The Trafigura affair, creditably taken up by the Guardian newspaper and raised in Prime Minister's questions yesterday, is interesting. It involves what has been referred to as "secret injunctions" or "super injunctions". A secret injunction is similar to a normal injunction, namely an order of the court issued to a person requiring that person to do or not to do something, but it is coupled with a further injunction requiring that person not to divulge (except to the person's legal adviser) that the injunction has been issued and what it relates to.
Trafigura are an oil-trading company and are the subject of proceedings by affected people in West Africa concerning an alleged releasing of oil sludge residues at sea, a matter which it must be said is still to be proven one way or the other, but is at least a matter of public knowledge. The English dimension arises because Trafigura also appear to have brought defamation proceedings in England against a broadcasting enterprise which has referred to the affair. Trafigura appear to have persuaded a judge in the High Court (the identity of whom also appears to be a secret) that a secret injunction should be issued in the case preventing reporting of the defamation proceedings on sub-judice grounds. I say "appear" here and further below because the secrecy requirements make it difficult to know exactly what is going on.
Not unreasonably, there was some concern about the court-sanctioned gagging going on in this case. Paul Farrelly MP tabled a Parliamentary question about it to Ministers in order to draw attention to this, and probably also to circumvent the gagging in the hope that newspapers would report on the Parliamentary question. In response Trafigura went a step further, entirely logical if you accept the premise that secret court proceedings are acceptable in a democracy, of obtaining a second secret injunction, this time preventing reporting by the Guardian newspaper and possibly others (as it is secret we don't know) of the Parliamentary question.
One of the issues lying behind the injunction is therefore that of sub-judice. The sub-judice principle, of common law origin but now found in statute (most recently in the Contempt of Court Act 1981), makes it a contempt of court to publish material in active proceedings likely to prejudice the fair disposal of those proceedings. The principle is most commonly thought of in terms of criminal proceedings, although it also applies, as in the case in question, to civil proceedings. Of itself, the sub-judice rule is necessary in any society that wishes trials to be conducted fairly.
However two additional elements have entered into the Trafigura affair. The first is the increasing readiness of the judiciary to issue secret injunctions preventing mention being made of legal proceedings and the parties to them, particularly in defamation and privacy cases. It may well be that there are instances where mere mention of a defamation case may aggravate the defamation, or may prejudice the proceedings, but they must be few in number and it is difficult to see how that could apply in this case. If the Trafigura matter highlights this growing trend and prompts legislative intervention in the way the courts conduct the practice, that may not be a bad thing. There is a matter of public interest at stake here, namely the principle that all legal proceedings should be as open as is practicable and consistent with justice, to which it appears too little weight may be being given on occasions by the High Court when dealing with privacy and defamation cases. One of the weapons of the police state is the secret trial.
The other aspect is that of Parliamentary privilege. Despite suggestions to the contrary, the issue by the court of the injunction, whilst appearing to be ill-judged, did not breach Parliamentary privilege. Article 9 of the Bill of Rights 1689 provides that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". This prevents courts or others involving themselves in proceedings in Parliament, and gives absolute immunity to things said and done in Parliament. However, the question that sometimes arises is what are "proceedings in Parliament" protected by article 9. It has been held for example that the article does not include most correspondence between members and Ministers on constituency matters, and in the well-known case of Stockdale v Hansard (1839) 9 Ad & El 1 it was held that whilst papers published internally within Parliament relating to Parliamentary business are protected, publication of them outside Parliament by order of the House is not. (The Stockdale case in fact concerned publication by order of the House of a report into Newgate prison which alleged the circulation there of pornographic material.)
In response to the Stockdale decision, Parliament duly enacted the Parliamentary Papers Act 1840. This confers absolute privilege in any proceedings, including defamation and contempt of court, whether criminal or civil, in respect of the publication or copying of any document or paper published by order of the House, and qualified privilege (that is, privilege in the absence of malice or other improper motive) in respect of the publication of any fair summary or extract of the document or paper.
The making of a Parliamentary question to a Minister, including a written one (the vast majority of Parliamentary questions are written), and the making of a reply by a Minister, are undoubtedly proceedings in Parliament for the purposes of article 9. However, it is also clear from the Stockdale case that the further publication of the Parliamentary question outside Parliament is not. Likewise, unless published by order of the House as one of the papers of the House, it is not protected by the 1840 Act either, and it appears that although all Parliamentary questions are published on-line on Parliament's website, there is no formal order of the House that that should be done - I think, although I stand to be corrected if I am wrong on that point of fact.
Assuming there is no such general order of the House for publication of Parliamentary questions - and it would be interesting to see if the judge actually inquired into this - the issuing of the injunction against publication of the particular Parliamentary question relevant to the Trafigura case was within the legal competence of the judge in question. What one must question however is whether in the exercise of that power he or she was right to take the view that the making of the secret injunction was justified on the merits, given the public interest in openness in legal proceedings.