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Changes in the UK Constitution Due to Case Law
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Table of Contents
Evaluate how the principles of law from your select case have added to or changed the law in the aspect(s) of the UK Constitution they address.
In Simms, one of the main issues for courts was to check and determine the legality of a government policy, which the home secretary based under the rules of the Prison Act 1952. This policy implied a general prohibition of journalists conducting interviews with prisoners. In the lawsuit, the applicant challenged this policy. He claimed that he was wrongly convicted of murder, and he wished to protest by using his right to access resources of the media and run a campaign to gain support. The decision of the House of Lords clearly accepted that without individual face-to-face interviews (as banned by the Home Secretary), it is not possible for journalists to report cases of prisoners (Jowell and Oliver, 2007). This prohibition implied an apparent loss of opportunity for media to serve as a means of correcting errors in the administration of criminal justice. In the case, the secretary failed to demonstrate that by allowing interviews, the prison discipline or management would be undermined, provided that the only aim of the interview(s) was to gain publicity against the alleged miscarriage of justice. Consequently, the court held the policy unlawful. The court also declared that the evidence by the minister failed to establish any “pressing need” that calls for general restriction on the prisoner’s access to media and justice (Abry, 2024).
It is a clear example of administrative discretion being subjected to the general principles of law. Specifically, in this case, the right of free speech by prisoners accessing media and journalists was considered more important than administrative discretion because this right, as per common law, safeguards the personal liberty of prisoners, and this right is also essential for the proper administration of justice. The case established the fact that although the Parliament has the right and power to make policies, the exercise of such rights must conform to fundamental constitutional rights (Fenwick, Phillipson, and Williams, 2020). Any policy must protect the citizen’s (in this case, prisoners) fundamental equality in the common law. The case also clarified that proportionality is a natural imposition of equality, and therefore, if there is any restriction on the prisoner’s rights, it must essentially show proportionality to legitimate public ends (Blackburn, 2020).
The above is inferred and confirmed from the state of Lord Hoffmann, who stated that the sovereignty of the Parliament implies that Parliament has the discretion to choose and legislate in contrast to fundamental principles of human rights. In doing so, the Parliament does not detract from The Human Rights Act 1998. However, the constraints for parliament to exercise this power are not legal, but political (O’Cinneide, 2012). On the other hand, the principle of legality is clear: it is essential for the Parliament to confront what it is doing squarely and bear any political costs. The Parliament cannot override fundamental rights through ambiguous or general words. The underlying reason is that the full legal implications of such a policy may be ignored in the democratic process of developing the policy. Since there was a lack of express language, the courts presumed that the policy was subject to fundamental human rights and could not be implemented in violation of common law (Juss, 2006).
Case law and practice also show that the courts have the capacity to ensure that all legislation is compliant with common law, considering that the court becomes anxious to ensure compliance based on the given circumstances of the case. If courts are confronted by the threat of a serious breach of a fundamental right (which can either be an infringement of the Convention or can be a violation of a common law right), usually the courts have the right to qualify the literal (ordinary) meaning of any statute assuming that it was aimed to deny the rule of law no (Liverpool, 2020). For example, consider a situation in which a provision that, literally construed, seemingly undermines the fairness of a criminal trial and becomes a severe hurdle to the right of the defendant to present critical evidence to his defence. In this situation, the court can override the provision to safeguard fairness in the procedure. Consider, for example, R v. A[1], the Parliament was so heavily focused on protecting victims of rape, and in doing so, the Parliament was endangering the defendant’s right to establish his innocence. The parliament took a legitimate and heavy-handed attempt to prevent rape victims from being subject to humiliating cross-examination about their past sexual experiences. The court held that it was realistic and practical to allow the defendant to present probative materials in his defence to avoid the legislature denying the defendant the right to defend himself and cross-examine the victim. If there was any other approach, it would indeed subvert the rule of law (Ewing, 1999). Commenting on this case, Allan (2006) posited that even though there are precise terms of the statutory prohibition, any provision cannot override the rule of law because it is the fundamental precept of legitimate government. The state prosecution cannot be unfair in the proceedings.[2]
Make an argument about how the legal principles from the case have added to or changed constitutional law.
