LFB - debate at the House of Commons
Sources of anxiety
OUR annual debate at the House of Commons emphasised the importance - and the difficulty - of journalists protecting our sources.
Tam Dalyell, Labour MP for Linlithgow, doyen of campaigning backbenchers and Father of the House, opened the debate with a brief visit "to express solidarity with journalists on the question of protecting sources." He knows how we feel: "Only today I have had a letter from Shrewsbury lawyers pleading with me to reveal my source from 19 years ago in the case of Hilda Murrell." She was an elderly anti-nuclear-power campaigner who was murdered in what Tam was told was a botched security service operation.
"The pressure can be great," he noted: "in 1984 I was interviewed by a Detective Superintendent who said 'Mr Dalyell, you are dealing with a brutal and callous murder of an old woman - don't you think you should help the inquiry?' But," Tam concluded, "on balance I am quite sure that your cause is right. Politicians, like journalists, should never reveal their sources. As soon as we reveal one, who is going to trust us in future?"
Branch member Robin Ackroyd agreed: "a threat to one source is a threat to all". It is recognised that if sources felt unable to come forward with a guarantee of anonymity, there would be a "chilling effect" on reporting.
But there's "no glory" in defending a source, as Robin has been doing for the past four years. He may still face a court hearing in December, having already been to the Court of Appeal, with the NUJ's support, to win the right to a proper hearing. The process is gruelling, and may go on for years yet.
The trek began with Robin's investigations of Ashworth Special Hospital on Merseyside. Back in 1997 he reported that a child had been left alone with sex offenders at the hospital. This led to the Fallon Inquiry, which recommended in January 1999 that the hospital be closed.
Within months air weapons and daggers had been found on the ward holding one Ian Brady - though the management described these as "tools and implements". Later Brady was moved from the ward by staff in full riot gear - called a "care and responsibility team" - and it was after this that Brady began a hunger strike and then a court case demanding the right to be allowed to die.
"I should make it clear that I am not an apologist for Brady," Robin noted - "in fact I exposed his plans to escape." The background to this case was clearly a matter of public importance. In December 1999 the Daily Mirror ran an un-bylined piece on it.
In June 2002 the House of Lords ruled that the paper had to reveal its source. Robin came forward as the intermediary for the information. The hospital authority argued that the order against the Mirror should apply to him automatically, without him having any chance to present a defence. Then they claimed Robin was not "responsible" for the publication of the Mirror article and therefore had no legal protection under Section 10 of the Contempt of Court Act. It has also threatened him with prosecution for breach of confidence and of contract.
"Protection of sources goes to the heart of the relatively free working of the media in this country," Robin said. Whisteleblowers need protection - and journalists are citizens too, and need protection. "I just hope for your sakes that you don't have to do the actual fighting. "
It was Bill Goodwin who won what protection journalists have under the European Convention on Human Rights when - again with NUJ support - he won a case in the European Court of Human Rights in Strasbourg. "What Robin is doing - especially as a freelance without the resources of a big publisher behind him - is very significant," Bill told the meeting. "The whole David Kelly affair is sending a dire signal to civil servants in the MoD and elsewhere and putting them under heavy pressure not to step forward and expose wrongdoing. So it's important that people step forward as Robin has done.
"There is a drip effect from journalists standing up for sources," Bill said, "first on the attitudes of the public and of MPs and then, eventually, on the courts. Those exposed are gradually realising that there's no point in going after journalists, and those who may expose them that they can come forward and trust journalists."
The UK's Contempt of Court Act was supposed to back this up. But it sets out three reasons for which journalists can be compelled to betray sources: to prevent disorder or crime, in the interests of "national security", or "in the interests of justice".
"The problem," Bill said, "is that the 'interests of justice' can mean anything lawyers choose it to mean. In my case, they argued that it meant they needed to know who the source was to take disciplinary action for speaking to the press. Ashworth Hospital argued that the source might leak again."
The "interests" clause was inserted into the bill late. It was justified by the argument that a journalist might know who a murderer was. It was never intended to allow a company to take disciplinary action.
"The problem," Bill went on, "is that the courts very often make wrong assumptions. They indulge in speculation about who the source might be. They were wrong in my case. In Granada v British Steel they thought the source was on the Board - and it turned out to be a watchman on a rubbish dump."
"It's going to take more cases like Robin's," he said, "and perhaps more cases going to Strasbourg, to achieve meaningful change in society and eventually in the law. But you shouldn't have to go through the courts and all the way to Strasbourg. We need to change the law." It needs to be reformed to reflect, at last, the judgement that Bill won in 1996.
"It's important for the NUJ to back journalists involved in such cases," Bill summed up, "not only with legal assistance but with messages of support in these lonely days."
Having heard from what the Establishment would insist are the law-breakers,
as the Chair put it, we moved to the law-makers.
Dr Julian Lewis, who is Conservative MP for New Forest East and a shadow defence spokesperson, welcomed us to the House on behalf of Nick Soames and the shadow defence team. "I've twice been involved in libel cases," he reported: "they dominated my life for two years at a time and must have been chickenfeed compared to what Robin and others are going through."
