Abstract
This paper, which is based on a course of lectures delivered in Tilburg in March 1979, represents the attempt of a ‘private’ lawyer to explain some aspects of English law as they relate to ‘fundamental rights.’ To the professing ‘public’ lawyer the approach adopted and, in particular, the reduction to three only in the number of ‘rights’ specifically discussed, may seem strange. An English ‘public’ lawyer would, however, probably agree that the formal distinction between ‘public’ and ‘private’ law has been of little importance in England save for academic purposes and he would also agree, at least if pressed, that the casuistical nature of English law renders somewhat artificial and unhistorical the attempt to expound it as a system of ‘rights.’ His preconceptions and the inarticulate premises that inform his approach to a legal subject are more likely than those of the ‘private’ lawyer to lead him into a treatment of ‘fundamental rights’ which takes as its starting point a number of ‘Rights’ and he will, very properly, draw attention to the undoubted importance in the modern world of the various Declarations of Rights which have legal force in other national legal systems and in international or supra-national law.
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References
This is not, of course, to say that the word ‘right’ is not a word regularly used, even by lawyers, and the increasing use of the word in a ‘non-Hohfeldian’ sense — social ‘rights’, the ‘right to strike’ and so on — is beginning to have an effect on the law itself. For a case in which a legal conclusion was reached by Lord Denning M.R. on the basis that there is a’right to strike’, see Morgan v. Fry (1968) 2 Q.B. 710, 725.
See David & Brierly Major Legal Systems in the World today. 2nd ed., 294.
This was not achieved at one stroke. The most important change was to allow more than one form of action to be pleaded in a single case: Common Law Procedure Act 1852.
Rules of the Supreme Court, 0.53, introduced in 1977.
The English mode of thought is epitomised in the definition given by Diplock L.J. to ‘cause of action’ in Letang v. Cooper (1965) 1 Q.B. 232, 242–243. ‘A cause of action is simply a factual situation the existence of which entitles one person to obtain from the courts a remedy against another person’.
See Mann, ‘Britain’s Bill of Rights’ (1978) 94 L.Q.R. 512.
See e.g. R. v. Miah (1974) 1 W.L.R. 683, R. v. Home Secretary, ex p. Bhajan Singh (1976) Q.B. 198; R. v. Chief Immigration Officer, ex p. Bibi (1976) 1 W.L.R. 979; Ahmad v. Inner London EducationAuthority (1978) Q.B. 36.
E.g. the dissenting judgment of Scarman L.J. in Ahmad v. Inner London Education Authority, supra.
Malone v. Metropolitan Police Commissioner (1979) Ch. 344.
Ahmad v. Inner London Education Authority, supra.
See Davis v. Johnson (1979) A.C. 264.
Practice Statement (Judicial Precedent) (1966) 1 W L R 1234
Frank, Law and the Modern Mind, 47.
For a fuller statement of this see Jolowicz, ‘The Case for Applied Comparative Law’ in Cappelletti (ed.) New Perspectives for a Common Law of Europe, 237, 239–243.
For an account by the author of ‘fundamental rights’ in civil litigation in England, see his contribution to Cappelletti and Tallon (ed.), Fundamental Guarantees of the Parties in Civil Litigation, 121.
Constitution of the Federal Republic of Germany (G.G.), art. 103 § 1.
Thorne v. University of London (1966) 2 Q.B. 237.
See, in particular, de Smith, Judicial Review of Administratzve Action; Wade, Administrative Law.
R.S.C.,0.53, ante, Part I,1.
Loc. cit. supra, n. 15, at p. 151.
E.g. Cooper v. Wandsworth Board of Works (1863) 14 C.B.(N.S.) 180.
For two rather different cases see Ex p. Venicoff (1920) 3 K.B. 72 and R. v. Metropolitan Police Commissioner (1953) 1 W.L.R. 1150.
(1942) A.C. 206.
Ridge v. Baldwin (1964) A.C. 40. See also Tribunals and Enquiries Act 1971, ss. 13, 14, replacing earlier legislation and in particular the Tribunals and Enquiries Act 1958, s. 11.
