Lord Chief Justice turns on super-injunctions

Britain's most senior judge defends rights of Parliament in Trafigura case
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The Independent Online

The country's most senior judge has defended Parliament's right to freedom of expression after allegations that a firm of lawyers and an oil trading company tried to stop the media reporting the business of the House of Commons.

Lord Judge, the Lord Chief Justice, said yesterday it was a "fundamental principle" that MPs should be able to speak freely in Parliament. He described this right as a "precious heritage" that had been secured through the sacrifice of previous generations who had fought and died in the name of free speech.

The judge's intervention follows a row over the use of a so-called "super-injunction", deployed to gag the media from reporting on a question raised by the Labour MP Paul Farrelly.

The MP had asked about the effectiveness of legislation to protect the freedom of the press in the wake of a High Court injunction, obtained by the international oil trading company Trafigura and its lawyers Carter-Ruck, "on the publication of the Minton report". The report concerned the possible harm caused by the dumping of toxic waste in the Ivory Coast by Trafigura in 2006.

The injunction has since been lifted, and MPs are due today to debate the growing threat to press freedoms from such widely drawn orders.

Lord Judge said yesterday: "I am speaking entirely personally, but I simply cannot envisage that it would be constitutionally possible, or proper, for a court to make an order which might prevent or hinder or limit discussion of any topic in Parliament. Or that any judge would intentionally formulate an injunction which would purport to have that effect."

Speaking at the Royal Courts of Justice in London, Lord Judge added: "We use the words 'fundamental principle' very frequently, but this is a fundamental principle. The absolute privilege for Members to speak freely in Parliament did not come without a price, and previous generations fought – and indeed died – for it. It is a very precious heritage which should be vigorously maintained and defended by this generation.

"There are clear conventions about the circumstances in which Parliament will or will not discuss proceedings in court, and I have no doubt these conventions will be followed so as to avoid any possible interference with the administration of justice. "

After the injunction in question had been relaxed, Carter-Ruck said there was "no question of Trafigura seeking to gag the media from reporting parliamentary proceedings".

But several MPs raised concerns about the issue in the Commons, particularly about the existence of "super-injunctions", which prevent journalists from reporting a story and also the existence of the injunction.

Tory MP Peter Bottomley said the order should never have been granted, and that he intended to report Carter-Ruck to the Law Society.

In a letter to the Speaker, circulated to all MPs, Carter-Ruck said it believed the injunction was sub judice and that discussing it could prejudice ongoing legal proceedings. "Clearly, the question of whether this matter is sub judice is entirely a matter for your discretion," the letter said. The law firm stressed there had "never been any question of Trafigura applying for an injunction that had as its purpose the prevention of publication of any matter arising in Parliament".

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