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Appointments Commission. Appointments to the Upper Tribunal are to be made
by the Queen on the recommendation of the Lord Chancellor, again normally
after selection by the Commission.
The bill provides for appeal on a point of law, with permission, from a
decision of the First-tier Tribunal to the Upper Tribunal, and similarly from a
decision of the Upper Tribunal to the Court of Appeal in England, Wales and
Northern Ireland or the Court of Session in Scotland. The Upper Tribunal is to
have a judicial review jurisdiction, transferred to it from the High Court or the
Court of Session, in respect of certain classes of tribunal decisions.
A new non-departmental body, the Administrative Justice and Tribunals
Council, is to replace the existing Council on Tribunals. It will have a wider
remit, keeping the administrative justice system as a whole under review,
advising on means to make it more accessible, fair and e¬cient.
(See further M Harris and M Partington (eds), Administrative Justice in the
21st Century (1999).)
Part IV
Liberty
11

Liberty and the constitution




Contents
1 Sources of protection
(a) Common law
(b) Statute
(c) Statutory interpretation
(d) Delegated legislation
2 Liberty and the Human Rights Act 1998
(a) The Convention rights
(b) Convention rights and national security: a case study
3 Freedom of expression
(a) Freedom of expression and democracy
(b) The ˜Spycatcher™ cases
(c) Freedom of expression as a common law ˜constitutional right™
(d) Freedom of expression and statute
(e) Freedom of expression and the Human Rights Act 1998
(f) Conflict of rights
4 Freedom of assembly
(a) Common law: the classic authorities
(b) Common law preventive powers and breach of the peace
(c) Freedom of assembly as a ˜constitutional right™
(d) Statutory restrictions on freedom of assembly


This chapter examines the extent to which, and the ways in which, British
constitutional law protects various aspects of personal liberty “ of what may be
called ˜civil liberties™. This is a very large topic, as well as being a critically impor-
tant one, and we have had to be selective. In our selections we have tried to focus
on issues that are both topical in early twenty-¬rst century Britain and repre-
sentative of the overall ¬eld. We start with a survey of the relevant sources of
law. In the next section we move on to examine the regime of Convention rights
that was introduced into UK law by the Human Rights Act 1998. In doing so we
728 British Government and the Constitution


pay particular attention to the impact of Convention rights in areas touching
upon matters of national security and counter-terrorism. This section may be
read as a case study of the way in which the Human Rights Act has worked thus
far. The chapter closes with two further case studies of the way in which liberty
is protected in Britain. These case studies, concerning freedom of expression
and freedom of assembly, consider both common law and statute and seek to
place the Human Rights Act in the context of an analysis of the overall strengths
and limitations of the constitutional protections of liberty in Britain. If one
thing is clear, it is that, while the Human Rights Act is undoubtedly signi¬cant,
it should not be the sole focus of our attention, even in this area of constitu-
tional law.


1 Sources of protection
(a) Common law
The common law™s traditional approach to the protection of rights, exempli¬ed
in such leading cases as Entick v Carrington (1765) 19 St Tr 1029 (on which, see
pp 78“9), centres upon the notion of ˜residual liberty™. According to this
approach we are free to do anything that is not legally prohibited. As Sir Robert
Megarry V-C expressed it in Malone v Metropolitan Police Commissioner [1979]
Ch 344, ˜everything is permitted except what is expressly forbidden™ (see above,
p 80). Even liberty in its most basic sense of freedom from physical restraint is
seen as having this residual character: the writ of habeas corpus, for protecting
the individual from unlawful restriction of his or her liberty, may be unavailing
if the restriction can be justi¬ed in terms of statutory provision such as the
Immigration Act 1971, Schedule 2, paragraph 16, the Mental Health Act 1983,
sections 2, 3 or 4, the Terrorism Act 2000, section 41, or the Prevention of
Terrorism Act 2005, sections 4 or 5.
This approach may be contrasted with a constitutional order in which liberty
is protected by force of a positive list of rights “ a list of statements to the e¬ect
that no matter what the state or the government claims to be able to do, there
are some matters that are protected, such that the state or the government may
not interfere with them at all (or, at least, such that the state or the government
may interfere with them only on strictly limited conditions). This is the
approach that is now taken in UK law under the authority of the Human Rights
Act 1998. Even before the passage of this Act, however, certain cases had begun
to explore the possibility that, inherent in the common law, there may be indi-
vidual, fundamental or constitutional rights that may be relied upon to delimit
lawful state or governmental action. An early instance was Hubbard v Pitt [1976]
QB 142, in which Lord Denning, in a dissenting judgment, would have vindi-
cated ˜the right to demonstrate and the right to protest on matters of public
concern™. In Secretary of State for Defence v Guardian Newspapers Ltd [1985]
AC 339, 361, Lord Scarman said with reference not to the common law but
729 Liberty and the constitution


to a statutory provision (section 10 of the Contempt of Court Act 1981, which
gives to publishers of newspapers and others a quali¬ed immunity from com-
pulsion to disclose their sources of information), that:

[Counsel for the Guardian] described the section as introducing into the law ˜a constitutional
right™. There being no written constitution, his words will sound strange to some. But they
may more accurately prophesy the direction in which English law has to move under the
compulsions to which it is now subject than many are yet prepared to accept.

