Freedom that tips the scales of justice

The Independent Archive: 14 August 1987 The Law Lords have approved by 3-2 the ban on coverage of Peter Wright's book `Spycatcher'. A former Master of the Rolls dissents

ON 30 July, the House of Lords by a majority of three to two granted an injunction to restrain the newspapers from publishing Mr Wright's Spycatcher allegations. They went further. They extended it to cover reports of proceedings now current in Australia.

On that day they did not give reasons for their decision. This was a pity: because a judgment without reasons is often said to be unreasoned. Naturally enough, the media took them to task. One of them went so far as to exclaim: "You fools." That was only another way of saying with Mr Bumble: "If the law supposes that, that law is an ass - an idiot." Indeed, the Vice-Chancellor (who refused an injunction) used the same phrase.

Yesterday, 13 August, the Law Lords gave their reasoned judgment. One of them protested against the media, saying that the case cried out for a sense of proportion and that the media had not shown it. All agreed, however, that there was a question of balance. That is, of balancing two conflicting interests. On the one side of the scale there was the security of the state. Lord Templeman, for the majority, declared that:

It is the duty of this House in its judicial capacity to stand firm in order to prevent harm to the security service, to preserve the right and duty of the court to uphold within the jurisdiction secrecy of the security service when necessary.

On the other side of the scale there was the freedom of the press. Lord Bridge of Harwich, for the minority, declared that the key question was

whether any remaining interest of

national security . . . is of sufficient weight to justify the massive encroachment on freedom of speech which the continuance of the injunction necessarily involves.

I find the reasoning of the minority Lord Bridge and Lord Oliver more convincing than that of the majority. Each emphasised the fact that the book was now freely available in the United States and even here, and that it was ridiculous now to ban it here. Lord Bridge said:

The maintenance of the ban as more and more copies of the book, Spycatcher, enter this country and circulate here will seem more and more ridiculous. If the Government are determined to fight to maintain the ban to the end they will face inevitable condemnation and humiliation by the European court of Human Rights in Strasbourg. Long before that, they will have been condemned at the bar of public opinion in the free world.

Lord Oliver emphasised particularly the importance of the findings of the trial judge, Sir Nicolas Browne-Wilkinson. Lord Oliver said he, the Vice-Chancellor, had engaged in a careful balancing exercise, of which he said:

I detect no error in his approach and I would be content to decide this appeal on the simple ground that the conclusion at which he arrived was a proper exercise of the discretion with which he as the judge of first instance was invested and one with which an appellant court ought not to interfere.

Both Lord Bridge and Lord Oliver pointed out the danger which the majority decision involved. Lord Bridge said, "Freedom of speech is always the first casualty under a totalitarian regime . . . This is a significant step down that very dangerous road." Lord Oliver added that it involved the first step along a very perilous path.

Lord Bridge concluded his judgment, saying emphatically of the majority: "I remain in profound disagreement with you." So will many others who read the judgment. I would add this thought. If the Attorney General prosecutes any of the newspapers for contempt, what is a judge of first instance to do? Is he to accept the majority judgments as correct and impose a heavy penalty, or is he to say, "There is so much difference of opinion on the matter that I will treat you leniently"?

This is my concluding point. The Lords ought not to have reversed the Vice-Chancellor, who refused an injunction, unless they had been unanimous. Change the constitution by one and the result might well have been different. No injunction should be granted in the face of such powerful dissent.

Lord Denning

From the Home News pages of `The Independent', Friday 14 August 1987