Slaying the super-injunction dragon and dismantling the secret courts
Today I was one of four bloggers giving evidence to the Parliamentary Select Committee on Privacy and injunctions. Also on the panel were David Allen Green (Jack of Kent / New Statesman), Paul Staines (Guido Fawkes) and Jamie East (Holy Moly).
My main focus in the discussion was the notorious Trafigura super-injunction which I helped to unravel back in 2009, by posting a “banned” Parliamentary Question on Twitter.
A super-injunction is a gagging order that both prohibits the publication of a specific piece of information, and forbids any mention of the gagging order’s existence.
Trafigura’s super-injunction banned any reference in the UK media to a leaked company memo known as the “Minton Report”. When, in October 2009, the MP Paul Farrelly raised the issue in Parliament, Trafigura’s controversial lawyers, Carter Ruck, tried to prevent the press from reporting Farrelly’s question.
This had come at the end of a year that also saw a draconian libel ruling against the science writer Simon Singh. The year before, Ben Goldacre and the Guardian had successfully defended a vexatious libel case by the AIDS-denialist quack Matthias Rath – yet the newspaper nonetheless lost hundreds of thousands of pounds in unrecovered costs. I myself had spent time fighting off an unfounded libel claim over Don’t Get Fooled Again, and had seen up close the chilling effect that such threats could have.
To me and many others who took action the same evening, Trafigura’s super-injunction felt like the last straw after a series of attacks on freedom of speech. The bid by Carter Ruck to ban the reporting of Parliament seemed like imperial over-reach by a “reputation management” company far too used to getting its way from pliant High Court judges. It seemed extraordinary that a judge sitting in an English court – on a handsome salary funded by ordinary taxpayers – might allow such an effort.
The situation also seemed absurd. The “banned” Parliamentary Question had been published by Parliament on its own website. The Minton report itself had been available on Wikileaks for over a month. Yet anyone who repeated the same information themselves could face prosecution for Contempt of Court.
Secret courts and freedom of speech
But the fundamental problem was the very idea of a secret court hearing to ban the free exchange of information. When a court case is heard in secret, the public has no way of checking whether the judgements made in their name are decent, honest, and fair. Because we don’t even know that the case is going on, we have no way of holding the court to account if – as is inevitable from time to time, given human nature – a judge makes a decision through corruption, cronyism or incompetence rather than through the fair application of the law. Public scrutiny is an essential safety valve in any democracy, and it seems extraordinary that our political class would seek to dispense with it so lightly. This is not a new idea.
Likewise, any constraint on freedom of expression risks being abused by those seeking to cover up evidence of corruption or incompetence, as we have seen time and again with UK libel law.
We might nonetheless accept this risk in certain narrow circumstances. We might agree that some categories of information should in principle, in all or most cases, be kept confidential. Some examples might be:
- Children’s medical records
- The name and address of a person under a witness protection programme
- Information likely to be prejudicial to a criminal trial
We might accept that the courts have a role in enforcing this. But even in these cases, court decisions have to be open and public if we are to minimise the risk of abuse. And for a government official to extend such restrictions to information which merely has the potential to embarrass a large and powerful corporation seems, frankly, reckless.
“How does undermining the rule of law aid the public interest?”
Two years after Trafigura it feels as if progress has been made. There seems to be a general acceptance (other than from Carter Ruck and Trafigura, obviously) that Carter Ruck’s attempt to gag the reporting of Parliament was misguided. There is also a recognition that the current system of privacy and “confidence” injunctions is in a mess, and needs reform.
But it looks as if there’s a way to go yet. Prior to today’s meeting, the panelists were sent a list of somewhat loaded questions, including:
“Most of you have blogged about injunctions; some of you appeared to know or think you were breaching injunctions whilst you were blogging. What were your motivations for doing this? What made you think you wouldn’t be prosecuted?”
“Do you think that you are able to judge the appropriateness of an injunction when you haven’t heard the full case (compared with a judge who has)?”
“What is your definition of the public interest? How does undermining the rule of law aid the public interest?”
In one form or another, all of these questions came up during the session. I clarified to the Committee that when I chose to publish the Trafigura question I was by no means sure that I wouldn’t be prosecuted. I took the risk because I felt so strongly about the issue, and believe that many of the others who did the same thing were making a similar calculation.
The second question may seem reasonable at first glance. But the implication seems to be that when a judge passes a free speech restriction that appears completely unjust, or absurd, we simply have to nod deferentially and trust that they must have had lots of good reasons that we just don’t know about. This again, seems like a prescription for corruption and incompetence.
The last question was particularly interesting. While the Committee wanted to challenge us on our understanding of the “public interest”, it seemed to me that their definition of the “rule of law” was just as much open to question.
a principle of governance in which all persons, institutions and entities… are accountable to laws that are publicly promulgated, equally enforced… and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law… avoidance of arbitrariness and procedural and legal transparency.“
The International Bar Association, meanwhile, sees the rule of law as establishing “a transparent process accessible and equal to all”. The IBA spells out that “Confidence in the system of governance in any society cannot be maintained unless the process is open and transparent.“
On this basis, it would seem that High Court judges who pass secret edicts restricting freedom of expression – and the Parliamentarians who allow them to continue – are doing far more to undermine the rule of law than the bloggers who circumvent them.
Rich man’s justice
Lord Gold and Gisela Stewart MP seemed concerned – if somewhat bemused – by my suggestion that I would quickly go bankrupt if I was ever dragged into a libel court over something that I’d written. Surely this was incredibly unfair to any potential litigants who might end up losing money by taking me to court? His Lordship noted, disdainfully, that it wasn’t worth anyone’s while suing me, was it?
It was difficult to know what to make of this point, so I thought I’d expand on it here: A typical UK libel case can end up costing upwards of £100,000 to defend. This is a figure far beyond the means of most ordinary people, including most bloggers, and that is why, for most of us, being sued for libel would entail bankruptcy.
The main reason that such cases are so expensive in this country – reportedly around 140 times the European average – is that the “reputation management” firms that bring them are willing and able to charge more for an hour’s work than many of us earn in a week.
This is, in other words, a situation that the legal profession, aided by a Parliament unprepared, so far, to reign in the activities of such firms, has actively created. So it seems odd for Parliamentarians – many of whom, like David Gold, are also lawyers themselves – to wring their hands when confronted with the consequences.
I’ve no idea what the Committee will have made of our testimony. It is, at least, encouraging that these issues are starting to be debated properly. But it is nonetheless disturbing to see such a blithe acceptance among our elected officials of this fundamentally undemocratic system. It’s difficult to see how the current mess will be sorted out, and public confidence restored, until we dismantle these secret courts.