Posted by David Drummond, SVP, Corporate Development and Chief Legal Officer

When, following the recent fiasco around Trafigura, I saw Carter-Ruck partner Andrew Stephenson at a Parliamentary committee meeting, he seemed utterly unrepentent.

Carter Ruck’s attempt, on behalf of Trafigura, to ban the media from reporting a question in the British Parliament, had triggered calls for the company’s Directors to be dragged to the bar of the House of Commons and formally reprimanded. Justice Minister Bridget Prentice had reiterated that the 1688/9 Bill of Rights, gave the media an absolute privelege to cover the proceedings of Parliament, and that this was essential for the effective functioning of our democracy.

In seeking to explain his firm’s behaviour to the Joint Parliamentary Committee on Human Rights, Stephenson certainly appeared defensive, but he didn’t seem in the least bit sorry. He did, though, seem keen to reassure us that the injunction secured by his company on Trafigura’s behalf had been intended merely as an interim holding measure, and that the original purpose had never been to gag the reporting of Parliament.

So it seems very surprising to read in today’s Sunday Times that Stephenson appears to have gone out of his way to persuade the Commons authorities that the law does, after all, allow for the gagging of Parliamentary procedure:

In a submission to a Commons select committee, Carter-Ruck, a law firm that specialises in libel, argues that newspapers and publishers would be in contempt of court if they published parliamentary questions, answers or debates that fell under super-injunctions.

Advisers to John Bercow, the Speaker, are understood to have informed the culture, media and sport committee that Carter-Ruck’s position is correct. MPs regard the position as a serious threat to free speech and the proper functioning of democracy.

Super-injunctions — under which even reporting the existence of the injunction is banned — are increasingly being used to stop the media publishing information. MPs are now concerned that they threaten the media’s right to report what MPs can freely say in parliament, a privilege affirmed in the Parliamentary Papers Act of 1840…

At the time of the disagreement, Bridget Prentice, the justice minister, said Carter-Ruck was wrong to claim super-injunctions applied to the reporting of parliamentary proceedings.

However, in a submission to the culture committee published last week, Andrew Stephenson, a senior partner at the firm, said the minister was under a “misapprehension”.

He said that while MPs were guaranteed the right to free speech under the 1688 Bill of Rights within the House of Commons, the reporting of parliament remained subject to court orders.

The Speaker’s counsel declined to comment, but is understood to agree with Stephenson’s assessment.

So it seems, after all, that Parliamentary democracy is still under attack, and that Carter-Ruck may be making headway in their attempt to overturn a centuries-old democratic freedom.

What I think this demonstrates, again, is that Carter-Ruck is not just an ordinary law firm, doing what ordinary law firms do. They are actively engaged in lobbying the government to curtail our liberties in the interests of their clients. They are behaving, in other words, like a right-wing activist group.

Presumably if the goverment takes this issue seriously enough, they will table emergency legislation which makes the absolute right to report Parliament fully explicit. In the meantime, judges could presumably ensure that any secret injuction they do grant includes a statement spelling out that the measure does not apply to the reporting of Parliament.

As I’ve argued elsewhere, there’s also a pretty clear-cut ethical case for (peaceful, legal) direct political action against Carter-Ruck. The idea that a lawyer – or indeed any other professional – should be exempted from the moral consequences of their professional choices is, in my view, a self-serving myth.

Lawyers who seek to apply an unjust law – be that the law that jailed Oscar Wilde or the laws being used today to suppress freedom of speech – don’t evade moral accountability simply by hiding behind the fact that what they’re doing is ‘legal’. I can’t help but wonder if we might have avoided some of the trouble we’re now in if more had been done to challenge unethical companies like Carter-Ruck at an earlier stage.

But lastly, there has to be a question here about practicality. However much Carter Ruck and their corporate clients might like to suppress free speech through the use of one secret injunction after another, the recent Twitter-storm around Trafigura has shown that this can sometimes be impossible in practice.

If Carter-Ruck are right and Bridget Prentice is wrong, then it seems that I may, after all, have been in contempt of court when I posted the ‘banned’ Parliamentary Question on Twitter back in October. Would I be willing to do so again? I wouldn’t rule it out. And it strikes me that now would be a good time to get a head-count of bloggers and Tweeters prepared to consider engaging in peaceful civil disobedience should Carter-Ruck – or anyone else – attempt to gag the reporting of Parliament again. You can leave a comment here or email me via richardcameronwilson AT yahoo DOT co DOT UK.

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14 Oct 2009

A court ruling today supported science writer Simon Singh’s right to free expression. It grants him leave to appeal Mr Justice Eady’s ruling against him in a libel action brought by the British Chiropractic Association, reports Padraig Reidy

Popular science writer Simon Singh has been granted leave to appeal in the libel action brought against him by the British Chiropractic Association.

Addressing Mr Justice Eady's previous judgement in the case, Lord Justice Laws said Eady had arguably risked swinging the balance of rights too far in favour of the right to reputation and against the right to free expression. Lord Justice Laws said Eady's judgement, centred on Singh's use of the word "bogus" in an article published by the Guardian newspaper, could be seen as "legally erroneous".

