Tag Archives: Parliament

On the Freedom of the Press

The row that has blown up over the leaking of the British ambassador’s private opinions of President Trump and his administration has far-reaching consequences.

In a crude but accurate of an ambassador’s job description, Sir Christopher Meyer in his memoir, DC Confidential, revealed that Tony Blair’s chief of staff had instructed him to ‘get up the arse of the White House and stay there’ when George W Bush was President. Having been effectively barred from the White House, suddenly finding himself with little or no access to Washington’s movers and shakers, Sir Kim Darroch had little choice but to fall on his sword.

Back in London a hunt is now on to find the leaker of those secret ‘diptels’; there have even been calls for the newspaper that published them to be charged under the Official Secrets Act. This is explosive stuff because the ‘freedom of the press’ is one of the cornerstones of a free society.

Freedom of the press is the right to circulate opinions in print without censorship by the government. Americans enjoy freedom of the press under the First Amendment to the US Constitution, which states:

 ‘Congress shall make no law… abridging the freedom of speech, or of the press…’

In the late 1770s this was remarkable stuff. Across the Atlantic, radical MP and journalist John Wilkes landed in jail for daring to criticise the London establishment in the press.

Wilkes was accused of treason and seditious libel for publishing articles critical of King George III’s government. He was arrested, thrown out of Parliament and put into prison. His legal travails, his publications, and his every movement were covered with great interest by the colonial newspapers. To those breakaway Britons, he provided a powerful example of why liberty of the press was so critical: after their observations of London’s heavy hand, they saw press freedom as vital for their new American state.

However, this declaration of press freedom caused concern, even in the new USA.  For example, under the existing Common Law, protection against false allegations of defamation was a long standing legal right. How did that square with a press that had the legal right to print whatever it liked? ‘Fake news’ is no modern phenomenon.

Early American courts struggled with the argument that the punishment of ‘dangerous or offensive writings… [was] necessary for the preservation of peace and good order…’ How did that balance with a free press guaranteed by federal law? That difficult question was swept under the carpet for two centuries after the ratification of the First Amendment to the US Constitution.

Not so in Britain, however. In the early years of the 20th century spy fever gripped Britain. An Anglo-German naval arms race bred a panicky – if totally inaccurate – belief that the country was riddled with spies bent on uncovering the defence secrets of British dreadnoughts and dockyards. A worried government rushed through an Official Secrets Act in 1911 with little debate or opposition. The new Act had extremely wide-ranging powers. There were two main sections: Section 1 contained tough provisions against espionage and concentrated on the theft of military secrets; Section 2 dealt with unauthorised disclosure of government information, making it a criminal offence to disclose any official information without lawful authority.

The absurdity of making publication of even a Buckingham Palace menu a crime was quickly spotted by lawyers and widely ignored.

Across the Atlantic this problem came to light during World War I. In a famous case a man called Schenk had been convicted under the US wartime Espionage Act for publishing leaflets urging resistance to the Draft. This went against the right to freedom of speech protected by the First Amendment.

Justice Oliver Wendell Holmes tried to unscramble the contradiction, ruling: ‘the question in every case is whether the words are used… to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.’ He went on to add the all-important interpretation of the legal principle:

‘There is no threat to national security implied in the release of this material. It is embarrassing…  but it is the duty of media organisations to bring new and interesting facts into the public domain. That is what they are there for. A prosecution on this basis would amount to an infringement on press freedom.’

The Supreme Court agreed, and held that virtually all forms of restraint on free speech were unconstitutional. The key was that embarrassing the government was no crime; the real illegality was the theft of secrets.

Into this delicate legal minefield one of Britain’s most senior police officers has now blundered. Assistant Commissioner Neil Basu said the leak had caused damage to the UK’s international relations, pompously warning that journalists who publish leaked information risk going to jail. Senior legal figures said that Basu, the head of the Metropolitan Police’s specialist operations, appeared to have set out to ‘protect the Government from embarrassment’ after he issued his warning that the publication of the leaked memos could in itself be ‘a criminal matter’.

The subsequent outrage was both unnecessary and predictable. Sharp-eyed lawyers immediately pointed out that in law, the authorities have to prove that ‘damage’ – not mere embarrassment – has been caused to Britain’s international relations through a leak.

However, nothing that Ambassador Darroch said in his diptels was remarkable. He could have been quoting the views of the Guardian or the New York Times on Trump. Nothing has been published that in any way affects national security. So for the Mail to be threatened with the Official Secrets Act 1989 was a clumsy and unwise thing to do. The real crime is the theft and leaking of the secret diptels. Even then the case is arguable: nothing that has been leaked in these particular diplomatic reports threatens Britain’s (or Britons’) security. However, even if there had been sensitive material involved, it is a decision for responsible newspaper editors to decide whether or not they should publish it.

