• In the case of R v Home Secretary ex parte Simms [2002] 2 ac 115, it was found that the principle of legality is a common law fundamental right which cannot be overtaken by general or ambiguous words in Acts of Parliament.
  • If a fundamental common law right is to be overridden, it would have to be done so expressly by an Act of Parliament.

Facts of the Case

  • D, the Home Secretary, put forth a ban on prisoners being interviewed by journalists under Rule 33 of the Prison Rules 1964.
  • C, Simms and another, were prisoners who were both given a life sentence.
  • Cs applied for judicial review against D’s blanket ban on the ground that this breached their right to free speech in common law.

Issues

  • Was D’s ban on prisoners giving interviews to journalists in contravention to their common law right to free speech?

Held by the House of Lords

  • The House of Lords allowed the appeal and found that the ban on the prisoners giving an interview to journalists infringed their right to free speech under common law.

Lord Hoffman

  • Lord Hoffman emphasised the principle of legality and found that any restrictions exercised by Parliament are more political than legal.
  • It was upheld that common law principles, including the principle of legality, is applicable to all legislation, including subordinate legislation.
  • “The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.” [131]
  • His Lordship asserted the high nature of the common law rights individuals possess which cannot be overridden unless they were intended to be done so by an express provision of legislation.
  • “In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”

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