Especially for freelance journalists, he said, there is an essential role for a free trade union when cases like this come up. "When you know that you face ruin, the institutional support of organisations like the NUJ is entirely admirable.
"I'm one of the MPs," Julian noted, "who's been closely following the Kelly affair - or tragedy as it should be called... Dr Kelly was undoubtedly relying on Andrew Gilligan not to disclose his identity to anyone at all. By 30 June last year the Independent was saying that Gilligan had reported to at least one senior BBC manager. It may have been that that persuaded him to take the fatal decision to come forward... which he did in a letter on 30 June."
"I felt a twinge of guilt," Julian said, when Tam connected what a parliamentarian can say in the House of Commons with what a journalist has to bear in mind about anonymous sources. "Even now I am not sure I did the right thing on the one occasion when I did breach a confidence." A senior military officer talked to MPs under Chatham House rules of anonymity about an EU Defence Force. It shocked Julian that what he said there contradicted what the government was quoting. But with the Kelly affair, the government is similarly to shelter behind its own officials: "don't listen to us, listen to what the professionals say."
But he pointed to a dilemma for those who say that protecting sources is an absolute. "As a genuine question from an amateur to professionals: How can you be sure that a source isn't using you, for example in a vendetta... how do you protect yourselves against someone abusing you for nefarious purposes?"
Malcolm Bruce, besides being an ex-journalist and Liberal Democrat MP for Elgin, is a member of the Legal Affairs and Human Rights Committee of the Council of Europe Parliamentary Assembly. He noted that if the courts are not respecting the spirit of the Goodwin judgement, regrettably there may have to be another appeal to Strasbourg.
To see why, think about what would happen if it were assumed that journalists would divulge a source's name if a court requested it - or if courts applied the Hutton Inquiry rule that only corroborated sources count. It seems that very little challenging reporting would happen in that world. "It's odd," Malcolm said, "that Hutton says Andrew Gilligan should not have relied on a single source, but it's OK for the intelligence services to do that."
And we have to look at the ràle of the intelligence services now. The UK is the only country with a "derogation" from Article 5 of the European Convention on Human Rights, allowing the authorities to lock non-UK citizens up without trial and without charge, indefinitely. Why only foreigners? Because," Malcolm suggested, "the government only believes that it can get away with doing it to foreigners. As lawyers say: 'If you want to know what the government wants to do to citizens, look at what they do to foreigners'."
The government might raise the possibility of a journalist knowing the identity of an al-Qaeda member. That would be a huge dilemma for the journalist - but the very widely drawn exception for "the interests of justice" goes way beyond that. He was willing to take up the issue of sharpening the law and certainly to remove this wishy-washy phrase "that can be claimed by lawyers to mean whatever they want - noting that the longer they argue the more they earn".
Malcolm also raised questions about journalistic ethics, and said "I have known journalists stand up a story with an anonymous source who didn't actually exist." Strengthening the law requires very high standards of integrity and assurance of the reliability of sources.
But we should take reassurance from the fact that the Hutton view of ràle of journalists has not been widely acclaimed in the past couple of weeks. As Ian Hislop said, carefully, you can see the evidence and see the conclusions and draw your own conclusions. Ultimately if sources do not come forward journalists will lose work - and the public will be less well informed.
In discussion, a branch member asked what protection the Convention actually gives. Malcolm noted that it's very general: the court bridges the gap between the principles it sets out and actual cases. Robin noted that in his case the Mirror was intending to go to Strasbourg, but they weren't given a "stay" on the order pending that appeal. If the courts can say "go to Strasbourg, but you're going to have to reveal that source first," there's no real protection.
Member Steve Bridge noted that it seems ironic that a journalist can be castigated for one error, while the people who provide intelligence seem to be able to get away with it. Julian responded that they didn't get away with it - the whistle was blown. What the Opposition can do is "make so much of a meal of what has happened that no government ever again dares to do what this one has done time and again - to push forward the generals and the doctors so it can hide behind them. It must take responsibility for the way in which any intelligence has been used."
Malcolm added that the whole intelligence set-up is under review. "The reality is that intelligence is by definition imperfect. It consists of professionals trying to put together partial pickings." From that process, he went on, "we have 15 people in Belmarsh prison who may well be the world's worst terrorists - but they are not even allowed to know the information on basis the of which they are held. And there are 15,000 people held without charge in Iraq."
Branch Treasurer Phil Sutcliffe responded forcefully to the concerns raised about ethics: "You say journalists must conduct ourselves properly to deserve protection and that we must provide assurances of the reliability of our sources. Both of those assertions are absolutely wrong. This must be a right. Rights cannot be fudged to allow for the inevitable human mistakes."
Robin noted that journalists do have to make judgements. And we we always had to have documents to back up a source, that could itself betray the source. Malcolm agreed that professional standards and integrity don't make the law - "but when you raise the question of changing the law, these issues will be raised too."