Archive for May 2010
From the website of the UK Parliament
Early Day Motion
TRAFIGURA AND SHIPPING HAZARDOUS WASTE TO THE IVORY COAST
That this House, concerned that due to the start of fresh legal proceedings in the Netherlands on 14 and 17 May 2010 concerning the multinational commodities trading group Trafigura, including allegations that UK nationals and UK firms may have been involved in illegal waste shipments and a subsequent cover-up and that payments were made to truck drivers in return for favourable witness statements and given that this is not being fully reported in the United Kingdom because of the chilling effect of the UK’s libel laws, calls on the Government to launch a full inquiry into the allegations against Trafigura and to review the libel laws to ensure that this matter can be reported fully in the UK.
With help from the newly-elected Green MP Caroline Lucas, The Independent newspaper has taken a clear lead in the “Trafigura challenge” – the race to see which UK media outlet will be the first to report fully on the upcoming trial in the Dutch courts of the controversial oil company.
No UK newspaper or broadcaster has yet made any mention of allegations made to Dutch prosecutors by Greenpeace – and widely featured in the Dutch media – that Trafigura and their law firm MacFarlanes sought to bribe witnesses in an earlier London court case. But the Independent has, by citing Caroline Lucas’ remarks, at least been able to reference the ongoing legal proceedings.
Under the Parliamentary Papers Act 1840, “correct copies” of any Parliamentary publication may freely be republished without fear of legal action, including, crucially, any action under the UK’s notoriously expensive and one-sided libel laws, which Trafigura has been ruthlessly exploiting.
In a message on Twitter last night, Caroline Lucas promised an “EDM [Early Day Motion] and PQs [Parliamentary Questions] to follow”, so with luck the UK press may soon have more opportunities to cover this story freely.
From The Independent
Caroline Lucas used her maiden speech to raise concerns that the British media are unable to fully report legal proceedings involving the commodities trading company Trafigura.
The Green MP pledged to use her new position in Parliament to raise the issue after legal claims were launched in the Netherlands against the company, which chartered the ship whose toxic sludge was illegally dumped in the Ivory Coast in 2006.
The Dutch-based oil trader caused outrage last year when a High Court injunction issued on its behalf had the effect of blocking coverage of parliamentary proceedings involving its activities. The “super-injunction”, obtained by the law firm Carter Ruck, was amended after it was accused of infringing the supremacy of Parliament by preventing the reporting of a question tabled by an MP. Politicians from all sides criticised the legal manoeuvre.
The law firm agreed to change the injunction and insisted there was no question that Trafigura had sought to gag the media from reporting parliamentary proceedings.
In her maiden speech to the House of Commons, Ms Lucas said she was still concerned that proceedings in foreign courts were not being reported in Britain. She said: “Last year honourable members from all sides of the House helped to shine a light on the actions of the international commodities trading group Trafigura, and the shipping of hazardous waste to the Ivory Coast.
“There was particular concern that the media in this country were being prevented from reporting the issues fully and fairly. This remains the case, for new legal actions concerning Trafigura have been launched in the Dutch courts and are being reported widely in other countries, but not here. And these are the kind of issues I would like to pursue.”
In unrelated proceedings, a court in Amsterdam is due to start hearing the trial next week of Trafigura for the alleged infringement of Dutch waste export laws relating to the Probo Koala, the chartered tanker whose waste was dumped at sites around the Ivorian city, Abidjan.
The company is accused along with the captain of the vessel, the municipal authorities in Amsterdam and a waste treatment company of breaking rules when the ship attempted to offload the waste in the Dutch city before it then departed for West Africa. The trial is expected to last five weeks.
The new Green Party MP Caroline Lucas has begun her House of Commons career in style. In her maiden speech this afternoon, Ms Lucas exercised Parliamentary privilege to help break the UK media’s silence over the upcoming trial in the Dutch courts of the oil company Trafigura.
Under the Parliamentary Papers Act 1840, “correct copies” of any Parliamentary publication may freely be republished without fear of legal action of any kind. This means that the UK media should now be able to make some reference to Trafigura’s legal entanglements, if only by republishing our first Green MP’s maiden speech.
If you’d like to help end the legal fiasco which has allowed a powerful multinational with a dubious track record to silence our entire media, do please support the petition for libel reform at www.libelreform.org/sign, and encourage your friends to do the same.
The text of Caroline Lucas’ speech will shortly be available on the official Parliamentary record – in the meantime it has been published by the Green Party here. I’m also reproducing the text below.
I am most grateful to you for calling me during today’s debate.
The environment is a subject dear to my heart, as I’m sure you know, and I’ll return to it in a moment.
I think anyone would find their first speech in this chamber daunting, given its history and traditions, and the many momentous events it has witnessed.
But I have an additional responsibility, which is to speak not only as the new Member of Parliament for Brighton Pavilion, but also as the first representative of the Green Party to be elected to Westminster.
