From the editor

16 October 2009 Kings Place, 90 York Way,

London N1 9GU

Telephone 020 3353 2433

The Right Honourable John Bercow MP
Speaker’s House
House of Commons
London
SW1A 0AA

By email: BERCOWJ@parliament.uk

Dear Sir

Trafigura

I am writing in response to the letter from Messrs Carter-Ruck, which I gather was copied to
all MPs.

Carter-Ruck says the Guardian’s reporting has been “highly misleading” though the letter
does not, in fact, identify any inaccuracies. There are one or two matters in the firm’s letter
which may be confusing.

1. Carter-Ruck places emphasis on the Guardian’s “consent” for the original sweeping
injunction preventing us from publishing the Minton Report, together with provisions
making it impossible to report the order, or even the fact of the court hearing having
taken place. This is, of course, a misrepresentation of our position. From the outset
we have objected strongly to aspects of the injunction and continue to contest them.

2. We contacted Carter-Ruck at 1pm on October 12 enclosing a copy of the Commons

order paper with Mr Farrelly’s question. We informed them that we intended to
publish the question.

Carter-Ruck could have replied to the effect that they had no intention to gag
parliamentary reporting and that they had no objection to us so doing.

Instead, their letter unequivocally asserted that the Guardian would be in contempt of
Court and sought an immediate undertaking that we would not publish.

The letter also stated that Carter-Ruck did not even accept that the publication by
Parliament of Mr Farrelly’s question placed the existence of the injunction in the
public domain!

We took leading counsel’s advice on this letter. She advised us not to publish, but to
return to court to seek a variation in the order.

Guardian Newspapers Limited

A member of Guardian Media Group PLC
Registered Office
164 Deansgate, Manchester M3 3GG
Telephone 0161 832 7200
Registered in England Number 908396
 That was the basis on which we wrote a responsible story on October 13 informing
our readers that we were unable to report on something that had happened in
Parliament. I note Carter-Ruck does not in any way question this wholly accurate
report of the state of affairs. Contrary to Carter-Ruck’s assertion, there was no
implication in the article that Trafigura had applied for an injunction which had as its
purpose the prevention of matters arising in Parliament.

Finally, I note that Carter-Ruck implies that the matter is sub-judice and that it would be
inappropriate for MPs to discuss the affair – and Carter-Ruck’s role in it – next Wednesday.

I hope you take the view that this matter should, indeed, be debated. While some senior
MPs are of the view that Carter-Ruck’s threats to the Guardian were simply wrong, the fact
remains that the issue was unclear enough for an experienced QC to advise us not to
publish. There is a lack of clarity around this issue and Wednesday’s debate could serve a
useful function in helping to give editors (and lawyers) guidance. It would be very welcome if
the Minister of Justice could use next Wednesday to state that the right to report Parliament
will always trump the secrecy provisions of injunctions. It would be good if he were also to
criticise the increasingly common practice of judges handing down “super-injunctions” which
are themselves secret. It is difficult for members of Parliament to comment on issues which
are concealed from the public in this manner – not least, because they are prevented from
knowing what is going on themselves.

With best wishes

Alan Rusbridger