21 May 2015
Not quite gentlemen: will the Guardian go back to Manchester?
by John Watson
Readers familiar with Conan Doyle’s Brigadier Gerard stories (and if you haven’t read them you should – they are every bit as good as Sherlock Holmes), will remember the one about his escape from Dartmoor. In his flight across the moor he “borrows” a cloak and in one of the pockets he finds a letter addressed to the Governor of the prison. Does he open it? Of course not! He is a French hussar and a gentleman. He carries the letter with him until the opportunity arises to get it to the addressee. He simply isn’t the sort of man who would read somebody else’s mail.
Now that Prince Charles’s letters to ministers have turned out to be fairly innocuous it is perhaps right that we should move the focus to the Guardian which was so keen to pry into his private correspondence that it pursued the point to the Supreme Court. Perhaps this was out of concern for the public interest, altruistic so to speak, but, in an age where newspapers struggle to maintain circulation, the more cynical will suspect that the real hope was that the letters would cause a scandal which would prop up the Guardian’s readership. What a disappointment if the ploy fails – all that faux respectability sacrificed for nothing; revealed as just the sort of people who would steam open a private letter.
Actually most of the Guardian’s litigation was not about the letters at all but about establishing that the Attorney General could not overrule a tribunal which had decided that the weight of public interest favoured their publication, a conclusion in which it differed from that previously reached by the Information Commissioner. Now if you find it difficult to sleep at night you can read the tribunal’s judgement and spend the small hours balancing “Factors in favour of disclosure” against “Factors against disclosure” in the context of the Freedom of Information Act 2000 and the Environmental Information Regulations 2004. Those without a medical problem on the other hand may prefer to stand back and ask a more basic question. In what circumstances should the confidentiality of personal correspondence be violated?
If you write a private letter, you normally do so in the belief that, save in exceptional circumstances, it will remain private. That means that neither will the state access it nor will it get into the public domain unless you or the recipient put it there. The same can be said for private telephone calls, texts and emails, the extent to which GCHQ should be able to monitor the latter being, of course, something of a hot topic. That is something you are entitled to expect in a free society and one which regards it as sordid to look uninvited at other peoples’ correspondence. Quite apart from any private benefit, however, a society in which communications are not secure is inevitably the poorer for it. A strong society is one where people feel they can be frank and open in their communications: not one where they have to mince any unconventional message for fear that it will be revealed and held against them.
When, then, should the right to communication be constrained? Obviously security must impose some limits, wherever you yourself would actually put the line, and there are a plethora of rules restricting abuse, libel and the rest. Beyond this, however, one should keep communication channels as open as possible which means minimising the circumstances in which messages will be read or revealed.
It is against this background that we need to look at the whole idea of freedom of information. No doubt it is a good thing that the record of government departments should be available to the public but there is a difference between enabling the public to scrutinise their activities and decisions and revealing communications which simply contribute to debate. The real significance of the Guardian’s litigation is not the scope of the exemption which the Freedom of Information Act confers on the heir to the throne. That was extended anyway in January 2011. Nor is it the other exemptions conferred by the Act, the exemption for ministerial debate, for example. No, the real question is much more fundamental. Should this act apply to private correspondence at all or should it be limited to factual information which enables media and the public to hold government to account? Gerrard would have thought the answer obvious. So do I. So I suspect do you. So will the public, always more sensible than the press give them credit for. The only people who will think differently are the editors of the Guardian and if the result is that their readers desert them and their circulation falls so they have to go back to their roots and become a regional Manchester newspaper once again, why Gerrard would say that it served them right.
