Private passions and the public interest

The Lord Chancellor's call for legislation to protect privacy threatens the democratic principle of the freedom of the press another great democratic principle, the freedom of the press.

NOBODY needs privacy unless they are doing something they are ashamed of. Impeccably logical though that maxim is, it ignores our instinctive distrust of prying eyes, of busybodies who believe that everyone's business is theirs.

So when the Lord Chancellor speaks of legislation to protect privacy, it seems a worthy enough purpose - like protecting the environment or saving the whale. Only when you change the word privacy to secrecy, and point to the possibility of it being used to cover up wrongdoing, is the concept seen to conflict with another great democratic principle, the freedom of the press.

The difficulty of reconciling the two lies behind the row over last week's New Statesman interview with Lord Irvine, who advocated a procedure of prior restraint on newspapers to forestall their intrusions into private matters. By Friday, he may have wished that a restraining system was already in place and that he could have used it on himself. "I have lost my innocence," he told the interviewer, Ian Hargreaves, claiming he was desperately misunderstood by the press. And that was before the storm broke.

He must particularly have regretted rising to the bait offered when Hargreaves linked his proposal for prior restraint to the story about Robin Cook having an affair with his secretary. While conceding that a court might regard that as a matter of legitimate public interest, the Lord Chancellor said he would have preferred not to see the story published.

The newspapers, ever alert watchdogs of their freedom, were almost unanimous in denouncing this threat to the liberties they hold so dear and exploit so profitably. Friday's Daily Mirror cleared its front page to demand: "Get your tanks off our lawn, Mr Blair."

That day's Sun obligingly chose as its splash the kind of story that would be at risk if the rules on privacy were tightened. It revealed that England's football manager Glenn Hoddle had been named as the other man in a divorce suit. The paper's comment on Derry Irvine came in an editorial, urging that if Mr Blair would not sack his old friend "he should deliver a swift boot ... right up his Derry-ere".

Nor did the papers feel a need for restraint in raiding their cuttings files to remind us that the famously pompous Lord Irvine had a vested interest in smothering scuttlebutt. Had he not (horror) left his wife 25 years ago to marry the wife of Donald Dewar, now a Cabinet colleague?

More recently, he had been publicly pilloried for self-importance when he chose a fabulously expensive wallpaper for his House of Lords residence and compared himself to Cardinal Wolsey. Surely it was plain that the Lord Chancellor was motivated solely by a personal vendetta against the saintly guardians of truth?

The press could have saved its ammunition. Blair's tanks were already off the lawn, heading fast down the driveway and back into barracks. Though on his way to Washington by the time the story broke, the Prime Minister instructed his Whitehall hit squad to spread the word that he disagreed with his Lord Chancellor and former mentor (Tony and Cherie Blair were lawyers in Irvine's chambers). No legislation for privacy or prior restraint was being contemplated.

The issue has dogged many previous governments. Who will quickly forget David Mellor's graphic depiction of the press "drinking in the last chance saloon", just months before his incautious fling with an actress gave editors the chance to empty their glasses over him? Mr Blair sets store by his warm relations with press barons but he would not have chosen willingly to reopen the debate now.

Privacy has returned to the agenda for two accidental reasons. Earl Spencer's attack on the tabloids at Princess Diana's funeral moved some editors to resolve to mend their ways - a resolution that barely lasted until Christmas. The second factor is the Government's determination to incorporate the European Human Rights convention into British law. Article 8 of the Convention states that "everyone has the right to respect for his private and family life, his home and his correspondence".

The effect of this on the press is in part mitigated by Article 10, safeguarding freedom of expression. What worries editors is that, once the Convention becomes part of British law, it will fall to judges to weigh the relative importance of the two clauses when they conflict. It would then be open to people who believed their secrets were about to be exposed to obtain injunctions against publication - as they already can if they can cite breaches of confidence or copyright.

