Civil Liberties and the Common Law (L27) Flashcards
What does Clause 39 of the Magna Carta of 1215 state?
“No free man shall be seized, imprisoned, dispossessed, outlaws, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgement of his peers and the law of the land.”
What does Clause 40 of the Magna Carta of 1215 state?
“No man will we sell, to no one will we deny or delay right or justice.”
What did the Petition of Right of 1628 do?
(Not a normal Act of Parliament; a kind of declaration of supposedly pre-existing rights).
Declares various “Rights and Liberties of the Subjects”, for example:
- “No freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land”.
- “No man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited nor put to death without being brought to answer by due process of law”.
What did the Bill of Rights 1689 in England do?
“An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown”.
- Purports to be “…vindicating and asserting…. ancient rights and liberties”.
The Claim of Rights 1689 (Scotland) is very similar.
What does the great case of Entick v Carrington (1765) demonstrate?
This was an action “in trespass” (a tort).
Entick was suing the King’s agents, asserting his common law private property rights.
What rights/liberties does the common law protect?
A general right of personal freedom, protected by the “Great Writ” of habeus corpus.
- Codified in Scotland by the Criminal Procedure Act 1701.
More recent development of the idea of “common law constitutional rights”, protected by the presumption of statutory interpretation (“the principle of legality”).
What was the issue in the case of R v Sec of State for the Home Department, ex parte Leech [1994] QB 198?
Prisoner challenged the legality of Rule 33(3) of the Prison Rules, which allowed his correspondence with his solicitor to be read or intercepted by prison authorities.
Rule 33(3) was made by the Home Sec, under s47(1) of the Prison Act 1952 (which impowers the Home Sec to make rules for the governance of prisons).
Is Rule 33(3) unlawful?
What did Lord Steyn conclude in the Ex Parte Leech in terms of legal correspondence?
Yes, it is unlawful in so far as it applies to legal correspondence.
“It is an axiom of our law that a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”.
What did Lord Steyn conclude in Ex Parte Leech regarding the fundamental rights of prisoners?
“…every citizen has a right of unimpeded access to a court… Even in our unwritten constitution it must rank as a constitutional right”.
“…a prisoner’s unimpeded right of access to a solicitor”, for the purpose of legal advice and assistance, is “an inseparable part of the right of access to the courts…”.
“It will be a rare case in which it could be held that such a fundamental right was by necessary implication abolished or limited by statute. It will, we suggest, be an even rarer case in which it could be held that a statute authorised by necessary implication the abolition of limitation of so fundamental a right by subordinate legislation”.
The Secretary had no express power under s47(1) to make a like Rule 33(3). And since there is no objective need for such a rule, Rule 33(3) must be beyond the powers that Parliament has given the Home Secretary.
Note the influence of the European Court of Human Rights, Campbell v the United Kingdom (1992).
What did Lord Steyn state in R v Sec of State for the Home Department, ex parte Pierson [1998] AC 539?
“Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption. But this assumption only has prima facie force. It can be displaced by a clear and specific provision to the contrary”.
What was the issue in R v Sec of State for the Home Department, ex parte Simms [2000] 2 AC 115?
Prisoners wanted interviews with journalists to raise the awareness of their cases (they claim they were wrongfully convicted).
Home Secretary’s policy prohibited any interviews between prisoners and journalists unless journalists signed written undertaking not to publish material.
The policy was based on an interpretation of Rules 37 and 37A of the Prison Rules.
Assuming the HomeSecretary’s interpretation of paragraphs 37 and 37(A) is correct, are the Rules and policy lawful? (ISSUE ONE).
If the Rules and policy – as interpreted - are not lawful, then is the Home Secretary’s interpretation correct? (ISSUE TWO).
What did Lord Steyn state to be the decision and reasoning on Issue ONE in Ex Parte Simms?
Rules 37 and 37A, as interpreted by the Home Secretary, would be unlawful (ultra vires).
“The starting point is the right of freedom of expression. In a democracy it is the primary right: without it an effective rule of law is not possible”.
Here, it is relied on to challenge potential wrongful convictions;
“In principle it is not easy to conceive of a more important function which free speech might fulfil”.
What did Lord Hoffman state in Ex Parte Simms?
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must what it is doing and accept the cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”
What happened in R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51?
Finding that 2013 Fees Order, prescribing fees for tribunals, was not a lawful exercise of the Lord Chancellor’s statutory powers, because the prescribed fees interfere unjustifiably with the right of access to justice under the common law (and also EU law).
“The constitutional right of access to the courts is inherent in the rule of law” [Lord Reed, para. 66].
What did Edmund Burke state in Reflections on the Revolution in France (1790)?
“…from Magna Carta… it has been the uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity – as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right”. [para. 57] .
