Denning and a Lady Solicitor
Paul Johnson
The campaign by left-wing publicists to jostle Lord Denning into retirement — they do not like the way he sticks up for individuals against trade unions — has so far got nowhere, His Lordship, by general agreement of the legal profession the ablest of our judges, does not intend to go until he feels his powers are failing, and there is certainly no sign of that. He was in excellent form last week when the Court of Appeal dealt with the Case of the Lady Solicitor. Harriet Harman is legal adviser to the National Council for Civil Liberties. Last November she was found guilty of civil contempt by Mr Justice Park for supplying to a Guardian reporter copies of 800 pages of documents which had been disclosed to her in her capacity as solicitor for a criminal bringing an action against the Home Office. The contempt verdict brought predictable cries of outrage (the offence was 'extremely hive said The Times) and threats to amend the Government's Contempt. of Court Bill now struggling through Parliament.
Lord Denning ignored this uproar. Delivering a unanimous verdict which upheld the judge, he quoted Lord Mansfield: 'We are to say what we take the law to be: if we do not speak our real opinions, we prevaricate with God and our own consciences... no endeavours of this kind will influence any man who at present sits here.' So much for the progressive lobby. On the case itself, Denning ruled that it had nothing to do with the freedom of the press and everything to do with the fair administration of justice. Michael Williams had been sentenced to 14 years' imprisonment. Inside, he was de scribed by the Governor of Hull Prison as 'a totally subversive and dedicated troublemaker'. He was, said Denning, the very. man to qualify for entry to a newly-formed 'control unit'.
The 'control unit', however, was not a success and was closed. That, said Denning, gave Williams the opportunity to make more trouble. He complained against the Home Office; the NCCL took up the case, and Miss Harman was appointe,d his solicitor. The case failed, but in the course of it she acquired official documents, in confidence, for the purposes of the action.
Under English law, a party to litigation must `discover' for the other side any documents he has which are relevant. Using this rule, Miss Harman had got the Home Office to produce 6,800 pages of stuff. There was also a series of documents recording high-level meetings reporting to the Home Secretary or other ministers for decision; and these were covered by a certificate from the Home Secretary insisting that their production would be injurious to the public interest. Until recently they would have been privileged and could not have been seen at all. Worried about this great mass of documents, dealing with private and highly confidential matters, the Treasury Solicitor wrote to Miss Harman pointing out that the Home Office did not wish the documents to be used for the general purposes of the NCCL outside her function as solicitor for Williams. She replied that she was well aware of the rule that documents obtained on 'discovery' could only be used for the purposes of the case. In ordering the documents to be produced, the judge, said Denning, relied on Miss Harman's implied undertaking. She selected 800 pages for the trial; and, after it, she promptly gave a Guardian reporter access to the documents. (He needed them, a Guardian leader drnitted last Friday, 'since his time for attendance at court was limited and his shorthand uncertain of perfection' — oh, ho!) Miss Harman, said Denning, treated herself as bringing the action for the NCCL, whereas she was bringing it for Williams; she was being paid by the legal aid fund. Her defence that the documents had been read out in open court was of no avail, because everyone had a fundamental right to privacy and respect for confidential documents. That right can be overridden in the interests of justice, and had been in the Williams case. The overriding, however, meant the documents could be used in court, and reported as such, but nothing more: it did not mean that there could l;)e any further use of the confidential documents or any dissemination of their contents, without the consent of the owner. The freedom of the press issue was irrelevant, because — except when the public interest was overriding — the press was not free to publish confidential documents; and in this case it was in the public interest that they should remain confidential. As it was, they had been used to launch a wholly unjustified attack on ministers of state and high civil servants who were only doing their best to deal with a wicked criminal who had harassed society. For this Miss Harman was responsible; it was a gross breach of the undertaking which she had impliedly given to the court and affirmed in writing to the Treasury Solicitor.
Denning thought the contempt, far from being 'extremely trivial', was 'a serious contempt'. As Lord Justice Dunn (who, like Lord Justice Templeman, concurred in the verdict) put it, if Miss Harman's practice was followed, the public would soon lose confidence in the administration of justice; and the process of 'discovery', an essential adjunct to civil procedings, could be likely to fall into disrepute and become more difficult and less effective; parties would have a strong disincentive to disclose their own documents.
Of cours,e the House of Lords may take a different view. As I see it,, this is a classic case of contempt, one which does not affect a particular case but tends to undermine a whole aspect of justice, in this case the 'discovery' procedure. Judges, who understand such matters much better than journalists yapping about 'press freedom', have to stamp heavily on this kind of behaviour.
I might have a little More sympathy with Miss Harman if the NCCL were an objective body fighting for the cause of civil liberty whenever it is in danger. But it is a predominantly left-wing organisation which is selective in the cases it undertakes. It refused, for instance, to fight for the wretched people who lost their jobs as a result of British Rail's ruthless enforcement of the closed shop. The NCCL does not recognise the right to refuse to submit to union power as a civil liberty; on the closed shop issue, to use its own peculiar expression, it is 'agnostic'. When a citizen comes op against trade union tyranny, it is not to the NCCL he must turn, but to the English common law, and the Lord Dennings who stoutly uphold it.
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