Trafigura takes my breath away. I can understand a company reaching a settlement wanting to keep it, and their privileged (Minton) report, private – and I can understand instructing lawyers to get an injunction to try to do so.
But what I don’t understand is how the High Court would order no reporting of the matter to include questions raised in Parliament – or on what basis a firm of solicitors would write to the Speaker of the House of Commons to warn him that any discussion of the question raised would be sub judice.
I am glad to see Professor Gary Slapper is with me on this and that it is open to the Press to report what goes on in Parliament. However, in Trafigura-world, it’s ok to warn The Guardian that reporting on a question raised in Parliament would be a breach of the Order – despite the question being available for all to see on Parliament’s own website. We await hearing the basis upon which the Courts have the power to stop reporting on Parliamentary proceedings. We won’t hold our breath as we might be waiting a long time.
But even more breathtaking, was the lawyer’s decision to write to the Speaker – warning Parliament off.
I am delighted to see that the Lord Chief Justice has put his foot down. The Guardian reports:
Lord Judge, the lord chief justice of England and Wales, said that the absolute privilege for MPs to speak freely in parliament was a fundamental principle that had not come without a price being paid by former generations: some had fought and died to defend it. “It is a precious heritage that in my view should be vigorously defended and maintained by this generation,” he said, speaking on the first anniversary of his appointment.
Judge said that he would need “some powerful persuasion indeed – and that is close to saying that I cannot envisage it –- that it would be constitutionally possible or proper for a court to make an order that might prevent or hinder or limit discussion of any topic in parliament, or any judge would intentionally frame an injunction that would have that effect. We do not use the words ‘fundamental principle’ very frequently, but this is a fundamental principle.”
He said there were some circumstances in which parliament would not discuss live proceedings in court because it would interfere with the administration of justice. But that decision was taken in such sub judice cases by parliament itself, because it had chosen “in the public interest not to insist on its privileges”, and not as a result of a court seeking to order it.
Further, and while it is arguable that you can’t blame the lawyers for trying, there is no provision for, “what happens in Parliament – stays in Parliament”. Thanks to the twitterzens, the Norwegian press heroes and the Guardian, John Wilkes’s legacy lives another day. I am going to enjoy today’s Parliamentary debate on free speech. (Hansard transcript here)
Lord Judge’s full statement on “Super Injunctions” here.
The Guardian’s most excellent “Media Talk: The Trafigura Scandal” podcast here.