The indiscretion of Vince Cable

Should constituency surgeries always be confidential?

Today the Daily Telegraph publishes further reports of secretly recorded conversations with Liberal Democrat MPs. These follow yesterday's disclosures of Vince Cable's ill-considered comments recorded at his constituency surgery. The revelations are certainly interesting, but are such clandestine tactics in the public interest?

In the case of Vince Cable's remark that he had declared "war on Murdoch", there is arguably a public interest. It is unacceptable for a decision-maker with public law duties (or "quasi-judicial" powers, as old-fashioned lawyers would call them) to say such a thing of any party that could possibly be affected adversely by his or her decision. In my view, the quashing of such a decision would be a mere legal formality.

But the Daily Telegraph did not initially publish that particular remark, and it is not clear that it ever intended to do so. Instead, it was first published by the BBC in a scoop. This reluctance on the part of the Daily Telegraph may be explained by an understandable wish not to help a commercial competitor, though there could be other, less cynical explanations. Moreover, to catch the Business Secretary saying such a thing was not, in fact, the intention of the undercover reporters: it was an unexpected slip. Rather, the intention seems to have been to capture what Liberal Democrats were "really saying" about the coalition.

If so, there are easier ways. For example, the Daily Telegraph's lobby correspondents routinely hear what Liberal Democrat MPs are "really saying" about the coalition. But because these conversations are conducted on lobby terms, any criticisms will not be attributed to the MP in question. In this way, it would appear that the only mistake made by the Lib Dem MPs in this affair is to talk frankly to someone who appeared to be a constituent (whom the MP actually represents), rather than speak directly to a Daily Telegraph lobby correspondent. The exercise carried out by the Telegraph's undercover reporters would not be required if it were not for the conventions of non-attributed lobby briefings, in which the newspaper itself connives.

As a general rule, the constituency surgery of an MP should not be the place to make secret recordings. That said, the confidentiality of constituency surgeries exists to protect the constituent, not the MP (just as legal professional privilege exists to protect the client, and not the lawyer). As such, it is open for any constituent (real or supposed) to disclose what is said by an MP. On this basis, the Daily Telegraph's secret recordings do not so far breach any grand political or legal principle.

However, there is some cause for concern. One suspects that the first use of interceptions of voicemails by tabloid reporters had a solid public-interest basis; but it was quickly realised that such material was a rich seam, to be mined just for trivial stories. Similarly, one hopes that newspapers do not now see constituency surgeries as "fair game". The secret recording of constituents would never be appropriate: there will always be the need for a private space where a constituent can speak candidly to his or her member of parliament.

David Allen Green is a lawyer and writer. He is legal correspondent of the New Statesman and was shortlisted for the Orwell Prize for blogging in 2010.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Benn vs McDonnell: how Brexit has exposed the fight over Labour's party machine

In the wake of Brexit, should Labour MPs listen more closely to voters, or their own party members?

Two Labour MPs on primetime TV. Two prominent politicians ruling themselves out of a Labour leadership contest. But that was as far as the similarity went.

Hilary Benn was speaking hours after he resigned - or was sacked - from the Shadow Cabinet. He described Jeremy Corbyn as a "good and decent man" but not a leader.

Framing his overnight removal as a matter of conscience, Benn told the BBC's Andrew Marr: "I no longer have confidence in him [Corbyn] and I think the right thing to do would be for him to take that decision."

In Benn's view, diehard leftie pin ups do not go down well in the real world, or on the ballot papers of middle England. 

But while Benn may be drawing on a New Labour truism, this in turn rests on the assumption that voters matter more than the party members when it comes to winning elections.

That assumption was contested moments later by Shadow Chancellor John McDonnell.

Dismissive of the personal appeal of Shadow Cabinet ministers - "we can replace them" - McDonnell's message was that Labour under Corbyn had rejuvenated its electoral machine.

Pointing to success in by-elections and the London mayoral election, McDonnell warned would-be rebels: "Who is sovereign in our party? The people who are soverign are the party members. 

"I'm saying respect the party members. And in that way we can hold together and win the next election."

Indeed, nearly a year on from Corbyn's surprise election to the Labour leadership, it is worth remembering he captured nearly 60% of the 400,000 votes cast. Momentum, the grassroots organisation formed in the wake of his success, now has more than 50 branches around the country.

Come the next election, it will be these grassroots members who will knock on doors, hand out leaflets and perhaps even threaten to deselect MPs.

The question for wavering Labour MPs will be whether what they trust more - their own connection with voters, or this potentially unbiddable party machine.