Bruce Anderson: The judiciary must protect the private lives of public figures from press intrusion

I do not suppose that they are telling many jokes in the Oaten household today. A few days ago, Mark Oaten was a promising politician. Until some Liberal MPs who had endorsed his nomination refused to support him (how very liberal), he was a candidate for the party leadership.

Now, poor fellow - and what about his family? To summon up the strength to face the world this morning, they must have had to screw their courage to the sticking point. It is to be hoped that they find good friends, a fighting spirit, forgiveness, and a sense of humour.

One's sympathy for Mr Oaten's plight is not diminished by the loathsome spectacle of his tabloid accusers. Weekly, they satiate their readers on a diet of prurience and pornography, while pretending to deplore the sins which they exploit. There is nothing more repulsive than the British press in a fit of phony morality.

Let us turn away from cant, to Kant, among whose maxims was: "Act as if your every action will become a universal moral law.'' Without remotely pretending that it would be possible to live up to that inhuman standard, we can agree that our attitudes to sex and privacy are in such an intellectual muddle as to be overdue for some Kantian rigour.

In the mid-90s, that rumbustious judge Lord Hoffman said that if Parliament did not rapidly create a law of privacy, the judges would. This was not judicial arrogance. (Not that time, anyway.) It was merely a characteristically blunt assertion of a common-law principle: that judges should reason from old principles to new circumstances. It seems reasonable to believe that human beings have a right to privacy, which would require legal protection. If the legislature was too wet to bring this about by statute, the judiciary would have to do so, by case law.

But Lennie Hoffman was underestimating the wetness of his colleagues. A few years later, a footballer got his leg over where he should not have done. Once their journalists had been rescued by smelling salts from fainting fits over such an appalling revelation, the red tops prepared to pounce on this breach of the Seventh Commandment. The footballer sought an injunction, claiming a breach of privacy. That was an opportunity to begin to create the necessary law, but the then Lord Chief Justice, Lord Woolf, funked it.

Harry Woolf would not claim to possess the greatest judicial intellect of our time. He does not have Lennie Hoffman's sublime, almost reckless, intellectual self-confidence. But Lord Woolf's caution was understandable. A ruling in favour of privacy would have been a declaration of war on the scandal-mongers. It is only too likely that the papers would have bullied Mr Blair - never hard - into supporting them. One can see why the Lord Chief Justice held back. If only Lennie Hoffman had held the post.

Suppose there were a law of privacy, under which disclosures about private lives would only be permissible if they were in the public interest, which is emphatically not synonymous with likely to interest the public. Let us consider some sample cases. A public figure takes off his clothes on a remote beach; the use of snatch photographs would surely be a breach of privacy.

What about adultery? It could be argued that if adultery is not a crime, the right to privacy should apply, unless the adulterer were active in the society to suppress adultery. That might make it difficult to extend protection to the clergy, who ought to be suppressing adultery. But if the tabloids felt that they could use hypocrisy as a defence, they might feel justified in pursuing any adulterous politician whose election literature included family photographs.

Yet there is a counter argument. When we were very young, even before we knew what the words meant, we were told that hypocrisy was the tribute which vice pays to virtue. So vice should. It is an acknowledgement of the primacy of virtue even in a fallen world. Over the centuries, many marriages have gone through a hypocritical phase. It may have been necessary for the marriage's survival. Equally, the marriage's continued existence may well have depended on one partner's happy ignorance of the other's lapses. So it could be argued that to be effective, the right to privacy also includes the right to hypocrisy.

Let us now move on to the difficult area of homosexuality. Here, the signals are hopelessly mixed. Because of legislation passed under this government, it is now legal for a sophisticated middle-aged man to seduce a confused 16-year-old boy; to ply him with more good wine than he is used to, fortified by assurances that the most sensitive people have always been homosexual.

That conduct seems to me to be far more deplorable than Mr Oaten's, yet Parliament recently set out to make it legal. At the same time, the Brook Advisory Centre, which receives public funding, produces literature to advise 13-year-old boys as to which condoms they ought to use for anal sex. By comparison with the Brook Advisory Centre, Mark Oaten is a Saint.

It is just as well that there were no long lenses when JM Keynes was a young man. On holiday in Morocco, he once wrote a letter to a friend saying that the further south he travelled, the less he had to pay for bed and boy. In those more relaxed times, Keynes survived to be ennobled, to negotiate the international monetary system at Bretton Woods, and to encourage the Americans to mitigate Britain's post-war penury.

Apropos homosexual prostitution, many people's first response will be similar to that of the judge who consulted FE Smith. There may be grounds for a second response. This is purely hypothetical, but if a happily married man gradually realised that he is was a homosexual, what should he do?

The stern moralists of the News of the World would tell him that he must repress his illicit lusts. But not everyone can follow the tabloids' gospel of perfection. Instead of acknowledging his homosexuality, and thus in all probability breaking up his marriage and inflicting untold distress on his family, would it not be better for the man to resort to secret methods of sexual expression?

I cannot see that Mark Oaten has done anything very wrong. Nor can I see why his sexual peccadillo should destroy his career. But it probably will. Although we need a law of privacy to restrain the red tops' bestial behaviour, many more careers will be shattered and many more families reduced to misery before one is passed.