LECTURES - College of Social Sciences and International Studies ...

Public Power and Private Power
There ^re convincing reasons why the courts might well consider
giving a cascade effect to the Article 8 guarantee of privacy.
The case for privacy legislation has been cogently made in a
paper given by the present Lord Chief Justice, Lord Bingham. 14
He argues that the need is apparent and that none of the objections—interference
with freedom of expression, difficulty of
definition, the preferability of self-regulation and the alternative
possibility of a common law solution—is convincing. Lord Hoffmann
has advanced a separate and equally powerful case for a
non-Convention-based common law right of privacy. 15 The
Guardian's editor Alan Rusbridger has also cautiously added
his voice:
"Is it conceivable that . . . there is a case for a privacy law, if drafted
carefully and interpreted sensibly by a discerning judiciary? That
self-regulation has frequently been a fig-leaf behind which we have
disguised our unease?" 16
The correspondingly strong case for a cascade application of
Convention rights under Article 8 meets, however, what is
both a jurisprudential and a psychological block in the mindset
which allocates rights and remedies to a domain which has to be
either public or private. It is this that I want to examine and, as
will become apparent, contest.
Twelve years ago the present Master of the Rolls, Lord Woolf,
delivered a seminal paper called "Public and private: why the
divide?" He answered his own question with a convincing analysis
of the need for separate sets of rules to govern challenges to
public bodies and contests between natural or legal persons. In
short, as he pointed out, there are requirements of speed and
certainty which make it necessary for the rules governing public
law claims to differ significantly from those governing civil
litigation. Analogous arguments hold good for many other
branches of legal practice. But to accept this is not necessarily
(1999) L.Q.R. 47. It is noteworthy that the cascade effect, doubted by Sydney
Kentridge Q.C. among others under the 1993 Interim Constitution of South
Africa, is now spelt out in the final version by section 8 of the definitive
Constitution. The effect seems in any event to flow inexorably from conflicts
between two guaranteed rights: see Re J [1996] 2 N.Z.L.R. 134, concerning a
clash between a parent's freedom of religion and a child's right to life; and see
ECHR, Art. 17.
14 "Should there be a law to protect rights of personal privacy?" (1996) 5
E.H.R.L.R. 450. See also Rabinder Singh, "Privacy and the media after the
Human Rights Act" [1998] E.H.R.R. 712.
15 "Mind your own business", the 1996 Goodman Lecture.
16 Alan Rusbridger, The Freedom of the Press and other Platitudes (James Cameron
Memorial Lecture, 1997).
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