You have to go back several decades, to the election of the first Nationalist MPs in Scotland and Wales, to find the last maiden speech from a new national political party.
And perhaps a better comparison would be those first Socialist and Independent Labour MPs, over a century ago, whose arrival was seen as a sign of coming revolution.
When Keir Hardie made his maiden speech to this House, after winning the seat of West Ham South in 1892, there was an outcry.
Because instead of frock coat and top hat, he wore a tweed suit and deerstalker. It’s hard to decide which of these choices would seem more inappropriate today.
But what Keir Hardie stood for now seems much more mainstream.
Progressive taxation, votes for women, free schooling, pensions and abolition of the House of Lords.
Though the last of these is an urgent task still before us, the rest are now seen as essential to our society.
What was once radical, even revolutionary, becomes understood, accepted and even cherished.
In speaking today, I am helped by an admirable tradition – that in your first speech to this House, you should refer to your constituency and to your predecessor.
David Lepper, who stood down at this election after thirteen years service as Member for Brighton Pavilion, was an enormously hard-working and highly-respected Member whose qualities transcend any differences of Party. I am delighted to have this chance to thank him for his work on behalf of the people of Brighton.
It is also a great pleasure to speak about Brighton itself. It is, I am sure, well-known to many Members, if only from Party conferences.
My own Party has not yet grown to a size to justify the use of the Brighton Centre, although I hope that will change before long.
But I can say to honourable members who are not familiar with it, that it is one of the UK’s premier conference venues; and there are proposals to invest in it further to help ensure that Brighton retains its status as the UK’s leading conference and tourism resort.
There are also the attractions of the shops and cafes of the Lanes and North Laine, the Pier and of course the Royal Pavilion itself, which gives its name to the constituency.
And beyond the immediate boundaries of the constituency and the city, there is the quietly beautiful countryside of the South Downs and the Sussex Weald.
Brighton has always had a tradition of independence – of doing things differently. It has an entrepreneurial spirit, making the best of things whatever the circumstances, and enjoying being ahead of the curve.
We see this in the numbers of small businesses and freelancers within the constituency, and in the way in which diversity is not just tolerated, or respected, but positively welcomed and valued.
You have to work quite hard to be a “local character” in Brighton.
We do not have a single dominant employer in Brighton. As well as tourism and hospitality, we have two universities, whose students make an important cultural, as well as financial, contribution to the city.
There are also a large number of charities, campaigning groups and institutes based there, some local, others with a national or international reach, such as the Institute of Development Studies, all of which I will work to support in my time in this place.
I would like also to pay tribute to those wonderful Brighton organisations that work with women. In particular I’d like to mention Rise, who do amazing work with women who have been victims of domestic abuse.
Many of my constituents are employed in the public and voluntary sectors. They include doctors and teachers, nurses and police officers, and others from professions that do not always have the same level of attention or support from the media, or indeed from politicians.
But whatever the role – social workers, planning officers, highway engineers or border agency staff – we depend upon them.
I’m sure that members on all sides would agree that all those who work for the State should be respected and their contribution valued. In a time of cuts, with offhand comments about bureaucrats and pencil-pushers, that becomes yet more important.
There is also a Brighton that is perhaps less familiar to honourable members. The very popularity of the City puts pressure on transport and housing and on the quality of life.
Though there is prosperity, it is not shared equally. People are proud of Brighton, but they believe that it can be a better and fairer place to live and work.
I pledge to everything I can in this place to help achieve that, with a particular focus on creating more affordable, more sustainable housing.
Brighton was once the seat of the economist Henry Fawcett who, despite his blindness, was elected there in 1865. Shortly afterwards he married Millicent Garrett, later the leader of the suffragists, a movement he himself had supported and encouraged.
So he lent his name to the Fawcett Society, which is still campaigning for greater women’s representation in politics.
The task of ensuring that Parliament better reflects the people that it represents remains work in progress – and as the first woman elected in Brighton Pavilion, this is work that I will do all that I can do advance.
I said when I began that I found this occasion daunting.
Perhaps the most difficult task is to say a few words about the latest radical move that the people of Brighton have made – that is, to elect the first Green MP to Parliament.
It has been a long journey.
The Green Party traces its origins back to 1973, and the issues highlighted in its first Manifesto for a Sustainable Society – including security of energy supply, tackling pollution, raising standards of welfare and striving for steady state economics – are even more urgent today.
If our message had been heeded nearly 40 years ago, I like to think we would be much closer to the genuinely sustainable economy that we so urgently need, than we currently are today.
We fielded fifty candidates in the 1979 general election as the Ecology Party, and began to win seats on local councils. Representation in the European Parliament and the London Assembly followed.
Now, after nearly four decades of the kind of work on doorsteps and in council chambers which I am sure honourable members are all too familiar, we have more candidates and more members, and now our first MP.
A long journey.
Too long, I would say.
