Let us first dispose of Spycatcher – a well-written book which eschews a sensationalist style even when dealing with sensational matters.The widespread impression that the book is mainly about MI5 attempts to destabilise the Wilson Government is quite wrong – there are just a few pages about this. Most of the book is an account of the endless mole-hunting undertaken in the aftermath of the Burgess/ Maclean/ Philby affairs and the construction of Wright’s case that the MI5 chief, Roger Hollis, was a Soviet spy. This latter question is, for Wright, very much the heart of the book, but I doubt whether readers will be universally convinced by his case or even that they will be chiefly interested in it. Most, one suspects, will savour more the chillingly casual way in which Wright details how even friendly embassies were bugged and assassination schemes plotted, and also the sheer Le Carré-like richness of the bureaucratic and diplomatic intrigues, particularly when they involve characters as colourful as Edgar Hoover or James Angleton. Wright describes how Angleton ingeniously contrived to enjoy simultaneously his three main hobbies of drinking, smoking and fishing. Having bought a stretch of river, he buried bottles of Jack Daniels at regular intervals in the river bed, so that he could always fish with a whisky and a cigarette in hand.
Wright himself emerges as a believable source – though caution is perhaps advisable: he is a professional dissembler. He is that peculiarly English type, the man recruited from below into one of the Establishment’s magic circles, who embraces the Establishment’s (conservative) principles with enthusiasm, only to explode finally in rage when he finds that those principles are a fraud. Specifically, Wright feels he was cheated out of his pension by ungentlemanly gentlemen and seems to have written this book for revenge as well as for profit. From time to time a dramatic name or sensational detail is thrown in front of the reader with a sort of studied naivety, as if Wright is unaware that it is a veritable hand grenade. But his own book shows how, over and over again, he was able to turn the merest smidgeon of a clue into deadly evidence of betrayal: he is decidedly not naive, and if he drops names, it is for a purpose. He seems, though, to have made his own assessment of what he can and can’t responsibly say – and certainly the book gets much thinner in explosive detail as it advances toward the present. Wright is clearly still holding back a good deal. If I were the head of MI5 or the prime minister, I’d be far more worried about grenades still in Wright’s armoury than anything he’s said here.
Readers of the LRB will need no reminder that the Law Lords have made the writing of a review of this book a matter of grave legal risk. For all I know, even what I’ve written above is illegal in their eyes. What they would certainly regard as heinous would be to write a proper, long review in which one quoted Wright directly or extensively described the contents of the book – the sort of thing I’d normally do for the LRB. More wicked still, one could go to the Australian High Commission in London, obtain copies of the Melbourne Age or Sydney Morning Herald and then reproduce from them reports of the Spycatcher trial going on in Australia. One can without fear publish accounts of trials in the USSR or Albania, or anywhere else where, as here, the judges know their duty to the government, but you can’t report what’s going on in that Australian court. The most severely unfunny side of things is the rapid and arbitrary way in which the legal goalposts are being moved about, in which new rules and laws are being made without public discussion and outside the legislative process. Under our judge-invented law it has not only suddenly become illegal to publish a book review or cite Australian newspapers, but a vast new legal doctrine has been invented: that an injunction against X also binds Y. What if X has never heard of Y, doesn’t even know about the injunction against him? Ignorance of the law is presumably no excuse: so that doing or writing anything is now dangerous.
And one must always remember that there is no legal aid to protect freedom of expression. If, for example, a rich and powerful corporation or individual decided, as a result of something I’ve written, to launch suit against either me or the LRB, we would be utterly at his mercy. Any attempt to resist his suit would undoubtedly bankrupt me and close the LRB, for neither I nor the London Review has the financial resources necessary to fight an opponent with a really deep purse. Even to get into the ring with such an opponent one needs to have many hundreds of thousands of pounds to spare: it’s not a question of poverty, just a matter of not being exceedingly rich. Our lawyers, knowing the draconian libel law, which means that almost all libel suits are won, would advise that discretion was the better part of valour. So even if the LRB and I were innocent in law and in fact, we would, in effect, be found guilty on grounds of insufficient wealth. Indeed, our lawyers would hasten to advise us to make truly cringing apologies in order to minimise our damages. Lack of great wealth makes one so guilty that the only responsible thing to do would be to say we were wrong when we knew we were right – to commit a sort of private perjury. It would be unwise to protest. And one must remember that our judges are, by definition, rich men. A Law Lord earns £71,400 a year; our senior judges are recruited from the comfortable upper-middle classes and from amongst barristers earning hundreds of thousands a year.
