Lawcast 155: The Guardian Gag affair with Carl Gardner
Today I am talking to Carl Gardner, ex government lawyer, a barrister and author of The Head of Legal blog. We look at whether the Bill of Rights has, in fact, been infringed by the gag, the use of injunctions generally and specifically in this instance, the use of parliamentary privilege and whether the judges are going too far in granting injunctions which can, effectively, be destroyed in their effect by many thousands of angry people on twitter and in the blogosphere.
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Yesterday The Guardian 's David Leigh in an article published on Monday night before hitting the front page on Tuesday said this:
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.
In practical terms, at least as far as distribution to the public is concerned, Parliament had been gagged.
The context has been well put by Wikileaks.org and I quote from their website:
The question, the subject matter of the gag, correctly identified by Guido Fawkes , Alex Massie of The Sectator - who published details of the question while other mainstream media held back - was the one tabled by
Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast , commissioned by Trafigura
The Commons' gag order was intended to prevent publication of Trafigura and Minton in the same context. As Wikileaks notes – the Minton report released by Wikileaks has not been mentioned in the press because of a 11 September 2009 media injuction.
“To-date the UK pubic has been kept in the dark. Paul Farrelly's question is an attempt to take on the suppression issue. In the process it connected the Minton report on WikiLeaks to Trafigura, something the UK media could not, or would not do.”
“Knowing this, lawyers for Trafigura, Carter-Ruck, obtained a second, secret media injunction to prevent reporting of Paul Farrely MP's questions. That this alleged order was granted is a bold and dangerous move by the High Court towards the total privatization of censorship.”
Last night I was on twitter and, along with many others, I saw the Guardian story and tweeted about it, expressing a degree of outrage. It did not take long before many hundreds of tweeters turned to thousands and overnight and this morning Trafigura and Carter Ruck found themselves a trending topic on Twitter – even Stephen Fry weighed in, adding countless thousands more to the clamour.
Alan Rusbridger, editor of The Guardia, reported this afternoon:
"I'm very pleased that common sense has prevailed and that Carter-Ruck's clients are now prepared to vary this draconian injunction to allow reporting of parliament. It is time that judges stopped granting 'super-injunctions' which are so absolute and wide-ranging that nothing about them can be reported at all."