Not-so Free Speech in Britain

There is a growing sense, here in Britain and abroad, especially in the United States, that freedom of speech is being diminished under Margaret Thatcher’s government. The indictment rests on a number of specific instances. In the coming session of parliament Section 2 of the Official Secrets Act of 1911 is to be rewritten. A White Paper setting out the government’s proposals for revising the act was published last July.¹ It is Section 2 of the 1911 Act that, above all, has given Britain the unenviable reputation of being an unusually secretive society.

Then there has been the Spycatcher case,² now brought to final judgment in the House of Lords, our nearest equivalent to a Supreme Court. The Law Lords found against the government for the press, which for three years had been restrained from publishing any information concerning Peter Wright’s allegations of wrongdoing by Britain’s security service, M15. But the terms of the judgment by no means ensure the future freedom of the press.

A more recent instance has been the government’s recourse to an administrative power, contained in broadcasting legislation, in order to ban broadcast interviews with members of the IRA, Sinn Fein, and similar extremist organizations on the Loyalist side. This action has followed a series of incidents in which the government has either sought (and sometimes obtained) prior restraints on the broadcast of television or radio programs or resorted to bullying tactics against the broadcasters.

Finally, there is the move (which Parliament will have to approve) to restrict the right to silence when people are arrested and questioned, or when they are brought before a magistrate to be charged. At first this restriction is to apply only in Northern Ireland, where trial by jury has long been suspended, but Mrs. Thatcher’s government intends to introduce a similar (although probably more restricted) change in the remainder of the United Kingdom. In addition, Parliament has passed a law that forbids local authorities “to promote homosexuality” or allow their schools to teach “the acceptance of homosexuality as a pretended family relationship.”

I will deal here mainly with freedom of speech in Britain, but there are other worries for civil libertarians. One concern is with academic freedom, another with trade union rights. In addition there is the pervasive worry that liberties are being weakened by the casual disdain of the government, by the narrow preoccupations of judges, and by the indifference of the public. When the bans on broadcasting interviews were announced the talk-show phone lines were kept busy with proposals for a myriad of other proscriptions on free speech. These concerns were recently the subject of a special issue of Index on Censorship, the first ever to be devoted to a Western democracy. ³ In an introductory article, Ronald Dworkin, the distinguished American legal philosopher, who spends half of his time at Oxford, where he is the Professor of Jurisprudence, warned that “liberty is ill in Britain…. The sad truth is that the very concept of liberty…is being challenged and corroded by the Thatcher government.”

Mrs. Thatcher would be quick to pooh-pooh any suggestion that she is in any sense an enemy of liberty. Exactly the opposite, she would say: it is she who over the last nine years has set the British people free. She has set them free, she claims, from the heavy hand of socialism and has reinstated the freedom of the individual against the state. “We have successfully rolled back the frontiers of the state in Britain,” she told a European audience the other day.

And so she has in many ways. If economic freedom is thought to be an aspect of liberty, Mrs. Thatcher’s government has extended the freedom of the individual against the state. Consumer freedom, she would argue, has been extended by her economic liberalizations. More specifically, the public housing tenant now has the legal right to purchase his house, and the parents have the right to remove their children’s schools from the control of local authority. The rights of workers against trade unions have been extended, if the right not to belong to a trade union or go on strike is to be seen as a valid liberty. Moreover, those who choose to join trade unions can now be said to have their rights better protected by democratic procedures that are imposed by law.

One of the ironies of “Thatcherism” is that in order for the state to get “off the backs of the people” the state has claimed new powers. Mrs. Thatcher is an economic liberal but in no way a libertarian. In the matter of broadcasting, for example, she told executives summoned to 10 Downing Street, “I am a regulator, it is the government’s duty to restrict too much violence and pornography.”

Concerning fundamental rights she has an entirely traditional and English point of view. British liberty consists in the freedom to do anything that the law does not prohibit, no less but no more than that. A.V. Dicey’s third principle of the British constitution was that the fundamental rights of the citizen should not rest on a special guarantee by the constitution but should arise from the ordinary law. Mrs. Thatcher, herself once a lawyer, echoed this classic doctrine recently when the government attempted (unsuccessfully on this occasion) to suppress a television program about the incident on the Rock of Gibraltar in which three IRA bombers were shot dead by agents of the secret security force called SAS (Special Air Services). “The freedom of people depends on the rule of law and a fair legal system. The place to have trials is in a court of law. If you ever get trial by television or guilt by accusation, that day freedom dies,” she said. She is adamantly opposed to the notion that Britain needs a Bill of Rights. The idea that freedom of speech should extend to terrorists or traitors is thoroughly alien to her.