Secretary of State for Education v. Metropolitan Borough of Tameside (1977) A.C. 1014. See also LakerAirways Ltd. v. Department of Trade (1976) Q.B. 643.
(1969) 2 A.C. 147. See also Padfield v. Minister of Agriculture (1968) A.C. 997. On the Anisminic case see Wade, ‘Constitutional and Administrative Aspects of the Anisminic Case’ (1969) 85 L.Q.R. 198
Pyx Granite Ltd. v. Ministry of Housing (1960) A.C. 260, 286, per Lord Simonds.
R. v. Home Secretary, ex p. Hosenball (1977) 1 W.L.R. 766.
Bishop Hoadly, Sermon Preached before the King, 1717. These words so impressed Gray, The Nature and Sources of Law, that he quotes them three times (pp. 100, 120, 164) in support of his view that ‘the law of the State ... is composed of the rules which the courts ... lay down for the determination of legal rights and duties’: op. cit. p. 82.
See e.g. the recent decision of the European Court of Human Rights in Airey v. Republic ofIreland. 9th October 1979. Council of Europe Press Release No. C(79) 31.
Now replaced by the Legal Aid Act 1974. The most convenient and up to date source of information is the Report of the Royal Commission on Legal Services (Cmnd. 7648) published in October 1979.
Loc cit. supra. n. 31.
Race Relations Act 1976.
Sex Discrimination Act 1975.
Companies Act 1967, ss. 35, 81.
Of the numerous examples, see AttorneyGeneral v. Harris (1961) 1 Q.B. 74; AttorneyGeneral v. Chaudry (1971) 1 W.L.R. 1614.
‘Vindicating the Public Interest through the Courts: a Comparativist’s Contribution’ (1976) Buffalo Law Review 643, 646. See too Chayes ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harv. L.R. 281.
See Edwards, The Law Officers of the Crown, 286 et seq.
Since 1972, local authorities have had statutory power to bring civil proceedings in their own names when they consider it expedient in the interests of the inhabitants of their area to do so: Local Government Act 1972, s. 222.
Attorney-General, ex rel. McWhirter v. Independent Broadcasting Authority (1973) Q.B. 629.
(1978) A.C. 435.
(1977) Q.B. 729.
(1978) A.C. at p. 477.
For a case where the grant of an injunction almost certainly was of benefit to people other than the plaintiff, see Halsey v. Esso Petroleum L td. (1961) 1 W.L.R. 683.
(1976) Q.B. 629.
(1978) A.C. at p. 483. Lord Wilberforce could not deny this because of the decision in Dyson v. Attorney-General (1912) 1 Ch. 158, the correctness of which was unquestioned.
For relevant cases decided after Gouriet’s case, see Ex p. Island Records Ltd. 41978) Ch. 122;Meade v. Haringey London Borough Council (1979) 1 W.L.R. 637.
For the history of the writ, see Holdsworth, History of English Law, IX, 108–125.
This development was associated, probably erroneously, with Magna Carta. See cam, ‘Magna Carta — Event or Document?’, Selden Society Lecture, 1965.
Law of the Constitution, ed. 10, 199, 221.
Rules of the Supreme Court, 0.54.
R. v. Board of Control, ex p. Rutty (1956) 1 Q.B. 109.
See R. v. Secretary of State for the Home Department, ex. p. Ram (1979) 1 W.L.R. 148.
Ex p. Hinds (1965) 1 W.L.R. 325.
Dallison v. Caffery (1965) 1 Q.B. 348.
Meering v. Grahame-White Aviation Co. Ltd. (1920) 122 L.T. 44.
Huckle v. Money (1763) 2 Wils. 205.
In particular the Criminal Law Act 1967.
Actions for false imprisonment contributed, with other forms of civil actions for tort, to judicial declarations in the eighteenth century of the illegality of ‘general warrants’, i.e. warrants for arrest, search, and so on which purport to authorise the arrest of persons by describing them generally instead of specifying them by name and giving particulars of the offence with which they are charged.
Wiltshire v. Barrett (1966) 1 Q.B. 312.