Politics needs to renew itself, and allow new ideas and visions to emerge.
Otherwise debate is the poorer, and more and more people will feel that they are not represented.
So I hope that if, and when, other new political movements arise, they will not be excluded by the system of voting. Reform here, as in other areas, is long-overdue.
The chance must not be squandered. Most crucially, the people themselves must be given a choice about the way their representatives are elected.
And in my view, that means more than a referendum on the Alternative Vote – it means the choice of a genuinely proportional electoral system.
Both before the election and afterwards, I have been asked the question: what can a single MP hope to achieve? I may not be alone in facing that question.
And since arriving in this place, and thinking about the contribution other members have made over the years, I am sure that the answer is clear, that a single MP can achieve a great deal.
A single MP can contribute to debates, to legislation, to scrutiny. Work that is valuable, if not always appreciated on the outside.
A single MP can speak up for their constituents.
A single MP can challenge the executive. I am pleased that the government is to bring forward legislation to revoke a number of restrictions on people’s freedoms and liberties, such as identity cards.
But many restrictions remain. For example, control orders are to stay in force. Who is to speak for those affected and for the principle that people should not be held without charge, even if it is their own homes?
House arrest is something we deplore in other countries. I hope through debate we can conclude that it has no place here either.
A single MP can raise issues that cannot be aired elsewhere.
Last year Honourable Members from all sides of the House helped to shine a light on the actions of the international commodities trading group Trafigura, and the shipping of hazardous waste to the Ivory Coast.
There was particular concern that the media in this country were being prevented from reporting the issues fully and fairly.
This remains the case, for new legal actions concerning Trafigura have been launched in the Dutch courts, and are being reported widely in other countries, but not here.
Finally, I would like to touch on the subject of today’s debate.
I have worked on the causes and consequences of climate change for most of my working life, first with Oxfam – for the effects of climate change are already affecting millions of people in poorer countries around the world – and then for ten years in the European Parliament.
But if we are to overcome this threat, then it is we in this chamber who must take the lead.
We must act so that the United Kingdom can meet its own responsibilities to cut the emissions of carbon dioxide and other gases that are changing our climate, and encourage and support other countries to do the same.
This House has signed up to the 10:10 Campaign – 10% emissions reductions in 2010. That’s very good news. But the truth is that we need 10% emission cuts every year, year on year, until we reach a zero carbon economy.
And time is running short. If we are to avoid irreversible climate change, then it is this Parliament that must meet this historic task.
That gives us an extraordinary responsibility – and an extraordinary opportunity.
Because the good news is that the action that we need to tackle the climate crisis is action which can improve the quality of life for all of us – better, more affordable public transport, better insulated homes, the end of fuel poverty, stronger local communities and economies, and many more jobs.
I look forward to working with Members from all sides of the House on advancing these issues.
The report they tried to ban…
The Anglo-Dutch oil company Trafigura goes on trial in the Netherlands on June 1st, over its role in the allegedly illegal exporting of toxic waste to the Ivory Coast. According to the Ivory Coast authorities, the dumping of this waste led to 15 deaths, with other reports putting the death toll at 17.
Trafigura is notorious for its willingness to use UK libel law – which is famously one-sided and prohibitively expensive for most defendants – to suppress critical coverage. As a result, while the Dutch, Norwegian and American media have reported the case freely, few UK newspapers will even cover it, let alone mention the alleged death toll (which Trafigura continues to dispute).
When Trafigura and their London-based law firm, MacFarlanes, were formally accused in the Dutch courts of bribing witnesses (a charge they deny), there was silence about it in the UK media. According to MacFarlanes themselves, such behaviour “would have been illegal and it would certainly have constituted serious professional misconduct”. Under normal circumstances, the laying of such charges against a UK law firm would have been a major news story. The fact that it has gone unreported in Britain shows how much damage our libel laws have done to freedom of speech and public interest journalism.
When the trial itself begins on June 1st, it will be interesting to see if any UK media dare to cover it. This will be a key test of how much power Trafigura now wields over the British press – and how much courage our journalists and editors have in resisting this company’s sustained attack on press freedom.
Trafigura and Macfarlanes deny bribing witnesses in toxic waste court case, threaten legal action against Dutch media
Response to Volkskrant allegations, published on Scribd.com
Macfarlanes and Trafigura deny any involvement, whether direct or indirect, in what you describe as “bribery and influencing of witnesses”.
Not only would such conduct be grossly unethical, it would have been illegal and it would certainly have constituted serious professional misconduct by Macfarlanes. The suggestion that this firm or one of its partners would involve itself in such misconduct is as absurd as it is defamatory.
Furthermore, for reasons we touch on below, even if Macfarlanes or Trafigura had been willing to misconduct ourselves in this way (which we were not), it would have been completely illogical and counter-productive for us to have done so given the circumstances of these events.
