John Hemming did Britain a service yesterday

By Paul Goodman
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Can John Hemming put his hand on his heart, and swear truthfully that his main motive in naming Ryan Giggs yesterday wasn't publicity-hunting?  Whether so or not, it's highly debatable whether or not Giggs's private life is a matter of legitimate public interest.  Nor is it clear that those who've broke the law in tweeting his name are beyond its reach.  But far more is at stake in this affair than Hemmings's motives - for, whatever they were, he did the public a service yesterday.  By naming Giggs, in much the same way as Lord Stoneham last week named Fred Goodwin, he raised, however unwittingly, a fundamental constitutional question: who should make the law - MPs, who we elect, or judges, who we don't?

Dominic Grieve confirmed yesterday that a joint committee of both houses of Parliament is to examine how the balance between free expression and personal privacy "can be improved".  With all due respect to the committee, it is hard to see what point there is in it sitting while the Human Rights Act remains on the statute book.  For the Goodwin and Giggs superinjunctions are a product of a new view in the courts, and one which ultimately derives from that act - namely, that there should be a bias towards privacy: some would argue that we now have in effect a de facto privacy act which Parliament has never debated.

Sadiq Khan, Grieve's opposite number, yesterday acknowleged the importance of the act by asking the Attorney-General: "Does [he] believe that a new privacy law is needed? If so, how will it differ from article 8 of the Human Rights Act 1998?"  Grieve replied that this would be "an interesting subject to both legal and political debate" - a nod in the direction of the act's importance.  Bill Cash pressed the point, asking whether Grieve accepted that "it is about time that we legislated on our own terms in Westminster to deal with these matters...to ensure that the British voter actually sees legislation that is what he wants and that we have British law for British judges?"

Grieve answered that "the consequences that flow from [the act] can be unexpected; I strongly suspect that he predicted them at the time, and I believe I did too."  In short, as long as the Human Rights Act remains on the statute book, judges rather than MPs will continue to decide where freedom ends and privacy begins.  Furthermore, there are signs that some of the former want to restrict the role of the latter still further.  John Whittingale, the Chairman of the Culture, Media and Sport Select Committee, was right to say that the recent report of the Master of the Rolls has "worrying implications for the rights of Members of the House of Commons, and for parliamentary privilege".

David Cameron originally announced the setting-up of the joint committee.  Such committees don't usually report quickly.  Nor does Parliament always act swiftly on their recommendations.  So in effect, the Prime Minister was kicking for the long grass.  He knows that a detailed privacy act, with its provisions argued out clause by clause in the Commons, would count for little if the Human Rights Act remains on the statute book.  He also knows that the Liberal Democrats won't countenance the replacement of that act.  This is why he announced earlier this year the setting up of another committee - this time, to examine the case for a British Bill of Rights: another kick for the long grass.

Whether the matter is footballers' private lives, the clandestine operations of family courts (let's give Hemming credit for his work here), or the emergence of Britain as a world's capital for libel tourism, a pattern is clear: that, in effect, the courts are making law rather than interpeting it.  This will continue until, at the least, a British Bill of Rights is in place or, at the most, Britain has unfastened itself both from the Human Rights Act and the European Convention on Human Rights that underpins it.  There is a double irony in yesterday's events.  The clash between the media, the Commons, and tens of thousands of Twitter users (on one side) and the courts (on the other) has been forced not by, say, some pressing security crisis, but by who a footballer may or may not have been shagging.  And the man who dramatised that struggle, thereby dragging the Human Rights Act into question, is a member of the party which most supports it.