The case has made significant developments in the human rights scenario of UK law. It clearly relates to the first layer of rights protection in the UK, which is the common law. Common law is based on the overall body of precedent set by previous cases that accumulate over time. As per common law, the High Court has a supervisory judicial review jurisdiction, which it exercises over other inferior courts and tribunals. The administrative decision-makers in the parliament have an impact on people’s interests, and therefore, it is also under the supervision of the court. Since the 1960s, it has been observed that the courts have subjected the use of discretionary power of the parliament and also its prerogative powers to more scrutiny (Endicott, 2021). This shift was also complemented by the Parliament itself in the form of new legislative controls on public authorities’ use of their powers.
Today, administrative law clearly mentions that all public authorities should provide a clear legal basis to support their decisions and actions. They must ensure that fairness in the trial is maintained and all their actions conform to the standard of ‘rational manner’.[3] However, in specific circumstances, the ‘rationality review’ of the administrative law may be subject to more intense scrutiny by the courts, particularly if the decision by public authorities interferes with common law rights.[4] (such as access to justice and freedom of expression, as discussed in the previous section). In addition, the courts have also interpreted legislation under the presumption that Parliament’s decisions (due to lack of expertise) are not intended to allow public authorities to violate rights under common law unless there is an expressed justification in the statutory text that explains the effect (Higgins, 1997).
The requirements have emerged out of the case under consideration as well as other similar cases and are applicable on all acts and decisions of public bodies. Generally, the courts do not assume the power to review parliamentary decisions.[5] However, some eminent judges and academics have been concerned that in exceptional circumstances, the courts might refuse to acknowledge and implement an Act of Parliament if it contravenes the basic rule of law principles. There are also limitations on the capacity of the common law to protect individual rights in some other ways. Only those decisions of public authorities are subject to scrutiny by courts that are clearly unreasonable and are an outcome of flawed decision-making procedures due to the lack of a sound legal base. Thus, there are limitations on both common law and administrative law to serve as mechanisms to protect human rights. Additionally, there is also uncertainty in the content and scope of common law rights, such as a lack of a clear definition, which may cause public authorities to err in decision-making.[6]
The second layer of protection of human rights in the UK is the provisions of the European Convention on Human Rights (ECHR). It was drawn in 1950 by the Council of Europe, and in 1951, the UK was the first country to ratify it (Leigh and Masterman, 2008). The ECHR protects core political and civil rights, including the right to a fair trial and the freedom of expression. ECHR has the capacity to interpret the text of the provisions in the Convention and assess if signatory states are in conformity with the main requirements of ECHR. The UK is bound to agree on this jurisdiction, which implies that individuals can file litigation in the ECHR Court if they deem that they have exhausted all local legal remedies in the UK (Rivers, 2006).
Considering the national law, there is no obligation on the UK government or Parliament to respond to a ruling that the rights of an individual have been violated. In contrast to EU law, ECHR judgments have no direct impact on domestic law to prevent an effect on the sovereignty of Parliament after ratification of the ECHR. Nonetheless, as per Article 46 of the Convention, the member states are obliged and are bound to give effect to judgments of the Court (Shiner, 2024). There is also extreme diplomatic pressure on the member states to respect the Court’s authority. The Committee of Ministers of the Council of Europe oversees the degree of compliance of member states with the judgments and also makes sure that states demonstrate their commitment to democratic values and the rule of law. Therefore, it has been observed that various British governments have shown quick response to any negative judgments, and they have also made amendments to domestic law to ensure conformity with the ECHR (Kala and Bowden, 2024).
