#Trafigura – the Hansard transcript

Astute readers may have noticed one or two mentions on the site yesterday concerning Trafigura, its lawyers Carter Ruck, and their attempts to impose a gagging junction on The Guardian preventing the reporting of Parliamentary proceedings.

Not only was the issue promptly picked up by Lib Dem leader Nick Clegg, but two of the party’s MPs, David Heath and Paul Burstow, were also quick off the mark in pledging to ask questions in the House of Commons – an action which, as Alix Mortimer has remarked, was perhaps decisive in forcing Trafigura to back down.

So here for your delectation is the Hansard transcript of the Commons’ exchanges which took place yestrday afternoon, starting with the Labour MP whose question sparked the whole farrago:

Paul Farrelly (Newcastle-under-Lyme) (Lab): On a point of order, Mr. Speaker. I want to raise a chain of events that may be of some concern to the House. Today The Guardian reported that it had been prevented from reporting a written question tabled by a Member of Parliament. This morning I telephoned The Guardian to ask whether that MP was myself. The question was printed on the Order Paper yesterday and relates to the activities of Trafigura, an international oil trader at the centre of a controversy concerning toxic waste dumping on the Ivory Coast. The question also relates to the role of its solicitors, Carter-Ruck. I understand that yesterday Carter-Ruck, quite astonishingly, warned The Guardian of legal action if the newspaper reported my question. In view of the seriousness of this, Mr. Speaker, will you accept representations from me over this matter and consider whether Carter-Ruck’s behaviour constitutes potential contempt of Parliament?

Mr. David Heath (Somerton and Frome) (LD): Further to that point of order—

Mr. Speaker: In a moment.

Let me first say to the hon. Member for Newcastle-under-Lyme (Paul Farrelly) that I think that he has just made representations. I am grateful to him for his point of order and for courteously giving me advance notice of it. A written question has indeed been tabled, as he said, by the hon. Gentleman himself. It is not sub judice under the House’s rules. It has already been published on the notices of questions, and it is also available on the Order Paper and, indeed, on the parliamentary website. There is no question of our own proceedings being in any way inhibited. If the hon. Gentleman wants to pursue this as a matter of privilege, there is of course, as he will doubtless know, an established procedure for raising it with me in writing. Furthermore, I now understand that an injunction is no longer being sought. I hope that that reply is helpful both to the hon. Gentleman and to the House.

Mr. Heath: I also wish to speak about the matter raised by the hon. Member for Newcastle-under-Lyme (Paul Farrelly), because it seems to me that a fundamental principle of this House is now being threatened by the legal proceedings for an injunction and the consequent proceedings for contempt of court in respect of injuncted material. As you know, we have enjoyed in this House since 1688 the privilege of being able to speak freely. We have also developed the right of British citizens to know what we say in this House and have it reported freely. Is there an opportunity for a wider debate on what I think is a very substantial matter, either through a consideration of privilege or on the Floor of the Chamber?

Mr. Speaker: There are usually further opportunities, as the hon. Gentleman, as an experienced parliamentarian, can testify. I hope that he will not mind if I point out that one suitable opportunity to raise the matter might be at business questions, in relation to which he himself enjoys a privileged position.

David Davis (Haltemprice and Howden) (Con): You, Mr. Speaker, are the defender of our rights and privileges in this place. This is a new class of injunction, a so-called super injunction, in which the press are not even allowed to report the injunction itself and the existence of the case. That is how Parliament’s reporting has been stopped by it. Could you undertake to the House to do two things? First, will you take legal advice to see whether the courts can be instructed not to grant injunctions that close down reporting of this place? Secondly, will you seek a meeting with the Secretary of State of Justice, who I know is sympathetic to this—it is not a party matter—to see whether the Government can act to achieve that same aim?

