Civil Liberties in England
Chapter Seventy-Five
Syllabus topic 4, "Civil Liberties and Emergency"
Pages 361 to 365 of 657
In one line
In England a person is free to do anything the law has not forbidden, and the whole protection lies in the courts and in the difficulty of getting Parliament to forbid it.
In the wording a student can write in an exam: civil liberties in England rest not on a written guarantee but on the residual principle that a person may do anything which the law does not prohibit, on the sovereignty of Parliament, and on the ordinary courts in which any interference with liberty must be justified by pointing to a specific legal authority. Dicey described this as the second and third meanings of the rule of law: equality before the ordinary law administered by the ordinary courts, and a constitution which is the result rather than the source of the rights of individuals. Since the Human Rights Act 1998 the position has changed in form, the rights of the European Convention having been made enforceable in domestic courts, but the sovereignty of Parliament survives, since the courts may declare legislation incompatible with those rights but may not invalidate it.
The residual conception
The organising idea is negative. There is no list of what a person may do; there is a list of what he may not, and the residue is his liberty. Freedom of speech in England was traditionally described not as a right to speak but as the absence of any law forbidding the particular speech; freedom of assembly as the liberty of a number of persons to do together what each may lawfully do alone.
Two consequences follow, and an answer should give both.
The protection is strong against officials. An official who interferes with a person must point to positive legal authority for what he did, and if he cannot, he is a trespasser and is liable in the ordinary courts like anyone else. That is Dicey's second meaning of the rule of law, worked in [Rule of Law: Dicey's Three Meanings], and it is the strongest thing in the English system.
The protection is weak against Parliament. If Parliament forbids the speech, the liberty ends, and no court can say otherwise. There is nothing above the statute.
Parliamentary sovereignty, and what it means for liberty
Dicey's account is that Parliament has the right to make or unmake any law whatever, and that no person or body has a right to override or set aside its legislation. Applied to civil liberties this means there is no constitutional guarantee that a court can enforce against an Act, and it explains why English constitutional writing about liberty is largely about the courts' interpretation of statutes rather than about their validity.
The compensating doctrine is the principle of legality: the courts presume that Parliament did not intend to abrogate fundamental rights unless it said so in clear words. A general power is read narrowly where liberty is at stake. That principle does the work in England that judicial review of legislation does in India, and it is weaker, because it yields to clear words.
Civil Liberties in England
Dicey's account, and the criticism of it
Dicey held that the English constitution protected liberty better than a written one, because the English rights were not declared in a document but were the result of ordinary law developed in ordinary litigation, so that the remedy came with the right and could not be suspended by suspending a document. He contrasted the guarantees of continental constitutions, which he thought could be swept away by a decree in a crisis.
Three criticisms are standard, and an LL.M. answer should give them.
It underestimates the executive. Dicey wrote before the growth of administrative discretion, and his account of officials liable in the ordinary courts sits badly with the modern statutory power exercisable on an official's subjective satisfaction.
It underestimates Parliament. The very sovereignty that Dicey celebrated is what makes an English liberty removable by a majority in a single afternoon, and the twentieth century supplied examples.
It underestimates the value of entrenchment. The Indian experience is that a written guarantee gives a court something to measure a statute against, which the principle of legality does not.
But Dicey's central point survives the criticisms and should be conceded: a right without a remedy is a slogan, and a system in which the remedy comes with the right is more robust than one in which the right is declared and the remedy separately provided. That is exactly the point on which India's own crisis turned, since in 1975 the rights remained and the remedy was suspended.
Habeas corpus, the practical guarantee
The English protection of personal liberty is procedural rather than substantive: not a declaration that liberty is inviolable, but a writ requiring the person detaining another to produce him and justify the detention. Its history and its wartime testing are the subject of [Habeas Corpus in England, and the Wartime Detention Cases].
The point to carry into that chapter is that the writ tests the legality of the detention, and where Parliament has authorised detention on a Minister's subjective satisfaction, the legality is easily shown and the writ becomes formal. A procedural guarantee is only as strong as the substantive law it tests.
What the Human Rights Act 1998 changed
The Act gave further effect in domestic law to the rights of the European Convention on Human Rights, and the change of form is important.
Civil Liberties in England
Public authorities must act compatibly with the Convention rights, and a person may bring proceedings against a public authority which does not.
Legislation must be read and given effect compatibly with the Convention rights so far as it is possible to do so, which is a strong interpretive obligation going beyond the old principle of legality.
Where compatibility is impossible, the higher courts may make a declaration of incompatibility, which does not affect the validity or continuing operation of the legislation. Parliament decides what to do about it.
That last feature is the whole design. England moved much of the substance of a bill of rights into its law while keeping parliamentary sovereignty, by giving the courts a power to declare rather than to invalidate.
