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.