Dworkin rests his assertion that “liberty is ill in Britain” on two principles. “The first is the sovereign idea that liberty of speech, conviction, and information figure among fundamental human rights. The second is a set of working assumptions about how these rights must be protected, assumptions we might characterize as together forming the culture of liberty” (original italics). The phrase “the culture of liberty” is later used to describe a part of Britain’s national heritage as handed down from Milton through Mill.

There is no doubt in my mind that freedom of speech has been, and is being, diminished under Mrs. Thatcher’s government, but we must be careful, all the same, about the “culture of liberty.” Britain’s culture is very different from the American. The British “culture of liberty” is essentially parliamentarian. Most of the great battles for liberty were fought by Parliament and for Parliament. The press had to fight its own battles, beginning with the right to report on Parliament. The Bill of Rights of 1689 laid down only the right to parliamentary free speech. Nowhere is the right to a free press enshrined in the constitution. To this day Parliament is more likely to be concerned about infringements of its own prerogatives by the press than by erosions of press freedom by the executive. Only the other day a left-wing MP protested that reporters in the gallery were being provided with texts of the Chancellor of the Exchequer’s speech which he was delivering to the Chamber.

On the traditional view Parliament is the guarantor of liberty; liberty is not the guarantor of parliamentary government. True, there have been many splendid assertions of the contrary. For example, by Thomas Erskine, who in Paine’s defense said, “Other liberties are held under governments, but the liberty of opinion keeps governments themselves in due subjection to their duty.” But there is nothing in the British constitution that gives freedom of speech the fundamental and dynamic role it is allotted in the First Amendment to the American Constitution.

It is in the setting of the British “culture of liberty” that recent developments must be placed. Consider, first, the proposed reform of Section 2 of the Official Secrets Act. The present Section 2 is a catchall. It applies to official information originally obtained by any person holding government office, politician or civil servant, or by contractors to the government and their employees. It covers not only information in the possession of these people but extends to information communicated by them to others, whether officially or unofficially. In theory it is an offense—a criminal offense, punishable by imprisonment—for a cafeteria worker in Whitehall to disclose to me, as a journalist, the volume or quality of tea consumed there and an offense for me to publish that information if it is disclosed to me in unauthorized fashion. If I were to be so charged, I could not plead that tea drinking had nothing to do with national security. And I would have no defense that I acted in the public interest, not even if I had revealed that the civil servants’ tea contained powerful sedatives inserted by the KGB.

Section 2 was shown to be unworkable in the case of Clive Ponting. Ponting was a middle-range civil servant employed in the Department of Defense at the time of the Falklands war. He came to believe that the government was covering up the true circumstances surrounding the sinking of the Argentinian cruiser the General Belgrano. The official story was that the cruiser had been maintaining an aggressive course toward the British task force; subsequently it was alleged that she had changed course and had been heading back toward port, and that the British were aware of this but sank her all the same. In 1985, two years after the event, Ponting supplied two official documents to a Labour MP, Tam Dayell, who was campaigning for the truth about the Belgrano. He was discovered and prosecuted under Section 2. Ponting attempted a novel defense, arguing that it could not be contrary to the “interests of the state” to communicate its secrets to Parliament, which was a part of the state. The judge took the view that the interests of the state and the government were synonymous and directed the jury to ignore Ponting’s defense. Nevertheless, the jury unanimously acquitted him.

That was the last prosecution attempted under Section 2 but by no means the last attempt by Mrs. Thatcher’s government to guard the state’s, or the government’s, secrets. In the Spycatcher case, and in some of the other recent attempts to suppress or censure BBC programs touching on matters of national security, the government has had recourse not to the criminal law but to the civil law. Proceedings against the would-be publishers of Wright’s book were not taken under the official Secrets Act but under the civil law protecting confidentiality.

