The House of Commons is a foreign country: they do things differently there. At least, that’s the impression that many voters have formed in the wake of the expenses scandal. However, there is one, crucially important, respect in which we need Parliament to be privileged. We desperately need Parliament to be free to debate matters in the public interest – even where so-called ‘super injunctions’ have been used to gag the press.
We need this because unless Parliament is able to debate the use of super injunctions there can be no democratic oversight of the courts. And we need the press to be able to report on such debates because otherwise we would have closed government. This would make it rather difficult for us to talk seriously to countries such as Burma about democracy – not to mention breaching our own right to freedom of expression under the Human Rights Act.
The absolute privilege of Parliament and the qualified privilege to report on Parliamentary debate (so long as such reports are not malicious) are cornerstones of our unwritten constitution, yet some lawyers have asserted this week that these privileges are barely worth the paper they are not written on. The law firm Carter-Ruck has written to the Speaker arguing that The Guardian would have been placed in contempt of court for reporting a Parliamentary question by Paul Farrelly MP about an injunction obtained by Carter-Ruck and the oil firm Trafigura on 11 September 2009 on the publication of a report on the alleged dumping of toxic waste in the Ivory Coast. The report itself was commissioned by Trafigura and does not make pleasant reading.
Like many other super injunctions, this does not protect the privacy of an individual, but throws a legal cloak over the potentially illegal activities of a major corporation. (Trafigura is this year forecasting record profits off turnover of $50-60bn.) The existence of the injunction and its contents are both subjects of considerable public interest, yet Carter-Ruck continue to insist that the press should not have been free to report on a Parliamentary question regarding these issues. This goes directly against the letter and the spirit of the 1840 Parliamentary Papers Act, not to mention the 1688 Bill of Rights.
MPs have undoubtedly enjoyed the ‘absolute privilege’ to engage in free and vigorous debate since 1763, when a public outcry saw John Wilkes – Member of Parliament for Aylesbury and editor of The North Briton –discharged of seditious libel for attacking George III and the Earl of Bute in his newspaper.
Almost 250 years later, Parliament is preparing to abolish the law of seditious libel, after a campaign by MPs, Peers and free speech groups. It would be a terrible irony if, just as we cast off the shackles of the old regime, we walked blindly into a new era of suppression. The difference now is that it is not the Government censoring MPs or the press, but private corporations. And our only defence right now against corporate censorship is provided by a small line of MPs, whose own credibility as champions of public interest has been questioned.
Tomorrow afternoon they will be debating the impact of super injunctions on press freedom. I hope that they make it very clear that they, as our representatives, will not stand idly by as the oil tankers of censorship move in.
Jonathan Heawood is the Director of English PEN