Nick Cohen

Who judges the judges?

Who judges the judges?
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I like Jonathan Calvert and Heidi Blake of the Sunday Times. I will not pretend they are anything like close friends or family. I doubt if I see them more than once a year. But before you read any further you should know about our acquaintance. It is important for journalists to declare their interests. Readers must be free to make up their own minds, even if I believe – especially if I believe – that a friendship or family bond could never influence my writing.

In a few days, the Sunday Times will apply for the right to appeal against a decision by Mr Justice Tugendhat from July last year. Peter Cruddas, a former co-treasurer of the Conservative Party had sued the Sunday Times after it sent undercover reporters – Calvert and Blake – to interview him. The investigative journalists brought all their kit with them – concealed cameras, hidden tape recorders, the works. They pretended to be agents for foreign investors, who wanted to give money to the Tories, and covertly recorded as Cruddas talked.

The headline ‘Tory treasurer charges £250,000 to meet PM’ followed.

Tugendhat found the paper guilty of libel and malicious falsehood. It should not have said that Cruddas was a corrupt man, who offered opportunities to influence government policy and gain unfair advantage through meetings with ministers. It was also false, he continued, for the paper to allege that Cruddas accepted donations to the party knowing that the money was to come from abroad, in breach of UK electoral law. Tugendhat ordered the paper to pay £180,000 in damages – not least because the party leadership forced Cruddas out after the story broke.

Here is why I am dragging up this old case, and it is not because I am concerned with the details of the dispute between Cruddas and Sunday Times. What strikes me is Tugendhat’s failure to declare an interest – in this instance his family connections to the Conservative Party.

Michael Ashcroft, the Tory donor, congratulated his friend and ally Cruddas on his victory. While Tugendhat was a barrister, Ashcroft hired him. In his account of his life in politics Dirty Money, Dirty Times, Ashcroft describes Tugendhat as ‘formidable’ and ‘arguably the greatest legal expert in the country on privacy’.  Lawyers compare themselves to taxi drivers because they will work for anyone. I always reply that they remind me of an older profession. The point remains that just because Tugendhat worked for Ashcroft may not mean much or indeed anything at all. Nevertheless, I’d have liked him to have declared the association.

More solid are Tugendhat’s family ties to the Conservative Party. His brother, Christopher Tugendhat is a Conservative peer and former MP. In November 2013, local Tories in Tonbridge and Malling selected his son, Tom Tugendhat, a former soldier, to be their parliamentary candidate at the next election for one of the five safest Tory seats in the country.

Tugendhat did not declare his connections and invite both sides to consider whether they wanted another judge. The Sunday Times’s lawyers might have raised them, but the paper says it did not know about judge’s son or the praise in Ashcroft memoirs at the time of the case.

I called Tugendhat’s clerk and left a message asking to speak to the judge last week. No one got back to me, so I will ask you the question I would have asked him: should Tugendhat have recused himself, as the lawyers put it?

Tugendhat has not broken any rules by not declaring his family connection. But, in my view, he should have declared the connection and left it to others to decide whether he should hear the case. People always wheel out Caesar’s long-suffering wife on these occasions. But hackneyed though the emphasis on poor old Pompeia’s virtue may be, hers is not a bad example to follow. Judges must be above suspicion.

Meanwhile it seems to me that eventually a writer or publisher will need to challenge one part of Tugendhat’s judgment. Most of it was devoted to why the Sunday Times’ accusations were false. But some of the words he used are open to a dangerous interpretation.

‘In his speech of 8 February 2010 Mr Cameron explained that for him to give access to donors and to be influenced by them could be proper,’ the judge said. Those words might be interpreted to mean that if the prime minister says it is proper to give access to donors in return for money, then it is proper, and the citizen cannot gainsay him. If so, it becomes very difficult if not impossible to call the swapping of influence for cash or the sale of peerages ‘corrupt’.

In fact, the Cameron speech Tugendhat quoted from was his famous declaration that lobbying would be ‘the next big scandal’. Cameron acknowledged that it was proper for businesses to lobby government on occasion (which may have been the point that Tugendhat was trying to make) . He did not say, however, that it was proper for rich men and organisations to pay for access to political power, not least because he would have been hounded from office if he had. It seems to me that Tugendhat's words create the opposite impression.

Tugendhat went on to find Heidi Blake guilty of malice against Cruddas on the basis that she had told him that, like millions of others, she disapproved of the present system of party funding.

‘Ms Blake made a number of remarks which suggest that she did have a motive to injure Mr Cruddas. She expressed strong disapproval of the present system of party funding. She said it was "quite shameful for the Prime Minister to tout himself to businesses who pay to have their photograph taken, it's demeaning to his office. She also expressed the scepticism of the motivation of donors... But disapproval of the present system of party funding is not an excuse for misreporting impressions and assumptions as facts.’

Nor is it. But what does he mean here? If Tugendhat thinks that it is libellous to falsely accuse a party fundraiser of selling access to ministers, then of course he is right. If he means the English can no longer describe the selling of access or peerages as ‘corrupt’ simply because that sale does not technically break any laws, then, in my view, he misunderstands how a free society works.

His judgment is perilous because it seems to adopt the extremist position.

‘The present system of party funding, whether desirable or not, is lawful and practical, whereas other possible systems, such as funding out of taxation, or mass membership of political parties, are either not provided for by law, or not in practice available to the parties, however much they might wish that they were. This court cannot declare to be corrupt, as a matter of fact, the system of party funding authorised by Parliament and adopted by the Conservative and other parties. That may or may not be an opinion which people may honestly hold. It is not true as a matter of fact that the system is corrupt.’

As I wrote of his circular reasoning in the Spectator at the time:

One of the many pernicious aspects of our libel law is that it allows judges to express personal prejudices that have no place in a courtroom. It is not up to a judge to start pontificating on the practicality or otherwise of state funding. These are political questions that ought to be beyond his brief. Meanwhile his statement that ‘this court cannot declare to be corrupt, as a matter of fact, the system of party funding authorised by Parliament and adopted by the Conservative and other parties’ manages to sum up everything that is wrong with British complacency in one sentence.’

I might have added that in a free society the citizen is perfectly entitled to call cash for access ‘corrupt’ or the ‘behaviour of a banana republic’ or any other insult he or she wants to deploy. Free societies are boisterous places. It should be for the public to decide whether a writer or speaker has gone too far, not the courts.

If we keep on having rulings like Tugendhat’s, the danger for the future will not be that writers go too far but that they will not go far enough.