The Ponting case had been a triumphant vindication of Dicey’s famous declaration of faith in trial by jury as the guarantor of freedom of speech under the British constitution. “If a man may publish anything which twelve of his countrymen think is not blamable,” Dicey had written, “it is impossible that the Crown of the Ministry should exert any stringent control over writing in the Press.” But if juries could not be relied upon to uphold the law, as in the case of Ponting and as had often been the case at the sedition trials in the time of George III, the authorities might hope for better from the judges.

The civil law protecting confidentiality is entirely judge-made. It had developed in the courts chiefly in cases between employers and employees concerning commercially useful information acquired in confidence. Then it was invoked in 1967 to prohibit revelations about the personal life of the Duchess of Argyle by her husband the Duke. This provided a precedent for the then Lord Chief Justice to restrain publication of Richard Crossman’s Cabinet diaries on the grounds that they represented a breach of confidentiality. The diaries were eventually published, but on the grounds that, ten years after the events described, the breach of confidence would do no harm. The precedent stood.

It was by invoking the law of confidence (not the Official Secrets Act) that the government endeavored to prevent publication of, and newspaper reports of, the book Spycatcher. It was impossible, in any case, to prosecute its author because he was beyond the reach of the criminal law in Australia. However, the government must have reckoned, following the Ponting case, that it would be likely to do better with the judges than with a jury. Moreover, the law of confidence gave the government a basis to seek and obtain temporary injunctions against newspapers revealing the contents of Wright’s book until the substantive issue had come to trial.

This use of prior restraint is especially repugnant to the American idea of free speech. When the Spycatcher case was, after three years, adjudged against the government and in favor of the press, this was in large part because of the First Amendment to the US Constitution. Publication of the book in the United States, resulting in the widespread dissemination of its contents, made it impossible to contend—the Law Lords ruled—that further harm to the public interest would result from newspaper publication in Britain. In fact, the First Amendment says nothing about prior restraints; the doctrine that they are inimical to free speech was originally English, formulated by Blackstone, who wrote:

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints on publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.

Ally this English idea to the American notion of inalienable and fundamental rights and the result is a powerful protection for American journalists: the First Amendment has been interpreted to prohibit prior restraint except in the most grave of special circumstances, in time of war or if the lives of agents are at risk. Not so in Britain; when Lord Denning cited Blackstone’s dictum in another case, Lord Templeman observed, “The times of Blackstone are not relevant to the times of Mr. Murdoch.”

Just how little weight the authorities attached to any fundamental notion of free speech in Britain’s “culture of liberty” was well brought out by some of the exchanges in the Spycatcher case. When the Australian courts declined to accept the British government’s view of the matter, British officials were driven to adopt increasingly extreme positions in the domestic courts. For example, in the British High Court, the Treasury counsel, Mr. Robert Alexander QC, was asked by the judge whether one of the issues he ought to be considering was the principle of free speech and press. “No, my Lord,” said Mr. Alexander, “That runs headlong into the principle of confidentiality.” Pressed once more, he said, “There is simply no room for saying freedom of speech is important.” The same position had been taken by the chief official witness, Sir Robert (now Lord) Armstrong, then the Secretary to the Cabinet. The judge, Mr. Justice Scott, thought otherwise:

Sir Robert would not accept that any freedom of speech or of publication should be permitted so as to allow any information about the Security Service to be discussed publicly by an insider. No question of balance between the proper requirement of national security, on the one hand, and of freedom of speech or the press on the other hand, arose. I found myself unable to escape the reflection that the absolute protection of the Security Services that Sir Robert was contending for could not be achieved this side of the Iron Curtain.

He went on:

The purpose [of the duty of confidence] is not to save the government of the day from pressure or embarrassment. Second, and more important, the ability of the press freely to report allegations of scandal in government is one of the bulwarks of our democratic society. It could not happen in totalitarian countries. If the price that has to be paid is the exposure of the government of the day to pressure or embarrassment when mischievous or false allegations are made then, in my opinion, that price must be paid.

Happily this view was essentially upheld by the British Law Lords who rejected the notion of an absolute duty of confidence. Members of the security services, the court said, owed the government a lifelong duty of confidence that should accompany them to the grave. However, said Lord Keith, “a government is not in a position to win the assistance of the court in restraining the publication of information imparted in confidence by it or its predecessors unless it can show that publication would be harmful to the public interest.”