(1947) A.C. 573. See also John Lewis & Co. Ltd. v. Tims (1952) A.C. 676 where it is laid down that an arrested person must be brought before a magistrate as soon as possible.
R. v. Secretary of State for the Home Department (1979) 1 W.L.R. 148, 154, per May J. Emphasis added.
R. v. Secretary of State for Home Affairs, ex p. Hosenball (1977) 1 W.L.R. 766, 783.
History of English Law, II, 584.
See Holdsworth, History of English Law, IV, 526–528.
Magistrates’ Courts Act 1952, s. 38.
Bail Act 1976, s.5(1) and Schedule 1. Emphasis added. Note the significant substitution of the word ‘substantial’ for the more usual ‘reasonable’.
Ibid., s. 3(2).
Ibid., ss. 6, 7.
The Habeas Corpus Act 1679 made provision for the release on bail of persons charged with treason or felony if they were not brought to trial within a reasonable time.
See In re Kray (1965) Ch. 736.
Criminal Justice Act 1967, s. 22; Courts Act 1971, s. 13.
See Rules of the Supreme Court, 0.79, r.9; Crown Court Rules 1971 rr. 17, 18, 22.
See e.g. Bottomley, ‘The Granting of Bail: Principles and Practice’ (1968) 31 M.L.R. 40; Bottomley, Prison before Trial; Zander, ‘A Study of Bail/Custody Decisions in London Magistrates’ Courts’ (1971) Crim. L.R. 191.
Law Guardian, No. 74 (1971) 9; (1971) 121 New L.J. 825.
Crown Proceedings Act 1947. It remains impossibile to bring proceedings against the Sovereign in person. Trade Unions are afforded special immunities: Trade Unions and Labour Relations Act 1974, s.14.
Law Reform (Limitation of Actions, etc.) Act 1954, repealing the Public Authorities Protection Act 1893.
Constantine v. Imperial Hotels (1944) K.B. 693.
Scala Ballroom (Wolverhampton) Ltd. v. Ratcliffe (1958) 1 W.L.R. 1057.
E.g. Clayton v. Ramsden (1943) A.C. 320; In re Lysaght (1966) Ch. 206.
Noble and Wolf v. Allen (1951) D.L.R. 321, a decision of the Supreme Court of Canada.
(1966) 2 Q.B. 633.
See further David v. Abdul Cader (1963) W.L.R. 834; Faramusv.Film Artistes’ Association (1964) A.C. 925.
Race Relations Act 1965. s. 6. For a case in which a violently anti-semitic speech was held to constitute an offence before the Act of 1965 was passed, see Jordan v. Burgoyne (1963) 2 Q.B. 744.
Race Relations Act 1965. s. 3.
Race Relations Act 1968, ss. 19, 21, 22. The Board had, of course, to account to the injured person for any damages recovered.
Sex Discrimination Act 1975, ss. 1, 2, 3, 4; Race Relations Act 1976, ss. 1, 2 ‘Racial grounds’ as defined in the Act means ‘colour, race, nationality or ethnic or national origins’: ibid., s. 3(1). Note that the application of a ‘requirement or condition’ will not amount to unlawful discrimination if it is shown to be justifiable irrespective of the sex or race, etc. of the person to whom it is applied. This allows, for example, the application of a condition of high educational qualifications, if these are necessary in the circumstances, even though far fewer members of one racial group than of another will be able to comply with the condition.
Zarczynska v. Levy (1979) 1 W.L.R. 125.
Peake v. Automobile Products Ltd. (1977) Q.B. 780.
For ‘non-discrimination notices’ and their effects, see Sex Discrimination Act ss. 67–71; Race Relations Act, ss. 58–62.
Sex Discrimination Act ss. 63–66; Race Relations Act ss. 54–5 7.
Sex Discrimination Act, ss. 74, 75; Race Relations Act, ss. 65, 66.
Trade Union and Labour Relations Act 1974, Schedule 1, paras. 4–15; Employment Protection Act 1971, s. 71.
D. 1.1.1.2; J.1.1.4.
See Jolowicz Roman Foundations ofModern Law, 51.
See Law of 16–24 August 1790, art. 13.
