Attempts by Barclays to shut down discussion of its practices have backfired and exposed the attitudes that contributed to the financial crisis, writes Padraig Reidy
There are a few things needed for capitalism to function: chiefly, the free flow of capital itself, and the free flow of reliable information.
Our concept of what the free press is, and what the free press does, is tied to the flourishing of capitalism in Europe from the nineteenth century onwards. Good business was dependent on reliable information about the world. Reuters and other news services were set up essentially to provide the emerging business class with reliable, up to the minute information.
While that same business class may rely on the free flow of information, it’s rare that they are open about their own dealings.
Hence the unseemly spectacle this week of Barclays bank rushing to gag the Guardian, preventing it from publishing leaked memos regarding its tax avoidance schemes.
It’s not a good time to be a banker, or at least a banker who wants to be liked. But Barclays executives, with this step, have somehow managed to make their profession look more shifty, more dubious and more hopelessly out of touch with the common mood than we could have thought possible.
Their successful application for an injunction has been, at least, a Pyrrhic victory. The Guardian has still been able to publish the fact that Barclays runs tax avoidance plans, only now with the added frisson of running the story as ‘the tax avoidance plans they don’t want you to know about’.
Meanwhile, people who might have been only vaguely interested in the documents that were leaked to Vince Cable are now rushing to read them on one of the many blogs which will make a point of hosting them, whether out of principle or a sense of mischief.
The upholding of the ruling itself seems to stretch notions of confidentiality, suggesting that documents that had already been published on the web retained the element of confidentiality legally required. This not only offends common sense, informed legal sources also say that it is a fundamental misapplication of the doctrine of confidentiality. In pretending the documents have not passed fully into the public domain, the court has had to resort to a legal fiction which Dickens would have scoffed at. Of course, the English legal system sought to do this with Spycatcher in the days before the Internet; but it is manifestly absurd to try it now.
It must also be of concern that the court was so eager to acquiesce with Barclays demands that its interests be protected. Tax avoidance by a major bank in a time of domestic and international financial crisis may not necessarily be illegal, but it is certainly an issue which would fall under ‘public interest’. A court has once again intervened and attempted to establish a legal barrier to public debate: an informed debate that must take place if the financial system is ever to genuinely prosper.