Sunday, 6 December 2009

Is Speaker Bercow in bed with Carter-Ruck?

Richard Wilson of Don't Get Fooled Again links to this alarming piece in the Sunday Times. Underneath a gossipy story about John Bercow's prospects of remaining Speaker after the election, post-Sallygate (I'm already pining for Michael Martin) comes the news that the Speaker's official counsel has apparently agreed with a man from the unpopular law firm Carter-Ruck that super-injunctions (in which the existence of an injunction is in itself subject to an injunction) do indeed fetter reporting of Parliament.

Previously, MPs (including members of the Culture, Media and Sport Select Committee, now putting the finishing touches to what one hopes will be a hard-hitting report on Privacy and Libel) had proceeded on the basis that the Bill of Rights 1688 - reinforced by the Parliamentary Papers Act of 1840 - laid down that any proceeding in Parliament could be freely reported by the press. Parliamentary privilege is regularly used by MPs wishing to raise matters of public interest which might otherwise fall foul of libel law. It is, of course, a loophole - but, given the draconian nature of English libel law, a most valuable one. As John Whittingdale, the Committee chairman, has said, "the right of a newspaper or publication to quote what is said in parliament, without restraint, is fundamental. If that is not the case, it raises serious questions which parliament will need to address."

C-R partner Andrew Stephenson told the committee that they were under a "misapprehension" that the gagging order sought and obtained by the firm in relation to Trafigura (this was, of course, the super-injunction that according to Internet folklore was destroyed by a Twitterstorm in October) would have fallen as a result of Parliamentary Privilege.

Stephenson was at pains to point out that C-R never claimed "that the interim Orders made in the Trafigura case could or would have the effect of restraining debate within Parliament itself." He did, however, claim that Article 9 of the Bill of Rights, which states "that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament" applied only inside the Palace of Westminster and to reports appearing in Hansard. He asserted that the Guardian's desire to report the question tabled by friendly MP Paul Farrelly was "an entirely different matter" and not covered by Privilege. The Guardian's lawyers had in fact agreed with this assessment, which is why instead of reporting the question itself Alan Rusbridger ran a piece complaining about the gag.

The implications of Stephenson's claim are profound. If he is right, then quoting from Hansard might be a contempt of court if it contained information that was the subject of a pre-existing injunction, even though Hansard itself is freely available online. This is unsustainable; and it would seem to be contradicted by s3 of the Parliamentary Papers Act 1840, which protects the publication of "any extract from or abstract of" an official Parliamentary paper (such as Hansard), provided the publisher acts "with absence of malice".

It is widely believed - and the Committee members had assumed - that all reports of Parliamentary proceedings are covered by Article 9. Justice minister Bridget Prentice said so explicitly. Stephenson however produced a number of precedents which, he asserted, showed that his interpretation of the law had been accepted in the past. (Though looking at the cases this is far from clear: he offered no precedent for the court holding in contempt a straight report of Parliament.) He argued from silence - for example, the Contempt of Court Act 1981 did not explicitly exempt reports of Parliamentary proceedings but did exempt reports of court hearings that were not subject to specific restrictions. He also referred to a report into Parliamentary Privilege from 1999, which looked at the operation of the sub judice rule and included the following comment:

Although in such circumstances reporting a matter divulged in parliamentary proceedings is strictly a contempt of court, the courts are in practice reluctant to proceed against a report of what was said in Parliament. Indeed, with live broadcasting and the publication of Hansard on the Internet, it may be considered pointless to do so. But it is the reporting of such a breach, and the publicity given to it, which force Parliament to consider whether to place its own restrictions on this particular use of free speech.

A very interesting paragraph indeed, though the situation it describes is not unambiguously in Stephenson's favour - it seems to say that reporting in such circumstances, while forbidden in theory, would be allowed in practice. It also reveals how reluctant Parliamentary lawyers are to precipitate a conflict with the courts, which may be why the Speaker's legal adviser is backing Stephenson's interpretation. But the question is, Stephenson admits, "moot", and it would appear that Carter-Ruck wishes to keep it that way:

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.

The question is, then, whether Carter-Ruck or any other law firm would press the issue if another Trafigura occurred - or, conversely, whether a newspaper would take the risk of publishing and being potentially held in contempt, when asking politely for a variation in the terms of the super-injunction would probably be accepted with little demur. When it appeared that Carter-Ruck might indeed be intending to test the super-injunction, Jack of Kent anticipated "potentially the most significant constitutional case of our generation" - a formulation I described as "hyperbolic". It would, of course, be very significant, because it would clarify what is a grey area. Do courts have the right to issue injunctions that, by their terms, would restrict the reporting of Parliament - and would such an injunction be enforceable? If, as the 1999 report states, a court would be reluctant to proceed in such a case (even if such a case were ever brought) it may well be that reporting of Parliament is de facto protected by Privilege, and the court would recognise this principle. But if newspapers like the Guardian are unwilling to take the risk of being taken to court for breaching a super-injunction then the strictest interpretation of the law will prevail by default.

We are left with a stalemate - a stalemate most convenient for the likes of Carter-Ruck, who can continue to intimidate news organisations into silence. Whether this amounts to a conscious attempt, as Richard Wilson writes, to "overturn a centuries-old democratic freedom", this may be the effect. And yet, of course, the flood of information will not be dammed; this rather arcane debate about principles formulated in the 17th century takes place against a backdrop of Facebook groups and Twitter and Wikileaks. Wilson wonders if he, along with all the other bloggers and Twitterers who posted details of the Farrelly question back in October, was technically in contempt of court. The answer may well be yes, but with the emphasis on "technically". It will never be tested, because it would never be in Carter-Ruck's interests to test it.