-Political Commentary

Les secrets du Colonel B

Ferdinand Mount

Sometimes the law looks silly because it is silly. Sometimes the law looks silly because -policemen or judges are acting silly. And sometimes the law just happens to look silly because silly things have happened. A policeman who loses his trousers chasing a burglar down a drainpipe is an object of general hilarity, but his plight does not justify a campaign for the reform of the burglary laws.

It is to this third class of silliness that the case of Colonel B belongs. And for those -observers who wish to draw sweeping or elevated conclusions, the pickings are scant. To see how the imbroglio arose, we shall do best to start not from the court case in which Colonel B gave evidence but from the four left-wing Labour MPs who first exploited the business in the House of Commons. The Famous Four are Miss Jo Richardson, Mr Chris Price, Mr Ron Thomas and Mr Robert Kilroy-Silk. Only the latter two are university lecturers,

although, as a former education correspondent of the New Statesman, Mr Price

is the next worst thing. Indeed, with his somewhat rumpled mien, sports jacket, .scuffed suedes, and trousers riding low on his tummy, he looks not unlike an old fashioned schoolmaster (geography and rugger). 'I say, you chaps, heard the latest?

Old Pricey's turned pinko.' Mr Thomas presents an altogether less reassuring exterior. Distinctly petit in stature, he • Appears to have had an overlarge black Beatle wig jammed down over his forehead, out from under which issues an eerie Dalek-type voice piping 'Point of Order.' Miss Richardson, secretary of the Tribune Group, is built on a grander scale. Her • orange Afro-hair encircles a face of almost Mayan beauty, somewhere between that of a retired blues singer and She Who Must Be Obeyed. By contrast, Mr Kilroy-Silk, MP -for Ormskirk, is merely a good-looking young man on the make. Was he not the subject of a television profile before he was an MP?

The Famous Four are, well, a mixed bunch. They are in this instance driven by no higher or more complex motive than the wish to make trouble. They have succeeded.

And they succeeded not because of some loophole or lunacy in the law, nor because of any insoluble conflict between the privileges of Parliament and the rules of the courts, but because of a simple cock-up.

Parliament is sovereign. As the highest court in the land, the only way it can prevent its members from infringing the rights of other, lower courts is by imposing selfdenying ordinances upon itself. Hence the old rule, formalised in a Commons resol ution of 1963, that members may not refer to matters which are 'awaiting or under adjudication' in a criminal court. By naming Colonel B therefore in defiance of a magistrate's ruling in a case that is still sub judice the Famous Four deliberately broke the rules of the House of Commons.

Clearly they should not have been allowed to name him. Somewhat tardily, the normally quick-witted Speaker says that he let them get away with it because he did not know that the matter was sub judice. Well, we all nod now and then, though some of us read the newspapers. Still, we may put down the Speaker's goof to bad luck, the equivalent of the nail which snags the policeman's trousers. There is nothing wrong with Parliament's rules for keeping MPs in order.

Same with the newspapers. For once, Mr Graham Page, the learned and labyrinthine Tory backbencher, was in error in stating that 'newspapers are absolutely entitled and absolutely privileged to report our proceedings in the House.' They aren't. MPs speaking in the Commons have absolute freedom of speech under the Bill of Rights

and still more ancient tradition, and, under an act of 1840, so do the reports and documents which Parliament orders to be printed; hence the editors of Hansard were entitled and-indeed obliged to print Colonel B's real name once MPs had mentioned it in debate. But newspapers are specifically entitled only to 'qualified privilege' which rightly protects their reports of Parliament only so long as they are fair, accurate and without malice, and protects them only against action for defamation, not against action for contempt of court. So the Attorney General, Mr Sam Silkin, was legally entitled to warn newspapers through the Director of Public Prosecutions, that they could be prosecuted for contempt of court if they printed Colonel B's name.

On the other hand, even if the DPP was entitled to issue a warning, was he wise to do so? Perhaps it is a good idea that newspapers should not be absolutely privileged to print everything that is said in Par

hament. If an MP gets up and says `so" and-so is a killer' when so-and-so is on trial for murder, it is at least dubious whether newspapers should be allowed to print it, But this case is said to be different. The

Official Secrets Act is a matter of public controversy. The identity of Colonel B Wøalready known to a large number of Per; sons, not least the KGB. Any spy worth his salt would know who Colonel B was and what job he did (but how many spies are worth their salt?) Was Mr Silkin justified then in treading so heavily when newspapers had long been accustomed to regard their right to report Parliament as untraln" melled? Mr Price argues that it has been, accepted for years that the qualified privilege given to newspaper reports of the Commons proceedings had been 'so nearlY absolute as to be absolute.' But that imPre. ssion has gained ground only because MP,s don't normally go about naming inter ligence officers whose identity has bee° protected by a court of law —or if they do try to, they get squashed and silenced. al" Price's indignation is like that of a successful juvenile arsonist claiming that it is nal normal to punish boys for setting fire to the school. Parliament operates often by slender arid fragmentary precedent. For example, evell, the qualified privilege of the press apPear', to derive solely from the simple case r?' Wason v. Walter in 1868. So if Mr Silk° had not issued his warning, that would have been a precedent too, which newspapers would have been entitled to invoke in futtil! controversies. The Attorney-General has demonstrated that the principle of absolute, privilege is so far not conceded to the press, and, as the Speaker pointed out, P9,.e. liament's own Joint Committee on the Plw: lication of Proceedings in 1970 said that should not be conceded. MPs at the tiine appeared to be happy with the status qu° but of course they didn't then have t° grapple with the problem of live broad' casting. It may be that technology will„?, what argument alone has not managed. l'°'t the time being, though, Mr Silkin is and his critics, including Mr Page, Erwc, Powell and the Editor of the Times, al" wrong. Reforming the Official Secrets Act wo"1—d, help to weaken the morbid tradition c),; secrecy in the civil .service; but it wouldri,, help our spies. For it is a glib illusion l" imagine that the government could sorlleci how scotch the ridicule of anarchists 8114

leftists by stripping the Act down to minimum necessary for national securitr

and by publishing the names of our Tell spies. In the United States they do both; tilh8 CIA is still wide open to mockery. KGB is not funny. But in an open soeie,Vii spying has an inescapably comic side. An° d secrecy is necessary to, protect the life Op work of intelligence officers — and that, is 9 operational, not a political or legal ndigo' ment — then the authorities will just have: muster a certain po-faced determinst"'4 not to mind being laughed at.