<<

. 135
( 155 .)



>>


(b) Statute
The single most important statute concerning liberty in Britain is now the
Human Rights Act 1998, which we consider in detail in section 2 of this chapter.
It should not be thought, however, that the Human Rights Act is the only statute
relevant to the topic of liberty. The extension of the franchise is a matter gov-
erned by statute: Acts for this purpose were passed in 1832, 1867, 1884, 1918
and 1928: see now the Representation of the People Act 1983. Rights to freedom
of information and to data protection are likewise governed by statute (see eg,
the Freedom of Information Act 2000, the Freedom of Information (Scotland)
Act 2002 and the Data Protection Act 1998). A range of important statutes pro-
hibits various forms of discrimination. Parliament ¬rst legislated in the ¬eld of
race relations in the mid-1960s (see the Race Relations Acts of 1965 and 1968)
and in the ¬eld of sex discrimination in the early 1970s (see the Equal Pay Act
1970 and the Sex Discrimination Act 1975, which remains in force). Current
legislation on non-discrimination additionally includes the Race Relations
Act 1976, the Race Relations (Amendment) Act 2000 and the Disability
Discrimination Acts 1995 and 2005. Much of this legislation will be amended,
once it comes fully into force, by the Equality Act 2006. Among other matters
733 Liberty and the constitution


the 2006 Act establishes a new Commission for Equality and Human Rights
and extends prohibitions of discrimination on grounds of religion and sexual
orientation.
In addition, speci¬c provisions in numerous other Acts have conferred or
con¬rmed important rights: for instance, the Police and Criminal Evidence Act
1984, section 28, provides that an arrest is not lawful unless the person arrested
is informed that he is under arrest and of the ground for the arrest. (A like
requirement previously existed at common law: Christie v Leachinsky [1947]
AC 573.)
While statute is a source of protection of liberty in numerous instances, it
may also be a threat to liberty. The Police and Criminal Evidence Act 1984
extended the powers of the police as regards stop and search, arrest, detention
and search and seizure. The Public Order Act 1986 extended the powers of the
police to regulate protest (see further below, pp 811“18). The O¬cial Secrets
Act 1989 made inroads into the extent to which the right to freedom of expres-
sion could be enjoyed (see further below, p 786). The Criminal Justice and
Public Order Act 1994, the Crime and Disorder Act 1998, the Regulation of
Investigatory Powers Act 2000, the Civil Contingencies Act 2004 and the Serious
Organised Crime and Police Act 2005, as well as numerous other statutes, have
each had a substantial impact on various civil liberties and human rights. On
top of all of this, of course, is the considerable range of counter-terrorism
legislation that has been passed in recent years (on which, see below).


(c) Statutory interpretation
The common law provides no defensive shield for fundamental rights against
the unequivocal provision of statute (compare sections 3 and 4 of the Human
Rights Act 1998, considered in chapter 2 (above, pp 62“6)). Indeed, the courts
have given e¬ect to the proscriptions of statute even when these were not
expressly stated but appeared more or less unambiguously from the scheme and
purpose of the Act (see eg, Re London United Investments plc [1992] Ch 578:
privilege against self-incrimination held to have been impliedly displaced by
statute). On the other hand, the judges have held it to be consistent with a
proper respect for statute to apply certain presumptions of parliamentary intent
in the interpretation of statutes when the statutory language is unclear or
ambiguous or leaves the matter in question undetermined. These presumptions
give e¬ect to a principle that rights and liberties recognised by the common law
(as the judges have developed it) are not to be overridden as a by-product of
statutory language which is not clearly directed to bringing about that result.
Parliament, it is supposed, must have intended to leave such rights and liberties
intact unless a contrary intention is clearly expressed or is a necessary (not
merely a ˜possible™ or ˜reasonable™) implication of the terms of the statute.
Likewise, as Purchas LJ observed in Hill v Chief Constable of South Yorkshire
[1990] 1 WLR 946, 952, a statute which gives rights to interfere with the liberty
734 British Government and the Constitution


of the citizen ˜ought to be construed strictly against those purporting to exer-
cise those rights™. See now on this matter the dictum of Lord Ho¬mann in ex p
Simms (above).
This judicial tendency was formerly most evident in that ˜particular vigilance™
in which lawyers were trained in the ¬eld of the protection of property rights
(Lord Radcli¬e in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, 118): see,
for example, Central Control Board v Cannon Brewery Co Ltd [1919] AC 744,
752. But the courts have also been able to protect, against indirect or accidental
displacement by statute, such rights as personal liberty, freedom of movement,
access to the courts, the right to communicate con¬dentially with a legal adviser
under legal professional privilege, and the right not to be punished for an act
which was not an o¬ence at the time it was done. (See DPP v Bhagwan [1972]
AC 60 (right of British subject to enter United Kingdom); Waddington v Miah
[1974] 1 WLR 683 (non-liability to retrospective penalty); R v Hallstrom, ex p W
[1986] QB 1090 (liberty of the subject); R (Morgan Grenfell & Co Ltd v Special
Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563 (legal profes-
sional privilege).)
Here as elsewhere, however, the judicial record has not been consistent, for
the courts have on occasion strained the language of statute in favour of the
power-wielding authority and so as to restrict the individual™s zone of freedom.
Two recent examples stand out: R v Z [2005] UKHL 35, [2005] 2 AC 645 and
R (Haw) v Secretary of State for the Home Department [2006] EWCA Civ 532,
[2006] 3 WLR 40.


R v Z [2005] UKHL 35, [2005] 2 AC 645
Section 3 of the Terrorism Act 2000 provides that ˜an organisation is proscribed
if (a) it is listed in Schedule 2 to the Act or (b) it operates under the same name
as an organisation listed in that Schedule™. The consequences of proscription
could hardly be more serious: section 11 of the Act makes it a criminal o¬ence,
punishable by up to ten years™ imprisonment, to belong or even to profess to
belong to a proscribed organisation. A number of defendants were charged with
being members of the Real Irish Republican Army (˜Real IRA™), contrary to
section 11. They argued in their defence that the Real IRA was not proscribed,
as it was not listed in Schedule 2 to the Terrorism Act. Whereas the ˜Irish
Republican Army™ (IRA) was proscribed, as was the ˜Continuity Army Council™,
the Real IRA was not. The trial judge accepted the defence and acquitted the
defendants on that ground. The Attorney General for Northern Ireland referred
the matter to the Court of Appeal of Northern Ireland, which ruled, contrary
to the trial judge, that a person does commit an o¬ence under section 11 if he
or she belongs, or professes to belong, to the Real IRA. On appeal to the House
of Lords their Lordships unanimously agreed with the Court of Appeal.
The House of Lords noted that the Real IRA was distinguished from other
735 Liberty and the constitution


organisations in other contexts: the Northern Ireland (Sentences) Act 1998 pro-
vides for the accelerated release of certain prisoners convicted of terrorist
o¬ences, but not if the prisoners are supporters of a speci¬ed organisation. Four
such organisations have been speci¬ed by the Secretary of State: the Continuity
IRA, the Real IRA, the Irish National Liberation Army and the Loyalist
Volunteer Force. In this context, care has been taken to distinguish the IRA from
the Continuity IRA and from the Real IRA, both of which have been recognised
as di¬erent for these purposes from the IRA itself. Nonetheless, the House ruled
that in the context of the Terrorism Act 2000 the inclusion on the list of pro-
scribed organisations of the IRA was to be read as including the Real IRA.
Counsel for the defendants conceded that the Real IRA is a terrorist organisa-
tion deserving of proscription but he insisted that the task of the courts is to
interpret the provision that Parliament has actually enacted and not (in the
words of Lord Bingham at [16]) ˜to give e¬ect to an inferred intention of
Parliament not fairly to be derived from the language of the statute™. Lord
Carswell defended the decision of the House of Lords by referring (at [49]) to
the ˜mischief ™ rule of interpretation: namely, that the courts will have regard not
only to the language of the statute, but also to the mischief which the statute was
intended to remedy. Parliament had intended that the Real IRA be proscribed,
even if it had not stated so expressly, and the Act should be interpreted accord-
ingly. Is such a method of interpretation appropriate in the criminal context or,
indeed, when fundamental rights such as the right to liberty and to security of
the person are at stake?


R (Haw) v Secretary of State for the Home Department [2006]
EWCA Civ 532, [2006] 3 WLR 40
Brian Haw had been conducting a demonstration in Parliament Square in
Westminster since 2001. Living on the pavement and displaying a large
number of placards he had been demonstrating, ¬rst, about sanctions against
Iraq and, more recently, about the British Government™s policy in Iraq. In 2002
Westminster City Council sought an injunction requiring Mr Haw to move
his placards on the basis that they were an obstruction to the highway (see
further on this aspect of the right to protest below, p 814). The application
for an injunction failed: the court held that Mr Haw™s demonstration
neither caused an obstruction to the highway nor gave rise to any fear that a
breach of the peace might arise. The court held, on these grounds, that the
demonstration was lawful: see Westminster County Council v Haw (2002) 146
SJLB 221.
In 2005 Parliament passed the Serious Organised Crime and Police Act.
Sections 132“38 of that Act seek to give to the Metropolitan Police a signi¬cant
measure of control over demonstrations which take place within a designated
area in the vicinity of Parliament. The Act does not forbid such demonstrations
736 British Government and the Constitution


but, by section 133(1), it requires any person who intends to organise a demon-
stration in the area to apply to the police for authorisation to do so. Under
section 132(1):


Any person who (a) organises a demonstration in a public place in the designated area,
or (b) takes part in a demonstration in a public place in the designated area, or (c) carries
on a demonstration by himself in a public place in the designated area, is guilty of an
offence if, when the demonstration starts, authorisation for the demonstration has not
been given.


Under section 132(6), ˜section 14 of the Public Order Act 1986 (imposition of
conditions on public assemblies) does not apply in relation to a public assem-
bly which is also a demonstration in a public place in the designated area™.
Shortly after the Act came into force Mr Haw sought a declaration that the
regime in sections 132“8 of the Act did not apply to him, on the basis that his
demonstration did not ˜start™ (within the meaning of section 132(1)) while the
2005 Act was in force. On the contrary, his demonstration had started several
years previously and was continuing when the 2005 Act came into force. The
Divisional Court, by a majority, agreed that the Act did not apply to Mr Haw™s
demonstration (see [2006] QB 359). The Secretary of State appealed to the
Court of Appeal, which allowed the appeal. The judgment of the Court of
Appeal was handed down by the Master of the Rolls:


Sir Anthony Clarke, MR: . . . The claimant™s case is that on its true construction the Act does
not, as enacted, apply to his demonstration because his demonstration started before the
Act came into force . . .
The question is one of construction of the Act. Like all questions of construction, this ques-
tion must be answered by considering the statutory language in its context, which of course
includes the purpose of the Act. The search is for the meaning intended by Parliament. The
language used by Parliament is of central importance but that does not mean that it must
always be construed literally. The meaning of language always depends upon its particular
context . . .
There is undoubted force in the reasoning of the majority [of the Divisional Court] because
of the express reference to the start of the demonstration in sections 132(1) and 133(2) and
(4) and because of the contrast between the demonstration starting and being carried on.
On the other hand, it is, to put it no higher, a puzzle as to why Parliament should have wished
to control demonstrations which started after the relevant commencement date but not
demonstrations which started before . . .
We have reached the conclusion that the Parliamentary intention was clear. It was to regu-
late all demonstrations within the designated area, whenever they began. In reaching this
conclusion we have been much influenced by a point which was not put to the Divisional
Court . . . It depends upon section 132(6) of the Act and upon the terms of section 14 of the
Public Order Act 1986 (˜the 1986 Act™).
737 Liberty and the constitution


By section 132(6) . . . section 14 of the 1986 Act does not apply to a public assembly
˜which is also a demonstration in a public place in the designated area™. There is no doubt
that the respondent™s demonstration is such a demonstration and it is not suggested other-
wise. In the context of the argument in this appeal, the critical point is that the disapplica-
tion of section 14 of the 1986 Act is not limited to demonstrations which started after the
commencement or coming into force of the Act but applies to all demonstrations, whether
they started before or after the commencement or coming into force of the Act . . .
Section 14 of the 1986 Act is the section which gives the police power to impose condi-
tions in relation to demonstrations generally, provided that they consist of two or more
people. The purpose of section 132(6) of the Act was to replace section 14 of the 1986
Act with the provisions of sections 132 to 138 of the Act in the case of demonstrations
in the designated area, whenever they started. It is, in our judgment, inconceivable that
Parliament would have repealed section 14 with respect to demonstrations which had
already started, if it did not intend to apply the provisions of sections 132 to 138 of the Act
to such demonstrations.
We have considered whether such a construction is impermissible having regard to the
principle of doubtful penality . . . We entirely accept the general principle stated by Simon
Brown LJ in R v Bristol Magistrates Court ex parte E [1999] 1 WLR 390, 397 . . . that a person
should not be penalised except under clear law. Equally we are mindful of the importance
of the liberty of the individual. However, whether or not there is ˜clear law™ depends in this
context upon the true construction of the relevant statute. We have reached the conclusion
that in the case of the Act, once the intention of Parliament is ascertained from the language
used, construed in its context, there is in the relevant sense clear law.


Is this judgment consistent with the principle enunciated by Purchas LJ in
Hill v Chief Constable of South Yorkshire (above), that a statute interfering with
the liberty of the citizen ˜ought to be construed strictly™?


(d) Delegated legislation
The courts do not owe to the subordinate legislation of governmental bodies
the deference shown to Acts of Parliament. A power of legislation delegated
by Parliament to the executive is taken as not extending to the violation of fun-
damental rights unless Parliament has clearly provided otherwise. A court
will accordingly hold subordinate legislation invalid if, without such parlia-
mentary authorisation, its provisions infringe a fundamental or ˜constitu-
tional™ right.


R v Lord Chancellor, ex p Witham [1998] QB 575 (DC)
Acting under section 130 of the Supreme Court Act 1981, the Lord Chancellor
made the Supreme Court Fees (Amendment) Order 1996, S1 1996/3191.
Article 3 of the order repealed provisions in a previous order which had
738 British Government and the Constitution


relieved litigants in person who were in receipt of income support from the
obligation to pay the fees prescribed for issuing a writ. The applicant for judi-
cial review, who was in receipt of income support, wished to bring proceedings
for malicious falsehood and libel. Legal aid not being available for such pro-
ceedings, he proposed to sue as a litigant in person; but since he could not
a¬ord to pay the court fee, was unable to proceed with his claim. Other persons
on very low income would similarly be prevented, in consequence of article 3,
from taking certain categories of proceedings in the courts. The court found
that the e¬ect of the order was ˜to bar absolutely many persons from seeking
justice from the courts™.


Laws J: . . . The common law does not generally speak in the language of constitutional

<<

. 135
( 155 .)



>>