Step by chilling step, judges are protecting the rich and powerful

THE American founding father James Madison warned long ago that the freedom of the people was in more danger from ‘gradual and silent encroachments by those in power’ than through violent and sudden events.

A verdict in the Court of Appeal last week shows this to be true. Nothing could have been more stately and civilised than the dignified chamber where three highly educated, well-intentioned and experienced judges ruled in favour of the Duchess of Sussex, and against The Mail on Sunday.

The Duchess, better known to the world as Meghan Markle, proclaimed that the decision was a victory for all those who have ever ‘felt scared to stand up for what’s right’. Yet it is far from clear that this is the case.

A free press, with all its undoubted faults, has always been one of the great defenders of the small against the great. The mere existence of such a press, the fabled Fourth Estate of the realm, has changed the way we live.

The rich and the powerful know that at any time they are in danger of exposure by independent journalism. But what if a new and everexpanding law of privacy makes such exposure too difficult and risky?

The implications for press freedom – and for the conduct of the law in general – are severe. Perhaps most disturbing of all was the core of the ruling, that the Duchess had no need to make her case in court. If judges can decide – as they did – that they do not even need to hear evidence tested, and witnesses cross-examined, they have given themselves a new and frightening power in a strongly contested privacy case.

The whole idea of a trial has until now rested on the ability of both sides in a dispute to make their case before impartial justice. Has this idea now been suspended? Do the judges think themselves so wise that they no longer need to listen to argument? The points that The Mail on Sunday wished to raise were important, concerned key new information and would have been illuminated by the Duchess’s response to them.

The whole case came about as the latest episode in a long series of court contests about privacy. Bit by bit, the courts have appeared to be constructing a new privacy law in this country. Such a thing never existed before, though such laws greatly protect the rich and powerful in some continental nations. They have based this process on the European Convention on Human Rights (ECHR), which the Blair government incorporated into English law, fully intending to bring about profound changes in our society.

But the Charter does not oblige the courts to place privacy above freedom of expression and public interest. Its Article 8 says: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ But this is balanced by Article 10, which says: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority.’

Tory governments have many times promised to give this country its own Freedom Charter, better fitted to our traditions. But they have so far not actually done anything. This is a pity. But if we must be governed on the basis of the ECHR, then the judges need reminding that it protects the freedom of all, and that there must be times when this freedom comes before the privacy of the great and the wealthy.