For more than three hundred years the UK’s constitution has functioned remarkably well on the basis of the historic compromise reached in the course of the 17th century. The 1689 Bill of Rights forbade the impeachment or questioning of parliamentary debates and proceedings ‘in any court or place out of Parlyament’. Parliament in return has made it a rule, enforced until now by the speakers of both Houses, that it will not interfere with the decisions of the courts, whether by anticipating their judgments or by attacking them. If Parliament does not like what the courts do, it changes the law. The sovereignty of Parliament as the final source of law and the sovereignty of the courts in interpreting and enforcing the law are the twin pillars on which democracy and the rule of law in the UK rest. It was the courts themselves which, in the 19th century, extended the privilege of Parliament to cover any fair and full report of what was said there even if it was libellous.
When a member of either House, protected by the privilege which prevents his being prosecuted for it, consciously breaks a High Court injunction by naming an individual who has been anonymised by court order, it suggests two possibilities. One is that he does not understand the constitution; the other is that he does and has set out to transgress it. In spite of protests from members of both Houses who understand very well what is at stake, neither speaker appears at present to have taken any steps against the offenders.
This is the seriousness of the naming of Fred Goodwin in the House of Lords and Ryan Giggs in the House of Commons as claimants who had obtained injunctions forbidding their identification. It does not have to do with limiting free speech in Parliament: it has to do with the misuse of that undoubted historic freedom. It does not even depend on the fact that Giggs’s name was initially disclosed by the Sunday Herald in Scotland, and not in England where the injunction was issued (cross-border jurisdiction is hideously complex). Nor is it, as the media keep saying it is, a situation of chaos or confusion. It is a simple breach of a simple constitutional principle. What is chaotic and confused is much of the media coverage of the law of privacy and injunctions, both of them repeatedly described as ‘judge-made’.
The courts had long before developed remedies to prevent breaches of confidentiality, but these failed in 1990 to protect the actor Gorden Kaye from a shameful invasion of his hospital room by journalists, and it was Parliament that brought the individual’s right to respect for his or her private life into UK law when it enacted the Human Rights Act in 1998. It is this right that the courts have a constitutional obligation to make effective. What the tabloids do not like about it is that the law now recognises that celebrities too have aspects of their lives that are private.
Over many years the courts have also developed, with Parliament’s tacit approval, a range of sanctions to make their orders effective. These necessarily include a power to punish anyone who knowingly defies a court order. For a long time the media respected court orders, making it possible simply to forbid any repetition of the contested allegations so that they could be fairly tried in court. What then started to happen was that some newspapers would name the claimant and hint unmistakably at what was being alleged. When the courts in consequence began to suppress the name of the claimant, the papers would instead spell out the allegations and sometimes run adjacent stories or pictures which made it not too hard to guess who the claimant was. Hence the super-injunction forbidding both, which is anathema not only to the press but to any system of open justice, but was forced on the courts by the repeated undermining of their orders. Hence too the fact that very few have been granted, since by definition they have been obtained by people who can afford to litigate and are famous enough to have attracted the tabloids’ eye.
When the European Convention on Human Rights was written and adopted in the early 1950s, few doubted that the chief threat to private life was the state – the informer, the watcher, the secret policeman. Today there is widespread agreement that segments of the press and television pose a different but still real threat to private life, and the jurisprudence of the Convention has shifted to keep pace with the change. In Strasbourg the UK was initially found to lack any proper law to protect privacy (which goes much wider than confidentiality). When the early human rights claim brought by Michael Douglas and Catherine Zeta-Jones over the intrusion into their wedding reception of a pirate photographer who sold his pictures to Hello! magazine came before the Court of Appeal, I suggested that the common law governing confidentiality had matured to a point at which the courts could recognise privacy as a protected value rather than relying on a fictitious duty of confidentiality owed by Hello! to the Douglases. This was rejected by the House of Lords, bringing down on our head the Strasbourg court’s decision that the UK had failed to give effect to the Article 8 privacy right in its domestic law. Hence Naomi Campbell’s subsequent, even though pyrrhic, victory in relation to the exposure of her treatment for drug addiction. The German courts were then found to have given insufficient protection to Princess Caroline of Monaco, swarmed about by paparazzi wherever she went; while the French courts were found to have given excessive protection, under Article 9 of the civil code, to news of Mitterrand’s cancer, a subject of legitimate public concern. None of this suggests either unworldliness or excessive interventionism on the part of the European Court of Human Rights: rather the striking of a balance between the entitlement of the public to know about things that matter and the right of individuals (including famous ones – why else would anyone care?) to some space of their own. The official reaction in Germany to the Princess Caroline decision – that the case would be taken to the Grand Chamber – subsided as it dawned on politicians that Strasbourg had done them something of a favour.
Observers with a sense of history have noted that the tabloids’ self-justification, advanced in the name of press freedom, mirrors that of the authoritarian state. The Sun columnist Jane Moore admonishes errant public figures: ‘If you don’t want your private life splashed all over the papers, then behave yourselves.’ Or, as it was once put, if you have nothing to hide you have nothing to fear – for there is only one way the state or the Sun can know whether you are behaving yourself.
This is why the issues are large. It can be credibly said that the fourth estate is close to being a state within the state, unregulated except to the modest extent that it chooses to regulate itself and alternately feared and pandered to by public figures. Its merchandising of voyeurism might be worth debating if that were the way it was promoted; but the eye at the keyhole is presented as that of the public moralist: because stars are role models, it is argued with a straight face, the exposure of their promiscuous sex lives will appropriately harm their image and deflate the young’s perception of them. The near certainty that the exciting prospect of being able to have sex with anyone you choose will add to the glamour of being a professional footballer does not appear to enter the mind of the tabloid moralist, for whom double standards are what somebody else has.
The Goodwin-Giggs debacle has not come out of the blue. More than one minister in the Major and Blair governments broke convention by publicly attacking not only decisions they found objectionable but the judges who had given them. But ministers speak as the heads of executive departments, and the executive is not party to the dual sovereignty of Parliament and the courts: despite its great power, it answers politically to the one and legally to the other. It was in February that the current crisis was prefigured, when David Cameron in Parliament spoke damagingly about the Supreme Court’s decision that some sex offenders ought to be able in the course of time to ask to be removed from the register, calling it ‘completely offensive’ and contrary to common sense; an attack taken up by the home secretary (who thought it appropriate to question the sanity of the decision), but sharply criticised in the Times by the crossbench lawyer-peer Lord Pannick.
The naming of Goodwin and Giggs is on a different plane from ministerial briefings against judges, inappropriate as these are, because it disrupts the historic equilibrium between the judiciary and the legislature. The media may present themselves as amused spectators, but it is they who have provoked and exploited the breakdown of an element in the democracy they themselves inhabit.