Privacy law should be made by MPs, not judges, says PM

The Guardian has the story today - demarcating a novel, fraught area of separation between Parliament and the judiciary:

Prime minister 'uneasy' over superinjunctions and judges' role after high court prevents identification of sex scandal footballer

The prime minister has waded into the debate on the use of superinjunctions by the rich and famous to avoid allegations of scandal, declaring that parliament and not the courts should decide where the right to privacy begins.

David Cameron said the development of a privacy law by judges based on European rights made him feel "a little uneasy". His comments, made while touring a car factory in Luton, follow judgments in the high court this week that prevent the identification of a married Premier League footballer and someone who works in the entertainment industry, both of whom are said to have had extramarital affairs.

Cameron said: "I think there is a question here about privacy and the way our system works. What's happening here is that the judges are using the European convention on human rights to deliver a sort of privacy law without parliament saying so. … we do need to have a proper sit back and think: is this right, is this the right thing to happen? The judges are creating a sort of privacy law, whereas what ought to happen in a parliamentary democracy is parliament – which you elect and put there – should decide how much protection do we want for individuals and how much freedom of the press and the rest of it. So I am a little uneasy about what is happening."

He added: "It might be odd to hear it, but I don't really have the answer to this one, I need to do some more thinking about it. It is an odd situation if the judges are making the law rather than parliament."

Although superinjunctions refer strictly only to legal orders whose existence cannot even be reported, the term has been used more loosely to describe injunctions aimed at suppressing the identification of individuals who claim they are entitled to anonymity under "the right to respect for private and family life" incorporated in Article 8 of the European convention on human rights.

There is disagreement within the legal profession about whether there has been a significant increase in such injunctions, which have been granted in the past to victims of blackmail or, for example, in the case of the killers of James Bulger amid fears they would be at risk if identified.

Mark Stobbs, the Law Society's director of legal policy, said: "This is a new development and it is something which needs to be watched very closely. There is a huge debate between the right to privacy and the right to public knowledge. We support open justice and transparency as a basic principle, but there must be occasional cases where there is a public interest in privacy. You might get it sometimes in the context of terrorist trials where there are real national security implications."

But Cameron Doley, of the law firm Carter Ruck, which has obtained privacy orders for clients, doubted there had been an increase in their frequency over recent years.

"The newspapers have decided that the way to change policy is to shout about it from the rooftops," he said. "There's a lot to be said for a reasoned debate about it that won't be one-sided. But judges will still have to interpret the Human Rights Act."

One of the problems, he added, was that people comment about cases in which they had not seen the evidence, while the most widely reported cases were those where the courts ruled there was insufficient justification for maintaining an injunction – such as the one involving the England football captain, John Terry.

"We do use these injunctions occasionally but not with any more frequency than we did in previous years," Doley added. "They don't always work. The worst thing to do from a PR point of view is to try and get one and fail. The rich and famous can't pay their way out of scandal."

A committee established by the master of the rolls, Lord Neuberger, to examine the use of injunctions and super-injunctions to muzzle press reporting is due to report next month.