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High Court in Contempt of Democracy (Updated)


12:45 pm - October 13th 2009

by Unity    


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If you’ve been anywhere near Twitter or any one of numerous high profile British political blogs this morning then you’ll already know that the blogosphere is uproar over the gagging of the Guardian by law firm Carter-Ruck.

Out of deference to Sunny’s blood pressure, I’ll leave it to him to decide exactly how far LibCon will go into the detail of this story, but if you’re at all confused as to what this is all about then try try searching Google or Twitter for the words/hashtags ‘Trafigura’, “Guardian’ and ‘Carter-Ruck’, or just head over to any one of number of established blogs including my own Ministry of Truth, Chicken Yoghurt, Iain Dale, Guido, Mr Eugenides, Devil’s Kitchen, Longrider, Lib Dem Voice,  NextLeft, LeftFootForward, Matt Wardman, Spyblog…

…and those are just the one’s I can recall off the top of my head.

What’s got everyone steamed up here is that the injunction served on The Guardian by Carter-Ruck prevents it from reporting the contents of a parliamentary question, tabled yesterday by a member of parliament, as it appear on the order papers published on the parliamentary website.

The injunction, as it stands, prevents The Guardian 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.

It’s also not allowed to tell us why its been gagged in this fashion, or identify the company that instructed Carter-Ruck to obtain this injunction:

Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.

We’re not even allowed to know exactly who the judge is who handed down this injunction, but for brevity we’ll refer to him/her here as Justice Kafka.

What Justice Kafka has acceded to here is an attempt, by Carter-Ruck (on behalf of its now not-so-secret client) to overturn a fundamental constitutional principle that has existed since 1688.

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare…

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;

That is the foundation of parliamentary privilege and, until yesterday, it was held also also that the absolute privilege afforded to members of parliament extended to the factual reporting of the proceedings of both House by the press. It is one of the founding principles of modern parliamentary democracy that we, as citizens, have an absolute and unfettered right to know what is being said and done, on the record and in our name, within the precincts of Westminster.

Back in the 18th Century, Justice Kafka would no doubt have been dragged before a Speaker’s Court to answer a charge of holding parliament in contempt. Today, the Guardian are returning to the High Court with an application to have the injunction overturned and, as LDV have reported, the Lib Dems have put down an emergency question and motion asking for an immediate debate on this matter, one that we should expect to receive the full and unequivocal support of every single member of the House.

In the interim, bloggers have, as usual, stepped into the breach and ever mindful of Franklin’s comment at the signing of the US Declaration of Independence, decided en masse that:

“We must, indeed, all hang together, or most assuredly we shall all hang separately.”

As a final thought, on the same day that the question that must not be disclosed was tabled, Paul Farrelly MP (Newcastle-under-Lyne) felt it necessary to table these questions:

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.

There seems, to me at least, that something is going very badly wrong when a member of parliament finds it necessary to ask a minister for information on the number of secret injunctions issued in the High Court by judges, like our Justice Kafka, whose identities we are not permitted to know.

Update –

38 Degrees are running an “email your MP” campaign on this issue for any wishing to get involved.

Alternatively, if you’ve got a blog or Twitter account then you are, of course, invited to come hang with those of us who’ve already chosen to defy Justice Kafka’s injunction.

UPDATE: 13.00

News is currently spreading over Twitter which indicates that Carter-Ruck have rolled over in the face of this morning’s events and that the emergency appeal hearing which was to have taken place at 2pm will not go ahead. It also appears that other major newspapers had joined with The Guardian in their efforts to overturn the injunction, all of which means that I can now safely disclose that the question in question, so to speak, is believed to be this one…

61. 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. (293006).

And provide links to here, here and here for anyone wanting to get the full skinny on what Trafigura are alleged to have been involved in…

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About the author
'Unity' is a regular contributor to Liberal Conspiracy. He also blogs at Ministry of Truth.
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Story Filed Under: Blog ,Media ,Our democracy ,Westminster

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Reader comments


OT: I wonder what Nigel Sweeney QC, who prosecuted harmless nutter Michael Stone in one of the worst (and still unremedied) miscarriages of justice of the last 20 years or so, is up to these days?

2. Dick the Prick

Dear Mr/Mrs Unity – top article – very erudite. Carter Ruck have a quote on their website from the Guardian which states ‘…thought it best not to mess with Carter Ruck’. Hmm… maybe a little topsy turvy now as one would suspect they received an early morning telephone call from a Sir Alan Sugar impersonator ‘you’re fired’. Cheers.

As noted in the 13:00 update, Carter-Ruck have rolled over in the face of today’s action and the rest of MSM piling in behind the Groan.

They also appear to have found themselves in the middle of a growing shit-storm as their Google maps entry is getting negative reviews added to it.

The Streisand Effect strikes again. Couldn’t happen to a nicer crowd of people.

They can’t injunct everyone. This is the way to go in future, put partisan differences aside and go viral.

Heh – cheers for this. I’ve been out of action so wasn’t sure how the story had progressed. Wanted something on it.. but not anything that would get us into legal trouble obviously…

Well, yes Sunny – hence the jokey aside about your blood pressure.