Laws also pointed out that Eady's judgement had conflated two issues --- the meaning of the phrases complained of, and the issue of whether the article was presented as fact or fair comment.

Laws said there had never been any question of the "good faith" of Singh in writing the article, as the matter was "clearly in the public interest".

Speaking after the judgement, Singh told Index on Censorship this was the "best possible result".

"But I try not to get my hopes up," he continued. "We have only won leave to appeal. Now we must convince the court of appeal on the issue of meaning. There is a long battle ahead. Reform of English libel laws, particularly the right to a public interest defence and a fairer costs structure, are vital."

The BCA was not represented at this morning's hearing.

Additional reporting Síle Lane

The only fact the Guardian can report is that the case involves the London solicitors Carter-Ruck. Photograph: John D McHugh/AFP

The Guardian has been prevented from reporting parliamentary proceedings on legal grounds which appear to call into question privileges guaranteeing free speech established under the 1688 Bill of Rights.

Today's published Commons order papers contain a question to be answered by a minister later this week. The Guardian is prevented 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.

The Guardian is also forbidden from telling its readers why the paper is prevented – for the first time in memory – from reporting parliament. Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.

The only fact the Guardian can report is that the case involves the London solicitors Carter-Ruck, who specialise in suing the media for clients, who include individuals or global corporations.

The Guardian has vowed urgently to go to court to overturn the gag on its reporting. The editor, Alan Rusbridger, said: "The media laws in this country increasingly place newspapers in a Kafkaesque world in which we cannot tell the public anything about information which is being suppressed, nor the proceedings which suppress it. It is doubly menacing when those restraints include the reporting of parliament itself."

The media lawyer Geoffrey Robertson QC said Lord Denning ruled in the 1970s that "whatever comments are made in parliament" can be reported in newspapers without fear of contempt.

He said: "Four rebel MPs asked questions giving the identity of 'Colonel B', granted anonymity by a judge on grounds of 'national security'. The DPP threatened the press might be prosecuted for contempt, but most published."

The right to report parliament was the subject of many struggles in the 18th century, with the MP and journalist John Wilkes fighting every authority – up to the king – over the right to keep the public informed. After Wilkes's battle, wrote the historian Robert Hargreaves, "it gradually became accepted that the public had a constitutional right to know what their elected representatives were up to".

In the recent European elections, 7.1% of the population of Sweden voted for the Pirate party, giving Europe it's first Pirate MEP. Now the UK has it's own Pirate party campaigning on a platform of copyright and patent reform, less intrusive commercial and government surveillance and increased freedom of speech. Our timing was perfect, as this week the government announced plans for a range of draconian penalties to target illegal downloaders, including requiring ISPs to block specific sites or to cut off internet access for repeat offenders.

At first glance copyright reform and free speech might seem to be strange bedfellows, but copyright can be a free speech issue. When a government grants copyright to an author, it gives them the exclusive right to exploit their work for financial gain. The inevitable consequence of this exclusivity that everyone else loses a small part of their right to free speech, because they are no longer allowed to say those words or sing that song without making a payment.

The Pirate party UK understands that authors, artists and performers need to be rewarded when their work is exploited for financial gain, which is why it campaigns for copyright reform rather than the abolition of copyright. Drafted long before the birth of the internet, our copyright law is concerned purely with the right to exploit works for financial gain. It has nothing relevant to say about peer-to-peer file sharing, where the duplication cost is zero, and therefore works are spread without any financial gain, an unimaginable concept when our copyright regulations were written.

When the government say that 7m Britons share files, it is important to understand that they are not referring to a greedy or avaricious process, but an altruistic system. The public have a right of access to our cultural heritage, many choose to preserve it through donations of internet bandwidth freely given to unknown strangers, a concept that is alien to our outdated law.

It's important to realise that the idea of a file sharing nation, where nearly all of our recorded culture is available with just a few clicks of a mouse, is not some idle fantasy, or the dream of a minor political party, it's reality. When the government state their intention to reduce file sharing by 70% in one year, as they did this week, they are declaring war not on people who would "steal a handbag" as the film industry would have you believe, but on a benevolant youth culture. Their government's 70% reduction implies 4.9m people will somehow be dissuaded from file-sharing. Given that our courts service handled less than 2.2m cases last year, it must have been obvious to the government that the courts weren't capable of handling the volume of cases need to dissuade the public from file sharing.

Instead the government announced that it is considering cutting off the internet connections of those deemed repeat offenders. The government's plans would cut off internet access for entire famllies when just one member is accused of filesharing. It would force internet service providers to share the financial burden of enforcement, a move that makes as much sense as insisting that tarmac suppliers pay for speed cameras. Ironically in the face of such draconian penalties, its possible surely the public will be driven towards purchasing counterfeit CDs and DVDs instead because of the lower penalties and lack of enforcement? Is that an outcome that benefits anyone apart from the people we all agree are the the real copyright villains, organised profit-making counterfeiters?

Before we go down this path shouldn't we at least have a grown-up debate about reforming copyright?