The R v Secretary case and the discussion above clearly state that although parliamentary sovereignty is one of the fundamental principles of the UK constitution yet, it does not guarantee unlimited power for Parliament in terms of legislation, specifically if any legislation violates or undermines basic human rights. In addition, the case also highlights that the parliament needs to provide explicit and unambiguous language in the bill if they are faced with restrictions on fundamental human rights (Endicott, 2021). On the other hand, this case also highlights the role of the courts in making sure that even general legislative language can be subjected to legal scrutiny and that courts must advocate the fundamental rights of individuals. In other words, the role of the court is to make sure that the legislation is aligned with the common law of human rights and that there are limitations on the legislative power of the Parliament (Leigh and Masterman, 2008).
Overall, as per the case law, in the UK, there is a lack of a distinct doctrine about constitutional statutes. The courts acknowledge the principle of legality, i.e. the interpretative presumption of the court that there is no intention of the Parliament to legislate in violation of fundamental constitutional rights, and therefore, the parliament can influence the rights by making statutes. On the other hand, the judgment also confirms the Parliament’s ability to enact clauses and influence fundamental human rights. The cumulative inference from the discussion above is that there is a high level of flexibility in the Constitution and that the courts have shown flexibility in applying and acknowledging Parliamentary actions.
Bibliography
Abry, D.K., 2024. Reflection on Judicial Approach to the Sovereignty of Parliament, the Separation of Powers, and the Rule of Law in the British Constitution. Available at SSRN 4802187.
Allan, T.R.S., 2006. Parliament’s will and the justice of the common law: the Human Rights Act in constitutional perspective. Current Legal Problems, 59(1), p.27.
Blackburn, R., 2020. THe future of uk constitutional law. In Routledge Handbook of Comparative Constitutional Change (pp. 369-387). Routledge.
Endicott, T., 2021. Administrative law. Oxford University Press.
Ewing, K.D., 1999. The human rights act and parliamentary democracy.
Fenwick, H., Phillipson, G. and Williams, A., 2020. Text, cases and materials on public law and human rights. Routledge.
Higgins, R., 1997. The role of domestic courts in the enforcement of international human rights: The United Kingdom. In Enforcing international human rights in domestic courts (pp. 37-58). Brill Nijhoff.
Jowell, J.L. and Oliver, D. eds., 2007. The changing constitution. Oxford University Press, USA.
Juss, S.S., 2006. Constitutionalising rights without a constitution: the British experience under Article 6 of the Human Rights Act 1998. Statute Law Review, 27(1), pp.29-60.
Kala, Z.F. and Bowden, I., 2024. Essential Constitutional and Administrative Law for SQE1. Taylor & Francis.
Leigh, I. and Masterman, R., 2008. Making Rights Real.
Liverpool, A., 2020. The Role of the Courts in the Devolution and Human Rights Arrangements.
O’Cinneide, C., 2012. Human rights and the UK constitution. The Changing Constitution, 67, p.68.
Rivers, J., 2006. Fundamental Rights in the UK Human Rights Act. In Arguing Fundamental Rights (pp. 141-154). Dordrecht: Springer Netherlands.
Shiner, B., 2024. The Right to Freedom of Thought in the United Kingdom in’The Cambridge Handbook on the Right to Freedom of Thought'(CUP, 2025) edited by Patrick O’Callaghan and Bethany Shiner. Available at SSRN 4971539.
[1] R v. A (No 2) [2001] U.K.HL. 25, [2002] 1 A.C. 45, para. 45.
[2] Allan, T.R.S., 2006. Parliament’s will and the justice of the common law: the Human Rights Act in constitutional perspective. Current Legal Problems, 59(1), p.27.
[3] Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935.
[4] R.v. Lord Saville of Newdigate, ex parte A [1999] 4 All ER 860.
[5] See Article IX of the Bill of Rights 1689.
[6] See judgement of Association of British Civilian Internees (Far Eastern Region) v Secretary of State for Defence [2003] EWCA Civ 473, paras 85-86.
