The European Convention on Human Rights, which is being incorporated into British law, contains two clauses especially relevant to the activities of the media and the citizen. One broadly asserts the right of citizens to privacy (especially against the state) and the other asserts the right of the press to report widely and freely (especially against abuses of power by the state). For every claim a public figure might make under the privacy clause, the press has a valid counter-claim under the press freedom clause ... provided reporting has been in the public interest. There is a lot of legitimate ground between the two. "I think," said Lord Bingham, Lord Chief Justice, last autumn, "this is difficult and debatable territory. "Quite so: the courts are going to have to weigh contending principles and make fine judgments according to the merits of the cases before them. Is there really any good reason for worrying about the fitness of judges to effect a balance?
There is a case for saying we should not wait for the haphazard process of building a privacy - and press freedom - law by fits and starts. A draft Bill promoted by newspaper editors is in circulation which seeks simultaneously to establish a right of privacy and a right of investigation, in the public interest. Mr Straw would win friends - not least in our quarter - if he picked that up and ran with it. Instead he seems to be going off at half cock. To judge from yesterday, he has been persuaded by tendentious and self-righteous arguments from right-wing newspapers and the right-wing peer who heads the Press Complaints Commission, Lord Wakeham, that a "right to privacy" is somehow dangerous. The courts - this presumably will be the effect of a proposed government amendment to the Human Rights Bill - must not be allowed to define the PCC as a public body and entertain suits which try to force the PCC to uphold its own rules about invasion of privacy by newspapers.
If that is the Government's position, it is half-baked. It is no excuse that Mr Straw's boss, the Prime Minister, seems to have been nobbled by ecclesiastical interests who seem to think, in their divine wisdom, that bishops and ministers do not have nor should be troubled by human rights. The Government seems to be forgetting what it said, eloquently, in Opposition.
The problem is why people are motivated to go to the courts for redress. Judges are invited to adjudicate cases of invasion of privacy because citizens despair of the political process. It is when people decide, rightly or wrongly, that they are not going to get justice from Parliament or government offices that they turn to the courts. During the Thatcher and Major eras, Labour spokespeople applauded this development, and the growth of judicial review that it encouraged. They implied that if and when they got to power, people would once again start trusting the political system and so the call on the courts to redress wrongs would be lessened. Will they? The answer lies in Labour's hands: the faster it gets on with the job of parliamentary reform and modernisation, the smaller the scope for the judges.
Litigiousness is not some epidemic disease. Britain does not have to go down the American road and see its social and political life corrupted by a plague of court cases. Take schools, recently infested by lawyers. Having rid them of corporal punishment, parents and teachers were left confused over exactly when and how discipline demanded "force" to be used on recalcitrant pupils. ("Pupils" these days is a category including hulking great teenagers of both sexes, strong and often angry: pity their teachers.)
Hence the new guidelines published yesterday. These will never be enough to prevent a bloody-minded parent going to law. None the less, they represent the way forward. The Government is making positive law in order to clarify right and wrong; it must also seek to alter the climate of opinion, to carry parents and teachers (and children) along with it. Nothing here is going to stop anyone seeking to apply the provisions of the Human Rights Bill - but they will affect the judicial and social climate within which they are actionable.Reuse content