We note that you acknowledge that these allegations are extremely serious. We trust, therefore, that if you consider yourself to be a responsible journalist, rather than pursuing a pre-meditated agenda against Trafigura, you will consider your position very carefully before publishing allegations about Macfarlanes which are indeed very serious, malicious, gravely defamatory, false and completely inconsistent with the previous course of conduct between the parties.
You state in your email that these are similar to allegations made last year. For the record, those allegations were also wholly without foundation. Indeed, they were formally withdrawn by the Claimants and their solicitors, Leigh Day & Co, in the Abidjan Personal Injury Group Litigation proceedings in September 2009.
Given your misapprehension of the true position and the fact that, regrettably, certain individuals have chosen to provide you with dishonest and malicious allegations, it is important that we address your questions.
It is equally important that you carefully consider our responses and weigh up how much reliance, if any, can be placed upon these false and malicious allegations.
In the event that you still decide to publish these allegations, we require you to ensure that you include our response to each allegation at the point in which it appears in the article.
You will appreciate that, given the seriousness and falsity of what you are seeking to allege, Macfarlanes and/or Trafigura will have no alternative but to commence legal proceedings without further notice if your story does not comply fully with the basic principles of truth, balanced reporting and responsible journalism.
Greenpeace accuses Trafigura
The environmental organisation accuses the multinational of having influenced witnesses.
In the Netherlands, Greenpeace has filed a complaint with the public prosecution against the multinational Trafigura, accusing the latter of having influenced witnesses and also of forgery.
According to the environmental organisation, a group of drivers reported to be Ivoirian would have agreed with Trafigura not to report being ill as a result of transporting toxic waste for the multinational.
A spokesman for Greenpeace has confirmed that information which had been disclosed by Dutch television and the center-left daily De Volkskrant.
According to the Ivorian justice, dumping of toxic waste in Abidjan in August 2006, by the cargo Probo Koala, chartered by Trafigura from Amsterdam, had killed 17 people and poisoned thousands.
Just back from the Royal Courts of Justice. Here’s Dave’s response after his big win for bloggers. Here’s the background.
David Allen Green (aka “Jack of Kent”) reports that he’s been threatened with libel by someone called Johanna Kaschke, over this blog post. This seems very silly to me, and I’m therefore copying his post in full, here:
Wednesday, 12 May 2010
Let me introduce you to Dave Osler.
He is a professional journalist and author, and his blog is perhaps the best and wittiest left wing blog in the UK.
It is extremely well-written and engaging.
It is a favourite of mine, and of hundreds of others.
But for the last two years Dave Osler has been living under the threat of a libel suit for a blogpost, which I now re-publish in full below.
This threat will continue, depending on what the High Court says tomorrow.
If he loses at trial, he will be bankrupt.
This is serious.
So what is it about?
As you will see, Dave’s blogpost was prompted by an earlier blogpost by Johanna Kaschke, who was – and is – active in local politics.
She was then in Respect, and she is now a Conservative.
Dave summarises her blogpost and links to it at least twice. It is a sympathetic piece. The linking is in accordance with best blogging practice: anything he says can be checked and sourced against what she wrote about herself.
However, Ms Kaschke took exception to this blogpost.
Dave offered a right of reply and, as a courtesy, he took down the blogpost.
Then, at some point and for reasons which remain unclear, the earlier blogpost of Ms Kaschke is somehow deleted.
And then, over a year after Dave’s original blogpost was published, Ms Kaschke sued Dave for libel.
She sued him not only for his blogpost, but also in respect of comments on the blogpost.
And, of course, Dave cannot refer back to her original blogpost, of which his blogpost was a gloss, because it was deleted.
Ms Kaschke maintains that she has no copy of that original blogpost.
In these circumstances, of course, it is almost impossible for Dave to properly defend himself.
The deletion of the original blogpost is really like a carpet being pulled.
For the last six months, Robert Dougans (also solicitor for Simon Singh) and myself have been assisting Dave with his defence on a completely pro bono basis. More recently we were supported by William McCormick, now a QC and one of Simon Singh’s barristers.
And last month Robert Dougans spent a day on his feet in Court 13 before Mr Justice Eady.
Robert argued that her claim should be struck out (1) as an abuse of process, (2) as being outside the year limitation period, and (3) because the right of reply offered should have been the end of the matter.
He had an uphill battle.
Strike outs are rare in English libel litigation.
He is likely to have been unsuccessful.
If so, the full jury trial will be in autumn.
In the alternative, he argued that the defence should be completely amended and that Ms Kaschke should be ordered to provide a copy of the original blogpost.
This is more likely, but still not certain.
Judgment on these applications will be handed down at 10am tomorrow.
Any decision may have significance for all bloggers, not least on the circumstances where summarising and linking to material can expose one to legal liability, and the liability for blogposts and comments which are over a year old.
I will post the judgment as soon as I can.
I will tweet the result from outside Court 13.
