Miliband v Dacre

Ladies and gentlemen, today we will consider Miliband v Dacre. The protagonists avoided litigation and fought out their contest in the court of public opinion, but it was legal battle enough. Paul Dacre was editor of the Daily Mail; Ed Miliband leader of the opposition. For a week in 2013, the media was full of little else but their clash. Now that the case is long forgotten, we use it to train you as aspiring solicitors. From it, you can learn much about human rights and crisis management.

Do not be distracted, save for your own entertainment, as you Google the history of this affair by the following subplots which are irrelevant for today’s purposes: the welcome given by the Daily Mail to fascists in the 1930s; the nature of ‘Britishness’; the construction of anti-semitism; or the electoral impact of the controversy.

We are concerned only with the impact on the controversy of articles 8 and 10 of the European convention. The application of the first – the right to privacy – was straightforward. The Mail on Sunday held up its hand. Its journalists were rumbled invading a memorial service for Miliband’s uncle Harry. Editor Geordie Grieg took the medicine and expressed ‘regret’ over a ‘lapse of judgement’. Model crisis management: the story died. The Daily Mail posted a tasteless picture of Professor Miliband’s grave on its website. It removed it, admitted an ‘error of judgement’, but sent out only Dacre’s deputy to explain. Alastair Campbell, who appeared omni-present during the material events, made a story of Dacre’s invisibility. Bad crisis management. When a bomb goes off, at least show that you are in firm control of the clear-up.

Article 10 protects freedom of speech, subject to conditions including ‘the protection of the rights and reputations of others’. Professor Miliband was, the Mail had headlined an article, ‘The Man who Hated Britain’. His son said this was ‘a lie’. The Mail maintained its position, spreading it out to an attack on ‘Stalin’s gulags and his left wing apologists’. This argued that Marxists were Soviet stooges. You will observe the paragraph inserted in column five which limply states (possibly on legal advice or as a parody of balance): ‘it must be stressed that Ralph Miliband never agreed with [the] refusal to condemn Stalinism’s 30 million dead’.

The problem for the Mail is that Professor Miliband was a Marxist but not a communist. Also, there is no evidence other than an ambiguous diary entry at age 17 to show that his wartime service in the navy was anything other than a genuine expression of his support for Britain. His reputation attracted a very broadly based defence. Former Tory cabinet ministers lords Moore and Heseltine rubbished the Mail piece. Nick Clegg and David Cameron (to his great credit) supported their fellow party leader.

Let the final arbiter of this dispute be the Daily Telegraph which, in such a context, can surely be reckoned to be objective. Its 1994 obituary on Professor Miliband offered as its second sentence: ‘Though committed to socialism, he never hesitated to criticise its distortion by Stalin and other dictators.’ Dacre’s apologists, nevertheless, ran two defences. First, their headline was, on at least one construction, true. As a socialist, Professor Miliband hated things like the British class system. Ergo, he hated Britain. Second, if (which was not admitted) the headline was misleading, this was corrected by the content of the article. The two together were true. This was poor gruel and Campbell, who seemed available for TV comment on a full-time basis, made short work of them. So, let us be clear, the assertion that Professor Miliband hated Britain or supported Stalinism was, at best, factually sloppy and, at worst, disingenuously offensive.

The actions of the two Mail papers arguably contravened no fewer than six articles of the Press Complaints Commission’s Editors Code of Guidance: 1(i) (accuracy), 1(ii) (correction of inaccuracy), 1(iii) (conflation of fact and comment), 3 (privacy), 4 (harassment) and conceivably 5 (intrusion into grief). They also overshadowed the later stages of the Tory party conference, improved Miliband’s image, traduced the Mail’s reputation and boosted the unlikely rehabilitation of Campbell as avenging moral guardian.

The publication was as tasteless, in its way, as the Danish cartoons of Muhammad that I have considered previously. And it raises the same issue. Human rights can be two things: collective values and enforceable rules. Next time, I will study the ultimate irony. Failure voluntarily to respect values led to legally binding press regulation – probably the real target of Dacre’s ire in the first place.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice