THE European Court of Human Rights has confirmed what was pretty obvious to most people anyway -- that the UK Government overreached 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.