(See further on the Contempt of Court Act 1981, below.)
Since the mid-1990s judicial references to ˜constitutional rights™ and to ˜con-
stitutional statutes™ have multiplied. ˜In the present state of its maturity™, said
Laws LJ in Thoburn v Sunderland City Council [2003] QB 151 at [62], ˜the
common law has come to recognise that there exist rights which should prop-
erly be classi¬ed as constitutional or fundamental™. In a widely cited judgment,
for example, Steyn LJ ruled in R v Secretary of State for the Home Department,
ex p Leech [1994] QB 198, 210 that ˜the principle of our law that every citizen
has a right of unimpeded access to the court . . . must rank as a constitutional
right™. And in R v Ministry of Defence, ex p Smith [1996] QB 517 the Court of
Appeal accepted that judicial scrutiny of administrative discretion under the
doctrine of irrationality (or Wednesbury unreasonableness: see chapter 10)
should be intensi¬ed in what was described as ˜the human rights context™. The
principal use to which the notion of common law ˜constitutional rights™ has
been put is, as in the Leech case, that of statutory interpretation. The position
was summarised (as we saw in chapter 2) in Lord Ho¬mann™s important dictum
in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115
(HL) (emphasis added):

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fun-
damental 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 squarely confront what it is doing and
accept the political 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 individ-
ual. 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.

That there are limits to the extent to which the common law will recognise
rights as being ˜constitutional™ in character was laid down in Watkins v Home
730 British Government and the Constitution


O¬ce [2006] UKHL 17, [2006] 2 AC 395, in which the House of Lords reversed
a judgment of the Court of Appeal which had held that, in the words of Lord
Bingham, ˜if there is a right which may be identi¬ed as a constitutional right,
then there may be a cause of action in misfeasance in a public o¬ce for infringe-
ment of that right without proof of damage™. The House of Lords reinstated the
rule “ which can be traced back for more than 300 years “ that the tort of mis-
feasance in a public o¬ce requires special damage. Lord Rodger of Earlsferry
stated (at [58]“[64]) that:

the Court of Appeal™s decision is noteworthy for the novel use which it makes of the concept
of a ˜constitutional right™ . . . For such an innovation to be workable, it would have to be
possible to identify fairly readily what were to count as ˜constitutional rights™ for this
purpose . . . There is, however, no magic in the term ˜constitutional right™ . . . It is in the
sphere of interpretation of statutes that the expression ˜constitutional right™ has tended to
be used, more or less interchangeably with other expressions [his Lordship cited ex p Leech
(above) and related case law]. The term ˜constitutional right™ works well enough, alongside
equivalent terms, in the field of statutory interpretation. But, even if it were otherwise suit-
able, it is not sufficiently precise to define a class of rights whose abuse should give rise to
a right of action in tort without proof of damage . . . In using the language of ˜constitutional
rights™, the judges were, more or less explicitly, looking for a means of incorporation [of the
European Convention on Human Rights] avant la lettre, of having the common law supply
the benefits of incorporation without incorporation. Now that the Human Rights Act is in
place, such heroic efforts are unnecessary.

Other constitutional rights and liberties to have been recognised by judicial
decisions are the right to life, ˜the most fundamental of all human rights™ (R v
Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855); the right to freedom of
expression (Derbyshire County Council v Times Newspapers [1993] AC 534, on
which see further below); the right to refuse to answer police questions (Rice
v Connolly [1966] 2 QB 414); and the right of a person in custody to consult a
solicitor “ ˜one of the most important and fundamental rights of a citizen™
(Hodgson J in R v Samuel [1988] QB 615, 630) and a common law right as well
as being protected by section 58(1) of the Police and Criminal Evidence
Act 1984 (R v Chief Constable of South Wales, ex p Merrick [1994] 1 WLR 663).
To these we may add the privilege against self-incrimination, ˜deep rooted in
English law™ (Lord Gri¬ths in Lam Chi-ming v R [1991] 2 AC 212, 222),
although ˜statutory interference with the right is almost as old as the right
itself ™ (Lord Mustill in R v Director of Serious Fraud O¬ce, ex p Smith [1993]
AC 1, 40, and see the Criminal Justice and Public Order Act 1994, sections
34“39 and also Saunders v United Kingdom (1996) 23 EHRR 313). We have
already met with ˜the two fundamental rights accorded . . . by the rules of
natural justice or fairness™: the right to a hearing and to absence of personal bias
in decisions a¬ecting an individual™s legal rights (O™Reilly v Mackman [1983]
2 AC 237, 279): see chapter 10. (See also the case law concerning the use that
731 Liberty and the constitution