Mr. Speaker: I am not sure that I can accommodate the right hon. Gentleman in relation to his first question. I am not sure that it would be right to interfere with a legal process in the way that I think his question would invite me to do. I would like to reflect further upon the second point that he has very reasonably put to me.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): On the same point of order, Mr. Speaker. While you are reflecting on that point, may I ask you also to reflect on whether the increasing habit of solicitors of seeking injunctions in advance of publication, not only in this case but in others, might prevent newspapers regularly from reporting such questions? Given that the efforts of John Wilkes MP in the 18th century to provide for the reporting of parliamentary proceedings were such an important breakthrough, and indeed led to the disuse of sedition laws against this House, would it be possible for you to reflect on that and see whether something urgently needs to be done to control the habit of law firms of seeking to prevent the reporting of this House?

Mr. Speaker: It has always been my pleasure to reflect on any observations put to me by the hon. Gentleman, but I fear that he is seeking to inveigle me into a wider debate than I should enter this afternoon. I think it is fair simply to reiterate the point that the proceedings of the House have been, and will be, in no way inhibited. For today, I would like to leave it at that.

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  • “First, will you take legal advice to see whether the courts can be instructed not to grant injunctions that close down reporting of this place?”

    “Stop right there”! ((C) MeatLoaf/Steinman)

    Do we really want to see Parliament, in the person of the Speaker, to take on powers to “instruct” the courts what they can or can’t decide. Given the efforts made to shut down reporting of the MPs expenses and the Damian Green arrest imagine how such powers might also be used.

    I’m not a defender of what happened but there are some very dangerous ideas being implied in the fallout of this debate

  • Herbert Brown 14th Oct '09 - 1:43pm

    Yes – I must say that was my thought when I saw a contributor here asking why the judge hadn’t been sacked.

  • David Cooper 14th Oct '09 - 4:27pm

    The judge (one Justice Maddison) is not an innocent functionary who is just doing his job. He is excercising active judgement about the meaning and spirit of the law. That is why he is called a judge, and that is why he gets a stonking great pension when he retires.

    Justice Maddison, by allowing the injunction requested by Carter Ruck, was judging that the reputation of some foreign company is worth more than our hard won freedoms. This is not a neutral act. The guy has defective judgement and is not fit to do his job.

  • “Justice Maddison, by allowing the injunction requested by Carter Ruck, was judging that the reputation of some foreign company is worth more than our hard won freedoms.”

    Quite possibly. But that conflict you outline doesn’t have an automatic right or wrong.

    It’s the sort of difficult decision we pay Judges to make and it’s not uncommon for them to make the wrong one. That’s why there is the possibility of speedy appeals and/or review of interim injunctions (which I assume this was) in the light of additional evidence. (Interim injunctions are often granted on the basis on only one party being heard so are particularly prone to that sort of problem).

    What your suggesting is that Judge should be subject to dismissal on the basis of getting one decision, where there is limited opportunity to take time for consideration, wrong. If they are to face dismissal on that basis then you have to say who should decide whether they are to be dismissed and how can you be sure that Judges won’t be taking decisions to satisfy that person(s)?

    IIRC Charles Clarke and Jack Straw have referred to HoL and Appeal Court decisions with phrases like “inexplicable”. Do you think those decisions would have been made if the Judges could face dismissal on an assessment that they had defective judgement?

  • David Cooper 14th Oct '09 - 7:00pm

    I’m not suggesting that some government minister should have the right to fire judges willy nilly. However Maddison, in deepest secrecy, had allowed an injunction so outrageous that he needs to go through some process of sanction.

    It’s a question of trust. Do you trust democracy to preserve our liberties, or judges? The Trafigura case shows that judges are absolutely not to be trusted.

  • This is unbelieveably stupid as well

    There is an argument that there should be no restrictions on the fair comment reporting of proceedings in Parliament but saying no to applications to do so should be a matter for the courts. AIUI that is not the case and regardless of the Bill of Rights Parliament regularly restricts comments made in the house on matters considered to be sub-judice.

    Stopping a lawyer from being able to make an application that they consider to be properly arguable is an incredibly dangerous idea.

  • @David it seems (according to Carter Ruck) that the original injunction was made without the idea of the matter being raised in Parliament being contemplated and was made with the consent of the Guardian. There was no “injunction to gag Parliament” sought.

