The indiscretion of Vince Cable
Should constituency surgeries always be confidential?
By David Allen Green Published 22 December 2010 9:53
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.
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18 comments
What really puzzles me here is why the decision on Murdoch and Sky would be up to a politician in the first place if it's supposed to be done impartially.
Politicians are not impartial. They are not supposed to be impartial.
Surely, if the decision needs to be made in an impartial way, it should be made by a court, not by a politician.
Something is wrong here. Either Cable is perfectly entitled to his opinions on Murdoch, or no politician should be judging this issue anyway.
Funnily enough, this has been running around in my mind lately:
http://www.goingonabearhunt.com/2010/12/if-bus-drivers-never-made-a-u-turn/
We blame our politicians for being obsessed with spin and consistently dishonest, but it is us who have created them this way as we punish them viciously when they are honest.
First, even if your argument were valid, these undercover "journalists" were not constituents and so should not qualify for whatever rights true constituents may have.
Second, and in any event, the analogy with the privilege attaching to lawyer-client communications does not work here: legal professional privilege is obviously a special case. The applicable concept here is simply that of confidentiality. A simplified statement of that principle is as follows. If the circumstances of the communication and nature of the information imparted are such that a reasonable person in the position of the recipient of the information would regard the information as confidential, then the recipient has a duty not to use that information for a purpose not authorised by the person disclosing the information. I fail to see why (or what authority there is for the proposition that) what occurs in a constituency surgery should be an exception to that rule. In my view, the MPs in question have a right to see that confidential information they impart to their constituents (or indeed any third party in such circumstances) is not used for an unauthorised purpose. The fact that they do not practically bother to bring a claim in the courts against the newspaper in question is not because they do not have such a right but because they recognise that this would simply bring about more bad publicity and make them appear as if they have something to hide.
The fact that these recordings have uncovered apparent bias in a senior politician is a good thing. But the ends do not necessarily justify the means. The main consequence of this particular technique of investigative "journalism" is, as someone has said above, simply that MPs will no longer express their views frankly to their constituents. A good thing? I don't think so.
The ruse used by the Telegraph is not a new one. It has happened before and I assume it will happen again because in technological terms it is an easy trick to pull.
Other people here have tended to focus on the big matters of state rather than the relationship between the MP and his constitutuent so I will focus on one asepct on the relationship between MP and constituent.
Corrupt or incompetent MPs can exist and they need exposing but to my mind the more probable scenario involves an overly wary MP, an MP of no real interest to the Telegraph.
Such a politician may become so wary of hidden mikes that they fail to listen properly to the more prosaic concerns of their constituents.
The danger of course being that the surgery, the only satisfying means of engagement between a voter and their MP will turn into another shower of meaningless soundbites as the fear seeps into the paranoid politicians mind. There's a real risk such practises could further alienate the public. Such desire to get a scoop has to consider this.
That said if today's politicians weren't so obsessed with spin you'd be able to get a straight opinion by simply asking them. Alas, towing the party/coalition line supersedes integrity.
There has to be a really serious public interest question before this sort of thing can be justified. The Vince Cable affair, with regard to Rupert Murdoch issue would, I believe, qualify for that. However, there surely has to be some reasonable suspicion of misdemeanours before the use of deception and secret recording can be justified. As it is, this looks like a "fishing trip" exercise hoping to catch some quotes that could be used in a headline story. I don't think the general grumbles about coalition policy can possibly justify such intrusion. As it is, the evidence appears to be that the Daily Telegraph were not going to publish the full story as the News Corp takeover of BSkyB conflicts with their commercial interests.
As it is, we will now have an environment where meetings between MPs and their constituents will have a cloud of suspicion cast over it. Almost certainly, at least among government ministers, the exchanges will be more guarded and anodyne. This is the danger when what might be expected to be confidential exchanges are leaked.
Personally I don't think that Vince Cable can survive this. One has to wonder about his judgement in the language that he used and he was so unguarded over who he used it to. That's not to say that its improper for ministers to have views on thse matters - if we wanted truye impartiality we would leave the decisions just to the regulatory bodies. It's the way that he seemed to have completely pre-judged the issue without regard to any findings that the regulatory bodies come up with.
I also suspect that the Daily Telegraph's reputation of being a Tory poodle might have taken something of a hit. I'm pretty sure this story won't have been received well at Conservative HQ.
Power, Vanity, Lack of Judgement, Deception, Faked Remorse, Spin
Pure Drama
Just Politics
Just Typical
@Steve Jones:
The Daily Telegraph these days is less a Tory poodle than an attack dog that savages the governing coalition from the right. The DT's editors fume at every minor concession the Conservatives make in the direction of the Lib Dems. Remember that Vince Cable is the second coalition minister that it has destroyed: the first was David Laws.
I don't particularly like these stings whether its the FA celebsor politicians. Its underhand sneaky and cheating, but it works and worms out inconsistences in public and private faces of people in the public eye. My own view is there can be no difference between how you behave in public as to private. Its hypocritical, and the public has a right to know.
Cable is an old fool. The comments in a sense were not regardingcasework, and so were not confidential but general comments on his views not individual casework, so the DT were right to publish.
Notice how the Lib Dems made capital out of Labour splits last year but now making excuses for their own splits and differences. Hypocrites.
If the police did this it would be called entrapment and not admissible on court. The DT should be ashamed to sink to the levels of the red tops.
Vince
You have been Tangoed
@Clempo
You genuinely find that a comfort, don't you.
Smacks of a set up to me, indiscretions aside. All a bit too convenient...
Least it proves he is human and has a mind of his own, unlike the current leader of the Labour party...
A blank sheet of paper.
@Bill Fraser
At least a blank sheet of paper does not contain any LIES.
Cable gets everything he deserves. And why not publish what he (and the others) say? Unless they made a constituent sign some kind of confidentiality contract, impossible of course, then of course anyone can go away and publish what they said. The point here is to record it, so they cannot claim it was misrepresented.
@ Bill Fraser
It doesn't say anything actions speak louder than words.
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