The comparison MU asks for
Set out as a table, because that is how it is answered.
| England | India | |
|---|---|---|
| Source of liberty | residual: whatever the law does not forbid | conferred and entrenched in Part III |
| Guarantee against the legislature | none; Parliament is sovereign | a law inconsistent with Part III is void under article 13 |
| Guarantee against the executive | strong: the official must show legal authority or be liable in the ordinary courts | the same, plus the writ jurisdictions |
| Instrument of enforcement | ordinary remedies, habeas corpus, and since 1998 the Human Rights Act | articles 32 and 226, the remedy itself a fundamental right |
| Court's power over an incompatible statute | declaration of incompatibility only | invalidation |
| Position in an emergency | Parliament legislates; the courts construe | proclamation under Part XVIII; art 358 suspends art 19; art 359 suspends remedies, but never for arts 20 and 21 |
| Characteristic failure | a bad statute cannot be struck down | a good right can be left without a remedy |
The last row is the sentence to write in an examination. The English failure is legislative; the Indian failure is remedial. England's liberties can be taken away by a statute no court can touch. India's liberties survived 1975 on paper and could not be enforced.
Why the comparison matters to this paper
Because MU's emergency question is whether the Indian design worked, and the honest answer requires a standard of comparison.
Judged against England, India's design is better in exactly the way Dicey doubted: article 13 lets a court strike down a preventive detention statute that violates Part III, and no English court could have done the same to a Defence Regulation. Judged against England, India's design failed in exactly the way Dicey predicted, because a document that can be suspended is weaker than a remedy that grows with the right; and the answer of the 44th Amendment was to make the crucial part of the document unsuspendable.
A worked example
A Government proposes to detain persons without trial during a security crisis, and asks what it may lawfully do in each system.
Civil Liberties in England
In England before 1998. Parliament passes an Act or authorises regulations providing for detention on the Secretary of State's reasonable belief. No court can question the Act. Habeas corpus lies, but the return will show the Minister's order, and the courts' scrutiny will turn on statutory construction.
In England after 1998. The same Act may be passed, but it must be read compatibly with the Convention rights so far as possible, and if it cannot, a higher court may declare it incompatible; the Act remains in force and Parliament responds.
In India. A detention law must satisfy article 22, which prescribes the grounds, the Advisory Board and the maximum period; a law that does not is void under article 13; and an order under it can be tested on the grounds worked in Module I.
In India during an emergency. Article 358 may suspend article 19; a Presidential order under article 359 may suspend the right to move a court for specified rights, but not for articles 20 and 21.
Which system protects better? Against the legislature, India. Against the executive, both, and England's ordinary law liability is if anything the stronger tradition. In a genuine crisis, the answer depends on whether the courts stay open, which is the lesson of both systems.
What it does NOT mean
England has no civil liberties. It has strong ones, differently sourced.
The Human Rights Act 1998 gave England a written constitution. It gave courts an interpretive obligation and a power to declare incompatibility, not a power to invalidate.
Dicey has been refuted. His account of officials and ordinary courts remains sound; his optimism about parliamentary sovereignty has not worn as well.
India simply copied England. India took the writs and the ordinary law liability, and rejected the absence of entrenched rights.
Quick revision
- Residual principle: a person may do anything the law does not forbid, so liberty is the residue.
- Parliamentary sovereignty means no court may invalidate a statute; the compensating doctrine is the principle of legality, that fundamental rights are not abrogated except by clear words.
- Dicey: rights are the result rather than the source of the constitution, and the remedy comes with the right.
- Criticisms: the account underestimates administrative discretion, underestimates what a sovereign Parliament can do, and undervalues entrenchment.
- Human Rights Act 1998: public authorities must act compatibly; legislation to be read compatibly so far as possible; higher courts may declare incompatibility, which does not affect validity or continuing operation.
- The comparison: England's characteristic failure is legislative, India's is remedial.
Test yourself
1. State the residual conception of liberty and one consequence on each side. That a person may do anything the law does not prohibit; the consequence in his favour is that an official interfering with him must show positive legal authority or be liable in the ordinary courts, and the consequence against him is that Parliament may prohibit the activity and no court can prevent it.
Civil Liberties in England
2. What is the principle of legality, and why is it weaker than judicial review? That the courts presume Parliament did not intend to abrogate fundamental rights unless it says so in clear words; it is weaker because it yields to clear words, whereas judicial review under article 13 can strike the statute down.
3. What did the Human Rights Act 1998 change, and what did it preserve? It required public authorities to act compatibly with the Convention rights and required legislation to be read compatibly so far as possible, and it empowered the higher courts to declare incompatibility; it preserved parliamentary sovereignty, since a declaration does not affect the validity or continuing operation of the legislation.
4. State the characteristic failure of each system. In England the failure is legislative, because a statute taking away a liberty cannot be struck down; in India the failure is remedial, because a right can be left in existence with its enforcement suspended, as happened in 1975.
5. Which part of Dicey's argument survives the criticism of it? That a right without a remedy is a slogan, and that a system in which the remedy comes with the right is more robust than one in which the right is declared and the remedy separately provided; which is the very point on which the Indian crisis of 1975 turned.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.