I now set out Dave’s original blogpost below not as an endorsement or adoption of any alleged defamatory meaning, but as an aid to understanding the significance of the judgment tomorrow.
Readers of this blog will, of course, understand that.
[Dave's original links are in bold italics.]
Respect member’s “Baader-Meinhoff link”
Johanna Kaschke – recent defector from New Labour to Respect – was in the 1970s held in custody in her native Germany, charged with support for the ultraleftist Baader-Meinhof terrorist group.
Ms Kaschke – pictured left – denies any wrongdoing, although she admits to having organised some sort of benefit gig:
‘All I ever did was organise a music concert in the University of Würzburg Mensa. This got me sacked from my job in the University bookshop Schöning and I also then lost my home.’
She has recently launched a complaint against leading German news magazine Der Spiegel for an article it wrote three decades ago, naming her in this connection. Rather than trying to hide any of this, Ms Kaschke has commendably chosen instead to post a copy of the story on her own website. She goes on to write:
‘I can safely say I never met any of the other persons mentioned in the article and got released after three months of prison on remand and was paid compensation for wrongful arrest and imprisonment two years later.’
If we take this account at face value – and I have no reason not to – the worst she stands accused of is youthful folly. After all, many young attracted to far left politics in the 1970s were passively sympathetic to groups such as the Baader-Meinhof gang. Most have subsequently been rehabilitated.
Former Angry Brigade suspect Angela Mason these days boasts an Order of the British Empire gong and sits on quangos. Even I used to wear a Brigate Rosse T-shirt, as modelled by Joe Strummer. Ms Kaschke appears to have come to political terms with all this:
‘Frankly I cannot understand how such educated university graduates like the Baader Meinhof people fell for this illusion that the state is only a paper tiger and they can win an urban guerrilla war against them.
‘Now with al Qaeda again we have people believing they go to paradise after they blew themselves up and that they are good Muslims if they cause a lot of destruction.
‘Terrorism is the enemy of all Socialism as it creates exactly the opposite reaction, it makes the state more right wing and is likely to destroy all Socialist advances made by peaceful negotiation.
‘If I knew of someone planning a terrorist atrocity I would definitely report them to the authorities because it’s not right. I believe that people being put up to those guerrilla activities are being used by some people for exactly the purpose to create a right-wing movement.’
The thing is, she may find that not all of her new colleagues in Respect share her stance. Respect MP George Galloway, for instance, believes it would be morally justified for a suicide bomber to kill Tony Blair.”
From the BBC, October 18th 1963
Aristocrat is new prime minister
A Scottish Earl has won one of the most bitterly-fought leadership contests in the history of the Conservative Party to become Britain’s next Prime Minister.
As Lord Home arrived at 10 Downing Street, he told reporters, “It is a great honour to be asked to do this.”
He now has three days in which to persuade two of his bitterest rivals in the leadership contest, the former deputy Prime Minister Rab Butler, and former Chancellor, Reginald Maudling, to join his cabinet, so that he can form a government.
The former Prime Minister, Harold Macmillan, has been battling illness for some time, and announced his resignation at the Conservative Party conference less than a week ago.
Four candidates emerged to take over: Mr Butler, Mr Maudling, Lord Hailsham and Lord Home.
The leadership battle became increasingly bitter, and split the party into two camps – one supporting Mr Butler, and another behind Mr Maudling.
Lord Home, who was foreign secretary in the Macmillan Government, was initially regarded as an outsider, and was the only one of the four who expressed reluctance to take up the post.
He also has a low public profile outside the House of Commons, although he is well-liked and respected at Westminster.
But as the rivalry between the two camps became a bitter feud, Lord Home’s name was increasingly mentioned as the compromise candidate.
Mr Macmillan’s choice of a peer to succeed him as prime minister – the first to hold the office since 1895 – is highly controversial, and has been greeted with bewilderment by the supporters of Rab Butler, who was widely believed to have been the prime minister’s favoured candidate.
The press and the opposition have also attacked Lord Home’s aristocratic background and perceived lack of a public profile.
“No party can ever have portrayed such a total lack of confidence in each other as to have to resort to such a drama in order to find the lowest common denominator,” commented the deputy leader of the opposition, George Brown.
The Liberal leader Jo Grimond said of Lord Home, “He has many admirable qualities, but they do not seem to have counted as much as the fact that he did not want the job.
“That surely is an insufficient reason for giving it to him.”
Foreign Office refuses to say whether Tony Baldry has lobbied them over Nigeria in his capacity as an MP (ie. not just in his capacity as a barrister)
See Will Jordan on the background to this…
Our reference: FOI 0353-10
Dear Mr Wilson,
Thank you for your request under the Freedom of Information Act (FOIA) of 20 April seeking information on;
Whether Tony Baldry has, in his formal capacity as an MP, also made representations to the Foreign Office during this time, in relation to any subject connected to Nigeria, and if so what the nature of those representations was?