The latest antics of the Law Lords have deservedly created a storm. But no one who has studied the process of the British law and the behaviour of the English judiciary as it touches questions of freedom of expression can be in the least surprised at this fresh monstrosity. It is worth setting out where we stand.
One starts with the fact that we have no constitution. Generations of English schoolchildren have had the vast mystification practised upon them that we do have a constitution (until recently you could do an A level called ‘The British Constitution’). But this constitution wasn’t written down, so you couldn’t read it, use it, study it or be sure exactly what was in it. But you could feel very, very proud of it. One can imagine the general hilarity which would greet the claim by, say, the ruler of Uganda that his country had a constitution, but that it existed only in the mind. Those who wish to go parroting solemnly on about an unwritten constitution here might reflect that this is precisely the sort of claim that an Idi Amin might have made there.
The lack of a constitution or bill of rights means two things. First, nowhere does our law positively uphold freedom of expression – it is a freedom negatively defined as the things one can say or write through the chinks left in our draconian laws on official secrets and libel. This is quite bad enough, and quite routinely leads to the situation where one cannot reprint in Britain things that have appeared in reputable foreign newspapers. Secondly, it means that our judges clamber happily into the yawning gap thus left.
And our judges are a problem all of their own. They are exclusively political appointees; they are, as a group, notably illiberal – anti-black and anti-semitic feeling is not uncommon and women are still often shamefully treated by many judges; and they are more executive-minded than any other judiciary this side of the Iron Curtain. They also tend to invent (or disregard) laws when they want to. The classic case here was Shaw v. DPP (1961), in which the Law Lords, wishing to ban a certain publication but finding no law allowing them to do so, simply invented a new offence of ‘conspiracy to corrupt public morals’. When it was pointed out that the laws passed by Parliament knew no such offence, the Law Lords asserted that the courts were the ultimate guardians of ‘the moral welfare of the State’ and that this gave them ‘residual power, where no statute has yet intervened’. Quite apart from this extraordinary act of self-arrogation, it is difficult to imagine any group further out of touch with contemporary morality than the Law Lords. Yet the years since 1961 have seen hundreds of convictions for offences against this impudently invented law. On the whole, it has been pornographers who have suffered, but this ‘law’ has also been used to harass Oz and the International Times.
This was followed in 1972 by the ‘thalidomide trial’ in which the Distillers company sought to prevent the Sunday Times from publishing articles about the plight of the thalidomide children. The Law Lords found, on contempt of court grounds, that the articles were indeed an unfair form of pressure on the company, upheld Distillers and gagged the Sunday Times – until the European Court of Human Rights overturned the judgment in the cause of freedom of expression. Parliament later attempted to reconcile the British and European notions on contempt of court in the Contempt of Court Act – but Lord Diplock speedily announced a new law of his own, making it clear that Parliament had not done this and that the new Act could even open up fresh ways of curtailing press freedom. Then in 1975 the Attorney-General sought to prevent the Sunday Times from publishing the Crossman Diaries. The Lord Chief Justice, faced with the difficulty that there was no law forbidding indiscretions by (dead) Cabinet Ministers, announced a new ‘law’ under which the courts could decide what opinions Ministers might express about Cabinet discussions – but then allowed publication on the grounds that the Diaries dealt with events a decade old.
In all this, the chief concern of the judges is to try to see things the Government way. Lord Reid, in Conway v. Rimmer (1968), best summarised the attitude of the Law Lords. The premature disclosure of Cabinet Minutes was, he said, in no way allowable, for ‘disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background.’ Probably only an English judge could believe that the right way to cope with people who are ill-informed and who lack adequate knowledge is to prevent them having more information. In France, by the way, a list of the projects approved by the Cabinet is routinely issued to the press the day after each meeting – and such a practice is normal in many other countries too. Once again, the whole Army’s out of step with our Johnny.
