Earlier this month the Orwell Prize 2011 was awarded to the late Lord Bingham’s book, The Rule of Law.
It is strange then that so soon afterwards we have seen such public and even Parliamentary disrespect for this principle over a footballer’s privacy – or lack of it.
The rule of law means, Bingham says, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made and publicly administered in the courts. In other words, all private interests – even the media – are bound by the law and all of us – even the famous – should be entitled to rely on it.
It is no surprise that the tabloids campaign against privacy law even if the code, which was drawn up by newspaper editors themselves, explicitly protects privacy in language drawn from the European Convention on Human Rights. What is more surprising is that so many users of Twitter have persuaded themselves to work unpaid in the service of that campaign by exposing the footballer, enabling News Group Newspapers’ lawyers to argue that his injunction should be lifted.
More astonishing still is that a single MP – who as far as I know represents no one involved in the case – has taken the law into his own hands. John Hemming’s decision to name the footballer in the House of Commons was a clear abuse of Parliamentary privilege and should worry anyone who cares about the rule of law.
Privacy law has not been brought in by the back door by judges. It was enacted by Parliament in the Human Rights Act following extensive debate. Special provisions were inserted into the act to govern how judges approach free speech and grant injunctions. The law is already sensible – the only thing wrong is that many of the Twitterati and one MP chose not to respect it.
As far as Twitter, and the internet generally, is concerned, we face an enforcement problem. But that does not mean the internet is, or should be, a lawless zone. Everyone in every country should want the rule of law to extend worldwide and to the web. That is the way to freedom, not oppression. There is nothing chilling about the idea that people should be accountable for breaking the law on Twitter.
Hemming, though, is safe. Let me be clear: I am a passionate believer in the traditional constitution, and in full-blooded Parliamentary privilege. It is vital that MPs should be able to expose genuine scandals with full protection from the law. But Parliament itself recognises by its sub judice rule that MPs should use privilege with caution and not prejudice the rights of litigants. Hemming has chosen to dispense with that caution, made himself the ultimate appeal court and spectacularly prejudiced one litigant’s rights. As legal blogger David Allen Green wrote last week, our legal rights seem now to be subject “to the whim of Hemming”. No man should arrogate this power to himself, or be allowed to.
There is no clash between judges and Parliament. Most MPs know they could change the law on privacy if they had any idea what should replace it and do not stoop so low as to blame judges. But when Parliament’s own rules are trashed, the power of one member collides with the rule of law.
The issues go wider than footballers’ affairs. How can an IT firm know its commercial secrets are safe, however clear its case in law, if a maverick MP disapproves? How can children’s welfare be protected if one MP thinks child care cases should simply be aired in public?
Legislators should respect the rule of law. If any of them thinks they are above it they are not fit to be in Parliament.