I have two thoughts on the ripples spreading from the granting of injunctions to protect the privacy of celebrities. One is that the judiciary should not be subjected to pressure by politicians to interpret the law in a certain way, except through the passage of new legislation for them to apply. Parliament makes the law (in the situation under consideration, the Human Rights Act) with due attention to its wording: it is then for the judges to apply and interpret it. There has to be a separation between those who pass the law and those who apply it to the citizens. That is part of the Rule of Law. Otherwise the government of the day could bend laws already in force to suit current needs, which is what some politicians appear to be attempting right now. If Parliament feels that the existing law is inadequate, then it is free to change it in the usual way. I have said before that in my view it is well nigh impossible to draft any law that would achieve a detailed and predictable balancing of the right to privacy and the right to free speech. It will always be a question of difficult judgment in the circumstances.
My other thought is the about the way that constitutional changes are playing themselves out over the years. Who would have thought that the European Convention on Human Rights would have caused so much trouble and spread itself into so many unlikely areas? This is in part because it is crafted for continental European legal systems. Our common law and statutes had already been shaped by judges over the centuries to take account of much of what we now call human rights.Therefore the introduction of an overarching act was bound to cause overbalancing towards the individual’s claims. It is a great pity that our law lords are no longer sitting in Parliament and that new supreme court justices will not be members of the House ipso facto. We benefit greatly from those retired judges who are there; their experience is brought to bear on the bills in passage, ensuring more clarity of the effect of legislation. The collective wisdom of the House would be diminished if law lords and senior retired judges were evicted, along with everybody else, under plans to replace the House by elected politicians.