Secretary of State for the Home Department, Ex Parte Simms Secretary of State for the Home Department, Ex Parte O'Brien, R v.

Facts

Simms and O Brien were prisoners serving life sentences for murder who continued to maintain that they were innocent. They wished to give oral interviews to journalists who were investigating their convictions with a view to showing that they were wrongly convicted. A policy of the Prison Service, contained in a standing order and a circular instruction, prevented prisoners from giving oral interviews to journalists, though they could write to them.

History

They sought judicial review of the policy and the challenge failed in the courts below. They appealed to the House of Lords.

Issue

Whether the Home Secretary had power under the Prison Act 1952 and the Prison Rules to impose a blanket ban on face to face interviews between prisoners and journalists, when the interviews were sought for the purpose of investigating alleged miscarriages of justice.

Held

Appeals allowed. The policy was unlawful insofar as it was a blanket ban, because the general power to make rules for the regulation of prisons did not authorise the infringement of the fundamental right of free expression and access to justice in the case of prisoners who maintained their innocence.

Ratio

• Fundamental rights cannot be overridden by general or ambiguous words in a statute. Parliament must squarely confront what it is doing, and express its intention to interfere with such rights in clear terms or by necessary implication.
• A general power to make rules for prisons is not a power to impose a blanket restriction on the right of a prisoner to communicate with journalists for the purpose of challenging his conviction, since the restriction goes further than is necessary for the legitimate objectives of prison discipline and control.

The judgments

Key reasoning

• The rights concerned were freedom of expression, and the right of access to justice, and those rights exist in prison unless taken away by necessary implication.
• The restriction was not needed for the legitimate aims of order and discipline in prisons, because less restrictive measures, such as controlling the conduct of interviews, were available.
• In the absence of express words or necessary implication, the general words conferring the power to make rules did not carry the power to restrict fundamental rights in this way.

Where it fits in the module

In the module on legality and constitutional statutes the case marks how the common law protects fundamental rights without a written constitution. It provides a basis for the claim that parliamentary sovereignty is limited in practice because the political cost of overriding rights must be accepted by Parliament. The discussion turns on the basis of the principle in the common law, its relationship with the Human Rights Act 1998, and the later cases applying it, and how far the principle acts as a rule of construction or as a constitutional limit.

Criticisms

• The principle of legality is presented as a presumption about Parliament intention, but it allows the judges to decide which rights are fundamental, so it can be said to give courts a substantive power to protect values they choose.
• Because it works only as a rule of construction, it provides no protection where Parliament uses clear words, so it does not limit sovereignty in a strict sense, and the rhetoric about political cost may overstate the constraint.
• The principle sits uneasily with the approach under the Human Rights Act 1998, where the interpretative obligation is statutory and stronger, and the relationship between the two sources of protection remains unclear.