The press

Tisdall: the real issue

Paul Johnson

No one comes out very well from the Tisdall case, but the Guardian has done something to redeem itself by its Publication, last Saturday, of its own inter- nal account of its behaviour. This describ- ed,. with commendable candour, its errors of Judgment, the appalling legal mess into Which it got itself, and its heart-searchings in trying to do the 'right' thing. The iac- count was, if I may say so, a much more m- pressive and convincing apologia than the Sunday Times's defence of its conduct m worming secrets out of Barclay's Bank. Having read the Guardian's account, I am Convinced that the editor had no alter- native but to comply with the court's deci- sion to hand over the incriminating docu- ment. To hang on to this miserable bit of Paper would have involved huge fines, accumulating to the point where all the GUardian'S assets would have been consum- ed and a closure made inevitable. To destroy it would have been a deliberate and irreversible contempt of court. In the cir- cumstances the punishment must have been an enormous fine and in addition, I should think, the judge would have sent the editor, OF whoever carried out or authorised the destruction, to jail. That would have been very unpleasant, but the issue of public ethics was even more IpPo.rtant in persuading the editor to comP- IY With the court order. As the paper itself Put It: 'The Guardian is, and had stated in Court that it was, a law-abiding newspaper.' Tf hat very week it had criticised the NGA Or . breaking the law simply because the utuon did not like it: 'The Guardian ad- vocated campaigning to change laws of Which n disapproved, not selective breaking of them.' To engage in what it condemned in others would have been inconsistent and hypocritical, indeed in my view downright immoral. Moreover, by entering into the legal process, the Guardian had accepted its arbitration. Quite apart from the legalities of the matter, it was bound in honour to abide by the court's verdict, as it would rightly have expected ministers to accept the verdict had it gone against them. The courts are above everyone: that is the essence of the rule of law. If individuals, unions or newspapers defy the courts and brush aside their verdicts as morally of no account, how long will it be before governments are temp- ted to do the same? That, in a sense, was what the Civil War of the 1640s was all about. We do not want to fight that issue over again. Hence I do not think Peter Preston, the Guardian editor, was wrong to do as the court ordered, and it is monstrous that he should be criticised on such a score. His real mistake was to publish the document in the first place. If, as he says, he believes in the rule of law, he must have known that the communication of the document to him was a serious offence in law; that by receiv- ing the document, and still more by publishing it, he was enormously compoun- ding that offence. It was perfectly obvious that the person who had stolen and sought to publish the document had high-level ac- cess to government secrets. Preston was not to know the offender was a mere clerk. He or she might have been a very high civil ser- vant indeed, capable of inflicting immense damage on the country's interests. If Preston really believed in the rule of law, he would have returned that document promp-

tly to its rightful owners, the Government, and given them all reasonable assistance in detecting the offender.

But of course, and here we come to the real point, Preston — and there are many like him in Fleet Street — does not believe in the rule of law without qualification. He believes in obeying the law except in so far as it conflicts with what he conceives to be the special interests of journalism. Far from being content — as he asks the unions to be — to campaign for a change in the law on official secrets, and get an Information Act passed by Parliament, he also arrogates to

himself the right to defy the secrecy laws as and when he sees fit. In its account of the case, the Guardian glories in the fact that,

of all the press, it was the one 'which con- stantly published information the govern- ment sought to keep secret'. That is, it seems, the declared policy of the newspaper, one of the three grounds on which it justifies its existence. But such a policy must involve lawbreaking, whether or not the government finds it politic to prosecute.

In other words the position of the Guar- dian is not, in essentials, different from that

of the NGA or any other union which finds the 1980 and 1982 Employment Acts unac- ceptable and is determined to defy them.

The Guardian, too, by its own admission, is dedicated to what it condemns in others: 'the selective breaking of laws'.

Recently, a judge rebuked the editor of the Daily Mirror for receiving information

illegally obtained by tapping someone's telephone. An editor, said the judge, must not set himself up as the ultimate arbiter of the public interest and decide for himself whether or not he obeyed the law. Surely the judge was right. If a person is powerful and influential, as the editor of a national newspaper is (or ought to be), he will indeed be tempted to set himself up as a judge of the public interest, and it is therefore all the

more important that the law should cut him down to size. What applies in the Mirror

tapping case applies equally, in my view, to

the Guardian's deliberate policy of seeking to destroy the government's right to

secrecy. Preston and his colleagues are not the best judges of what the government needs or does not need to keep private.

That responsibility lies, and must lie, with the government itself, which is entrusted by Members of Parliament with the conduct of our affairs. Those MPs, in turn, are en- trusted with legislative sovereignty by the entire adult population of Britain, voting in a secret ballot. That is how democracy

works. I do not know exactly how the editor of the Guardian is appointed but one

thing is sure: he is not voted into his chair by universal suffrage. He has no more moral right, let alone legal right, to decide whether or not he complies with the law than you or I, dear reader, or Arthur Scargill. It is painful to have to spell out these elementary truths, but necessary, since there seems to be some confusion in Fleet Street about what the rule of law in a democracy means in practice.