Spycatcher and press freedom

itself four years ago in pursuing court action to prevent newspapers

from publishing extracts from Spycatcher, the memoirs of the former MI5

agent Peter Wright. The Law Lords reached the same conclusion in 1988

when they lifted the injunctions against the book. The judiciary thus

gave notice to the Government that it would not automatically accept its

say-so on what constituted a risk to national security: the likelihood

of real harm had to be shown if freedom of expression were to be

restricted in this way. But the Law Lords' judgment was less than a

victory for free speech, because it appeared to endorse some of the

illiberal assumptions underlying the Government's position. It certainly

didn't concede any public right to information, or any right of the

press to discuss possible irregularities in the security services; it

lifted the injunctions merely because the information had become

available elsewhere, with the publication of the book in the US.

The European Court makes the same distinction. It has ruled that the

confidentiality of the material was destroyed by the publication of

Spycatcher in the US, but that at an earlier stage the injunctions were

legitimate to prevent information from leaking out. But the ruling is

damning for the Government in that it maintains that the purpose of the

restrictions, once the material had ceased to be secret, was simply to

promote the efficiency and reputation of the secret service. The Judges

are also clear that under these circumstances the injunctions prevented

newspapers from giving information on a matter of legitimate public

concern -- a flat contradiction of the Government's way of seeing

things.

A ruling by the European Court may not impress the Euro-sceptics, but

they might bear in mind that the Strasbourg Court is not the long arm of

the EC but an entirely separate international body to which this country

subscribes. It is not a matter for pride that Britain has been in breach

of the European convention on human rights more often than any other

state. The real cause for regret is that the Spycatcher case had to be

taken as far as the European Court. Even now, the position is

unsatisfactory. The court's ruling is not directly enforceable in

British courts and, with its finding that the injunctions were justified

up to the time of publication in the US, is less than a dramatic victory

for press freedom. In the UK, things have been going very wrong in that

department over the past decade. The Spycatcher episode was part of a

pattern -- remember the Cavendish affair, the Zircon raids, the Real

Lives controversy, the Sinn Fein ban, and the setting up of the

Broadcasting Standards Council.

Both the Cavendish and the Spymaster episodes raised, among other

questions, that of the doctrine of confidentiality -- the principle that

a third party should not publish material which is a breach of

confidence. This principle, which fails to make allowance for the

possibility that former security service members may feel compelled to

speak out in the public interest, is a dangerous concept when unopposed

by entrenched rights for the press or freedom of speech. The Spycatcher

affair shows how it can be made to serve the narrow interests of the

Government. Until constitutional protection for press freedom is

achieved the danger will remain, though perhaps, after the Strasbourg

judgment, the Government will be a little circumspect in its use of the

new Official Secrets Act. It may even be forced to think again about the

extent of its powers of censorship.