I like the idea of dragging Justice Kafka before a Speaker’s Court to answer a charge of holding Parliament in Contempt.

I trust there are actual statutory powers or legal precedents for injunctions preventing the reporting of proceedings in Parliament.

If there are, I think we should know, or is this just another example of a bit of judicial activism?

More on this news story on the BBC website:
http://news.bbc.co.uk/1/hi/uk_politics/8304483.stm

The Guardian is now claiming victory after it won the right to publish the Parliamentary question from Paul Farrelly MP relating to the “Trafigura toxic waste scandal”.

From what the Guardian are saying it appears that the injunction was based on the claim that reporting the content of Farrelly’s question would amount to contempt of court.

From what I can tell, what this all comes down to is the reference to the ‘Minton Report’, which found its way on to Wikileaks on 14 September but which attracted very little attention at the time. Before all this kicked off, Google shows very references to this report by name, most of which appear on Dutch websites in relation to Greenpeace’s efforts to get Trafigura into a Dutch court.

Now, of course, the net is crawling with references and the leaked copy on Wikileaks is at the top of the relevant Google search, which makes this less a straightforward own goal by Carter-Ruck and more one scored with a spectacular overhead kick that finished up by whacking their own goalkeeper in the bollocks.

Can anyone help me source the statement that Sweeney granted this injunction? I’m trying to put it on his wikipedia page, but cannot find a source.

Presmably it will appear in a law report at some stage – when and where?

Richard:

As John’s thrown that in as an OT comment, I’d suggest you hold fire on any edits to Wikipedia.

It’s not clear who heard the initial application for the injunction

As it appears to relate to an ongoing libel action it might ordinarily have gone to either Eady or Tugendhat, but if the application went in late in the day, it could just as easily have gone to whoever was on the duty roster last night.

@14 are we sure the injunction is to do with alleged libel rather than alleged contempt of court? I thought the latter.

The secret injunction was based on contempt, which means that a prior injunction must have been served on the Guardian in relation to information contained in Farrelly’s question, which would most likely be the reference to the Minton Report.

Trafigura are, however, also suing the BBC and, possibly, the Groan for libel over its previous reporting of this story and I suspect that its in the context of that action that the first injunction was likely obtained.

…which means it could either be a contempt specialist or a libel specialist doing the honours. Interesting.

I remember the good ole days when we were served with an injunction not to write anything on this blog about a high-profile couple break-up.

“the ‘Minton Report’, which found its way on to Wikileaks on 14 September but which attracted very little attention at the time”

or rather, which couldn’t be reported on at the time, due to injunctions against at least the Guardian, and likely other papers. Were it not for Carter Ruck, it would have been all over the papers (granted, not quite as omnipresent as it is now).

My guess is that Paul Farrelly MP (a former observer journalist) asked the question precisely so that the Guardian could quote him, and thus name the report. ‘Course, they still can’t mention where to find the report, even though just about the entire net knows by now.

Now many, many more people are aware of this report as a result of the until now successful gagging of the press than otherwise would be – and some will be intrigued by it and attempt to find it in order to read it.

And of course lots of people are now aware of the attempts to suppress freedom of speech.

What a Carter-Ruck up!

(There was a recent Private Eye article related to this – quoted verbatim here.)

20. David Cooper

Dear Richard Gadsden,

Since the judge involved has allowed the most outrageous assault on liberty in the UK for well over a century, it would be good to be very sure who he is. Do let us know when you find out.

Carter Ruck were mere hired guns who game the system. The judge involved is clearly not fit for his office and needs to be removed forthwith.

As soon as I read that on the Groun I added it to all the social networks I could sign up to. Digg, Reddit, Facebook etc. Didn’t get chance to read any blogs, needed to go to bed.

It is good though that blogs et al all stuck together – we may differ in what we think and have to say – but the fact is we want the right no stamped on to fucking say it.

A thanks should go out to all who stood side by side, but the Tories are still a set of twats.

Carter Ruck were mere hired guns who game the system.

Come off it – they are hired bullies who are quite happy to take money for suppressing free speech.

Even in the unlikely event their client can’t afford them.

http://www.trafigura.com/our_news/probo_koala_updates.aspx

23 Sept:

Trafigura Director Eric de Turckheim commented:“From day one, we maintained that the ‘trial by media’ initiated against us by Leigh Day & Co, and subsequently taken up by journalists working for the BBC and Guardian, Independent, NRK in Norway, and Volkskrant and Greenpeace in Holland amongst others, was utterly wrong and inappropriate. The English legal system, and not the media, should have been the sole arbiter of this entire process.”

13 Oct – oh blogger!

24. David Cooper

For the record, “Judge Kafka” appears to be a certain Justice Maddison, who was filling in for a mate over his holidays when he had the bright idea of landing the greatest blow to press freedom in the last two centuries:-

http://www.guardian.co.uk/media/2009/oct/13/trafigura-drops-gag-guardian-oil

So far as I am aware the charlie is still in post.


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