10 February 2004

A Misreading of the Law

More to the point, the Reynolds case raises a central question that Hutton misses completely. If Gilligan's broadcast was so terrible, if the Blairs were having sleepless nights as a result of being accused of deceit, if the prime minister was shunned at home and abroad as a liar, the law has a simple remedy, the one adopted by Albert Reynolds in the case that Hutton makes so much of: sue for libel. Reynolds was himself a prime minister (of Ireland) but if it is thought beneath the dignity of a serving UK PM to resort to the courts, why did poor, maligned, isolated Alastair Campbell not sue himself, especially when (he would have us believe) his own honour was so grossly impugned? And what about the Mail on Sunday, where Gilligan's greatest excesses of character destruction were to be found? Campbell makes much of his hatred of the paper: here was a chance to take it to the cleaners. Had this course of action been adopted, the judge and jury who heard the case would not have been constricted by the terms of reference with which Hutton misled himself. There would have been questions about the context and a proper cross-examination of the principal actors. The jury might not have been able to avoid asking itself about those supposed weapons of mass destruction that this supposedly unsexed up dossier was so certain about.

In truth no such suit would have succeeded, which is why none was launched. Perhaps the most disappointing feature of Lord Hutton's report is his failure to appreciate the distinction between stopping the media in advance from publishing something and punishing a media outlet for wrongful publication after the event. It is the second of these that our defamation laws are concerned with. Newspapers and other media seek legal advice, balance the risk, take a chance here, are caught out there, settle, apologise, pay damages if all else fails. Even if a case reaches court and the defendant draws a Hutton, an appeal can ensure that the matter is heard before a more balanced bench. But the law is set against the first approach, seeing a challenge to our democratic culture in the prior restraint of the media. Thus, the laws of libel have long rejected efforts by litigants to prevent publication, on the grounds that, if there is any chance of publication being justified, the place to argue the point is in court after publication, not before. The same applies to trade libels, injurious falsehood and similar claims. Contempt of court laws were changed some years ago specifically to prevent the stifling effect of spurious libel writs being issued in order to be able to invoke the contempt laws to shut the press up. It was the prior restraint dimension to the Spycatcher affair, all those endless injunctions, that ultimately led to a series of Strasbourg rulings against the government in 1991. The Human Rights Act, enacted by Labour in 1998, takes great care to protect the press and other media from injunctions obtained without their participation, and designed to foil reports which have not yet been run. Lord Hutton ignores all this. Instead he would create a mini court of law inside the BBC, staffed no doubt by cautious lawyers, whose job it would be to examine all news broadcasts for evidence of 'false accusations of fact impugning the integrity of others, including politicians'. An ideal Hutton world would have such commissars everywhere.

Reynolds is about the remedies available after an item is published. Hutton is about restraint before publication. Hutton misreads Reynolds in the most egregious manner. Hutton almost, in fact, breaches his own standard of 'false accusations of fact impugning the integrity of others, including politicians'. Certainly Hutton made such false accusations against at least one BBC editor whom he neither heard nor warned.

The obvious solution is to make the conclusions of judicial inquiries appealable and to ensure that the kind of open process you get in a trial can be had in an inquiry.

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