This would seem to transfer the issue of harm from being a potential defense, as in the Crossman case, and place the onus on the prosecution, or plaintiff, to show that the public interest requires a continuing legal injunction against publication. Nevertheless, the Spycatcher case in the end turned heavily on the extent of prior publication—in the United States, Australia, and elsewhere—and the precedent may prove a slender one. Mr. Alexander will no longer be able to contend that the duty of confidence is absolute, but the government of the day will still be able to assert claims of confidentiality over matters of public interest before judges who are generally more susceptible to arguments concerning national security than to arguments concerning the freedom of the press.

How this may affect the outcome of the case involving the recent book by Anthony Cavendish is not clear. This particularly ridiculous case developed as a sideshow to the government’s obstinate struggle to suppress Wright’s revelations and deny him the proceeds of his treachery. Anthony Cavendish served briefly in the intelligence services after the war. In 1985 he wrote a memoir of those days, partly for the satisfactions of autobiography and partly in defense of his friend and mentor Maurice Oldfield, the former chief of M16, whose character had been assailed after his death in 1981. The memoir is a charming and harmless account of incidents and people long ago and was acknowledged by the British authorities to be of no harm to national security. However, it bore directly on the issue of absolute and lifelong confidentiality that was the nub of the Spycatcher case. The British publisher, daunted by the litigation involved, decided to abandon plans to publish Cavendish’s memoir. The Sunday Times was enjoined by the courts from publishing excerpts. When the Cambridge literary magazine Granta proposed publication in its United States edition it discovered that the First Amendment would not protect the parent magazine in Britain from action in the British courts. Thus did British censorship reach American shores. Now Harper’s is to publish it in a forthcoming issue. How this case will fare ultimately in the House of Lords is hard to say. Their lordships may take the degree of actual harm, if any, into account and the extent of prior publication in the United States, but it is they who in the Spycatcher case have upheld the lifelong duty of confidence owed by agents and former agents of the intelligence services, a provision which is also laid down in the Official Secrets White Paper.

Reform of the Official Secrets Act, as proposed in the government’s White Paper, will do little to help in this matter. Its purpose is to narrow the scope of Section 2 in order to make it enforceable once again. It is precisely for this reason that I have for long been unenthusiastic about reform of this section of the law, fearing that we shall finish up with something more formidable than the “ass” of a law we now have. Since the government is already armed with the law of confidence and its own disciplinary code for civil servants, I do not see why Section 2 simply cannot be repealed. That would entirely eliminate criminal penalties for unauthorized disclosure except when done “for any purpose prejudicial to the safety or interests of the State” (in effect, espionage), as is prohibited by Section 1 of the act. The government, however, asserts the continuing need to protect information either not covered by Section 1 or disclosed for purposes other than assisting an enemy. The purpose of the White Paper is to specify what that information should be, and how it should be protected.

The White Paper proposes categories of information to be covered by the new Section 2 but, also, different criteria for assessing the harm to the public interest of one kind of disclosure compared to another. In principle, it would be for the government to prove harm to the national interest and for a jury to decide whether such harm was done. In practice the government proposes to rule in advance that all disclosures in certain categories would be harmful. There are three of these categories: information provided in confidence by foreign governments or international organizations, information concerning telephone tapping or any other form of interception, and disclosures by current or former members of the intelligence services. In the first instance it is contended that the harm lies in the fact of the disclosure, not in its substance: How will a leaky government be trusted by others? For the second category of total prohibition, no argument is offered beyond the assertion that the matter is one of “particular sensitivity.” The third embargo is proposed on the grounds that disclosures by former or serving intelligence officers carry a greater credibility than other forms of disclosure and, in general, bring the intelligence services into disrepute. In any case, the criteria for determining damage to the public interest are less demanding in the case of information concerning intelligence matters, because of the difficulty in bringing prosecutions without further prejudice to intelligence operations.

That leaves only three categories of information in which a jury would decide whether harm was actually done by disclosing information. One category is “information relating to defense (including civil preparedness) and…to security and intelligence”; another is information harmful to the conduct of international relations; the third is information of use to criminals. In the first two cases (and in the case of information supplied in confidence by foreign governments) prior disclosure in another country would be no defense against subsequent disclosure in Britain.

