From the Spectator 11 October 2104
With the possible, although far from certain, exception of the men and women who hire me, it is fair to say that Britain’s editors have a death wish. They suppress their own freedom. They hold out their wrists and beg the state to handcuff them. They are so lost in ideological frenzy that they cannot see that free journalism is the first casualty of their culture wars.
The Daily Mail acclaimed David Cameron’s threat to repeal the Human Rights Act and pull out of the European Convention on Human Rights as ‘triumphant’. Within days, we learned how the ‘triumphant’ state treats the Mail on Sunday when it thinks no one is looking. Without a warrant from a judge, Kent police officers trawled records of thousands of calls to its news desk. In other words, they hacked its phones. The police hate the comparison, but it still holds. Just as celebrities could accuse tabloid journalists of threatening their right to privacy under the Human Rights Act, so journalists can now accuse the police of threatening their right to free expression, which the judges in Strasbourg have ruled includes protection for a journalist’s sources.
The police targeted the Mail on Sunday because it was on the fringes of the Chris Huhne affair. You will remember that a roadside camera caught him speeding. Huhne persuaded his wife, Vicky Pryce, to pretend she was driving so that he could escape a ban, thus involving them in a (rather small) conspiracy to pervert the course of justice. Huhne would have got away with it, had he not enraged his wife with the surest method known to man: running off with another woman. But Pryce did not come out and tell the truth. Instead, her friend Constance Briscoe — a judge, no less — briefed the Mail on Sunday. I have my notes of a conversation I had with an excited Huhne just before his trial began. ‘Briscoe [has been] dealing with a MoS news executive called David Dillon,’ he said. She was ‘feeding the Mail information from the police investigation’, throwing the whole case against him in doubt. Huhne thought he could escape justice and save his career by proving that he was the victim of a vast right-wing conspiracy, led by Tory newspapers that were out to destroy him.
Unfortunately for him, nothing altered the fact that he was guilty as charged. As he talked, a question niggled at the back of my mind: how the hell did Huhne know about the Mail on Sunday’s sources?
Now we know. First the prosecution demanded that the Mail on Sunday reveal Briscoe’s dealings with the paper. This attack on journalists’ sources at least had the merit of being authorised by an independent judge. In the confiscated emails, Briscoe mentioned she had a ‘police source’. Kent police then used the Regulation of Investigatory Powers Act to seize all the records from David Dillon’s phone on the Mail on Sunday news desk, without the approval of a judge. All for nothing: Huhne’s allegations of a conspiracy were baseless. And all for the most trivial of reasons: the police were not using exceptional powers to investigate an exceptional crime, but a politician’s lies about a minor driving offence, which caused no injury to people or property.
The casualness of the disregard for legal standards — Eric Metcalf, a barrister specialising in freedom of speech, tells me he has no doubt that police breached Article 10 of the Human Rights Act, and the English Common Law too — shows that the possibilities for the abuse of power are limitless. Ripa not only allows the police to seize everything a modern phone can tell them about the movements and contacts of a citizen without judicial approval, but it also contains no provisions to protect the confidentiality of exchanges between journalists and their sources, doctors and patients, lawyers and clients, and MPs and constituents.
I have dwelt on the Mail on Sunday because it is one of the few among millions of instances of surveillance we know about. By chance, David Dillon noticed his name on a document which one of Huhne’s lawyers was reading in a restaurant near the Mail on Sunday’s offices. If he had not, this case, like countless others, would have remained secret. In private, the police now tell journalists that they have pulled reporters’ phone records in every single leak inquiry in the last ten years. I believe them. Why wouldn’t they, when it is so easy to spy without constraint? Meanwhile, Edward Snowden’s exposé showed that GCHQ was harvesting the cables that bring the web into Britain, taking not just email records but their contents. Gavin Millar QC and his colleagues are using the European Convention on Human Rights to discover whether the spies seized the information of journalists, lawyers and indeed MPs. A GCHQ memo Snowden passed to the Guardian quoted its managers saying their interceptions could not become public because they breached the right to privacy in the Human Rights Act.
Ah, the Human Rights Act again. Everywhere you turn, you find it unnerving the secret state. Yet the Sun and the Mail on Sunday cheer on the Tories as they threaten to repeal it. Their editors say they believe David Cameron’s promise that he will incorporate its provisions into his new British bill of rights. They are on their own on that one. As Dr Mark Elliott of Cambridge University and every other legal commentator has pointed out, Cameron wants to give rights ‘a more precise definition’. No one else believes that a government whose Home Secretary, Theresa May, wants further to restrict freedom of speech will produce a rewrite that protects, rather than degrades, the existing liberty of the citizen.
The real reason why the Sun and Mail want to drape themselves in the state’s chains, however, has nothing to do with technicalities. It is a morbid symptom of a culture war that has turned maniacal. To the right-wing press the Human Rights Act is lefty and Guardianista; it protects unpopular minorities which Conservatives loathe. The Tory press does not stop to consider that their journalists are a despised minority who also need human rights laws to defend them. The left-wing press and the BBC are no better. They stayed silent when the police arrested dozens of Sun journalists — not for hacking the phones of celebrities, but for stories from the police, prisons and armed forces which may turn out to be in the public interest. To left-wing journalists, the Tory tabloids are reviled enemies against whom any use or abuse of police power is justified. They never worry that the state will use the same tactics against them.
People go on about the might of the British press. They do not see that, consumed by hatreds and torn by civil war, it can no longer stand up for its own best interests, let alone the best interests of a free society.
This article first appeared in the print edition of The Spectator magazine, dated 11 October 2014