Publish and be vetted

The Guardian (Media), Monday September 29, 2003

What price Alastair Campbell's diaries, following their explosive appearance before the Hutton enquiry? Redacted they may have been, but such censorship only serves to increase their allure. Rumours abound of a queue of publishers desperate to secure the publication rights, which are more than capable of yielding Tony Blair's outgoing media adviser a small fortune. As literary agent David Milner says: "The fact is that Campbell will decide the value of the rights, the market won't. He could well end up with an offer that comfortably exceeds what Edwina Currie, Robin Cook and Alan Clark got put together."

Campbell himself has said that he has no intention of publishing the diaries, and while there are those who suggest that this is unbecomingly coy in so robust a man, there is no denying the surge in their potential retail value in the wake of their debut before Lord Hutton. Nor, also, that there will be any number of people who have had dealings with Campbell over the years wondering what on earth he might have to say about them. But before they rush to consult their learned friends, perhaps they can take comfort in the myriad of legal issues that would be engendered by the publication of so controversial a book. If Campbell did change his mind and decide to publish, his publishers will have to jump a few legal hoops before the book is in the public domain.

Publishers will be aware of the long list of political diaries and memoirs that have achieved notoriety as much for the court cases they have spawned as their startling content. Chief among them are the books by Peter Wright and Richard Crossman, which are perhaps more famous among law students than the general public; similarly, the disclosures of various crown servants, from Clive Ponting and Cathy Massiter to Richard Tomlinson and David Shayler. Wright's Spycatcher ultimately led to a European Court of Rights ruling that was highly critical of the Thatcher government's attempt to gag his disclosures, while Crossman's experience of offialdom, attendant to the newspaper serialisation of diaries from his spell as a labour minister from 1964 to 1970, famously led him to diagnose secrecy as "the British disease." Campbell's diaries would need to be carefully vetted to ensure that they did not fall prey to the same scourge.

Campbell voluntarily disclosed his diaries to the Hutton enquiry, which, as spokesman Andrew Bell says, has "no element of compulsion." Bell also says that the enquiry's administrative team undertook the redaction of the diaries, removing certain information on grounds of personal privacy. So far, so co-operative. But relations between the government, and, indeed, ‘TB,' may not prove so amicable should Campbell publish anything that breached the Official Secrets Act 1989 (OSA). As David Engel, a media lawyer with Addleshaw Goddard, says: "Campbell will inevitably have acquired all manner of government information protected by the OSA, for example relating to international relations, which is covered under section 3. If he knows, or has reasonable cause to believe, that disclosure of such information would be construed as damaging to the United Kingdom interests, he could be caught by the Act."

Engel emphasises, though, that the greater the gap between Campbell's departure and publication of the diaries, "the less likely it is that disclosure will be damaging." In the Crossman case, brought in 1975 by the Attorney-General against publisher Jonathan Cape, the court found the secrets to be too old to merit censure. The flipside for Campbell, though, is that the longer he waits, the less commercial value his diaries will have.

Assuming Campbell avoided any problems under the OSA, what else from the lawyer's arsenal could be thrown at him? Running neatly alongside the OSA and of ever greater visibility in recent years is the law of confidence. This prevents the disclosure of information having the necessary ‘quality of confidence,' received in circumstances where it is obvious that there is an obligation to keep it secret.

Campbell will owe obligations of confidence not merely to his good friend TB but also to a number of other high-ranking government ministers and civil servants. He could get away with publication of confidential material by relying on the public interest defence, as successfully achieved by the media in successive cases brought by luminaries and the less-than-stella alike, such as Naomi Campbell, Jamie Theakston and Gary Flitcroft. So, too, could he argue that the information was already in the public domain, or that it was too trivial to warrant protection. The law of confidence will also only bite if the disclosure is unauthorised in the first place, which, given that Campbell could even get the nod from on high for publication of his diaries, may not ultimately be an issue.

Those blanching at the thought of defamatory bons mots launched in their direction from the confessedly "rough" prose of Campbell had better start checking their own diaries and notes. Anything the erstwhile spinmeister has to say will be double-checked by his publishers' lawyers, to ensure that every allegation can be shown to be true. It is highly unlikely that a book such as Campbell's diaries would receive anything but the best legal advice prior to publication, and once it hit the streets its author and publisher would be confident of seeing off a claim for libel. Hence, to anyone aggrieved, the desirability of retaining anything that could possibly contradict the content of the book.

It may all prove to be academic, if Campbell decides to keep his counsel, once and for all. If so, his would not be the first diaries to gather dust rather than royalties. Others, though, have fame thrust upon them, which, often enough, comes when disclosure is made during a trial: witness Lord Archer's downfall, or the diaries of Jani Allen. The latter made their appearance during their author's claim for libel against Channel 4, which had alleged that she had had an affair with South African white supremacist Eugene Terreblanche. Their content somewhat belied her assertion that her dreams were never less than chaste.

There may have been no compulsion this time, but how compelling will the thought of a lottery-size advance prove to be? For the record, Currie, Cook and Clark between them received around £800,000 for their efforts. It will be a hard man, or, perhaps, one determined that the truth must out and willing to spend a lot of time with his lawyers, who turns down a figure well in excess of that.