The right to know 

16 October 2009

Parliament and free speech: The right to know

The Minton report

If ever anyone were still sanguine about the right of free speech in this country, the débâcle this week concerning Trafigura, Carter-Ruck, The Guardian and Twitter should cause deep concern.

On Monday 12 October, The Guardian carried an almost non-report which stated, simply, that it had been injuncted from reporting Parliament. As the paper’s editor, Alan Rusbridger, notes in an op-ed piece for Liberty Central, a sub-section of the commentry board, Comment is Free, just before leaving the office he tweeted: “Now Guardian prevented from reporting parliament for unreportable reasons. Did John Wilkes live in vain?”

His claim to have lit the blue-touch paper, if a shade hyperbolic, is forgiveable in the circumstances. The short story here is that Trafigura, a trading company, was trying to suppress reports claiming that it had been responsible for the dumping of toxic waste in Côte d’Ivoire. To that end, its PR firm, the notorious Carter-Ruck, took out a so-called “super injunction” to try and suppress the story.

However, an MP, Paul Farrelly, tabled the following question in Parliament:

“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.”

Carter-Ruck told the Guardian that to report on the existence of this question would place the paper in breach of the injunction, and, ergo, in contempt of court, apparently notwithstanding the open existence of this question on the Parliament web site. However, with the help of Twitter, the story became big news in the blogosphere and twittersphere and made a mockery of the injunction. Whether, as Carter-Ruck claims, it was never its intention to encroach on the long-established right of the press to report Parliament, or, as cynics believe, it belatedly realized that it had become instrumental in bringing on Trafigura the very publicity it was trying to avoid, may never be known.

A report by ITN on the story mentioned the Minton report by name, and said it was widely available on the internet, so I have no reservations about doing the same, here and now. So far as I am concerned, the more publicity the Minton report gets the better, and I make no apology for using a blog post here on EMC to do my bit to help. The existence of these super-injunctions, which essentially amount to “we can’t well you, and we can’t tell you we can’t tell you,” should be of concern to everyone who values a free press.

This right of the press to report Parliament goes right back to the days of John Wilkes, a thorn in the side of George III and the Earl of Bute. His rebellion helped ensure the outlawing of so-called general warrants, which could apply to persons not named therein, and the general reporting of Parliamentary debates. Thanks to parliamentary privilege, no MP may be found guilty of slander or defamation by reason of anything he says on the floor of the House of Commons, nor be arrested for any civil offence. And Lord Denning reaffirmed in the 1970s that no newspaper shall be guilty of contempt of court by reporting any comments made in Parliament, including those made under privilege.

This freedom that MPs have is immensely powerful, and Parliament is aware of the need to act responsibly as its own policeman. Stringent rules regulate MPs use of privilege and to attempt to prevent abuse of that freedom. Although the reputation of Parliament as an institution and MPs as individuals is not at present at an historic high, the rights that MPs enjoy in regulating their own affairs was hard fought for and granted only after a ferocious struggle. As the parliamentary expenses row continues to undermine personal reputations, we would do well to remind ourselves exactly why MPs, historically, have been given the privileges they have. That MPs have had almost incomparable freedom to regulate their own affairs may seem anachronistic at first blush, but it is essential, here as elsewhere, to view those freedoms through the prism of history and to appreciate that the freedoms Parliament has to regulate itself are worth conserving.

CiF, the Guardian’s comment section, is a broad church, in the sense that its readership spans a broad range of the political spectrum, and to its credit it published articles from both the political left and right. It often irritates sections of its readership with one article or another, but it has a good reputation for coming up trumps when it really matters, such as with this episode and with the G20 policing fiasco. And the next time someone tries to tell a newspaper or news broadcaster it cannot exercise its long-established right to report freely, without exception, on proceedings in Parliament, the correct response is: Carter-Ruck off.


The Guardian now reports that Carter-Ruck has capitulated. It has ceased attempts to uphold the injunction, in a sense rendering the Wikileaks cloak-and-dagger manoeuvrings redundant.

It is, of course, entirely fanciful for any blog to pretend to have had any influence on developments. No blog, by itself – not even Guido Fawkes – has that degree of influence. However, the collective chorus of indignation and shrill howls of outrage that emanated from the blogosphere amounted to an irresistible pressure, and Carter-Ruck and Trafigura had no choice but to throw in the towel. Perhaps the fact that the Minton report (and wider events surrounding this tawdry affair) being common knowledge within the blogosphere was enough to release the long-established print media from reporting restrictions is a sign of the increasing maturity of new media as a counter-balance to the official news channels of the broadcast and print media.

How libel law develops in the years ahead, in response to the emergence of new media as a serious force in the dissemination of news and current affairs, will no doubt prove to be well worth following.