The Foreign & Commonwealth Office (FCO) does hold the information that you requested. However, after careful consideration we have decided that the information is exempt from disclosure under section 27(1)(a), section 31(1)(c), section 40(2) and section 41(1) of the FOIA. These provisions provide that information can be withheld if;
*Its release would be prejudicial to relations between the United Kingdom and any other state [section 27(1)(a)];
*Its release would, or would be likely to, prejudice the administration of justice [section 31(1)(a)];
*It constitutes personal data [section 40(2)]; and
*Its release would constitute an actionable breach of confidence [section
The provision of section 40(2) and section 41(1) are class-based and confer an absolute exemption. An explanation as to why these provisions have been applied is included in the Annex to this letter.
Sections 27(1) and 31(1) are qualified exemption provisions and require us to
consider whether in all the circumstances of the case the public interest in
maintaining the exemption outweighs the public interest in disclosing the information.
Our public interest considerations and the reasons for our conclusion are set out in the attached in this letter.
Section 27(1)(a) of the FOIA recognises the need to protect information that would be likely to prejudice relations between the United Kingdom and other states if it was disclosed.
The application of Section 27(1)(a) requires us to consider the public interest test arguments in favour of releasing and withholding the information. We acknowledge that releasing information on this issue would increase public knowledge about our relations with Nigeria. Section 27(1)(a) recognises that the effective conduct of international relations depends upon maintaining trust and confidence between governments. If the United Kingdom does not maintain this trust and confidence, its ability to protect and promote UK interests through international relations will be hampered, which will not be in the public interest. The disclosure of information detailing our relationship with the Nigerian government could potentially damage the bilateral relationship between the UK and Nigeria. This would reduce the UK government’s ability to protect and promote UK interests through its relations with Nigeria which would not be in the public interest. For these reasons we consider that the public interest in maintaining this exemption outweighs the public interest in disclosing it.
Section 31(1)( c) states, “Information which is not exempt information by virtue of Section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice – (c) the administration of justice. [The Crown Prosecution Service is presently investigating whether there is a legal ground for prosecution]. Premature disclosure could wrongly influence [that investigation], prejudicing the administration of justice. Such public interest consideration, depending on the circumstances, may favour or prevent disclosure. We believe that the public interest in maintaining this
exemption outweighs the public interest in disclosure.
Section 40 is an absolute exemption which allows information to be withheld if it constitutes personal data. It is the general policy of the Foreign & Commonwealth Office not to disclose, to a third party, personal information about another person including personal details. This is because the Foreign & Commonwealth Office has obligations under the Data Protection Act and in law generally to protect this information. It may assist if I explain that any release for the purpose of the FOIA, is deemed as a release of information into the public domain as a whole.
Your request for information has been considered in line with the Foreign &
Commonwealth Office’s obligations under the FOIA. However, it has been
concluded that the information you have requested is exempt under Section 40(2) and (3) of that Act. Section 40(3) of the FOIA applies where disclosure would breach the Data Protection principles.
Section 41 is an absolute exemption which allows for information to be withheld if its release would constitute an actionable breach of confidence. This exemption qualifies the right of access under FOIA by reference to the common law action for ‘breach of confidence’. According to that action, if a person who holds information is under a duty to keep that information confidential (a ‘duty of confidence’), there will be a ‘breach of confidence’ if that person makes an unauthorised disclosure of the information.
The concept of ‘breach of confidence’ has its roots in the notion that a person who agrees to keep information confidential should be obliged to respect that confidence. However, the law has now extended beyond this: the courts recognise that a duty of confidence may also arise due to the confidential nature of the information itself or the circumstances in which it was obtained. The concept of ‘breach of confidence’ recognises that unauthorised disclosure of confidential information may cause substantial harm.
Whether or not a public authority, such as the Foreign & Commonwealth Office, holds information subject to a duty of confidence depends largely on the
circumstances in which it was obtained and whether the public authority expressly agreed to keep it confidential. The courts will recognise that a person holds
information subject to a duty of confidence in two types of situations: (1) where that person expressly agrees or undertakes to keep information confidential or (2) where the nature of the information or the circumstances in which the information is obtained imply that the person should keep the information confidential.
We judge that we are under an implied duty of confidence, given the nature of the information contained in Mr Baldry’s letter, and the fact that he wrote privately to specific members of the United Kingdom government.
The use of these exemptions requires us to conduct a Public Interest Test to the considerations favouring withholding the information against those favouring its
Public Interest Test
Some of the exemptions in the FOIA, referred to as ‘qualified exemptions’, are subject to a public interest test (PIT). This test is used to balance the public interest in disclosure against the public interest in favour of withholding the information, or the considerations for and against the requirement to say whether the information requested is held or not. We must carry out a PIT where we are considering using any of the qualified exemptions in response to a request for information.
