Some MPs are, predictably, whining about the letters being sent to them by Sir Thomas Legg, who’s been auditing their expenses going back over the last few years. Ann Widdecombe for instance has suggested there’s a “legal question mark” over his approach to audit, and Martin Salter has suggested some MPs may “choose to mount a legal challenge”. This is surely sabre-rattling: I don’t see what legal challenge there can possibly be. It’s certainly against Parliament’s interest for them to be attempted. It’s quite clear Sir John Lyon is immune from any legal action, too – Iain Dale need not be concerned whether his findings in the case of David Wilshire will stand up in court.

Let’s take Sir John first. As Parliamentary Commissioner for Standards, he’s an officer of the House of Commons. As such, what he does in pursuance of his duties almost certainly counts as “proceedings in Parliament” for the purposes of the Bill of Rights 1689 (a very fashionable statute at the moment – vintage really is cool). Erskine May seems to think so – see para. 98 of the 1999 report of the Joint Committee on Parliamentary Privilege. If that’s right (and I think it must be), then nothing Sir John does may be impeached or questioned in any place outside Parliament – including in the courts. His work is subject to Parliamentary privilege, in other words – and Parliamentary privilege prevents legal action by an MP as much as by anyone else.

Aha! some clever legalistic types might interject. But if what he does is so wrong that it means he’s gone outside his remit – doesn’t that take him outside Privilege, so he can be judicially reviewed after all? This is familiar to public lawyers as “Anisminic” type thinking. In that case, legislation provided that the “determination” of a commission was not to be questioned in any court of law; the House of Lords decided it could be struck down by the courts however if it was so flawed as to be a legal nullity – and therefore not a “determination” at all.

This won’t help MPs, though, because even to ask whether what Sir John does is so flawed as to be a legal nullity (which is what you need to do according to Anisminic reasoning) is to question what he does. The concept of Parliamentary proceedings goes wider than the concept of a determination in the Anisminic case, in other words. Sir John is quite safe.

It’s less clear that Sir Thomas Legg has the status of being an officer of the House – though, since he has been appointed by the Members Estimates Committee, and will report to it, it seems reasonable to ask in what other capacity he could possibly be described as acting. Certainly, it would be extraordinary to suggest what he is doing does not amount to “proceedings in Parliament”. If I were one of these MPs Ann Widdecombe and Martin Salter have spoken to, I’d forget the idea of judicial review – the Bill of Rights will stop it.

By the way: can you imagine the scream of outrage there’d be from an MP if a taxpayer consituent of his or hers were to try to judicially review Sir Thomas or Sir John for unlawful leniency to the MP? You can bet they’d soon be crying Privilege, as many of them wrongly did in Damian Green’s case, and are wrongly doing in the case of the Guardian gag right now. Yet if these knights of the realm were judicially reviewable by MPs, then they’d be judicially reviewable by others. Indeed, if any MP were silly enough to attempt judicial review (paying Legg will cost less, for most of them, than a mad attack on him in the courts) then there’s no reason why constituents and expert bodies like perhaps the Taxpayers’ Alliance could not seek to intervene in the case. I doubt MPs really want that sort of thing, rather than keeping all this between themselves in their committees.

When it comes to Parliamentary privilege, MPs seem to want it all ways.

In all this week’s discussion of Trafigura, relatively little attention has been paid to other legal stories – but HMIC’s review of the lessons learned from the Greengate-Galleygate affair deserves closer attention, I think, than it’s had. And Jacqui Smith has managed to escape without close enough scrutiny of her conduct in the affair.

One of the key findings, at para. 8.3.7 of the review, is that the police were right to search Damian Green’s office in the way they did – and specifically that they were right in law not to seek a search warrant in the first instance but to ask first for consent from the House authorities, which of course they were granted. That finding ought to lay finally to rest the nonsense talked by MPs at the time of the supposedly scandalous “failure” to obtain a search warrant.

The other key finding, at para. 8.1.10, is that

the use of police resources in this case, although well intentioned was, to say the least, debatable

This is the most important point in the whole case: the government never should have involved the police at all in the investigation of leaks that embarrassed government, rather than risking serious harm, for example to national security.

The wording of the review unfortunately reinforces the common perception, a perception very convenient for ministers, that the Cabinet Office letter (see para. 8.1.5) requesting police involvement means officials called the police in. The truth, as I’ve written before, is that Jacqui Smith made this decision by agreeing to police involvement. To be fair to her, she’s never denied that, although the evidence she and her Permanent Secretary gave to the Commons Home Affairs Select Committee can be read as implying it was a “joint” decision, or else that it was his decision “agreed” by her. Actually neither of those interpretations can be right, as anyone with any knowledge of government must know. Without her agreement, the police could not have been called in: officials may well have wanted to write, but would not have done so had Jacqui Smith not given them the go-ahead. She is responsible.

A good job she’s already gone, really.

There’s been a lot of Trafigura traffic on the internet, for obvious reasons – and a lot of legal questions have been raised. I want to try to cut through some of that and shed some legal light if I can.

I think Richard Edwards of Bristol Law School goes too far in calling the Trafigura injunction “unlawful” in his letter to the Guardian this morning. First, it’s difficult to say this, I think, without being able to refer to the precise terms of the court’s order – and since none of us know what orders the court has made against the Guardian, and the superinjunction we know about may restrict publication and/or discussion of its terms, any such reference is difficult to make.

