Sir Stephen Sedley, possibly the most radical lawyer to have become a judge in the UK, has pointed out that, ‘Left to journalists, commentary on the law and the legal system is sometimes excellent but frequently jejune and agenda-driven’. Joshua Rozenberg, the excellent journalist, lawyer and honorary QC, recently took the Judicial Power Project to task in the Guardian for ‘judge-shaming’. A week later, however, also in the Guardian, he has himself been shaming the judges for aspects of the Supreme Court’s recent decision to grant an injunction against reporting of a celebrity’s extra-marital sexual encounters. A week is a long time in the politics of legal journalism.

Sir Stephen Sedley’s own jejune and agenda-driven journalism from the London Review of Books in 1999 (reproduced in a collection of his essays, Ashes and Sparks, 2011) includes this critique: ‘Simon Lee foresees a Judicial Committee ready to “by-pass, override or supplement” Parliament. “By-pass” – yes … “supplement” – yes … But “override” (and slipped so conveniently between the other two)? – I think not.’

Well, I still think so. A decade earlier, I had written that the big-hitting Stephen Sedley QC accepting appointment to the Bench was like Ian Botham agreeing to become an umpire. In professional cricket nowadays, those given out can seek a review from the umpire in the sky. With the benefit of video technology and slow-motion replay, the Supreme Court (the successor to the Judicial Committee of the House of Lords) is indeed seeking to override certain aspects of the Human Rights Act 1998.

Joshua Rozenberg has spotted that the Supreme Court decided last week to override Parliament’s clear statement in s12 of the Human Rights Act 1998 that ‘judges must have particular regard to freedom of expression’ in such cases as this decision to uphold in England and Wales, until full trial, a prior restraint on the media’s freedom to print what is common knowledge in Scotland (and relatively common in England and Wales).

The Supreme Court itself acknowledged that journalists might portray the law under this ruling as an ass. Agenda-driven journalism has reacted by reminding the public of how certain celebrity couples parade their children in the media in support of a particular kind of family image. The implication is that those sections of the media believe that as children are forced to put up with such publicity, they are hardly likely to be more discomforted by the truth.

What the judges and journalists seem to have missed, however, is another way in which the case is asinine or shameful, not just in the sense of being problematic, to use the Judicial Power Project’s term, in its unconstitutional approach to s12 of the Human Rights Act. The Supreme Court is also embarrassingly incompetent even in its own aim of protecting the identities of PJS and YMA.

The courts tell us that there is no public interest here, that this is an ‘open marriage’ and yet that the celebrity who has sought the injunction would be ‘devastated’ if the truth emerges. If the celebrity couple’s relationship is ‘open’, as we were told by the Court of Appeal, then the fact that PJS has engaged in an extra-marital sexual encounter could hardly in itself be ‘devastating’ unless there were more to this than we are being told.

Despite the final appeal court taking the extraordinary step of redacting paragraphs (in Baroness Hale’s judgment), the courts in this saga have managed accidentally to reveal too much, through a combination of what they have said and what they have avoided saying. The Justices tell us that PJS is well-known, married to YMA, a celebrity in the entertainment business, that the couple have two children and that PJS is a ‘he’. In contrast, the judges try not to reveal in the same way the gender of YMA or of the couple (AB and CD) involved in the sexual encounter with PJS in 2011. The Supreme Court never refers to YMA as a ‘he’ or a ‘she’ or as a ‘husband’ or a ‘wife’ or as a ‘spouse’. The Court says that PJS is ‘married’ to YMA but sometimes YMA is described as PJS’s ‘partner’. It does not take a Sherlock Holmes or a Bletchley code-breaker to work out from these clues alone, both what we are told and what we are not told, that YMA is a man, that PJS and YMA were in a civil partnership at the time of this sexual encounter with AB and CD (and which was not, therefore, strictly speaking ‘extra-marital’) and that at some point between the change in the law in 2013, allowing same sex marriage, which came into force in 2014, and this case in 2016, the celebrity gay couple married. The public of England and Wales has no need to scour the internet or travel to Scotland to find out this much. It is presented to us by the very judges who, by a majority of 4 to 1, want to keep the matter secret.

The low road from this revelation is a short one to the identities of PJS and YMA but that is not the route I wish to take. The high road does not have to take us to Scotland to find out the truth. The path will take us past two milestones in our public life which a gay celebrity couple could scarcely have avoided commenting on in public: same sex marriage and the scourge of HIV/Aids. If PJS would be ‘devastated’ at AB and CD being able to sell or tell their story to the newspapers for publication, it could be, for instance, because gay celebrities are nowadays expected by the media to counsel against unprotected sex and are then vulnerable to the same media portraying extra-marital three-way sexual encounters as failing to follow their own advice.