Within this thicket of special prohibition it would be for juries to decide, in the case of defense, whether disclosure

was likely either to prejudice the capability of the armed forces to carry out any of their defence tasks, or to lead to a risk of loss of life, injury to personnel or damage to equipment or installations, or to prejudice dealings between the Government and the government of another state or an international organization.

In the case of international relations, the jury must decide whether the disclosed information would “be likely to jeopardize or seriously obstruct the promotion or protection of United Kingdom interests abroad, or…etc., etc.,” as in the case of defense. In the case of information of use to criminals it would be a case simply of proving its usefulness. Note that in no case is a general defense of public interest provided for; indeed, it is specifically ruled out by the White Paper, which says (paragraph 59):

The general principle which the law follows is that the criminality of what people do ought not to depend on their ultimate motives—though these may be a factor taken into account in sentencing—but on the nature and degree of the harm which their acts may cause.

When the White Paper was debated in the House of Commons on July 22, the Home Secretary, Douglas Hurd, said: “It is not a defense to any other offense that the wider or longer-term effects of the criminal act are beneficial and that the benefit outweighs the harm done.”

At the time of the White Paper’s publication in June, and the preliminary debates in both Houses of Parliament the following month, Mr. Hurd was remarkably successful in presenting it as a liberal measure. “Our central objective,” he told the Commons, “is to narrow the law so that it applies only to disclosure without authority of official information which is likely to give rise to an unacceptable degree of harm to the public interest.”

Because Mr. Hurd’s White Paper was, in some respects, better than the newspapers had feared, it received a better press than it deserved. It is true that a vast amount of unauthorized disclosure will be decriminalized, but such disclosure would not have been prosecuted anyway under the asinine version of Section 2. It is also true that proposals previously mooted for some system of official certification about the harmfulness of unauthorized disclosures (which would have made the government judge and jury in a case of its own bringing) have been abandoned. The burden of proof rests with the prosecution in the normal way, although subject to the exceptions mentioned above. But the exceptions, as we have seen, are wide and in some instances absolute. In those categories of information juries would have no choice but to convict if unauthorized disclosure were proved.

For example a “whistle blower” could be prosecuted and sentenced, pour décourager les autres, without regard to actual harm to the national interest. If the contents of a private letter from Mrs. Thatcher to the President were to leak from the White House to The New York Times, as well it might, by summarizing its contents in my column I would be committing a criminal offense against which I would have no defense. If one of my colleagues on The Independent were to come across illegal phone tapping by the authorities it would be illegal to reveal their illegality. The unauthorized disclosure by an intelligence officer that, say, Anthony Blunt was being harbored by the intelligence services while known to be a traitor would be a crime without legal defense.

The White Paper has the air of a hasty concoction, and the shadow of Spycatcher lies heavily upon it. Why are the British so obsessed with secrecy? An unhealthy preoccupation with espionage has been one of Britain’s withdrawal symptoms from world power. Perhaps the fewer secrets a government possesses, the greater the zeal with which it guards them. In this sense, the novels of John Le Carré can be read as parables of decline. Part of the same condition is the perennial British desire to prove itself a worthy intelligence partner for the United States. Intelligence is one of the activities in which the “special relationship” continues to have practical meaning. Britain has certain residual, postimperial facilities of use to the United States, for example the listening stations in Cyprus and Hong Kong. However, with time the partnership has become increasingly unequal. Every time there is a security scandal, or the hint of one, London lives in dread of being cut off by the CIA. This was one reason why the Thatcher government made such an issue of the Zircon affair,⁴ and it also lay behind the banning of trade unions at the GCHQ.⁵

If these concerns for security are one explanation of Britain’s obsessive secretiveness, the new concern about IRA terrorism is another. Here we tread a gray line between a civil society and a state of war. The latest ban on broadcasting (which does not affect newspapers) and the proposed abridgments to the accused’s right to silence were the government’s hasty responses to an escalation in IRA atrocities last summer.

