Since his appointment as Master of the Rolls Lord Neuberger has given a series of illuminating speeches on a wide range of legal topics – available on the Judiciary Website. The latest of these is his Hong Kong University Common Law Lecture, with the slightly paradoxical title Has Equity Had Its Day?. It includes an interesting commentary on the development of the law of equity and the relationship with the common law and the development of law by judges.
It includes some recent examples of judicially developed orders that can now be granted in the English Courts: the Norwich Pharmacal disclosure order, the freezing order (formerly known as the “Mareva Injunction”), and the “search order” (formerly known as the “Anton Piller” order). The article also considers three different perspectives on judicial development; from the UK, from the USA and from Australia.
In relation to the position of privacy and freedom of expression the Human Rights Act, the Master of Rolls comments:
The judiciary has been left to fill in the gaps; to bring those high principles down to earth and give them concrete application. In some contexts, such as the controversy over the approach taken by the judiciary to the right to respect for privacy, contained in Article 8, and the right to free speech, contained in Article 10, of the Convention, this is not unproblematic, particularly when the two rights are in conflict. When judges take policy decisions that more naturally fall within the province of the legislature both the public and the legislature can become rightly concerned, but that proposition begs the fundamental question, on which views inevitably differ: what precise decisions fall within the ambit of the judiciary?
He makes the familiar point that Parliament was aware at the time of the role to be adopted by judges in relation to privacy under the Human Rights Act.
In the case of Article 8 and 10, the legislature was fully aware that it was leaving it to the judiciary to ‘fill in the gaps’: a point more than hinted at by the then Lord Chancellor, Lord Irvine, when noted that while the government did not intend to introduce legislation providing for a right to privacy it was “expected that the judges would develop the law appropriately having regard to the requirements of the Convention” once the Human Rights Bill become law. The concerns which have arisen in England and Wales regarding the approach taken by the judiciary, an approach which is entirely consistent with the expectation that Lord Irvine expressed on behalf of the government and Parliament did not demur from in enacting the 1998 Act, is a straightforward one.
The Master Of the Rolls also deals with the question of Parliament enacting a law of privacy:
After some time of judicial policy-making, it may be possible for the Parliament to refine the legislative principles, after seeing how the law develops in practice. Balancing the right to privacy against freedom of speech is an obvious example of such an area.
He goes on to make the point that
Every time a newspaper wishes to publish a story which relates to an individual’s private life, the decision will involve analysis to identify the relevant facts and then balancing of the particular facts which support, against the particular facts which oppose, publication, and deciding which side the scales fall.
Not only is it impossible for Parliament to decided every case in advance it is, he suggests:
almost as impossible for Parliament to set out all the relevant factors, which anyway would also be pointless as the courts know, or to say what weight they should be given, which would be fatuous, as it would depend on the precise facts of the case as to the eight to be given to a particular fact.
While he accepts that the legislature can give and set out principles he expresses the view that “experience suggests that the more detailed the principles, the more unsatisfactory the result”. Although he remains unconvinced about the outcome he suggests that it might now be appropriate for Parliament to become involved
Now that we have ten years’ experience of the courts balancing freedom of speech against the right to privacy, it may be appropriate to see if parliament can be more precise in the statutory guidance, but I must admit to some scepticism as to whether very much can be done.
It will be interesting to see whether the current Government takes up this challenge. There were some media hints about a privacy statute over the summer – Roy Greenslade suggested at the time that apparent backing for this from editors was “madness”. However, nothing more has been said on the subject by the Government and perhaps it has decided that libel reform is sufficient for the present.