If this is what is in issue, then the Supreme Court’s claim that there is no public interest at stake is itself problematic. It is in any event a shame that the Supreme Court did not have ‘particular regard’ for freedom of expression. This is so pertinent to other issues of constitutional reform that judge-shaming is itself in the public interest. So the later critical Rozenberg is to be preferred to the more timorous Rozenberg of the previous week.

The judges have overridden Parliament’s Human Rights Act in trampling over a very specific instruction directed at judges, that they ‘must have particular regard’ (emphases added) to the right of freedom of expression. This is not to say that freedom of expression must always trump privacy but the judges have a duty to give some meaning to ‘particular regard’. In the next section of the Human Rights Act, there is another direction that judges must have particular regard to freedom of religion. This too is ignored by some judges and by many of those who parade their support of the Human Rights Act as if it were unconditional and who are ready to defend it if the government ever gets round to its manifesto commitment to ‘scrap’ the Act. The judges and defenders have already effectively scrapped vital elements of it, when it suits them, however, in this ‘regard’ or, more precisely, in their lack of regard for what Parliament decreed in 1998 (and without which the government thought it might not have seen the bill pass through the House of Lords). Such judges’ fidelity to the Human Rights Act is more of an ‘open marriage’, allowing them to engage in extra-statutory frolics when it suits them. They rely on jejune commentators, driven by the same agenda, to keep their conduct out of the public eye. Perhaps they would be devastated if their metaphorical children, those subject to the rule of law, were to find out the truth.

This is crucial because the most likely way in which a British Bill of Rights might re-work the Human Rights Act is not to do away with the text of the rights in the European Convention so much as the way in which those rights are regarded, considered, interpreted, weighed against one another and applied in our context. In s2 of that Act, courts are instructed that they ‘must take into account’ the jurisprudence of the European Court of Human Rights and in ss12 and 13 they are told to have ‘particular regard’. The main criticism of them is that they read s2 as if they had to follow the European Court, come what may, whereas they only have to take it into account. My supplementary criticism is that they have gone the opposite way later in the Act, under-playing or simply ignoring their need to have ‘particular regard’ in ss12 and 13 to two rights deemed fundamental by Parliament.

So any rebalancing is likely to invoke these words about taking into account or having particular regard, or similar expressions, and it matters whether the judges will then heed Parliament. For example, a British Bill of Rights, as a variation on the Human Rights Act, might direct that courts ‘must take into account but shall not consider themselves bound by’ decisions of the European Court, precisely because in a clash between freedom of expression or freedom of religion, on the one hand, and a right such as privacy on the other, the courts ‘must have particular regard’ to the rights of freedom of expression and religion.

The Judicial Power Project matters because it is a sustained attempt to challenge the orthodoxy of judges (and of commentators close to them) that glosses over the judicial tendency to override such statutory formulas. I have already explained my quibbles with the list of problematic cases and my preference for a list of paradigmatic cases. So I conclude with one of my Top 50 of exemplary cases which would do much to teach judges how to behave in fidelity to our constitution and to their judicial oaths. The substantive judgment was given by Lord Justice Sedley, as he then was, a couple of months before his book review in 1999. The date is significant because Redmond-Bate v DPP happened in the gap between the Human Rights Act being passed in 1998 and coming into force in 2000. The Divisional Court held in favour of Christian fundamentalist preachers who had refused a police officer’s instruction to move on from the steps of Wakefield Cathedral to avoid an increasingly hostile crowd causing a breach of the peace. They were not obstructing a police officer in the execution of his duty because he was not entitled to disregard their freedoms of expression and religion. Sir Stephen Sedley could see that ss12 & 13, relating to Articles 10 & 9 respectively of the ECHR, ought to make a difference once they came into force. He was magisterial on freedom of expression and truly radical, in the sense of taking us back to the roots of the common law at its best, in explaining why we ought to have particular regard anyway to certain fundamental rights:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having…”

This judgment was cited by Lord Justice Jackson in the PJS celebrity injunction case in the Court of Appeal. The Redmond-Bate judgment is anything but jejune. It is, however, agenda-driven and quite right too. Its agenda is rooted in the best of our radical and our constitutional traditions. Whatever his insights as a book reviewer, Sir Stephen Sedley’s wisdom as law’s umpire is appealing and could take us from judge-shaming to some much-needed judiciousness-sharing.