Law lords 'failing in their duty over privacy law'

The Mail on Sunday has criticised the Law Lords for their refusal to hear its appeal in its battle with the Prince of Wales over publication of extracts from one of his journals.

The House of Lords, it said, had “failed in its constitutional duty” to examine whether recent developments in the law of privacy represented a threat to free speech.

The case was clearly in the public interest, it said, adding that judges were now rapidly developing a law of privacy without any reference to Parliament.

The House of Lords rejected the petition for permission to appeal lodged by the newspaper’s publisher, Associated Newspapers, on Tuesday, without giving any reasons.

Associated Newspapers had sought to appeal against the Court of Appeal’s ruling in December last year that Mail on Sunday breached the Prince’s right to respect for his privacy and family life when it published extracts of a journal he wrote in 1997 about the return to the colony of Hong Kong to China.

In the journal, entitled The Handover Of Hong Kong or The Great Chinese Takeaway, the Prince referred to members of the Chinese hierarchy as “appalling old waxworks”.

The Court of Appeal had upheld a High Court ruling that the newspaper’s publication of extracts from the journal infringed his copyright and breached his confidentiality.

The Mail on Sunday said in a statement: “It is surprising and disappointing that the House of Lords has, without giving any reasons, rejected the opportunity to hear an appeal on a matter so clearly in the public interest.

“This follows its recent refusal to hear the case of McKennitt v Ash, which also involves important issues of freedom of expression.

“The ultimate loser is the general public, which is facing increasing restrictions on what it has a right to know.

“A law of privacy is being developed by judges at a rapid pace without reference to Parliament. It is most regrettable that the House of Lords has, for a second time, failed in its constitutional duty to examine whether this represents a threat to free speech.”

In the Court of Appeal, the Lord Chief Justice, Lord Phillips, had said that the information published was private, and public disclosure was an interference with the Prince’s right to respect for his private and family life, guaranteed under the Human Rights Act and the European Convention on Human Rights.

Lord Phillips said: “As heir to the throne, Prince Charles is an important public figure.

“In respect of such persons, the public takes an interest in information about them that is relatively trivial. For this reason, public disclosure of such information can be particularly intrusive.”

Mark Warby QC, for the Mail on Sunday, had told the court at a hearing in November last year that the diary contained important information about the Prince’s opinions, and that the public should be allowed to learn what “the journal tells us about the attitude of the Prince of Wales to relations between the UK and China and the Prince’s conduct in his role as heir to the throne”.

But Lord Phillips said interference with the Prince’s human rights “outweighed the significance” of interference with the newspaper’s right to freedom of expression.

The journal was one of eight handed over to the newspaper by a disaffected former secretary in the Prince’s office. Lord Phillips said the information was disclosed to the newspaper by Sarah Goodall, who had signed a contract that “placed her under a duty to keep the contents of the journal confidential”, adding: “There is an important public interest in employees in the position of Ms Goodall respecting the obligations of confidence that they have assumed.

“We consider that the judge was correct to hold that Prince Charles had an unanswerable claim for breach of privacy.

“When the breach of confidential relationship is added to the balance, his case is overwhelming.”

The House of Lords’ rejection of the petition to appeal comes just weeks after Charles won his legal battle for the return of the leaked private travel journals.

Lawyers for the Mail on Sunday told Mr Justice Blackburne in the High Court on May 21 that the newspaper did not oppose injunctions he sought to ban publication of seven journals and requiring “delivery up” of the documents, plus the eighth journal, extracts from which had already been published.

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