How Labour tried to gag The National with pre-election legal threat

JUST before 3pm on Tuesday, June 18, The National put in a follow-up call to Baron Gerald Shamash from the landing of the top floor of our office in Glasgow. A member of the House of Lords and a solicitor for the Labour Party since 1990, we had already had one discussion with him about an exclusive story we were working on.

It was a big one – we had had a tip-off that a senior Labour figure had been reported to Police Scotland for alleged breaches of electoral law. The call with Lord Shamash was short – just 29 seconds to be exact – and menacing. We were told we would be receiving a response shortly. And an hour later, at exactly 4pm, we received an email marked in all caps: “URGENT: WARNING OF LEGAL ACTION”.

READ MORE: Labour condemned after attempt to gag The National with legal threat

Now, The National is no stranger to threatening legal correspondence. Our journalists have had threats from MPs, QAnon conspiracy theorists, even a senior United Nations official. A text from Michelle Mone, once. But it is very unusual for a letter to come from a political party – and likely the party of government after the General Election concludes on July 4.

In the public interest?

WE were first tipped off about the story a week earlier, and we are not going to go into the details on who was reported or why – for reasons that will become clear over the course of this article.

We thought it was going to be a very straightforward news story. A senior Labour figure had been reported to Police Scotland – this was an irrefutable fact. What we planned to write wouldn’t pass judgement on the likelihood of the claims being prosecuted, because how could we, at that point, know? And there is clear precedent, in very recent history, for a similar development being both reportable and in the public interest to do so.

When Michael Matheson (below) was reported to the police twice this year over the £11,000 bill he incurred on a parliamentary iPad, Police Scotland eventually came back to say no action would be taken. But that didn’t stop major news outlets, from the London Evening Standard and the BBC to the Scottish Sun, from covering it each time – both when he was initially reported to the police and then when the claim was eventually dismissed.

(Image: PA)

And, after all, who’s to say whether it would turn out the same way? There is a long list of scandals and investigations which started from a simple letter to the authorities. Take Operation Branchform – Police Scotland’s investigation into the SNP funding – which came off the back of Labour MSP James Kelly writing to the Electoral Commission and a member of the public reporting their concerns about donations to the police.

We had no idea where this complaint would go but it certainly involved the public interest, and it was our responsibility to report on it.

Labour bring in the big guns

ATTACHED to the email we received was a very intimidating legal threat, drafted by a top Edinburgh law firm now acting on behalf of Labour and the senior figure involved. Interestingly, it mentioned in the first paragraph that it was “drafted in light of consultation which took place earlier today” with Roddy Dunlop.

(Image: PA)

National readers will know of course that Dunlop (above) is in fact Dean of the Faculty of Advocates. He is Scotland’s top lawyer. That same morning, he was representing Biffa Waste Services Ltd in its case against the Scottish Government, trying to recover more than £200 million from ministers after the deposit return scheme fell through.

Now, he had been drafted in by Labour and, as you might expect, his expertise does not come cheap. Just this consultation with Dunlop would likely have run into the thousands of pounds.

We were given until 5pm (an hour) to respond and to confirm we would delay publication so that an interim interdict – an official legal instruction to block us from publishing – could be considered. The letter said the initial complaint was “politically motivated” and that there was “no sensible basis upon which Police Scotland might be involved” given the allegations “all involve things done in England”.

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The letter also said the article, if published, would be grossly defamatory. It also argued that publishing it would be in breach of electoral law - a “corrupt practice” and potentially a “criminal offence”, one that could result in jail for the journalists responsible.

"Well, Labour are definitely rattled," The National's lawyer said in a hastily arranged meeting with editors and journalists.

The consensus from us all was that there was a public interest in publishing the story but there was one big looming question – how much will or could this end up costing us?

Senior Counsel

WE asked that very question – and the answer that came back after a few hastily scribbled sums was “about £30,000”.

If we decided to publish, we would have to contest the Labour Party’s attempt to get an Interim Interdict order. Given that they had Scotland’s most senior lawyer working for them, we should have had to tool up with the services of another top Scottish KC to take him on.

Our costs alone for the hearing were estimated at around £10,000 for the research as well as the time spent in court. Their costs, having already spent significantly in drafting the original letter, could be come to as much as £20,000. And, if we were to lose, the judge might rule that we would be on the hook for the lot.

Before making any decision, we decided to seek the advice of Senior Counsel, a KC that we could engage to fight them in court should we decide to do so. For now, though, we were simply keen to have an expert opinion on our chances of success.

(Image: PA)

Over the course of an hour-long call on Tuesday afternoon, we were told that our chances of success were very strong. On the “corrupt practice” criminal charges point, they were most scathing. “A judge would have to rule that publishing a story about a politician being reported to the police during an election campaign would be a ‘corrupt practice’.” They simply could not see it happening. And how could the article be defamatory if it was undisputedly correct?

But even by just engaging with Senior Counsel to ask their advice, our costs were already starting to mount up. We had already spent several thousands of pounds on legal advice and we hadn’t yet printed a single word.

The bleak reality is that we were going to be hugely out of pocket, even if we won. Our newspaper isn’t exactly swimming in cash to be able to brush off losing such sums of money for the sake of one story. Our potential legal fees on this one story could instead employ a journalist for a year.

And – this the key point – the Labour Party and their lawyers know that. It might have been all a bluff. Nine times out of 10, a legal threat is enough to kill the story. And there is an election coming up, of course …

The story

THE decision to publish or not was taken away from us, in the end. At around 4pm on Tuesday, Police Scotland got back to us, saying that they planned to take no further action. We were not given any reason why.

(As an aside, we do know that Labour’s lawyers also sent an email to the police about the complaint on June 19, and Detective Chief Inspector Stevie Trim replied to them with a fulsome letter and a much more detailed explanation. It appears their top officer was put on the case and able to give them much more detail than the communications team gave us.)

Since, for now, there will be no further action taken, we’ve chosen to not publish the details of the original complaint. But we do think it’s important to be open and transparent about how the Labour Party were so quick to use a £30k legal threat to try to stop a story in the public interest from being published during the election campaign. And, how, without risking spending tens of thousands of pounds, there was absolutely nothing we could do about it.

The Labour Party didn't respond to a request for comment.