In 1981 the judges even discovered that censorship might extend to covering what went on in open court. In the case of Home Office v. Harman the Law Lords found Ms Harman guilty of contempt for having communicated to a journalist a copy of a document which had already been read out in open court. Had the journalist taped the trial or taken it down in shorthand, there would have been no case. But Lord Denning defended this manifest absurdity with further stern warnings: ‘the danger of disclosure is that critics ... will seize on this confidential information so as to seek changes in government policy, or to condemn it.’ Who but an English judge would describe efforts to criticise or change government policy as ‘the danger’?
English judges are so slavishly executive-minded that it is probably seldom necessary for them to be told precisely what the Government would like. But it would be folly to think this could never happen. As both the recent books on the Stephen Ward case have shown, the trial was rigged from beginning to end. The Police threatened and blackmailed witnesses into lying on a grand scale; Lord Chief Justice Parker went through extraordinary antics in order to try to prejudice the result of the trial. According to Knightley and Kennedy’s An Affair of State, the judge in the case, Mr Justice Marshall, was overheard in conversation with ‘a person very high up in the judiciary’, who asked: ‘Are you certain that you’ll be able to get him?’ Marshall replied: ‘Don’t worry, I’ll get him on the immoral earnings charge.’ Similarly, Lord Denning appears to have been told that Ward was telling the truth when he asserted that he was an MI5 agent, but Denning omitted this vital information from his Report and asserted instead that Ward was a crypto-Communist. The fact that all this judicial bad behaviour should occur in connection with a trial which was of enormous importance to the government of the day is, to say the least, fishy. Judges are not merely appointed and promoted by politicians but come from the same class, frequently attended the same schools and universities, and belong to the same clubs and Masonic Lodges. A quiet word in the right ear from time to time is normal behaviour for members of the human race, and despite occasional appearances to the contrary, judges are members of the human race.
The Spycatcher ruling merely confirms that it will be no good bringing in a bill of rights (which will have to be interpreted by the judiciary) unless we also do something about our judges. Bluntly, a good number of them need to be sacked or forcibly retired. The judicial retirement age of 75 needs to be lowered by at least ten years. And if we are to have a politically-appointed judiciary, let them be recruited from outside the ranks of barristers and their appointment be made the exclusive prerogative of the Parliamentary Opposition. The British quality press is an institution in which we can take greater national pride than we can in our judges: the former is still the best in the world. We must not let the bad drive out the good.
The whole quality press is now under judicial attack: the only papers to behave the way the Law Lords want are the Express, Mail and Sun. Best of all is the Sun: at every stage of the Wright affair it has abused Wright, praised the Government and applauded the judges. Indeed, the Sun could be said to be the judges’ paper. Unlike the qualities, it has never attracted the adverse attention of the Law Lords or Lord Denning or the Attorney-General. Sure, it invents news; that’s OK. Sure, its election coverage consisted of Page Three girls wearing Tory rosettes on – well, you can guess where. True, it featured articles by Joseph Stalin (‘Why I’m voting Labour’) and Winston Churchill (‘Why I’m voting for Maggie’). The actual authorship of these articles may be controversial but no complaint has been received from Messrs Stalin and Churchill, so the Sun is legally in the clear. In any case, the Sun is owned by Rupert Murdoch, who unswervingly supports Mrs Thatcher and is exceedingly rich. The Soaraway Sun Newspaper of the Year, say Lord Lords. I Could Really Drop My Knickers For Those Cuddly Judges, says Page Three Linda. Those Law Lords in Spanking Form Again, says Sam Fox, see Centre Pages.
Peter Wright is watching all this from far away. I hope he’s enjoying it – and reflecting upon it. Throughout his career he chased down Communists and pinkoes because they subverted the Establishment he held dear. He has now demonstrated that what they could do was as nothing compared to the subversive power of telling just some of the truth. Let’s hope he tells us more.