The authorities quickly realised that a PR disaster was looming; from 10 Downing Street downwards the hapless Assistant Chief Commissioner of the Met was thrown under the bus, ethnic figurehead of ‘diversity’ and Common Purpose mole or not. Even London Mayor, Sadiq Khan, who is responsible for policing in London, said the media ‘must not be told’ what they could publish. Sir Paul Stephenson, a former Metropolitan Police Commissioner, and a mentor to Mr Basu when he was at the force, warned that the police must ‘step very carefully and warily’.

Politicians en masse quickly backed away from what was an obvious tar baby; trying to muzzle – let alone jail – newspaper editors in today’s digital communications world would be political suicide, especially when no lives are at risk from the disclosure.

Here is the key: whereas Julian Assange and his unwitting pawn Private Chelsea Manning stole US military secrets and really did put many undercover lives at risk via Wikileaks, nothing the Mail has published risks anything other than the red faces of officials. So, to threaten editors with the OSA and Court Number One at the Old Bailey was a blunder of monumental proportions.

The irony is that the British press are often far too ‘responsible’. For example, over the Rochdale sex gangs and the Elm Guest House MPs paedophile scandals the press kept too quiet whilst great wrongs continued. They knew all about the Pakistani sex traffickers and they knew all about the behaviour of MPs Cyril Smith and Nicholas Fairbairn; but, under pressure not to rock the political or policing boat, the press stayed quiet. Too quiet, too long.

Press freedom is today a delicate balancing act, requiring skilful tightrope walking by editors and journalists. The threats and heavy hand of Mr Plod would be funny – if it were not so serious.

On Blowing Up Parliament

‘Remember, remember
The Fifth of November,
Gunpowder, Treason & Plot.
I see no reason
Why Gunpowder Treason
Should ever be forgot.’
17th-century Nursery Rhyme

The desire to blow up the occasional politician is a thoroughly understandable one. In the final stages of Brexit’s vexatious and bad-tempered Uncivil War in November 2018, this notion seems particularly attractive. However, it has already been tried – unsuccessfully.

That old monster Henry VIII really caused the original attempt. The Gunpowder plot of 1605 stemmed from Henry’s decision to change his wife – and England’s religion – 70 years previously.

Henry desperately needed a son to carry on the Tudor monarchy’s line. His first wife, Catherine of Aragon, failed to produce an heir and in 1533 Henry decided she had to go. This was always going to be tricky. Spain was the superpower of the day, so ditching a Spanish princess was guaranteed to annoy the King of Spain. The Pope, ever anxious to curry favour with ‘His Most Catholic Majesty,’ refused to agree with Henry and blocked any divorce.

However, Henry couldn’t wait, so broke away from Rome, declaring himself in 1534 the ‘Supreme Head on Earth of the Church of England’. This proclamation conveniently enabled him to annul his marriage to Catherine and to marry Anne Boleyn. (It also allowed him to dissolve the Catholic monasteries and grab their land and money.)

But Henry VIII was no real fan of Luther’s ‘Reformation’, any more than he was of the Roman Pope. He clamped down on all religious fanatics, executing Catholics and Protestants alike. After his death the country slowly polarised into political factions: Catholics on one side; Protestants on the other. Henry VIII’s reforms turned out to be the Brexit of the day.

His Catholic daughter, Queen Mary, tried to turn the clock back. Protestants were persecuted, with 283 burnt at the stake for heresy. When Elizabeth I finally came to the throne she tip-toed carefully through the political and religious minefield she had inherited, declaring she was against ‘making windows in men’s minds’.

Unfortunately she was forced into persecuting Catholics because Rome’s Counter Reformation encouraged numerous plots to murder her and restore Catholicism in England. The Catholic Church, the Pope and Spain desperately wanted to replace Elizabeth with a Catholic monarch – Mary Queen of Scots, for example.

In England every Catholic was now viewed as a probable traitor. The Elizabethan establishment passed savage anti-Catholic laws. Jesuits were ordered to quit the kingdom on pain of death. Catholic priests were fined for saying mass and imprisoned for life. Anyone harbouring a priest risked hanging. Catholics were forbidden to move more than 5 miles from their residences.

It was against this explosive background of what was shaping up to be a religious civil war that King James VI of Scotland inherited the throne in 1603.

