Tuesday, 13 October 2009

Guardian Ungagged

The case, which I suggested could be the most significant constitutional case of our generation, will not now take place.

The good news is reported here.

As I guessed earlier, it was not based on libel but - according to The Guardian - alleged contempt of court. It would take something like that to prompt a court to grant an injunction at the very extreme of its jurisdiction (and, as far as I can tell, beyond that extreme).

Injunctions are discretionary and equitable; as such the court will not grant one in vain. Once the information protected is viral, and whatever the other merits of the case, the court is unlikely to renew any injunction.

It may well be that The Guardian knew this full well when it posted its possible-to-decode coded report yesterday evening.

For once decoded, it was likely to go viral, which it did.

If so, The Guardian proved the ancient adage that clever people get themselves out of situations which wise people wouldn't get into.

However, two important questions remain.

The first question is how did such an injunction get granted in the first place.

The second question is indeed the still unanswered Parliamentary Question...


Unity said...

Looking at the pattern of pre-gag traffic on this story, it strikes me that the trigger was the reference to the Minton Report, which has been up on Wikileaks for about a month but not had too much attention before today.

That suggest a previous injunction preventing the Guardian from referring to it, which would have breached by the report of Farrelly's question.

The Heresiarch said...

Presumably Carter-Ruck argued that the Parliamentary question was a blatant attempt to circumvent the injunction via PP, rather than a genuine matter of Parliamentary business. It certainly looks that way to me.

As to whether it was Twitter wot won it; it's possible, but it's equally possible that the Graun's lawyers put a convincing case based on Parliamentary Privilege. Any chance of seeing the ruling, or at least a detailed account of it, do you think?

Jack of Kent said...


And hence why it was an alleged contempt of court.

If you are right, you complete the legal circle.

Niklas said...

@Heresiarch: as I understand it the Guardian didn't win the hearing because Carter-Ruck backed out:

As for circumventing injunctions by using parliamentary privilege, what is an absolute right for if it is not absolute when push comes to shove?

I agree wholeheartedly with a commenter on the previous thread who said we need a written constitution to stop these dangerous decisions. How DID that injunction get granted? Both precedent and a constitutional statute defended the Guardian's right to report parliamentary business.

Jack of Kent, I have a question of my own: since C-R withdrew their opposition, does the precedent set by the first judge in granting the injunction still stand (as there was no appeal hearing in the end), or does it fall with the particular injunction?

It would be dangerous for our democracy if a precedent has been established that the press could not report parliamentary questions.

Niklas said...

P.S. Sorry about the length of the preceding comment, but I am still gobsmacked and outraged by this whole incident. I hope C-R have paid the Guardian's legal costs.

Botogol said...

I really like that 'well known' adage, Jack, but googling it reveals nothing - did you make it up? :-)

Jack of Kent said...

Botogol - I de-gendered it, but it is a Hebrew proverb about wise men and clever men.

Andy Gardiner said...

This leaves the question of whether it is desirable to have an absolute right to report all parliamentary proceedings.

It would need to be balanced against the risk of a malevolent and/or foolish MP causing a significant miscarriage of justice (is there any other kind?) by circumventing reporting restrictions under parliamentary privilege.

Jack of Kent said...


All I can really say re matter is in Blogpost...

Benjamin Gray said...

If "Both precedent and a constitutional statute defended the Guardian's right to report parliamentary busines", why would a written constitution make a jot of difference?

Anonymous said...

I was wondering if the injunction was granted on the very narrow basis of the question not having actually been asked: it was a written question to be asked on Thursday.

Steve Jones said...

Certainly there is the possibility of an MP acting in such a way as to undermine justice. However, in that case, presumably he or she would be answerable to the House. That is, I think, as it should be. There are sanctions within the House as far as I can tell.

In this particular case it seems extremely difficult to see how any judge could have granted the injunction in the first place as it is surely in direct conflict with an act of parliament.

So I think there are a couple of specific issues here. Firstly, on what legal grounds could an injunction such as this be granted? I think the judge in question needs to make the justification open.

Secondly, there is the issue of the original legal case. As I understand it, the injunction was effectively put in place to prevent the existence of a previous legal injunction becoming known. That there are judgments which can't be reported is extremely worrying in its own right. Of course that happens with family courts all the time, but at least that has some defense in the protection of children and maybe privacy, but in the case of commercial interests?

Finally, there is the whole mindset of judges here. Just whose interests do they think they are representing here? There is surely a considerable point about public interest in all such judgements which must be taken into account. As it currently stands it would appear that many judges are taking the line that, not only is the interests of the plaintiffs to be considered sacrosanct in many case, it's almost the very working of the legal system that is being considered to have privileged status.

Ultimately judges should surely be the protectors of our freedoms and democracy and not, apparently, contributing to its suppression.

Robert said...

Yes, agreed: precedent, statutes, constitutions - only as good as the people who defend them.

But I still favour a written constitution over an unwritten one.


(1) To end elective dictatorship

(2) To establish a system of "checks & balances"

(3) To abolish hereditary rule

(4) To shine a light of hope and democracy

I could go on...

Visit the following sites for more info:

"The only way we can keep our freedom is to work at it. Not some of us. All of us. Not some of the time, but all of the time."

Robert said...

Yes, agreed: precedent, statutes, constitutions - only as good as the people who defend them.

But I still favour a written constitution over an unwritten one.

A written constitution would have many potential benefits.

First, it could contain a beefed up, modernised Bill of Rights.

This would recite not only our rights & privileges as citizens of this country, but also our responsibilities.

Second, a written constitution could rewrite the rules of government to end the elective dictatorship; cement "checks & balances" into the system; abolish hereditary rule; empower a new elected head of state; & create an elected upper chamber.

Most importantly, a written constitution symbolises hope, transparency, & democratic renewal. It would reflect light across the globe & finish a process that began in 1776 when a small band of Britishers dared to stand up to unelected tyranny.

Richard T said...

I think it quite clear that whatever the merits of a written constitution, we certainly need an equivalent of the US Constitution's First Amendment guaranteeing freedom of speech. Incidentally it is worthy of note that recent actions by some judges do puncture the posture that the judiciary is a guarantor of liberty. On matters of free speech, the bench is rarely found wanting in knowing its duty to suppress it.

Michael Kingsford Gray said...

"... a written constitution symbolises hope, transparency, & democratic renewal. "

Sym-bollocks indeed.
Look at where a written constitution has got the USA relative to the UK in every jurisprudential area apart from that of libel.

Evan Price said...

Looking at this again today, it appears that the injunction was obtained to protect documents that ought to have remained confidential - legal professional privilege - and that the injunction was obtained over a month ago - 11 Sep 09. The Guardian may even have agreed to the injunction in the first place.

The Guardian, according to its editor on Channel 4 news, then (this week) appears to have contacted a former journalist and now MP who has asked a question to highlight the injunction and, presumably, the documents that have been restrained from publication.

The Guardian has then appears to have asked the Solicitors who obtained the injunction whether they would enforce the injunction to prevent them from reporting the question in Parliament ...

If that is the sequence, then the Guardian has, in my view, behaved irresponsibly in engineering a situation where an existing injunction cannot be maintained as a result of an MP irresponsibly seeking to undermine legal professional privilege by trumping it with Parliamentary privilege and the laws that prevent restraint being applied to reports of the proveedings in Parliament.

That does not excuse Trafigura's apparent behaviour in the Ivory Coast - but it does raise questions about the way in which our newspapers and MPs may well be contemptuous of the usual niceties regarding other individual's privileges including their legal professional privilege.