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rights, for the good reason that in the absence of any sovereign text, a written constitution
which is logically and legally prior to the power of legislature, executive and judiciary alike,
there is on the face of it no hierarchy of rights such that any one of them is more entrenched
by the law than any other. And if the concept of a constitutional right is to have any meaning,
it must surely sound in the protection which the law affords to it. Where a written constitu-
tion guarantees a right, there is no conceptual difficulty. The state authorities must give way
to it, save to the extent that the constitution allows them to deny it. . . .
In the unwritten legal order of the British State, at a time when the common law contin-
ues to accord a legislative supremacy to Parliament, the notion of a constitutional right can
in my judgment inhere only in this proposition, that the right in question cannot be abro-
gated by the state save by specific provision in an Act of Parliament, or by regulations whose
vires in main legislation specifically confers the power to abrogate. General words will not
suffice. . . . [His Lordship noted that section 130 of the Supreme Court Act 1981 made no spe-
cific reference to the position where a person is prevented from access to the court because
unable to pay the fee prescribed by order.]
It seems to me, from all the authorities to which I have referred [inter alia, R v Secretary
of State for the Home Department, ex p Leech [1994] QB 198], that the common law has
clearly given special weight to the citizen™s right of access to the courts. It has been
described as a constitutional right, though the cases do not explain what that means. In this
whole argument, nothing to my mind has been shown to displace the proposition that the
executive cannot in law abrogate the right of access to justice, unless it is specifically so
permitted by Parliament; and this is the meaning of the constitutional right. . . . [His Lordship
said that Parliament might give such permission in express terms, then questioned whether
it might also be done by necessary implication, and continued:] [F]or my part I find great
difficulty in conceiving a form of words capable of making it plain beyond doubt to the
statute™s reader that the provision in question prevents him from going to court (for that is
what would be required), save in a case where that is expressly stated. The class of cases
where it could be done by necessary implication is, I venture to think, a class with no
members.
. . . [Counsel for the Lord Chancellor] says that the statute™s words are unambiguous [and]
are amply wide enough to allow what has been done. . . . That submission would be good
739 Liberty and the constitution


in a context which does not touch fundamental constitutional rights. But I do not think that
it can run here. Access to the courts is a constitutional right; it can only be denied by the
government if it persuades Parliament to pass legislation which specifically “ in effect by
express provision “ permits the executive to turn people away from the court door. That has
not been done in this case.

In a brief concurring judgment Rose LJ said:

There is nothing in the section or elsewhere to suggest that Parliament contemplated, still
less conferred, a power for the Lord Chancellor to prescribe fees so as totally to preclude the
poor from access to the courts. Clear legislation would in my view be necessary to confer
such a power and there is none.

The court accordingly granted a declaration that article 3 of the 1996 Order was
unlawful. The Lord Chancellor subsequently made orders which restored the
previous exemption provisions.
In insisting that the ˜constitutional right™ of access to the courts could be over-
ridden only by speci¬c provision (or ˜express words™) in an Act of Parliament,
Laws J perhaps went too far. Subsequently in R v Lord Chancellor, ex p Lightfoot
[2000] QB 597, 627“8 Simon Brown LJ said that even in the absence of express
words to that e¬ect, a constitutional right might be abrogated ˜by irresistible
inference from the statute read as a whole™. As we have seen, this view was
con¬rmed by the House of Lords in ex p Simms (above).


2 Liberty and the Human Rights Act 1998
The general scheme of the Human Rights Act 1998 (HRA) was outlined in
chapter 5 (see above, pp 271“8). In addition, the impact of the Act on the sov-
ereignty of Parliament was considered in chapter 2 (above, pp 62“6) and its
impact on domestic judicial review law was examined in chapter 10 (above,
pp 672“82). What we are concerned with in this section, which should be
read in the light of what was said in these previous chapters (and especially in
chapter 5), is the Act™s impact on the protection of liberty under the British con-
stitution. It may be said that the enactment of the Human Rights Act con¬rmed
a transformation, which, as we have seen, was already beginning to take place
in the common law, from individual liberties to positive rights. As Sedley LJ
observed in Redmond-Bate v DPP [2000] HRLR 249, 257, the Act has brought
about (or has reinforced) a ˜constitutional shift™ away from the conception of
rights as mere residual liberties:

A liberty, as AP Herbert repeatedly pointed out, is only as real as the laws and bylaws which
negate or limit it. A right, by contrast, can be asserted in the face of such restrictions and
must be respected, subject to lawful and proper reservations, by the courts.
740 British Government and the Constitution


(a) The Convention rights
Before we go any further we need to set out the terms of the Convention rights
that are incorporated into domestic law under section 1 of the HRA. These are
set out in Schedule 1 to the Act, as follows:

Human Rights Act 1998, Schedule 1

Article 2: Right to life

1. Everyone™s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a crime
for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when
it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 3: Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4: Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term ˜forced or compulsory labour™ shall not include:

(a) any work required to be done in the ordinary course of detention imposed accord-
ing to the provisions of Article 5 of this Convention or during conditional release
from such detention;
(b) any service of a military character or, in case of conscientious objectors in coun-
tries where they are recognised, service exacted instead of compulsory military
service;
(c) any service exacted in case of an emergency or calamity threatening the life or
well-being of the community;
(d) any work or service which forms part of normal civic obligations.

Article 5: Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of
his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order
of a court or in order to secure the fulfilment of any obligation prescribed by law;
741 Liberty and the constitution


(c) the lawful arrest or detention of a person effected for the purpose of bringing him
before the competent legal authority on reasonable suspicion of having committed
an offence or when it is reasonably considered necessary to prevent his commit-
ting an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervi-
sion or his lawful detention for the purpose of bringing him before the competent
legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised
entry into the country or of a person against whom action is being taken with a
view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he under-
stands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of
this Article shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the pro-
visions of this Article shall have an enforceable right to compensation.

Article 6: Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an inde-
pendent and impartial tribunal established by law. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part of the trial in the interests of
morals, public order or national security in a democratic society, where the interests of juve-
niles or the protection of the private life of the parties so require, or to the extent strictly
necessary in the opinion of the court in special circumstances where publicity would preju-
dice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the
nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
742 British Government and the Constitution


(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the
language used in court.

Article 7: No punishment without law

1. No one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed than the one that was applic-
able at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.

Article 8: Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the inter-
ests of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others.

Article 9: Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in commu-
nity with others and in public or private, to manifest his religion or belief, in worship, teach-
ing, practice and observance.
2. Freedom to manifest one™s religion or beliefs shall be subject only to such limitations
as are prescribed by law and are necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or for the protection of the rights
and freedoms of others.

Article 10: Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may
be subject to such formalities, conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the protection of
743 Liberty and the constitution


health or morals, for the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the authority and impar-
tiality of the judiciary.

Article 11: Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association
with others, including the right to form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of national secu-
rity or public safety, for the prevention of disorder or crime, for the protection of health or
morals or for the protection of the rights and freedoms of others. This Article shall not prevent
the imposition of lawful restrictions on the exercise of these rights by members of the armed
forces, of the police or of the administration of the state.

Article 12: Right to marry and found a family

Men and women of marriageable age have the right to marry and to found a family,
according to the national laws governing the exercise of this right.

Article 14: Prohibition on discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured
without discrimination on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national minority, property, birth
or other status.

Article 1 of the First Protocol: Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No
one shall be deprived of his possessions except in the public interest and subject to the con-
ditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or other contributions or penalties.

Article 2 of the First Protocol: Right to education

No person shall be denied the right to education. In the exercise of any functions which
it assumes in relation to education and to teaching, the State shall respect the right of parents

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