Common Law and Constitutional Rights

Distinguishing Case Law Securing Individual Rights

Aug 10, 2009

It is through distinguished cases that date back to the 1700's and more recent ones that an individuals rights have been preserved at all costs.

In the distinguished case of Entick v Carrington [1765] case constitutional rights for individuals and protection of these rights from the Executive were demonstrated.

Entick was a critic of the Kingwhose house was raided under 'general warrant' while searching for what was thought to be papers of seditious writing. The warrant was issued by the General Secretary who hadno authority to issue such a warrant.

Lord Camden made it very clear that if government would interfere with individuals rights, it would have to be very 'point specific' and since this was not the case here, the Kings Agents were trespassing.

Interference with the Freedom of Speech

InR v Secretary of State for the Home Department ex p Simms and Another [1999]the Home Secretary imposed a blanket ban excluding visits to prisoners by journalist for interviews. This interfered with the freedom of speech. In the absence of express language of the legislation the courts will presume that Parliament intended to infringe the basic human rights of an individual.

Characteristics Revealed in Recent Reforms

This case led to the enactment of the Human Rights Act 1998 for the protection of individual human rights. The incorporation of the ECHR (European Convention on Human Rights) into UK law has brought a Scottish Parliament, a Welsh Assembly, devolution of Northern Ireland, strategic authority for London, reform of the House of Commons and the House of Lords and a

The Freedom of Information Act is especially important because it provides access to any Federal agency records except to the extent that they are protected from release by FOIA or special law enforcement exemption law.

Actions Available for Infringement of Human Rights

If an individual believes that his rights have been violated by s(1) of HRA 1998 the court can issue a 'declaration of incompatibility' and the individual can seek relief through Strasbourg, the highest court.

In order to a case reviewed one must make an application under Judicial Review or Preliminary Reference of which the judge will decide if the 'law erred' in its judgment and send it back to the lower court or not. If the Judge does not issue a declaration of incompatibility, the other option is to file an Appeal to Strasbourg.

Judicial Review Has a Time Limit to Commence Action and Needs Standing

Grounds for Judicial Review are illegality, irrationality and procedural impropriety. HRA illegality lies within the scope of human rights violations. A case must have 'standing' to be presented for Judicial Review. See: R v Her Majesty's Treasury ex p Smelly [1985] where a taxpayer had sufficient standing to challenge a government undertaking to pay a contribution to the European Community. Claim must be filed within 3 months of the alleged infringement.

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