Mr Galloway is neither a traitor nor a fool

To those tempted to sue for libel – or to enter the Royal Courts of Justice at all, except as curious onlookers – the best advice is: don't. The only people to profit are the gentlemen in the wigs and their various hangers-on. Mr George Galloway, however, really had no choice. If he took £375,000 a year from Saddam Hussein, as The Daily Telegraph alleged last week, he could be expelled not only from the Labour Party but from the House of Commons as well. I am not clear, by the way, whether this was a single payment or an annual retainer, which would have made Mr Galloway even more generously remunerated than the editor of the Telegraph.

Either way, he might also have been guilty of a crime of some financial character – though not of treason. It was not treasonable to oppose the war in Iraq. I did so myself. It was not even treasonable to support the rule of Saddam and the Baath party. This line, which the Telegraph took in its leader column, struck me as imprudent. I will tell you why.

The charge of treason – and, indeed, the entire tone of the leader – was clear evidence of what the lawyers call "malice". This does not mean exactly what most people mean by the word but rather less. It means that the defendant, in this case the paper, has an animus or a bias against the plaintiff, Mr Galloway. The existence of malice destroys the defence of fair comment. The defendant must then rely on justification as a defence, that is, on establishing the truth of the charge made.

In this case, it is most unlikely that the court would give fair comment the time of day as a defence. After all, Mr Galloway is not suing because the Telegraph called him a traitor but because it said he had taken large sums of money from Saddam. It is a simple question of fact, though at the trial (if, in the end, there is one) it may turn out to be quite complicated.

But if fair comment could not be raised as a defence, even in the absence of malice, there is a different, parallel doctrine which is being developed by the courts and is now in a state of flux. It surfaced in a case involving the Derbyshire County Council and in another where the former Irish Prime Minister, Mr Albert Reynolds, claimed he had been defamed. It is that there is a public interest in the freedom of the press and in public knowledge of the doings of politicians. It is a new form of qualified privilege, which is also vitiated by malice.

In its present undeveloped form it does not go nearly so far as United States law, which holds, more or less, that you can say virtually anything you like about a politician because the public interest requires it. I do not know whether the Telegraph intends to try our own version of the US defence with which our courts seem to be toying, still in a state of uncertainty. There were hints last week that it would indeed have a go along these lines. If the paper does, it will not help matters at all if it has already indulged in what the libel lawyers call "vulgar abuse" by labelling Mr Galloway a traitor.

As it happens, I know Mr Galloway slightly and Mr Charles Moore, the Telegraph editor, rather better. I have the warmest feelings towards both of them, though my feelings for Mr Moore are inevitably stronger because I have known him for much longer.

On Iraq, however, I find myself more on Mr Galloway's side. I do not share his Marxism, about which he makes no secret, but I do share many though not all of his views both on Iraq and on the Middle East generally. Whatever else he may be – misguided, publicity-loving, litigious – he is nobody's fool. And to have taken the sums alleged from Saddam or from any other dictator anywhere (indeed, from any government at all, of whatever description) would in any MP be the action of a fool.

Mr Moore, for his part, is a person of the highest rectitude. He was a devout member of the Church of England, at the higher end of Anglicanism, who converted to Roman Catholicism because of his opposition to women priests. This struck me as misguided – as misguided as, say, Mr Galloway's Marxism – but it was none of my business, and I recognised (as I do still) Mr Moore's seriousness of character. Whatever else he may be, he is not a liar.

Nor, I am sure, is his dedicated correspondent who found the apparently incriminating documents in Baghdad, Mr David Blair. Even so, documents published or validated in good faith have subsequently been shown to be forged or otherwise unauthentic. Last week several papers broadly sympathetic to Mr Galloway referred to the Zinoviev letter, which was published in the Daily Mail, helped to bring down the first Labour government and was only quite recently shown to be a forgery, though it had been suspected of being one for a long time.

There are other, more contemporary examples. There was supposed to be the Swiss bank account held in the name of Edward Short, perhaps the most stiffly upright of all Old Labour ministers. There was the Leyland slush fund (also involving the Daily Mail) whose existence was likewise confirmed by documents, or so it seemed. And there were, of course, the Hitler diaries, whose authenticity was, to begin with, attested by no less an authority than the late Hugh Trevor-Roper, author of The Last Days of Hitler, though his eyesight had deteriorated by the time he examined the forgeries.

The Baghdad correspondence or memoranda involving Mr Galloway may be of this character; or, again, it may not. I am in no position to say. An inquiry by a parliamentary committee would be worse than useless. It would inevitably divide on party lines; except that in this case the Labour members, influenced by the Whips, would be even more anxious than the Tories to see Mr Galloway on his way to the scaffold. An internal Labour Party inquiry would be even more partisan. A Tribunal of Inquiry under a senior judge, set up under the 1921 Act, would be preferable. But in my experience such bodies start off in a blaze of light and then take months, even years, to produce very little.

A libel trial in the Queen's Bench Division, though not ideal, provides the best available guarantee of arriving at something near the truth. Admittedly the function of the court is not to arrive at the truth but to compel the defendants to justify the defamatory claims which they have made. In the circumstances, this seems fair enough. If Mr Galloway believes that a Sun-reading jury would be against him, he can apply for the case to be tried by a judge alone: not on that ground, but because it would be too complicated for simple folk. Mr Jonathan Aitken used this ploy in his case against The Guardian. He very nearly got away with it.