Last week there took place a titanic clash of historic proportions between the courts and Parliament and the courts and the media. I would say Parliament won the battle, though not the war. The media secured only a partial victory, and the courts suffered only a setback.
The best news is that the widely loathed law firm Carter-Ruck overplayed its hand. It had already obtained a so-called super-injunction (of which more later) on behalf of Trafigura, a London-based oil trader which has been at the centre of a toxic waste dumping scandal in Africa. Last Monday the Labour MP (and former journalist) Paul Farrelly drew attention to this super-injunction in a question in the Commons. I should mention that it is not uncommon for newspapers to cooperate with sympathetic MPs in drawing up questions under the protection of Parliamentary privilege.
What happened then was unprecedented in modern times. Carter-Ruck tried to use the existing super-injunction to prevent The Guardian from reporting Mr Farrelly's question, thereby challenging the supremacy of Parliament, which most people believe was established by the Bill of Rights of 1689, and confirmed on subsequent occasions. Interestingly, The Guardian did not at first publish any mention of Mr Farrelly's question. A flurry of twittering on the net then drew attention to it, so that there was no longer any point in Carter- Ruck insisting on non-publication.
Several MPs and ministers then rightly got on their high horse. The leader of the House of Commons, Harriet Harman, declared that parliamentary proceedings should not be subject to injunctions from the courts. She and others were batting on the wicket of parliamentary rights rather than the freedom of the Press, though in this instance they amount to the same thing. It does seem incredible that Carter-Ruck should have ever believed that the long established rights of Parliament could be overborne by the order of a judge, and seems to suggest that some lawyers do not have much respect for the democratic process.
On this occasion Carter-Ruck was seen off. Hurrah! But the device of the super-injunction is still being very widely employed. Just because this particular super-injunction involving Trafigura has been revealed in Parliament, we should not suppose that every future super- injunction will be. The Guardian claims to have been served with at least 12 of these orders so far this year. Other newspapers report an increase. As a result of the activities of libel firms such as Carter-Ruck, super-injunctions are pouring out of various judges, some of whom are either pliable or have little respect for the freedom of the Press.
Super-injunctions are much more oppressive than a traditional court order which prohibited a media organisation, sometimes for a limited period, from publishing a particular allegation. A super-injunction means that no one can report that an order has been granted or applied for. Its very existence must remain a secret. For example, last year the broadcaster Andrew Marr won an injunction not only to prevent the media from revealing particular private information about him but also to stop them from even mentioning that they had been gagged. Private Eye succeeded in getting the order varied to the extent that its existence can now be mentioned, though not the information that gave rise to it.
There are doubtless many super- injunctions in existence that relate to information of far greater public interest than that which concerns Mr Marr. Trafigura would appear to be one. The company does not want a report into its affairs published and, notwithstanding last week's dramas, it still has not been in the mainstream media. All sorts of important information is being kept from us, and we don't even know that it is being withheld. As the media lawyer, Mark Stephens, puts it: "As the libel and privacy capital of the world, people are coming here [to London] to bully the media and NGOs into not reporting their nefarious activities."
Super-injunctions grew up out of the secretive family courts, and have developed as a result of the privacy law enshrined in the 1998 Human Rights Act. The proliferation of internet sites which disregard contempt laws and are outside the jurisdiction of the English courts has had the perverse effect of making judges more draconian in their orders against our home-grown media.
Last week Gordon Brown referred to super-injunctions as "an unfortunate area of the law," and said that he wanted progress on "cleaning up" the general problem. But what? It is no good looking to the judges to behave themselves. Parliament may have won a single battle with the courts over the issue of its own privileges, but it continues to allow judges to develop a privacy law that has no democratic mandate, and is being used against the public interest.
Not only the likes of Andrew Marr, but also the Trafiguras of this world, are granted protection as a judge-made privacy law advances by stealth. Every newspaper, from the sleaziest tabloid to the most high-minded broadsheet, is in the same boat. Our media are the most muzzled in the free world and, until or unless Parliament decides to act, things will only get worse.
We must be careful not to sink to the BNP's level
There will be an almighty brouhaha this week over the BBC's controversial decision to invite the British National Party leader, Nick Griffin, on its Question Time programme. One does not have to be a member of Unite Against Fascism, which is planning to blockade BBC Television Centre to prevent Mr Griffin gaining access on Thursday, to be disturbed by the prospect of his appearance.
The truth is that the BBC had no choice. The BNP scraped two seats in the European Elections (supporters of proportional representation, please take note) and therefore enjoys democratic representation. Question Time is the BBC's most important current affairs forum, and I daresay the BNP would have had a strong legal case if its elected leader had been permanently excluded from the programme.
Some argue that it is a good thing for Mr Griffin to be put on the spot since the nastiness and extremeness of his views will be exposed. I hope so, but I wouldn't be certain. Mr Griffin, who is by no means stupid, is adept at concealing the dark side of the BNP, and appearing almost reasonable. Be prepared for a suave and measured performance.
We should beware of descending to his level, which is what he would like us to do. If it succeeds in keeping him out of Television Centre, Unite Against Fascism will be offending against the principle of free speech, and if it uses violence it will only help the BNP's cause. Equally, I would advise the panellists, who have bravely agreed to appear alongside Mr Griffin, not to gang up on him in an overbearing way. That might win him sympathy.
The BNP leader may give quite a good account of himself on Thursday, but the more his party is calmly and forensically scrutinised by the media, the weaker its appeal will be.Reuse content