James Stuart was viewed with suspicion by his new subjects. Catholics and Protestants were literally at daggers drawn; plots abounded on every side. However, James managed to sign a peace treaty between England and Spain. But Spain and the Pope were still determined to restore freedom of worship for Catholics in England. Ironically, James was distrusted abroad for the repression of Catholics yet at home for being far too tolerant towards them. So, he was always a target. Catholics were plotting once again, this time to put James’s Catholic daughter, Princess Elizabeth, on the throne. The authorities clamped down hard, but a new and deadly plot was brewing.

Robert Catesby, a minor Catholic aristocrat was the mastermind. He had taken part in a rebellion against Elizabeth in 1601 and then fled to the Spanish Netherlands where he began to recruit allies for a new attempt to kill England’s monarch.

By March 1605 the conspirators gathered in London. Their aim was simply to kill the King and as many of the Protestant elite as they could by blowing up the Houses of Parliament with a huge store of gunpowder. The State Opening of Parliament, with the bishops, lords, Privy Council and judges offered a ‘target-rich environment’, including the monarch’s nearest relatives. It was simple and brilliant: all they needed was enough gunpowder, and the opportunity to wipe out England’s hated Protestant ruling elite at a stroke.

The plotters based themselves at Catesby’s lodgings in Lambeth, where their stored gunpowder could be secretly ferried across the Thames. Meanwhile, Parliament pushed through increasingly harsh anti-Catholic legislation.

The gang leased an unused cellar beneath the House of Lords. In those days the Palace of Westminster was easily accessible; merchants, lawyers, and others lived and worked in the lodgings, shops and taverns within its precincts. By August, 36 barrels of gunpowder had been stored. The opening of Parliament was announced for 5 November. The plot was simple; Fawkes would be left to light the fuse and then escape across the Thames, whilst – simultaneously – a revolt in the Midlands would abduct Princess Elizabeth.

However, by now details of the plot were leaking. The wives of those involved became increasingly concerned and on 26 October, Lord Monteagle, the brother-in-law of one the conspirators’ received an anonymous letter warning him ‘as you tender your life, to devise some excuse to shift your attendance at this parliament’Alarmed, Monteagle warned James’s spymaster Salisbury, who cannily decided to sit on the intelligence and watch events unfold.

On 1 November the King was informed; he ordered a search of the Houses of Parliament. Half the conspirators moved to the Midlands, ready to abduct Princess Elizabeth. On 4 November Catesby set off North to join them.

On that same evening a search party finally discovered a large pile of firewood beneath the House of Lords, accompanied by ‘a simple serving man.’ It was Guido Fawkes. Later that night an armed party returned to search the undercroft more thoroughly. Once again they found Fawkes. He was arrested, giving his name as ‘John Johnson’. He was carrying a lantern and a pocket watch plus fuses, and slow-matches. Barrels of gunpowder were discovered under firewood.

Although Fawkes’s had been caught red-handed, for two days he was the only conspirator arrested. He openly admitted that he had planned to blow up the House of Lords but staunchly refused to name anyone else. This earned him the praise of King James, who nevertheless reluctantly ordered Fawkes to be tortured to name his accomplices. On 7 November his resolve and his body were broken; on the rack he confessed the identities of his co-conspirators. It was now a manhunt for the fugitives.

At the news of ‘John Johnson’s’ arrest, the plotters had fled. Catesby told them that the King and Salisbury were dead, before the gang moved north, eventually holing up in Holbeche House near Stafford. Tired and desperate, they spread out some of their damp pistol gunpowder in front of the fire to dry out. A spark landed on the powder and the resultant flames engulfed Catesby, and two others. The remaining fugitives resolved to stay on. On 8 November the King’s men surrounded Holbeche House, killing or capturing the surviving conspirators.

During the next few weeks, Salisbury’s agents hunted down the rest of the plotters and tried them for High Treason. Fawkes and the surviving conspirators were sentenced to be hanged, drawn and quartered. Fawkes cheated his butchers; moments before the start of his execution, on 31 January 1606, he jumped from a ladder while climbing to the gallows, breaking his neck and dying.

The nation rejoiced. But Catesby’s failed Gunpowder Plot set Catholicism in England back for centuries. New laws were instituted that eliminated the right of Catholics to vote, among other repressive restrictions.

Catesby’s Gunpowder Plot still casts a long shadow. To this day, ‘Guy’ Fawkes’ effigy is burned across Great Britain every Fifth of November and the cellars of the Houses of Parliament are searched to make sure there are no conspirators hiding with explosives to blow up the politicians.

However, sometimes it still seems quite a good idea at times of national constitutional crisis …