Keith Vaz, the Sunday Mirror and the Public Interest: must politicians live by different standards?

On Sunday 4 September 2016 the Sunday Mirror ran an exclusive concerning Labour MP Keith Vaz.  The headline “Labour MP Keith Vaz and the Prostitutes at His Flat” occupied most of the front page and several  inside pages of the newspaper.

The story was taken up by numerous other newspapers and has been the subject of widespread comment – almost all unfavourable to Mr Vaz who has long been a controversial figure.  He is also the Chair of the House of Commons Home Affairs Select Committee which oversees the Home Office and regularly inquires into policing and crime issues.

The story engages complex privacy and public interest issues.  Most commentators have assumed or asserted a strong public interest in the publication of story but there has been little or no analysis as to why this is the case.

Roy Greenslade’s piece “Why the Sunday Mirror was justified in exposing Keith Vaz” relies on “double standards” by Mr Vaz – without identifying what they are – and appears to rest the public interest case on the “special position” of of the Chair of the Commons Committee making recommendations about prostitution.

This requires further analysis. At least two provisions of the Editors’ Code of Practice are relevant:  clause 2. Privacy” and clause 10 “Clandestine devices and subterfuge“.  Both of these are, of course, subject to the “public interest” exception.

It is important to begin with the facts which the Sunday Mirror claims to have established. These appear to be as follows:

• At some point prior to 27 August 2016, Mr Vaz met two male prostitutes from Eastern Europe and paid them for sex.  He first made contact with them after meeting another escort.
• Mr Vaz sought to conceal his identity by claiming to be a washing machine salesman called “Jim” however one of the men recognised Mr Vaz and they approached the Sunday Mirror.
• The Sunday Mirror gave the men recording equipment which was used at a second meeting at a flat owned by Mr Vaz in London on 27 August 2016.
• A 90 minute encounter took place.  This was surreptitiously recorded on behalf of the Sunday Mirror.  Only a few minutes of the recordings have been made public.
• In the course of the conversation Mr Vaz suggested that the men should obtain “poppers” and that he  would pay for cocaine if it was brought to the flat – although he did not want to use it himself.  A “Viagra like” drug was taken by the men.
• Mr Vaz paid one of the escorts $100 [sic] and sexual activity took place.
• Mr Vaz mentioned that he had sex with another man without a condom.

In addition, although the Sunday Mirror does not say so, it seems likely that the men involved in recording Mr Vaz’s conversation were paid by them for the information.

There can be no doubt that Mr Vaz’s privacy rights are engaged: the Sunday Mirror has surreptitiously recorded a private conversation concerning sexual matters.  The well known case of Mosley v NGN [2008] EWHC 1777 (QB) confirms that there is a reasonable expectation of privacy in sexual activity with prostitutes.

The fact that Mr Vaz is a married man who is said to engage in gay sex with prostitutes does not, of itself, justify publication.  As Lord Mance in PJS v NGN  [2016] 2 WLR 1253

“there is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time” [32]

Furthermore, the fact that Mr Vaz is a Member of Parliament cannot, of itself, deprive him of his privacy rights.

So what then are the possible “public interest justifications” for the surreptitious recording and the publication of private information about Mr Vaz.

The relevant “public interest” provisions of  the Editors’ Code of Practice appear to be as follows:

•  Detecting or exposing crime, or the threat of crime, or serious impropriety

•  Protecting the public from being misled by an action or statement of an individual or organisation.

•  Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject. …

•   Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.

•    Disclosing concealment, or likely concealment, of any of the above”.

There are argument about the relevance of a number of these heads of public interest in Mr Vaz’s case:

(1)  Exposure of crime or the threat of crime – The Sunday Mirror accepts that Mr Vaz did not do anything illegal.  However, although this does not feature centrally in the article, it could be argued that Sunday Mirror was exposing a potential drug offence by Mr Vaz.  However, it is not suggested that he himself used illegal drugs and it might be said that this justification was not, of itself, sufficient to justify a serious incursion into Mr Vaz’s private life.

(2)  Protecting the public from being misled –  Mr Vaz does not appear to have taken any public position against the use of prostitutes.  He has, in fact, publicly opposed bans on paying prostitutes (and on the sue of “poppers”).  His quoted claims about having engaged in “unsafe sex” do present a more promising public interest justification.  He appears to have been part of a “safe sex” campaign in the past and has, therefore, exposed himself to an allegation of hypocrisy.  However, once again, it could be argued that this was not, of itself, sufficient to justify serious privacy intrusions.

(3)  Disclosing a failure to comply with an obligation – Much has been made of the fact that the Home Affairs Select Committee is engaged in an inquiry into prostitution.  In an interim report, published in July 2016, it said that soliciting by sex workers, and sex workers sharing premises, should be decriminalised.  Mr Vaz did not declare any personal interest in the matter.  It might be said that this was contrary to paragraph 13 of the MPs’ Code of Conduct – this covers non-financial interests which “might reasonably be thought by others to influence” an MP’s actions or words.  It is not clear whether actual use of prostitutes would amount to a declarable interest in this context – although it does not appear to have occurred to anyone to raise the issue at the time of the inquiry.

(4)  Raising a matter of public debate including serious cases of impropriety, unethical conduct or incompetence concerning the public –   It might be argued that Mr Vaz was engaged in a serious case of impropriety or unethical conduct.  If, however, the impropriety or unethical conduct was not, of itself, serious enough to justify publication of private information, it is difficult to see how “raising a matter of public debate” can provide any additional justification. There is a strong argument that improper or unethical private conduct by an MP which impacts on his public duties is a legitimate matter of public debate.  The difficulty in this case is showing that Mr Vaz’s alleged association with male prostitutes impacts on his public duty as a MP.

In short, the provisions of the Editors’ Code of Conduct do not provide a clear and unambiguous public interest justification for publication.  There are some “public interest” factors to be placed in the balance but it is far from clear that they are sufficient to justify publication.

In the end, the public interest argument must be, as Roy Greenslade says:

“Elected politicians, people responsible for making laws, must live by different standards to those who vote for them. As plenty of MPs have discovered in the past, they have to pay a price for the privileges they enjoy”.