Toxic Gags

Had you ever heard of ‘super injunctions’? I confess I had not until I heard Ian Hislop talk about them on Have I Got News for You. In essence this is a gagging order that even prevents a newspaper saying that it has been gagged or making any kind of reference to the gagging device

The issue arose when a ship belonging to an international oil trading company by the name of Trafigura deliberately dumped toxic waste off the Ivory Coast. Thousands of local people were affected, a number dying in consequence of the resulting pollution. This loathsome company originally claimed that the wastes was non-toxic, knowing full well that it was. After years of stalling and legal threats it eventually agrred to pay compensation to over thirty-one thousand people.

In an attempt at ‘reputation management’ Trafigura employed a firm of London solicitors by the name of Carter-Ruck, specialists in the law of lible. These people immediately started to throw their weight around, going to the high court to get an injunction preventing The Guardian from further reporting on the Ivory Coast story. But this was no ordinary injunction; this was a ‘super-injunction’, the law not being done or seen to be done, but the law in secret preventing reporting of a secret, preventing reporting of itself in action. Lost? Yes, I know; not even Kafka could make this up.

Worse than that, when the Labour MP Paul Farrelly raised a question over super injunctions with Jack Straw, the Justice Secretary, the paper was even prevented from reporting that. Private Eye, which Hislop edits, took the bold step of highlighting the issue anyway in cryptic language designed to intrigue. Bloggers caught on and the whole thing exploded, a fantastic own goal by Carter-Ruck, now referred to in the latest issue of the satirical magazine by another name altogether. Can you guess what? :-)) No matter, instead of ‘managing’ their client’s reputation they have exposed a story that might otherwise have escaped scrutiny.

But there is more here. This whole process, the revelation that judges are willing to grant secret injunctions has uncovered a serious threat to not just to press freedom but to the proper operation of parliamentary democracy itself. Secret injunctions take us back to the days of John Wilkes, to the days of ‘Wilkes and Liberty’, when those reporting the business of Parliament could be imprisoned. Looking at it from a historical perspective it may be even worse; for the super injunction might very well be in breach of the 1689 Bill of Rights, one of the great milestones of English constitutional history.

The arrogance of these Carter-Fu.., sorry Carter-Ruck people goes still further: they tried to prevent Parliament itself debating the question of super-injunctions by arguing that it was sub-judice. Jon Bercow, in allowing the debate to go ahead, cited the need to defend freedom of speech in Parliament. The said letter was circulated to all MPs. Paul Farrelly, the man who raised the question in the first place, said;

Carter-Ruck have got a real nerve. Firstly they tried and failed to suppress news that they had obtained a gagging order against the Guardian. Then they tried to ask the Speaker to gag parliament itself. This affair has shown that privileges preventing press freedom are sometimes as only as strong as their assertion. The Speaker and parliament must stand up to people like Carter-Ruck who aggressively encroach on these freedoms.

There were some choice contributions in the debate, including that by Denis MacShane;

In past years, people who sought to gag parliament or were held to have behaved inappropriately in relation to parliament were brought before the Bar of the House and in some cases sent to prison. Do we not need to see Carter-Ruck’s partners before the Bar of the House to apologise publicly for this attempt to suborn parliamentary democracy?

Peter Bottomley, the Tory Mp, said that the order should never have been granted and that he intends to report Carter-Ruck to the Law Society. The Lord Chief Justice himself has turned on super injunctions and the attempt to restrict freedom of expression in Parliament, which he described as a fundamental principle. One can only hope that this will give some of the cowardly judges a little more backbone when faced with such invidious requests in future from the Carter-Rucks of this world.

In response Adam Tudor, a partner in the said firm, issued a press release saying that neither his company nor Trafigura had attempted to stifle or restrict debate in Parliament or the reporting of debate, another lie exposed by Private Eye. Ian Hislop and Liberty!

Praising Magna Carta

Let's strip away the verbiage and get to the heart of Magna Carta, the one core principle that might be said to have survived all others, not for a particular few but for everyone. It is this;

No free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any other way ruined, not will we go or send against him except by the lawful judgement of his peers or by the law of the land.

This is now at the centre of our common law; but it is more than that. It sets limits to royal power, and is thus the first clear challenge to absolutism, a challenge renewed time and again.

Yes, the Charter was overturned almost immediately, but as a set of ideas it did not go away, and was reissued in 1217 and again in a more definitive form by Henry III in 1225. Even the Battle of Evesham, and the defeat of the baronial rebellion, did not shift Magna Carta from its central position in the political life of England. During the reign of Edward I it was used to focus opposition to the king's financial exactions. Edward was thus obliged to acknowledge that he was bound by its provisions. When Parliament began to take shape as a permanent part of the English political landscape it took it upon itself the task of seeking reconfirmation and clarification of the document. Often sessions would begin with a public reading and a reaffirmation of the Charter.

So, how did this work in practice? It meant that all statues conflicting with this political keystone were declared invalid. In 1369, during the reign of Edward III it was declared that "If any Statute be made to the contrary it shall be holden for none." The provisions of the Charter were also extended during this reign in the so-called 'Six Statutes', which served to define law as 'due process.' The third of these extended the protection offered by Magna Carta by changing the wording 'no free man' to 'no man'.

Although it slipped into the background to some degree during the period of Tudor absolutism, it became a central platform in the seventeenth century opposition to the rule of the Stuarts. And here we enter the realm of the 'ancient constitution', as defined by Sir Edward Coke, amongst others, later to find its fullest expression in the Declaration of Rights after the Glorious Revolution. It makes no matter here that we are dealing with what was effectively evolving political mythology, a useful adjutant to the Whig interpretation of history, King John's Charter had ramifications well beyond its limited feudal origins. In one of history's many ironies it was the Tories in the eighteenth century who rallied behind Magna Carta in their defiance of the Whig oligarchy, forcing Sir Robert Walpole to stress the superiority of the post-1688 constitution.

But for many, in both England and the American colonies, Magna Carta was reinterpreted as a challenge to narrow parliamentary absolutism. One radical, Arthur Beardmore, arrested for seditious libel in 1762, arranged to be apprehended while teaching Magna Carta to his young son, becoming a hero in the process, the subject of a popular print. John Wilkes, likewise imprisoned for seditious libel, also invoked Magna Carta, "that glorious inheritance, that distinguishing characteristic of the Englishman."

While it is true that the Charter, and the mythology of the 'ancient constitution', became less and less relevant during the great age of Victorian reform, it acquired a fresh significance across the Atlantic. The 1225 version of the Charter was published in Philadelphia in 1687, part of a tract written by William Penn. After the outbreak of the American Revolution in 1775, lawyers turned to Magna Carta to justify Colonial defiance of George III, the new King John. The First Continental Congress declared that the colonists were doing "as Englishmen their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties." In 1775 Massachusetts adopted as its state seal an image of a patriot holding a sword in one hand and Magna Carta in the other; and the Founding Fathers went on to place the document above statute law in the Constitution. Due process was also to be incorporated in the Bill of Rights of 1791.

So, you see, Magna Carta has a historical relevance well beyond defining the selfish rights of thirteenth century barons.