I’m not particularly interested in what the footballer and the model did or did not do, wherever they did or did not do it. And I don’t really understand why so many people apparently are interested in the salacious detail. But the case does serve to underline the difference between matters in which some of the public may be interested, and matters where there is a public interest – they are not the same thing at all.
The judges have been doing what judges have always done in English law – trying to interpret what parliament actually meant when it passed legislation which contains inherent contradictions, such as the right to free speech and the right to privacy. That’s not to say that the judges have got it right, but they are at least recognising that such rights cannot be absolute, but most be constrained when they infringe the rights of others.
There are three aspects of the incident which do concern me though.
The first is that, whilst in theory we all have the same rights, access to the law is differentially distributed – there is one law for most of us, and another for those with enough money to use the power of the law. That cannot be right or fair, but that doesn’t mean that undermining the rights of the well-off is the right way to resolve that inequality.
The second is about parliamentary privilege. There is no doubt that the concept of parliamentary privilege has been a powerful safeguard over the years, and it is with reluctance that I suggest curtailing it. But surely, parliamentary privilege should not be so absolute that MPs and Lords can flout the law with impunity and undermine the rights which parliament has legislated for others to have, as well as undermining the legal processes themselves.
And the third is the concept that the internet has now become so globalised and ubiquitous that any privacy law becomes unenforceable. It appears to be a true statement, but there’s something akin to mob rule at work here which worries me as a precedent.
It’s always been the case – even if the law doesn’t explicitly say as much – that government depends on the consent of the governed. If the governed, or a sufficiently large proportion of them, withdraw that consent, then government becomes impossible. Faced with tyranny or dictatorship, the courage of the governed to say ‘no more’ has often been the factor which leads to change.
But the power of globalised electronic communication is doing something else here – it is allowing a determined if disparate set of individuals to make democratically determined laws unworkable. In pursuit of what greater good, exactly?
It’s a genie that cannot be returned to its bottle, but I wonder where it will end.
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7 comments:
On your second point re Parliamentary privilege, it is not absolute. You cannot speak against the Battenberg’s or bring up issues that call for them to be replaced.
On the general point you are making, I do have to disagree, as you assume that all Law is good law and all Law is just. This right is the Ace in the hole for any member of the English Parliament.
I would defend this privilege and trust when a Welsh Federal Government is established such privilege will be defended by a written Constitution.
"You cannot speak against the Battenberg’s or bring up issues that call for them to be replaced."
Point taken.
"you assume that all Law is good law and all Law is just"
I certainly didn't mean to give that impression, although how we decide objectively what is or is not 'just' is no simple matter.
I'm not opposed to challenging even democratically determined law (and doing so was key to a number of campaigns by Cymdeithas yr Iaith for instance). There is, though, a difference between an open campaign against unjust laws, where people are prepared to take the consequences of their actions (indeed, where the willingness to take those consequences is a major part of the campaign), and people merely flouting the law in pursuit of their own interests or wishes, or hiding behind parliamntary privilege to do so.
John
The Civil List could be reduced to a penny
Parliament has already executed the sovereign and could do so again
This all has no relevance for our country or has it
"You cannot speak against the Battenberg’s or bring up issues that call for them to be replaced." Really? What's your source for that. I presume you suggest, BME, that MPs cannot speak against the royal family.
Like most people, I can't see that any MPs would want to.
Borthlas, beware of taking views such as this on trust. Check them out!
John,
We do not enjoy any first amendment rights in the UK. Nor has the UK Parliament ever seen fit to consider any limitations on press freedom in situations other than general strike or war.
The current conflict is between Human Rights Act articles eight and ten, and the way judges have interpreted and applied these statutes. It is up to Parliament (if it wishes) to change or clarify the detail, but given the lack of a 1st amd, the right of elected MPs to be properly informed themselves - and to challenge injustice without fear of being dragged through the courts and possibly ruined - is fundamental to the nature of parliamentary democracy.
Parliament can only regulate itself. It is not possible to bind it without very widespread use of referenda or annual elections (the chartist's unrealised demand); and whatever you're feelings about MPs in general, our free parliament is the safeguard of our liberties.
Of course an Independent Wales would have a written constitution, but would that make it any easier to resolve the conflict between ECHR articles 8 and 10? and how much legitimacy would the eventual law enjoy given the twitteriatti?
Gwilym,
I haven't actually checked out in detail the comment made by Spirit of BME, but I believe that he is correct in saying that members of parliament are not allowed to criticise the royal family, even under parliamentary privilege. Whether it's a 'rule' or merely a 'convention' I know not; but under the arcane rules of debate it probably doesn't make any difference. It's presumably based on the clear constitutional position that all parliamentary authority is only loaned to it (graciously, of course) by the sovereign.
Democritus,
You make a number of sound points.
"the right of elected MPs ... to challenge injustice without fear of being dragged through the courts and possibly ruined - is fundamental to the nature of parliamentary democracy. ... our free parliament is the safeguard of our liberties."
I can't really disagree with that. It still leaves me uneasy though that an MP in search of publicity and a name for himself can use that parliamentary freedom to name someone in direct defiance of an injunction properly made by judges under the laws passed by parliament itself. If parliament as a whole had decided that the judges had got it wrong, that would be a different matter (although it might lead to soemthing of a conflict between the legislature and the judiciary), but for any single MP to have the right to act in this way because (s)he individually wants to do so is surely something which needs a little more thought?
The bit about challenging injustice is a very strong point, although it does raise the question - a far from easy one to answer - about who decides (and how) whether a law, or a decision of the courts, is or is not 'just'. Things aren't 'just' simply because parliament enshrines them in law; but neither are they 'unjust' simply because one MP says so. And further, in this particular case, even if we were to agree that the injunction was 'unjust', does challenging that injustice really require the public naming of an individual?
"Of course an Independent Wales would have a written constitution, but would that make it any easier to resolve the conflict between ECHR articles 8 and 10?"
No, it would not; we'd still need judges to interpret and decide in individual cases - and they'd still be making judgements with which some people would disagree.
"how much legitimacy would the eventual law enjoy given the twitteratti?"
I'm not sure that the use of Twitter in any way undermines the legitimacy of the law; it's the enforceability which is challenged. And I admit that I don't have an answer to that. Part of me says that we simply have to accept that some laws - we're talking privacy in this case, but I suspect that we could probably add libel and perhaps others - are becoming unenforceable; another part says that this is a form of surrender to mob rule with which I'm uncomfortable. Perhaps I just have to learn to live with uncomfortable.
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