In the case of the broadcasting ban, the government used reserve powers it already possessed to issue instructions to the broadcasting authorities not to give air time to members of organizations including the IRA and its political arm, Sinn Fein. “This is not censorship,” said Mr. Hurd, “because it does not deal with or prohibit the reporting of events. It deals with and prohibits direct access and its extra impact on terrorism and its supporters.” In other words, television and radio can report what, for example, Gerry Adams, the leader of Sinn Fein, says, provided he can’t be heard or seen saying it. Indeed, it turned out that film of him giving a news conference was permissible with voice-over used.

Since the original announcement was made the confusions have multiplied. Censorship, of course, it is, although at a low level; it might be justified if it could be shown likely to prevent violence or to discourage a group committed to terrorism. The chief criticism in Britain of the government’s move is that it is more likely to have exactly the opposite effect, handing the IRA and its friends a propaganda victory and contributing to the general sense of erosion of British liberties.

More ominous for free speech than this partial ban on broadcasting is the move to limit the right to silence. In British law this right goes back to the mid-seventeenth century and was the response to the inquisitorial methods employed in such courts as the Star Chamber. One may doubt whether matters have significantly improved in some Northern Ireland police stations. The right not to testify at trial will remain, and the jury must be instructed to draw no inference from the accused’s exercise of this right. What is proposed to be changed is that the jury, or the judge sitting as a jury, shall be allowed to know, and draw what inference they will from, the fact that an alibi brought forward at trial was not volunteered under interrogation. In Northern Ireland, in any case, judges sit as judge and jury and will have to instruct themselves on this matter. But Mr. Hurd has made it known that he believes the right to silence needs to be amended in British courts as well so as to make it more difficult for professional criminals and their crooked lawyers to spring entirely unexpected alibis (“ambush” alibis) at their trials. The legal profession in Britain is, in general, unhappy at the idea of abridging such an ancient right although the independent law commission has recommended come changes in the law.

In Northern Ireland it appears that the government has been under intense pressure from the army and police to strengthen their hands against the terrorist. Justice is already a scarce commodity in that province. But if hard men are put away more easily, so, we may be sure, will be some innocent ones. In England the extent of the change in the law is not yet known. The defense is already required to disclose a defense or alibi to the prosecution so that it can be checked. In English conditions that should be enough even if some guilty people go free. For English freedoms to be corrupted by Irish exigency would be a sad outcome.

Do all these things add up to a sickness of liberty in Britain? They add up most certainly to a narrowing of the freedom of speech. Freedom of speech, however, is not the only measure of freedom, fundamental though it is. Nor does the First Amendment, in its purity, necessarily promote the values embedded in it. For example, copyright laws are an abridgment of free speech in the interest of writers who are its purveyors. If Americans worry about the “culture of liberty” in Britain, we have worries about its manifestations in the United States. Recently, there was shown on network television here a remarkable documentary called Fourteen Days in May, which chronicled the last days on death row of a young black in a Mississippi prison. Our Official Secrets legislation and rules of justice would have made it impossible for any such film to have been made in a British prison. American openness and the condemned man’s First Amendment rights made it possible in Mississippi. A British viewer could wonder if he should congratulate the United States on its “culture of liberty” or be appalled at the barbarism of a society sending an almost certainly innocent young man to his grizzly death in this fashion. The British visitor to America is frequently appalled by grotesquely prejudicial reports of arrests or arraignments that appear on television. In Britain the rights of an accused to fair trail are strictly protected, as are reports of trials until the verdict is returned.

It is not obvious to me that as a result of the First Amendment the United States is a freer, better informed, or better functioning democracy than Britain with its parliamentary system. The presidential election campaign suggested otherwise. In Britain freedom of speech does not extend to the purchase of unlimited time on television in which to tell lies about your political opponents. Money cannot buy “free speech” on television unavailable to others in Britain, although political parties can buy newspaper advertisements. Television news and current affairs programs are regulated by independent bodies according to laid-down rules; although more prone to governmental censorship, they are less prone to commercial manipulation than in the United States. I would guess that the net flow of information to the citizen is both superior and greater. Americans certainly have more effective constitutional entrenchments of their liberties. If ultimate liberty is the test, they have more liberty. But when it comes to calculating how effectively liberties function in political life I would not be so certain. There is a lot of dying yet in British liberty.