But what I suspect has happened here is this. First, a legally privileged document has somehow been leaked; solicitors have obtained an injunction to prevent its use and further disclosure. So far, so reasonable: many of those who are outraged by Carter-Ruck’s behaviour this week would also be outraged by publication of their own private correspondence or information (remember the HMRC leak of a couple of years ago?). Everyone must have the right to consult lawyers and prepare their legal defence in private, and if we take that principle seriously it must be enforceable and, as human rights lawyers are happy to say in other contexts, it must apply to everyone, no matter how unattractive. So I have no difficulty in the idea of an injunction being granted here in respect of the report mentioned in Paul Farrelly MP’s Parliamentary question –

Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.

Whether a “superinjunction” was really necessary, preventing discussion of the fact that such an injunction has been granted, is another matter. I’ve no problem with superinjunctions in principle – there are a range circumstances in which the publication of the fact of an injunction or the identity of the applicant might defeat the entire purpose of an injunction. An example would be, for instance, if a PLC successfully injuncted a story alleging that it was insolvent – regardless of the truth of the story, the PLC might well be brought crashing down anyway if “the markets” knew it had got such an injunction. If that PLC were a bank, say, then the financial system could be at risk if it were known even that an unidentified bank had sought such an injunction. So superinjunctions do make sense in some circumstances. I share Richard Edwards’ concern about this one, but there may – may – be justification for one in this case. The judge seemed to think so.

What’s obviously problematic is that such an order should extent to reporting Parliamentary proceedings. I doubt very much that the judge intended this order to have such a wide effect: what I suspect has happened is that the order merely prevented discussion of the privileged document, and that Carter-Ruck unwisely sought, in lawyer-to-lawyer discussions, to interpret that as extending even to a report of the Farrelly question. In my view that was far from reasonable, and Carter-Ruck should have sought to vary the terms of the order if they wanted it to extend so far.

A couple of legal factoids need to be addressed here, too. First, there is no question of Carter-Ruck’s behaviour being a contempt of Parliament: the Bill of Rights 1689 protects the MP himself from any court action – not anyone reporting his words. Only Parliament enjoys Parliamentary privilege.

Second, Geoffrey Robertson QC has been widely quoted as suggesting Parliamentary reporting can never be in contempt of court. Take this from the Guardian:

The media lawyer Geoffrey Robertson QC said Lord Denning ruled in the 1970s that “whatever comments are made in parliament” can be reported in newspapers without fear of contempt. He said: “Four rebel MPs asked questions giving the identity of ‘Colonel B’, granted anonymity by a judge on grounds of ‘national security’. The DPP threatened the press might be prosecuted for contempt, but most published.”

I don’t think this is right, if it is what Robertson was saying – and I doubt it was, since in his own textbook on media law he makes clear that although this reflects the practical reality, “it may not strictly accord with the law”. I can’t link you to Lord Denning’s judgment in Attorney General v Times Newspapers [1973] 1 All ER 815 – it’s not on BAILII – but it’s clear from reading the relevant passage (at page 823 c) that Lord Denning’s remarks were obiter. He simply assumed this was the position while discussing a slightly different legal point. It’s going too far to say he “ruled” that this was the position. Parliament, while agreeing with Geoffrey Robertson on the practical position, certainly thinks reporting its proceedings can amount to contempt in law – see para. 204 of this report.

So reports of Parliamentary proceedings probably can be contempt of court – at least in so far as they go beyond merely quoting Parliamentary papers, which is protected from legal action under section 3 of the Parliamentary Papers Act 1840 unless done with malice (I’m not clear whether the list of questions including the Farrelly question was published under authority of the House – I suppose so). It’d be difficult for a newspaper to simply quote Parliamentary papers without any kind of comment on them at all, however. And it’s just conceivable, to me, that there might, just might, be circumstances in which an order restraining the publication of Parliamentary proceedings could be lawful, even taking the article 10 freedom of expression into account and balancing any restrictions on it against the public interest – imagine, for instance, an extremist MP who insisted on reading out in the House the address of a person who’s in fear of his or her life from terrorists, or the addresses of women’s refuges throughout the country. Unlikely, but conceivable. Wouldn’t you want to limit wider reporting of this? We ought to be able to rely on MPs’ good sense in not abusing privilege –  we couldn’t rely on their probity in claiming expenses, though, could we? And there are, and may be in future, all manner of MPs.

But clarity is vital in injunctions, particularly where they have unusual effects – and restricting Parliamentary reporting certainly is unusual. It cannot be right for an injunction to be interpreted as having such effects unless it does so by clear words – and unless the applicant makes the case for the order to contain such a term, judges should now routinely insist that wide-ranging prior restraint injunctions include an exception for fair and accurate Parliamentary reporting.

Remember Geert Wilders? Back in February the Home Secretary Jacqui Smith excluded him from the UK because of his views on Islam. I wrote at the time that the decision was unlawful; an afterthought simply confirmed my view. I did an interview about the case with Charon QC, too, explaining my view and expressing the hope Wilders would appeal – I’m pleased he has done, and has won. His exclusion simply could not be reconciled with article 27.2 of Directive 2004/38, which requires that any exclusion measure

shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures…. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

The decision to exclude Wilders could never, in my view, have met this standard – his personal conduct clearly did not amount to a serious social threat, and the possible reactions of protesters to him are an irrelevant consideration.

I’ll be interested, when the ruling is available, to see whether the Tribunal’s reasoning was the same as mine.