Feb. 8, 1873. D. 1873, III, 20.
Kahn-Freund and others, A source book of French Law, 182.
Dicey, Introduction to the Study of the Law of the Constitution, (ed. 10) Cap. 4.
Crown Proceedings Act 1947, s. 2.
(1970) A.C. 1004.
Crown Proceedings Act 1947, s. 21. But an order declaratory of the rights of the parties may be made in lieu.
A proviso to s. 2 of the Crown Proceedings Act specifies that the Crown shall not be liable if the act in question would not have given rise to a cause of action against the individual responsible for it.
(1976) Q.B. 752.
In addition to cases involving commercial secrets the Lord Chief Justice relied in particular on Duchess of Argyll v. Duke of Argyll (1967) Ch. 302 which concerned domestic confidences passing between husband and wife.
See e.g. Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175; Glynn v. Keele University (1971) 1 W.L.R. 487.
(1978) A.C. 435, ante, Part II, 1., C.
‘Vindicating the Public Interest through the Courts’ (1976) 25 Buffalo Law Review 643.
The quotation is from Verri’s Pensées detachées. See Cappelletti in Cappelletti and Jolowicz, Public Interest Parties and the Active Role of the Judge, 93.
See Attorney-General v. Independent Broadcasting Authority (1973) Q.B. 629, 656–657, per Lawton L.J.
For a fuller discussion of this analysis of the case law process, see Jolowicz, ‘Les décisions de la Chambre des Lords’ (1979) Revue internationale de droit comparé, 521.
This is an important subject which is in need of study. The obvious statement that the courts must not usurp the function of the legislature gives little guidance.
The most notorious example is the passage of the War Damage Act 1965 to reverse retroactively the effect of the decision of the House of Lords in Burmah Oil Co. Ltd. v. Lord Advocate (1965) A.C. 75. See Jolowicz, ‘Fundamental Guarantees in Civil Litigation: England’ in Cappeiletti and Tallon (ed.) Fundamental Guarantees of the Parties in Civil Litigation. 123, 131–134.
There is already a considerable volume of literature on the possibility of introducing a Bill of Rights into English law. See Wallington and McBride, Civil Liberties and a Bill of Rights, the bibliography at Appendix 5 and, in addition, Dahrendorf, ‘A confusion of Powers: Politics and the Rule of Law’ (1977) 40 M.L.R. 1; Milne, ‘Should we have a Bill of Rights?’ ibid., 389; Mann, ‘Britain’s Bill of Rights’ (1978) 94 L.Q.R. 512 (the European Convention); Duncanson, ‘Balloonists, Bills of Rights and Dinosaurs’ (1978) Public Law 391. It is not possible to consider this literature here, and what follows represents only the writer’s reflexions on the matter from the particular point of view of the subiect of this naner
(1610) 8 Co. Rep. 113b.
See e.g. Lee v. Bude and Torrington Junction Railway Co. (1871) L.R. 6 C.P. 576
Pickin v. British Railways Board (19 74) A.C. 765
Ibid., at p. 782.
Ibid., at p. 789.
It is not a necessary consequence as is shown, for example, by the experienceof France. Note, however, that though judicial review of parliamentary legislation remains impossible in France, the Conseil Constitutionnel, which may consider certain legislation before promulgation, has begun to develop some of the characteristics of a constitutional court. For a valuable account in English of this development, see Nicholas, ‘Fundamental Rights and Judicial Review in France’ (1978) Public Law 82, 155.
Scarman, English Law — the New Dimension, 15.
See e.g. Gideon v. Wainwright 372 U.S. 335 (1963); Boddie v. Connecticut 401 U.S. 371 (1971). Cf. U.S. v. Kras 409 U.S. 434 (1973); Ortein v. Schwab 410 U.S. 656 (1973).
The Law and the Constitution, 243.
Malone v. Metropolitan Police Commissioner (1979) Ch. 344, 357.
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Jolowicz, J.A. (1980). The Judicial Protection of Fundamental Rights under English Law. In: Markesinis, B.S., Willems, J.H.M. (eds) The Cambridge-Tilburg Law Lectures. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4414-0_1
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