Lawyers warn Mellor against privacy law: Allegations of a minister's affair with an actress focus attention on press regulation and electronic eavesdropping

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JOHN MAJOR yesterday rejected calls for David Mellor to be removed from the Government's review of proposals to impose a privacy law on the press, after newspaper reports that the Secretary of State for National Heritage had an affair with an actress.

Lawyers and civil liberty groups responded by warning Mr Mellor against trying to legislate. Regardless of Mr Mellor's personal behaviour, they said, any measure brought by any minister was likely to be condemned as hypocritical, dangerous and impractical.

Previous attempts to legislate against invasion of privacy have been open to the charge that MPs were preaching double standards. By concentrating solely on the press, the unsuccessful backbench privacy Bills, of which there were three in the 1980s, effectively proposed that adulterous and corrupt politicians be protected from exposure, while doing nothing to protect members of the public from having their privacy invaded by the government agencies that politicians control.

This discrepancy was enshrined in the terms of reference of the 1990 investigation into privacy chaired by Sir David Calcutt QC. The Government told Sir David to confine his report to the press. The National Council for Civil Liberties accused ministers at the time of blocking an inquiry into the threats to privacy posed by telephone tapping, and the holding of secret and inaccurate files by police, employers, Inland Revenue and security services.

The Calcutt committee gave a qualified rejection to a privacy law. They said that although it was possible to define privacy in a way which would not hinder responsible journalism, they had decided against the idea that people should be able to sue, because of 'practical concerns'.

The committee's decision has not taken privacy off the agenda, however. Ten days before Mr Mellor was accused of adultery, and in the wake of intense interest in the marriage of the Prince and Princess of Wales, Mr Mellor had asked Sir David to look again to see if 'any further measures may be needed to deal with intrusions into personal privacy'.

Meanwhile, MPs will be able to raise the issue again when a Private Member's Bill aimed at controlling press bias comes before the Commons early next year.

Sir David and MPs have pointed out that there is nothing unusual in privacy laws. In France 'each person has his right to privacy protected' and in Germany eavesdropping, trespassing and even the use of a photograph without the subject's permission are actionable in the courts. The United States courts have recognised some rights to privacy since the 1890s.

But all three countries have balanced their restrictions with specific guarantees of freedom of speech and information, which Britain does not have.

Lawyers said yesterday that it would be dangerous to add a civil tort of breach of privacy to the present list of restrictions without diluting or removing others. Libel law in Britain, for example, is so harsh that often journalists believe the only way to get all the evidence necessary to substantiate an article is by breaching privacy.

Heather Rogers, a barrister specialising in media legislation, added that a privacy law would have to have many peculiar features. First, truth would not be a defence - indeed, the more accurate the article, the greater the punishment was likely to be.

Second, it would almost certainly be left to judges to decide whether an invasion of privacy was in the public interest and thus excusable. Third, unless legal aid was provided, only the rich would be able to afford to go to court.

'We will be in an odd position if judges can stop the truth appearing on their interpretation of the public interest,' she said. 'They are likely to be very restrictive. Lawyers are continually talking to each other in confidence. They have a secrecy mind-set which the rest of the country may not share.'

(Photographs omitted)