Justice Baker

My Justice Baker appearing before the joint committee on privacy and injuntions

Credit: Still from Parliament TV

Leading judges today advised a parliamentary committee against trying to too "tightly" define areas of privacy law, suggesting instead that it "would be better to leave it to judges in the main".

Appearing before the joint committee on privacy and injunctions, Sir Nicholas Wall, president of the family division of the high court, Lord Neuberger, master of the rolls, Mr Justice Baker, and Mr Justice Tugendhat faced questions on current legislation and possible future areas to address.

Tugendhat told the committee that while the balancing act for judges in privacy-related cases is not simple, it is "not impossible".

"I don't think judges are finding the task impossible, it's never easy ... The task we have is not impossible and it is for you to decide if you think it would be improved if you intervene."

But he added that he did not see a need for "a more robust definition of privacy", adding this would make it "more likely you are to exclude things inadvertently you wouldn't wish to exclude".

Neuberger, who has already led a year-long inquiry into the issue of injunctions, said "the vaguer you are, the more you leave to judge's discretion".

"In this area yes we get more press flack … but I suspect that the more you try and define things tightly the more unexpectedly undesirable results you will get from time to time. I suspect we're better off where we are, but it may be some sort of attempt to codify the law ... might bring some conflicting statutes together and more logically, but it will be an awful job for a draughtsman."

In earlier questioning on the definition of privacy, he said: "In the end balancing harassment or privacy against freedom of expression or a free press does involve in many cases a balancing exercise.

"We often have cases which are quite difficult, someone who is a role model and therefore some might argue has to some extent forfeited his right to privacy, others might think it very unfair on his wife and children that they get harassed as a result.

"... That sort of balancing exercise is one to which there is no perfect answer and most people would agree might depend on the precise facts of each case, and to that extent it has to be vague. I wouldn't call it so much vague as fact sensitive. In the end it involves a value judgement. In many cases one has to accept different people might jump different ways on the same facts."

Earlier in the session Sir Nicholas Wall said that while he accepts it "is not a universally-held view" he is of the opinion that "if a judge conscientiously on all the evidence available weighs all the factors and comes to a conclusion, that is sufficient".

Justice Baker added: "Most judges like the wide discretionary power the convention gives us. Various interest groups don't like the way judges balance the various rights. That's why the Human Rights Act gets criticised.

"My own view is unless parliament was really clear that a privacy statute could be passed which would improve way law is operated in this field, it would be better to leave it to judges in the main to determine cases applying the discretionary powers to balance the various rights.”
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