14th October:

60 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the Court of Appeal judgment in May 2009 in the case of Michael Napier and Irwin Mitchell v Pressdram Limited in respect of press freedom to report proceedings in court.

61 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.

62 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, if he will (a) collect and (b) publish statistics on the number of non-reportable injunctions issued by the High Court in each of the last five years.

63 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what mechanisms HM Court Service uses to draw up rosters of duty judges for the purpose of considering time of the essence applications for the issuing of injunctions by the High Court.

For answer on Monday, 12th October:

1827 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, when he expects to announce the conclusions of his review into the operation of conditional fee agreements following the end of the consultation contained in paper CP4/09, Controlling costs in defamation proceedings.

1828 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, when he expects to publish the responses received to the consultation paper CP4/09, Controlling costs in defamation proceedings.

1829 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what guidance the Court Service has issued on the practice of file-sealing in cases involving alleged breaches of (a) privacy and (b) duty of confidentiality.

1830 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what reports he has received of the outcome of the second stage of the review by Sir Rupert Jackson of the (a) costs of litigation and (b) operation of conditional fee agreements in England and Wales; and when he expects the (i) first draft and (ii) final draft of Sir Rupert’s report to be available.

1831 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what progress his Department has made in its review of the effects of the internet on the operation of libel laws.

Carter-Ruck: courts mugged by new web reality

This post was originally published at Reuters Great Debate

Solicitors Carter-Ruck have backed down on the terms of an injunction they had been granted by the High Court preventing the Guardian newspaper from reporting a parliamentary question by Newcastle-under-Lyme MP and former journalist Paul Farrelly.

This has been seen — rightly — as a victory for free expression, and a demonstration of the amazing power of the web in the face of attempted censorship. Once the Guardian had published its slightly cryptic story on its website last night, containing such tantalising phrases as: “Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret”, it was inevitable that people would go searching. Within hours, the Internet was alive with speculation, links to leaked documents, and republication of cached articles. At one point on Tuesday morning, phrases relating to the case constituted four of Twitter’s top ten “trending topics” — a scarcely believable profile for a story that, technically, no one was supposed to be talking about.

Carter-Ruck seem not to have noticed the mindset of an increasing number of web users: once we are told we can’t know something, modern web users will set about finding out about it with a gleeful determination — and more often than not with neither the cautiousness nor the proprietary attitude to information that can slow down “traditional” reporting.

The Streisand Effect — whereby attempts to censor information end up ensuring the information is only spread more widely, is something that lawyers and judges are going to have to figure out. The strong libertarian culture of the Internet quite simply means that you cannot get away with telling people what to do, and what to read, while surfing. Today’s Twitter triumph is more a victory for the culture of online social networking than it is for the technology.

And an important victory it is. What was at stake here was not merely a newspaper’s right to tell a story, but the very principal of open democracy: if newspapers and other media cannot report everyday parliamentary proceedings without fear of the courts, it is not just the journalism industry that suffers: it is the common citizen’s ability to participate in, and scrutinise, politics.

Update: Read the letter Index on Censorship sent to the courts in support of the Guardian here