Leading Article: When just asking a question is illegal

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The Independent Online
'PROMISCUOUS reading,' wrote John Milton in the Areopagitica, 'is necessary to the constituting of human nature. The attempt to keep out evil doctrine by licensing is like the exploit of that gallant man who thought to keep out the crows by shutting his park gate . . . Lord and Commons of England, consider what nation it is whereof ye are: a nation not slow and dull, but of a quick, ingenious and piercing spirit. It must not be shackled or restricted.'

More than three centuries after Milton's famous protest against Cromwell's licensing of books and newspapers, the British press, in all important respects, is more shackled and restricted than that in any other Western democracy. The story of David Mellor's affair with Antonia de Sancha, an actress, fell into the People's lap. It had, so it says, a tape-recording which allowed no ambiguity as to what was going on. Mr Mellor, therefore, could not sue for libel.

But this is the exception rather than the rule. Had Mr Mellor been involved in any kind of financial or business misconduct the matter would, almost certainly, never have come to light. As the late Robert Maxwell showed, a whole battery of restrictions can be used to restrain journalists from inquiring into or reporting subjects where there is a genuine public interest. Britain needs fewer restraints on the press, not, as some have suggested in the wake of the Mellor affair, more.

Some of these restraints are well-known. Every newspaper can quote examples of stories that have remained unpublished for fear of the libel laws. People who believe they have been libelled have only to show that the allegations against them are defamatory; it is then up to the defendant to prove their truth. The awards are often large - the courts apparently rating loss of reputation more seriously than loss of limb - and bear no relation to the circulation of the libel. One result is that public figures, some of them foreign citizens, increasingly sue through the British courts even when the prime source of publication is overseas. A Greek paper, which sold fewer than 100 copies here, was successfully sued for pounds 450,000.

What is less well-known is the growing extent to which stories are stopped, through the courts, from appearing. 'Almost every week,' writes Geoffrey Robertson, QC, and Andrew Nichol in the latest edition of Media Law, published this year, 'at secret hearings in the High Court, judges are asked to issue injunctions against the media. An injunction imposes prior restraint, by stopping presses from rolling and film from running.' Another word for it is censorship. It is outlawed in Germany and America. The usual basis for prior restraint in Britain is breach of confidence. The attempt to suppress Spycatcher, where the confidence supposedly related to national security, is only the most celebrated example. The biggest irony of the Mellor case - and the most damning indictment of the present law - is that, if the People's tape had recorded discussions of sensitive government business, the minister could well have stopped publication.

The most spectacular growth is in the use of the ex-parte injunction (where defendants are not present) in cases involving children. The development - almost entirely one of the last five years - has been documented by the late Iain Walker, a Mail on Sunday journalist, in a study for the Journalists' Fellowship Programme at Queen Elizabeth House, Oxford University. The study is a warning to those who favour new privacy laws. Protecting children, like protecting privacy, sounds a laudable aim. The reality, Mr Walker shows, is that the law is used to protect bureaucrats, professionals and politicians.

In Rochdale in 1990, for example, social workers and police took 21 children from a council estate into care. The parents were not given any reasons but, it turned out, social workers believed children were the victims of 'satanic abuse'. A series of ex-parte injunctions prohibited 'the solicitation or publication of any information about the circumstances of or the reasons for these proceedings'. Journalists were barred from approaching a list of individuals which included social workers, police officers, foster parents, doctors, and nurses. The parents were themselves barred from discussing what happened with outsiders. 'The parents had been plunged into a bewildering and agonising controversy,' Mr Walker wrote. 'They found no one, aside from solicitors, to whom they could effectively turn for advice and support: not their local newspaper, their priest, nor their local councillor. Freedom of speech had suddenly become the most vital thing in their lives.'

All this was supposed to prevent any information appearing that could allow newspaper readers (who, the law seems to assume, have the deductive powers of a Sherlock Holmes) to identify the children. Yet the children's names - and rumours about why they had been taken from their parents - were known to almost everybody in the neighbourhood. In effect, the law, far from protecting children, allowed the actions of officials who removed them from their homes to pass without public scrutiny.

Mr Walker's study includes several other cases where public discussion of policies involving surrogate motherhood and fostering, as well as child abuse, was severely restricted. Since January 1987, the publisher of the Daily Mail and Mail on Sunday had been served with 67 ex-parte injunctions.

A legitimate wish to prevent children's names appearing in newspapers has been extended to a restraint not just on publication but also on inquiry. As Mr Walker puts it, 'in certain circumstances, it has become illegal to ask a question'. Thus are important freedoms eroded and press shackles tightened. Mr Mellor has spoken of the 'last chance saloon' for the press; but we are also dangerously close to the last chance saloon for the liberty - 'to know, to utter and to argue' - that Milton valued above all liberties.