Issue 212: 2019 07 25: Leaked!

25 July 2019


Confidentiality and press freedom.

By John Watson

When you hear that both candidates for the leadership of the Conservative party agree on something, it is wise to look at it carefully.  When the whole of the press supports them there is bound to be something wrong with it.  That is why criticism of Neil Basu, the Metropolitan Police’s Assistant Commissioner for Anti-Terrorism, for saying that his force was investigating whether The Mail on Sunday had committed a criminal offence by publishing confidential emails from ambassador Sir Kim Darroch, needs to be viewed with suspicion.

It makes sense to start with the context.  The emails in question expressed Sir Kim’s view of the Trump administration.  They didn’t reveal anything very surprising.  No whistle-blowing was involved but they were blunt in their terms, as emails from an ambassador to his government should be, and they caused so much offence that Sir Kim felt he could no longer do his job.  Like the gentleman he is, he resigned.

Nobody knows yet how the emails got into the hands of the newspaper.  It is clear, however, that there must have been a breach of the Official Secret Act and that, in publishing them, the newspaper was profiting from information which had been passed to it illegally.  If stolen property is passed to you and you profit from it, you go to prison for the offence of receiving.  The police might understandably have wondered whether there was some equivalent offence here.

Disclosure that there was an investigation seems to have led to near hysteria.  Commentators referred to the freedom of the press and pointed out that the right to publish is one of the foundation stones of our democracy.  They’re right about that, but it does not follow that the right is unlimited.  Should the use of illegally obtained information be permissible outside a whistle-blowing context?

The question of what restrictions should be placed on the right to publish is not a new one.  The Human Rights Act gives individuals the right to privacy, and the ability of the press to publish details of the personal lives of celebrities has been very heavily circumscribed by the courts.  The group “Hacked Off” has campaigned for press regulation on the basis that the intrusion of the press into the lives of celebrities is unacceptable.  So much for information about individuals.  What about information about government communications?

It seems to be implicitly accepted in some parts of the press that there should be a line somewhere.  For example The Times said in its leading article that:

“The present leaks are, however, not comparable to those unleashed by the likes of Julian Assange.  Some of the information revealed by Wikileaks may have wholly unacceptably endangered the lives of soldiers on the ground; its intent was as much to disrupt democracy as to enhance it.”

Presumably then they accept that the publication of articles which “unacceptably endanger” our soldiers should be prevented but that the publication of those which cause less damage, perhaps only jeopardising the soldiers to an acceptable level or damaging an ambassador, is OK.  That is a fatuous test given the uncertain effect of any leak and is clearly the wrong way round.  The only possible rule is that newspapers can publish stolen information where it is in the public interest but not otherwise.  It was plainly not in the public interest to publish the ambassador’s musings on President Trump which revealed nothing that we did not know already know.  Mr Basu should be allowed to run his investigation.

It is worth reflecting how we have got here.  Once upon a time a newspaper receiving correspondence whose publication would damage the national interest without revealing anything of importance would have simply declined to publish and passed the offending letter back to the Foreign Office.  Why have things moved on from there?  There are at least two answers:

  1. the first is that the change relates to pressure.  Industries which are doing well can afford to take a fairly scrupulous view of things and simply do what they think is right.  Where there is pressure, and there is no doubt that the press is under pressure at the moment, standards slide in favour of the bottom line;
  1. second, the new populism has led to a general decline in political behaviour.  The public is keen to know as much as possible and that is translated into a weak-minded assumption that it should get what it wants, regardless of the national interest.

There are probably other reasons too but clearly the time has come to introduce a code about all this by legislation.  A careful balance needs to be struck between the importance of allowing whistles to be blown on the one hand, and the need to prevent the gratuitous disclosure of confidential information on the other.  Perhaps there needs to be a Royal Commission.

Bearing in mind the obvious damage that was done by the leaked email for no corresponding advantage, it may perhaps seem surprising that both Johnson and Hunt were so quick to deplore the intervention by the police.  In reality, of course, the reason was fear.  Neither of them would dare to offend the press during the leadership campaign so neither of them could call out the newspaper for its disclosure.  It is perhaps the fact that politicians generally dare not take on the press which makes it so important that there should be an independent enquiry into this area.


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