Today I am talking to Carl Gardner, ex government lawyer, a barrister and author of The Head of Legal blog. We look at whether the Bill of Rights has, in fact, been infringed by the gag, the use of injunctions generally and specifically in this instance, the use of parliamentary privilege and whether the judges are going too far in granting injunctions which can, effectively, be destroyed in their effect by many thousands of angry people on twitter and in the blogosphere.
Yesterday The Guardian‘s David Leigh in an article published on Monday night before hitting the front page on Tuesday said this:
Today’s published Commons order papers contain a question to be answered by a minister later this week. The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found.
The Guardian is also forbidden from telling its readers why the paper is prevented – for the first time in memory – from reporting parliament. Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.
In practical terms, at least as far as distribution to the public is concerned, Parliament had been gagged.
The context has been well put by Wikileaks.org and I quote from their website:
The question, the subject matter of the gag, correctly identified by Guido Fawkes, Alex Massie of The Spectator – who published details of the question while other mainstream media held back – was the one tabled by
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
The Commons’ gag order was intended to prevent publication of Trafigura and Minton in the same context. As Wikileaks notes – the Minton report released by Wikileaks has not been mentioned in the press because of a 11 September 2009 media injunction.
“To-date the UK public has been kept in the dark. Paul Farrelly’s question is an attempt to take on the suppression issue. In the process it connected the Minton report on WikiLeaks to Trafigura, something the UK media could not, or would not do.”
“Knowing this, lawyers for Trafigura, Carter-Ruck, obtained a second, secret media injunction to prevent reporting of Paul Farrelly MP’s questions. That this alleged order was granted is a bold and dangerous move by the High Court towards the total privatization of censorship.”
Last night I was on twitter and, along with many others, I saw the Guardian story and tweeted about it, expressing a degree of outrage. It did not take long before many hundreds of tweeters turned to thousands and overnight and this morning Trafigura and Carter Ruck found themselves a trending topic on Twitter – even Stephen Fry weighed in, adding countless thousands more to the clamour.
Alan Rusbridger, editor of The Guardia, reported this afternoon:
“I’m very pleased that common sense has prevailed and that Carter-Ruck’s clients are now prepared to vary this draconian injunction to allow reporting of parliament. It is time that judges stopped granting ‘super-injunctions’ which are so absolute and wide-ranging that nothing about them can be reported at all.”
Charon QC 
Are we absolutely sure there was a 12th October injunction? As opposed to Carter-Ruck arguing that to report Farrelly’s question would be contempt, as a breach of the 11th September injunction.
I’ve not actually seen an authoritative statement from Rusbridger or anyone to that effect though it’s entirely possible I have missed something.
Perhaps they got an emergency injunction (by phone from a duty judge maybe) ad decided it wasn’t worth the candle on reflection?
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The more that comes out the more it seems, at least at the moment, there was no second secret injunction, there was only one injunction, on 11th September (by Maddison J sitting in vacation, I suspect ex parte, quite possibly on a telephone application, and either with a set return date of today or liberty to apply): the question that arose was whether it applied to reporting the parliamentary question placed on 12th October. As I read it between the lines Carter-Ruck argued that yes it did (presumably in wop discussions), this is what prompted Rusbridger’s tweet which kicked everything off, and the Guardian were going back to court today to argue the toss. This is not exactly the impression one got from twitter last night, when it was generally implied there was a new injunction expressly relating to the parliamentary question.
I rather suspect that the Twitterati have, to an extent, been played by the Guardian – brilliantly, and in an entirely worthy cause* – and that there was never an order which explicitly said that even a parliamentary question could not be reported, it was merely very broadly drawn to the extent that the question was at least open, so they simply said they now couldn’t talk about a parliamentary question and got twitter and the blogosphere to do the heavy lifting.
*it would undoubtedly be improper to suggest that the play was even more clever, that the parliamentary question was asked by the ex-Observer journalist Farrelly with the deliberate intent not of being able to report it under privilege but, on the contrary, knowing that there was a questionmark on the point, of causing a shitstorm when it was argued the 11th September injunction applied. That would imply illegality as well as a genius at work.
I had assumed only one injunction broadly drawn…. I covered the issue of the MP abusing parliamentary priv in the podcast with Carl.
Interesting issue – wonder what the MPs will do with it. Calls for the impeachment of the judge do seem a bit stark?
Yes, someone has been clever and lit the blue touchpaper.
The “super” injunction of Sept. 11th remains in effect, which leads me to believe that the Guardian was either issued with a separate injunction covering the parliamentary question (now lifted), or was warned by a proactive Carter-Ruck that the first injunction would apply to its coverage of these parliamentary proceedings – and perhaps requested the court decide on this matter, before backing down?
I’m not a lawyer, so maybe I’m talking nonsense 🙂
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