  • David Cooper 15th Oct '09 - 9:04am

    There is good reason to believe that Justice Maddison has broken the law, see letter in today’s Guardian (http://www.guardian.co.uk/world/2009/oct/15/trafigura-probo-koala-ivory-coast).
    It reads: “Remarkably, the court went further, negating the right to freedom of expression by imposing a blanket ban. Such an extreme form of prior restraint is incompatible with Article 10, and thus unlawful”

    Even more grieveously, he conspired to conceal his lawbreaking with a draconian gagging order.

    It does not matter what Carter Ruck had in mind. Injuctions are requested by solicitors. They are handed out by judges. If Maddison did not understand how his injunction could be used, he is not competent to do his job.

  • It isn’t an illegal act for a Judge to make an order which is unlawful. If it were the prisons would be full of Judges as I suspect most have had a decision overturned on a point of law at some point 🙂

    “Such an extreme form of prior restraint is incompatible with Article 10, and thus unlawful”

    Just because it’s written by a law lecturer* doesn’t mean his analysis is right. Article 10 doesn’t provide absolute rights – as the author admits saying, “One would have thought that only a most compelling reason would justify a court issuing a coercive order limiting such an important right”. The legality of the order would come down to whether it was a proportionate interference and that’s something you just can’t form a judgement on without knowing the full facts.

    It seems pretty clear that a situation arose which wasn’t in the contemplation of either party at the time the injunction was granted (which AIUI was by agreement so is considerably less likely to have been subject to detailed judicial scrutiny as it is in effect just making legally enforceble a private arrangement between to organisations.

    All sorts of hypothetical situations could arise that might come under an injunction.

    When the issue of reporting Parliamentary proceedings arose what were Carter Ruck to do? They clearly couldn’t agree anything without taking further instructions (on what seems a reasonable timescale) and in the meantime the Guardian broke the story

    If it was so clearly illegal then why did The Guardian consent to it being made at the time.

    I still think the Guardian have run a very very good and inventive PR campaign to highlight the whole issues but I’m not convinced the legal issues re Parliamentary Sovereignty are as major as is being made out.

  • David Cooper 15th Oct '09 - 2:25pm

    Dear Hywel,

    Thanks for brightening my day with your image of prisons bursting with Judges who have made illegal orders. I will treasure it. Perhaps a stretch could be added to their sentences for conspiracy to conceal the illegal order by using injunctions.

    And I’m sure you are right that there were mixed motives on all sides. Poor Carter Ruck- what a quandary they were put in by that cunning Rushbriger ! My heart almost bleeds.

  • “prisons bursting with Judges who have made illegal orders.”
    There will of course be a problem when it comes to the last one as there will be no-one to lock him/her up 🙂

    “My heart almost bleeds.”
    Not sure I’d go that far!

    “cunning Rushbriger”
    Absolutely. He could almost certainly have got an amendment to the injunction allowing this to be reported with no trouble (and probably uncontested) but was much cleverer than that! Media law consists of mastery of the media as well as the law. Carter Ruck may be very good at the latter but certainly got out-manouvered and totally stitched up by the Guardian on the former.

  • It has occured to me, didn’t Paddy get a similarly secret injunction in an attempt to prevent publication of stories about his affair (the information had come from stolen papers). One reason why the story broke was that the injunction didn’t cover Scotland so the Scottish papers were likely to run the story.

    I’ve a vague memory of one paper reporting that there was a major sex scandal about a leading politician but they weren’t able to report the full details a few days before Paddy gave his press conference. Very similar to the Guardian’s story which broke the Trafigura story.

    No-one has ever suggested Paddy was wrong to do this. Just worth remembering when people start saying how disgraceful it is that Carter Ruck should be asking for such a thing if it is in their clients best interests.

One Trackback

  • By More Hansard quotes about #Trafigura on Mon 26th April 2010 at 7:23 pm.

    […] we brought you links to discussion in Parliament about disreputable oil company Trafigura’s legal shenanigans to prevent discussion of their […]

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