Leading Article: here is already an entitlement to privacy, and Irvine is right to enforce it

It is time to come to the defence of Lord Irvine. The Lord Chancellor was pilloried this week for suggesting that journalists should be prevented by law from printing the facts of a cabinet minister's affair. The knee- jerk condemnation heaped upon his wig almost entirely avoided the important question: was he right? What is more, he was gleefully traduced for having "blundered", "gaffed" and spoken out of turn.

Let us get a few things straight. Derry Irvine's alleged mistake was to have answered a question put to him by a journalist. He was asked how entrenching the right to privacy of the European Convention on Human Rights in British law would have affected the case of Robin Cook and his secretary. It was a serious question and he gave a serious answer. He did not pause to think, "I wonder what the tabloids will make of this?" It is hypocritical, therefore, for those who bemoan politicians' unwillingness to engage in intelligent and open public debate to accuse Lord Irvine of lacking "political judgement".

It was not only journalists who were unfairly critical. Indeed, it was the Prime Minister's official spokesman who turned a small "Irvine gags press" story into a big "Blair slaps down mentor" story. Of course, as the spokesman repeated yesterday, the timing of Lord Irvine's remarks was not helpful. Good. We want more politicians capable of answering questions at times when the spin doctors do not want them asked, even if their answers take them "off message".

Much of the press reaction to the Lord Chancellor's interview was, in any case, based on a misunderstanding. He talked of strengthening the rules on privacy operated by the Press Complaints Commission (PCC), with a power to impose fines of up to pounds 10,000. Far from increasing the scope of the law, this was specifically intended to avert the need for the courts to rule on issues of privacy.

The fact is that we have a privacy law already, called Article 8 of the European Convention. This sets out the right to respect for "private and family life", including one's home and correspondence, which must not be interfered with by "public authorities". Although the convention does not give individuals the power to enforce this right to privacy against the media directly, there is an obligation on regulatory bodies such as the PCC, even if they are not government agencies. And there is a more general obligation on government itself to safeguard the right to privacy.

Lord Irvine is about to make this right more tangible by making it enforceable in British courts, rather than requiring citizens to turn to Strasbourg. That is strongly supported by this newspaper and almost the entire spectrum of liberal opinion. It is odd, therefore, that some liberal commentators are the most exercised by the alleged imposition of statutory controls on a free press.

The Lord Chancellor may not have been wise to talk so casually of the PCC devising a mechanism of "prior restraint" to stop newspapers before they publish something which is an unjustified invasion of privacy. The phrase is as old and as sacred as the idea of freedom of the press, which, according to Blackstone in 1765, "consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published".

However, as David Aaronovitch pointed out in these pages yesterday, this is not a principle which should be elevated to theology. There is little point in having a right to privacy if you can enforce it only after the damage has been done. But prior restraint is something which should only be considered, as with injunctions for libel, in cases where there is an overwhelming public-interest argument against publication.

This is where Lord Irvine did stray into error. He said that the PCC should have ordered the News of the World not to report the Foreign Secretary's affair. Now, it would be right to argue that a newspaper should not have published the story. We do not think that it is right for photographers to stake out someone's flat in order to obtain proof of marital infidelity. Lord Irvine asked, rhetorically: "What public interest is there in disclosing that?" At the time of publication, there was none. Although, when it emerged that Mr Cook had sacked his diary secretary and thought about appointing Gaynor Regan in her place, a kind of posthumous case could be made.

But there is a larger issue. We may disapprove of what the News of the World did, but that is not the same as saying that it should be prevented by law from doing it. In the scale of human rights, that of privacy (Article 8) should be balanced by that of freedom of expression (Article 10). If the Case of the Foreign Secretary's Secretary had been tested against the European Convention, free speech would weigh heavier than privacy. Lord Irvine even admitted that the courts would be "unlikely to grant an injunction in favour of any public figure" - in which case, why did he think the PCC should impose prior restraint?

On this point Lord Irvine may have been wrong, but the argument is finely balanced, difficult and important. He should be praised rather than vilified for engaging in it.