The ‘public interest’ is not the same as what interests the public. In carrying out a PIT we consider the greater good or benefit to the community as a whole if the
information is released or not. The ‘right to know’ must be balanced against the need to enable effective government and to serve the best interests of the public.
The FOIA is ‘applicant blind’. This means that we cannot, and do not, ask about the motives of anyone who asks for information. In providing a response to one person, we are expressing a willingness to provide the same response to anyone, including those who might represent a threat to the United Kingdom.
Public Interest Considerations under section 27
We acknowledge that releasing information on this issue would increase public knowledge and awareness about the United Kingdom’s relations with Nigeria.
However, section 27(1)(a) recognises that the effective conduct of international relations depends upon maintaining trust and confidence between governments. If the United Kingdom does not maintain this trust and confidence, its ability to protect and promote United Kingdom interests through international relations will be hampered, which will not be in the public interest.
The disclosure of information detailing our relationship with the Nigerian government could potentially damage the bilateral relationship. This would reduce the United Kingdom government’s ability to protect and promote United Kingdom interests through its relations with Nigeria, which would not be in the public interest. Furthermore, if cooperation between the United Kingdom and Nigerian governments were damaged, then this may, in turn, prejudice relations with other states as they may perceive that the UK does not handle their information with due care. For these reasons we consider that the public interest in maintaining this exemption outweighs the public interest in disclosure.
Public Interest Considerations under section 31
We acknowledge that releasing information on this issue would increase public knowledge, albeit in a limited way, about the allegations currently being considered in the ongoing trial at Southwark Crown Court. However, we are of the view that release of the information into the public domain whilst the case is still ongoing and the ensuing discussion and speculation which might follow concerning the contents of Mr Baldry’s letter would be likely to influence the conduct or otherwise affect the fairness of the trial. For these reasons we consider that the public interest in maintaining this exemption outweighs the public interest in disclosure…
Hackney Council threatens legal action to censor independent community news site’s coverage of election bungles
Hackney residents refused permission to vote
Disgraced local authority Hackney Council are today in the spotlight over their disastrous mishandling of yesterday’s general election, which saw voters being turned away from polling stations, unable to vote, due to inadequate provision of resources.
But there is another outrageous story which has, so far, been overshadowed. Not only did Hackney Council falsely and repeatedly claim to voters that there was no Conservative candidate standing in the local mayoral elections taking place on the same day – they are threatening legal action against a courageous local indpendent community news website that has dared to report the story, and published a damning audio recording of a council official making these false claims.
From the Hackney Citizen
Hackney Council has today written to Hackney Citizen asking us to remove two audio recordings from our website.
The audio clips are recordings of a Hackney Council employee wrongly informing a caller that there was no Conservative party candidate standing in the Hackney Mayoral election.
The Council says that it will apply for an injunction and its legal costs if we do not comply with its request forthwith.
We take the view that it is in the public interest to disclose the way the Council was dealing with the issue, as evidenced by the audio clips.
The letter to Hackney Citizen from Hackney Council’s legal department is reproduced below.
Once every four-to-five years (that’s roughly two days out of every decade), ordinary British people get to have a very, very, small say in how our country is being run.
For almost all of us, the way that we cast our individual vote will have no actual effect at all on the outcome of the General Election. Just under half the seats in the country have been held by the same political party since 1970. 29% have not changed hands since 1945. If you live in one of these “safe seats”, it is therefore extremely unlikely that your vote will make any difference at all to the result in that local constituency, let alone the outcome at national level.
If you live in a ”safe seat” and happen to support the party that always wins, then at least you have the satisfaction of knowing that your favoured candidate will (if all goes well) go to Parliament and work broadly in line with your own principles.
But even then, unless your MP is also from the party that (as usually happens) wins an overall majority of seats in Parliament, in most cases their work will have no direct impact at all on the laws that actually get passed. Barring the occasional backbench rebellion, the ruling party will always be able to ram through the laws they want to bring in, regardless of your own MP’s views on the issue (and yours, of course).
Every government I’ve ever lived under has in reality been a minority government, supported by significantly less than half of all voters, yet nonetheless enjoying, due to the quirks of our electoral system, a majority of seats in Parliament. At the last election, Labour won just 36% of the vote, but nonetheless gained absolute power in Parliament with a majority of 66 seats. At this election, it’s still quite possible that the Conservatives could take full control of the Commons with a similarly miniscule proportion of the vote.
It’s perhaps inevitable, given human nature, that an MP with a “safe seat” will tend to worry far less about their constituents’ needs and far more about their own, than those struggling to defend a razor-thin margin. The blogger Mark Thompson has shown a clear correlation between the size of an MP’s majority, and their likelihood of stealing from taxpayer by cheating on their expenses.
Under our current system, most voters, most of the time, will end up with an MP they didn’t vote for, and a government they actively voted against. The really unlucky ones will be stuck with a Parliamentarian who is patently uninterested in their constituents, incompetent, dishonest or outright corrupt, but almost impossible to get rid of because of the size of their majority.