domestic courts could make before the enactment of the Human Rights Act
of the terms of the European Convention on Human Rights: chapter 5 (above,
pp 270“1)).
A v Secretary of State for the Home Department (No 2) [2005] UKHL 71,
[2006] 2 AC 221, represents something of both the strengths and the limitations
of the common law™s protection of liberty. In a resounding judgment a panel of
seven Law Lords unanimously ruled that, in Lord Bingham™s words (at [52]),
˜The principles of the common law . . . compel the exclusion of third party
torture evidence as unreliable, unfair, o¬ensive to ordinary standards of
humanity and decency and incompatible with the principles which should
animate a tribunal seeking to administer justice™. Their Lordships were not,
however, prepared to rule that the Secretary of State, the security services or the
police would be acting unlawfully if they acted on information derived from
torture in another country “ if, for example, an individual was arrested and
detained in the United Kingdom as a result of information extracted by torture
in another jurisdiction, that would not necessarily be unlawful. The value of
their Lordships™ principal ruling, on the exclusion of third party torture evi-
dence, was substantially undermined by the standard of proof a majority of the
Law Lords thought appropriate. The majority (Lords Hope, Rodger, Carswell
and Brown) ruled that such evidence should be excluded only if it is established,
on a balance of probabilities, that it was obtained by torture. The judges in
the minority were scathing about this aspect of the ruling: Lord Bingham
described it (at [59]) as ˜a test which, in the real world, can never be satis¬ed™
and Lord Nicholls stated that (at [80]) it will, in practice, ˜largely nullify the
principle . . . that courts will not admit evidence procured by torture™. His
Lordship went on to say, bluntly, that ˜That would be to pay lip-service to the
principle™ and that ˜That is not good enough™. The judges in the minority (Lords
Bingham, Nicholls and Ho¬mann) would have preferred a standard of proof
whereby once a party to proceedings had plausibly shown that evidence may
have been procured by torture, such evidence should not be admitted unless
and until the court or tribunal had inquired into the matter and had positively
satis¬ed itself that it had not been so obtained.
As the A case suggests, we must not exaggerate the achievement of the courts
in the defence of constitutional rights. Judicial vindication of individual rights
has not been consistently evident, for example, in cases concerning immigrants
or refugees (see eg, R v Secretary of State for the Home Department, ex p Swati
[1986] 1 WLR 477; Rajput v Immigration Appeal Tribunal [1989] Imm AR 350;
R v Secretary of State for the Home Department, ex p Abdi [1996] 1 WLR 298)
and has very frequently faltered when countered by pleas of ˜national security™
(see below). Judicial decisions have sometimes drastically curtailed or diluted
the rights of the individual against the state: see eg, Duncan v Jones [1936] 1 KB
218 (below, p 801, freedom of expression and police powers) and Liversidge
v Anderson [1942] AC 206 (below, p 757, personal freedom and executive dis-
cretion). Judges, as JAG Gri¬th remarks, ˜are concerned to preserve and to
732 British Government and the Constitution


protect the existing order™ and he cautions us against looking to them as ˜the
strong, natural defenders of liberty™ (The Politics of the Judiciary (5th edn 1997),
p 342). Gri¬th continues:

In the societies of our world today judges do not stand out as protectors of liberty, of the
rights of man, of the unprivileged, nor have they insisted that holders of great economic
power, private or public, should use it with moderation. Their view of the public interest,
when it has gone beyond the interest of governments, has not been wide enough to embrace
the interests of political, ethnic, social or other minorities. Only occasionally has the power
of the supreme judiciary been exercised in the positive assertion of fundamental values. In
both democratic and totalitarian societies, the judiciary has naturally served the prevailing
political and economic forces.

If we take this view of the judiciary as being closely identi¬ed with the govern-
ing ©lite in society, and as disposed to support established interests, we will not
have con¬dence in the courts as resolute protectors of individual rights. Yet
Gri¬th acknowledges that the judges have played a part in sustaining liberty and
the rule of law (pp 337“39), while warning that we must not expect too much of
them. Other writers are more optimistic in looking to the common law, shaped
by the judges, for the elaboration and defence of constitutional rights. (See eg,
TRS Allan, Law, Liberty, and Justice (1993), ch 6 and Sir John Laws, ˜Is the High
Court the guardian of fundamental constitutional rights?™ [1993] PL 59. For a
critical overview of this position, see A Tomkins, Our Republican Constitution
(2005), ch 1.)

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