The words "prior restraint" have always triggered a hostile reaction in campaigners for press freedom. Judith Vidal-Hall, deputy editor of the periodical Index on Censorship, says: "I get alarmed when I hear the phrase. It's the sort or phrase that Index associates with less savoury and undemocratic governments." Andrew Neil, editorial director of the Scotsman and the European, called Lord Irvine's remarks "the most frightening threat to the freedom of the press that I've heard in modern times".

There is a case for the view that press freedom is a liberty from which all other freedoms flow. It is put most tellingly in the First Amendment to the United States constitution. Yet the argument that this freedom must include the right to cause misery and damage to innocent - or at least harmless - people is harder to sustain.

Although you would not guess it from the coverage of his remarks, the Lord Chancellor is against the involvement of judges in press matters. He advocates instead a beefed-up Press Complaints Commission, with powers to impose prior restraint and retrospective fines of up to pounds 10,000 on miscreants. If this were effective, he maintains, it would prevent privacy complaints from reaching the court.

As he said in Thursday's Lords debate on the Human Rights Convention: "The weaker the self-regulation the more exposed the press is to independent action by judges."

You might think that Lord Wakeham, the chairman of the PCC, would welcome this plan to give him more power. Not if you remember that the PCC was created by newspaper proprietors and is funded by them as a device for exerting just enough of a restraining hand on their excesses to satisfy their critics. Self-regulation is shorthand for as-little-regulation-as- we-think-we-can-get-away-with. Lord Wakeham is the paid servant of the industry he regulates. It is as if the laws on child sex were being policed by a paedophile support group.

To give the Commission these extra powers would change its nature. It would become a quasi-judicial body. At present the most severe sanction it can invoke is to persuade newspapers to publish its rulings. It prides itself on being a lawyer-free zone.

During the Lords debate, Lord Wakeham said he worried about the effect of such changes on the processes of self-regulation: "Those processes - which are voluntary and based on common sense - are in many ways the antithesis of statute and legal supervision." He warned that the proprietors might decide to stop funding the PCC if it was given tougher powers.

Lord Wakeham and most editors appear to think that, if they protest enough, they can ignore the Human Rights Convention and stick with their common- sense rules - the common sense, say, that allows the News of the World to go unreprimanded when it reveals that the daughter of an obscure MP is working as a prostitute.

One editor who does not conform to this consensus is Alan Rusbridger of the Guardian, who won notable legal victories following his paper's exposure of Jonathan Aitken and Neil Hamilton. He believes the press has little to fear from a privacy law allowing clear exemptions for stories that can be shown to be in the public interest.

Rusbridger has drafted a proposal for a press Bill that would embrace both privacy and defamation. On breach of privacy, it would provide for a public interest defence that would include "informing the public about matters which may affect the discharge of any public function by a public figure". On defamation, it would oblige plaintiffs to show the words complained of were untrue - a reversal of the present position, where the onus of proof is on the defendant.

Rusbridger does not accept the frequently-made argument that privacy legislation or prior restraint would have prevented the Guardian from running its stories about Aitken and Hamilton: "No judge in the world would have stopped you writing the story of the Saudi royal family paying the hotel bill of an arms procurement minister."

Nor does he subscribe to the view that, on this issue, serious editors must stand shoulder to shoulder with the scandalmongers. "The News International/Mirror Group brigade won't buy anything on privacy because of their huge commercial interests," he says. "I think it's a mistake for liberal journalists to get sucked into supporting a Murdoch tabloid agenda."

That view would have found favour with an earlier editor, Sir William Haley of the Times. In 1958, during another row over the tabloids, he dismissed the argument that journalists "have an absolute right to intrude wherever they think there may be something to titillate their readers".

He concluded: "The excuse that the methods of their wrongdoing are sometimes used for right-doing is no more than a charge against their own sense of proportion and judgement. A man who goes around maiming people with an axe is not allowed to keep it merely because it is also occasionally useful to him to cut firewood."

Forty years on, the axemen are still with us, growling and snarling at the slightest hint that someone might take their weapons away. Remembering what happened to Cardinal Wolsey, Lord Irvine should watch his back.