It seems to me that this wholesale disenfranchisement of most people from the political system is what really lies behind the disenchantment that most people now feel towards the political system.
Our media elite seems keen to drum into us the mantra that “the voters are apathetic”, that young people aren’t interested in politics, and that the bulk of the UK population would much rather take part in the X-Factor than vote in an election. Implicit in this seems to be the assumption that it’s the people who are letting the system down, rather than vice versa (though from the writings of some newspaper columnists, it’s difficult to avoid the impression that many of them rather prefer it this way).
Yet at the same time, the UK’s biggest newspapers remain vociferously opposed (to comical extremes, in some cases) to any kind of electoral reform, wanting us to believe that the political system that brought us the poll tax, the Iraq war, and the expenses scandal is the best that we can hope for.
The reason for this is fairly clear – clearest of all, perhaps, with the Murdoch media group, who make little attempt to disguise what they’re up to. Under our current electoral system – where small, unrepresentative, elites compete with each other for a “winner takes all” victory, and where tiny shifts in public opinion can determine which of those elites gains the upper hand – the large media conglomerates get to play the role of kingmaker, and set their terms accordingly.
In the words of David Yelland, who edited Murdoch’s Sun newspaper for 4 years:
The fact is that much of the print press in this country is entirely partisan and always has been. All proprietors and editors are part of the “great game”. The trick is to ally yourself with the winner and win influence or at least the ear of the prime minister…So, as the pendulum swings from red to blue and back to red, the newspapers, or many of them, swing with it – sometimes ahead of the game and sometimes behind.
Over the years the relationships between the media elite and the two main political parties have become closer and closer to the point where, now, one is indistinguishable from the other. Indeed, it is difficult not to think that the lunatics have stopped writing about the asylum and have actually taken it over.
We now live in an era when very serious men and women stay out of politics because our national discourse is conducted by populists with no interest in politics whatsoever. What we have in the UK is a coming together of the political elite and the media in a way that makes people outside London or outside those elites feel disenfranchised and powerless…
It seems to me that when there is no one political party able to muster the support of more than 50% of the public, it’s simply common sense that two or more parties that collectively do represent a majority of voters should try to work together. It’s a system that seems to work quite well in New Zealand, Australia, Germany, Norway, and many other countries around the world, and it’s one that leaves far fewer people disenfranchised than the “winner takes all” system we have to endure. I’m not surprised Rupert Murdoch is so afraid of it.
I voted this morning in the full knowledge that I was doing little more than signing a rather well-publicised petition. On this occasion I lent my support to the party which, in my view, seems to have the strongest position on electoral reform, replacing the corrupt and unelected House of Lords with a genuinely democratic second chamber, protecting freedom of speech, and taking serious action against the corrupt bankers who have brought our economy to the brink of collapse.
My vote will almost certainly make no difference at all to the result even in my own constituency – but given that this is the only chance we have in five years it seemed important to make the most of it. I’d urge you to do the same, if you haven’t already. Flawed though the system is, failing to vote merely vindicates the media’s conviction that politics is not for the likes of us.
Appeal Court rules UK government can’t use secret/imaginary evidence to defend torture complicity case
Here’s a rule of thumb for British politics that I’ve found quite useful over the years:
When a government minister says that they have some special secret evidence up their sleeve that totally vindicates their position but which for “security reasons” they can’t reveal, it’s usually safe to assume that they are lying through their teeth. This was famously the case with the secret (aka “imaginary”) evidence used to justify the invasion of Iraq.
You can judge for yourself whether the same is true of the Foreign Office’s attempt to use secret evidence to defend a court case being brought over its role in the torture of Binyam Mohamed and a number of other “War on Terror” detainees.
From The Guardian:
In a devastating judgment, it ruled that the unprecedented attempt by the security and intelligence agencies, backed by the attorney general and senior Whitehall officials, to suppress evidence in a civil trial undermined deep-seated principles of common law and open justice.
MI5 and MI6 said evidence in the case, in which the Guardian, the Times and the BBC intervened, should be kept secret from everyone except the judges and specially appointed and vetted counsel.
The former detainees – Binyam Mohamed, Bisher al-Rawi, Jamil el-Banna, Richard Belmar, Omar Deghayes and Martin Mubanga – have denied any involvement in terrorism and allege that MI5 and MI6 aided and abetted their unlawful imprisonment and extraordinary rendition to various locations around the world, including Guantánamo. They are seeking compensation for abuse and wrongful imprisonment.
In their ruling, Lord Neuberger, master of the rolls, Lord Justice Maurice Kay, and Lord Justice Sullivan said that accepting the case of the security and intelligence agencies would amount to “undermining one of [the common law's] most fundamental principles”.
“A further fundamental common law principle is that trials should be conducted in public, and the judgments should be given in public.
“In our view the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim …”