The Bill of Rights, passed 320 years ago, is clear: "Freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament". As the joint committee on parliamentary privilege added a decade ago, "Grievances, great and small, can be aired, regardless of the power or wealth of those criticised". So readers of the Guardian yesterday had good reason to be alarmed by a report that the "Commons order paper contained 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".
That media organisations were unable to report a parliamentary question was due to a so-called "super-injunction" obtained by the notorious law firm Carter-Ruck on behalf of Trafigura, a large London-based trading company. A "super-injunction" is one which not only prevents any publication, but which is itself secret. Search in vain for the case in the court lists of the high court in London: it appears only as "RJW and SJW v The Guardian". Under its terms, the Guardian was prevented from publishing a certain document: it was also banned from revealing that Trafigura had been to court to obtain an injunction. When we became aware that the existence of this order had been mentioned in a parliamentary question we sought to vary the terms of the injunction. We were advised by Carter-Ruck that publication would place us in contempt of court.
There are three separate legal issues at the heart of this case. The first is prior restraint, which casual readers may have thought had died a death after Thalidomide or the Pentagon papers. It has not. Trafigura has, on grounds of confidence, suppressed the Minton Report, which is connected to the dumping of toxic waste in Ivory Coast. The company has paid damages to 31,000 Africans in relation to this dumping. No newspaper can reveal the contents of this report, but at least we can now say that it exists and has been rendered secret. The option of "publishing and be damned" is not available.
The second principle is that of open justice. There is no sound reason why the fact of the Trafigura hearing should not have been be routinely recorded, and the wide-ranging injunction made a public document for all to see. The minister of justice and/or the lord chief justice should give firm guidance to judges that it is against public policy for secret justice to occur and, except in exceptional circumstances, for secret injunctions to be granted.
The final principle is the ability to report what goes on in parliament. It is scandalous that a law firm acting on behalf of a wealthy trading company should have thought, for a moment, that it could gag media organisations from reporting parliamentary business. These are lawyers who seem to have lost sight of the fact that people risked their liberty and their lives to fight for the right to report what their elected representatives say and do. It is little wonder that some social media websites went into virtual meltdown yesterday at the arrogant effrontery involved.
Trafigura is an unappetising company which purchases smooth PR (it was the official sponsor of the recent British Lions tour) with the same no-expense-spared approach as it has to buying silence. It has threatened to sue journalists in a number of European countries and is even now involved in another aggressive libel action against BBC2's Newsnight. It is rather shameful that British judges should have spared the company's blushes by handing down secret injunctions. But at least the principle for which John Wilkes fought and was imprisoned in the 1770s – the right to report parliament – has not been clouded.
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