Report No. 189

Likewise, Steyn LJ in R v. Secretary of State for Home Dept, ex p Leech: 1993

(4) All ER 539 (CA), was dealing with a prisoner who complained that correspondence with his solicitor concerning litigation in which he was involved or intended to launch, was being considered by the prison authorities under the Prisons Rules, 1964. The prisoner contended that sec. 47(1) of the Prisons Act, 1952 which authorised the framing of Rules, could not authorize the Secretary of State to make a rule which created an impediment to the free flow of communication between him and his solicitor about contemplated legal proceedings. The learned judge held as follows:

"It is a principle of our law that every citizen has a right of unimpeded access to a court. In Raymond v. Honey 1983 AC 1 (1982 (1) All ER 756) Lord Wilberforce described it as a 'basic right'. Even in our unwritten Constitution, it ranks as a constitutional right. In Raymond v. Honey, Lord Wilberforce said that there was nothing in the Prisons Act, 1952 that confers power to 'interfere' with this right or to 'hinder' its exercise. Lord Wilberforce said that rules which did not comply with this principle would be ultra vires. Lord ElwynJones and Lord Russell of Killowan agreed.

It is true that Lord Wilberforce held that the rules, properly construed, were not ultra vires. But that does not affect the importance of the observations. Lord Bridge held that rules in question in that case were ultra vires. He went further than Lord Wilberforce and said that a citizen's right to unimpeded access can only be taken away by express enactment. It seems (to) us that Lord Wilberforce's observation ranks as the ratio decidendi of the case, and we accept that such rights can as a matter of legal principle be taken away by necessary implication."

In yet another case in Re Vexatious Actions Act 1896, Re Boaler (1915) (1) KB 21, the right of a person to lay information before a magistrate was held, could not be prohibited, as the same could not be brought within vexatious 'legal proceedings' which could be prevented under the 1896 statute. It was held by Scrutton J as follows:

"One of the valuable rights of every subject of the King is to appeal to the King in his courts if he alleges that a civil wrong has been done to him, or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But the language of any statute should be jealously watched by the court, and should not be extended beyond its least onerous meaning unless clear words are used to justify extension. I approach the consideration of a statute which is said to have this meaning with the feeling that unless its language clearly convinces me that this was the intention of the Legislature I shall be slow to give effect to what is most serious interference with the liberties of the subject"

De Smith's Judicial Review of Administrative Action (5th Ed, 1995) was also quoted by Sir John Laws in Witham (para 5.017) as follows:

"It is a common law presumption of legislative intent that access of Queens's Court in respect of justiciable issues is not to be denied save by clear words in a statute"

Laws LJ., again reiterated in International Transport Roth Gmbitt v. Home Secretary, 2002 (3) WLR 344, in his separate judgment, that, after the coming into force of the Human Rights Act, 1998 (w.e.f. 2.10.2000), the British system which was once based on parliamentary supremacy has now moved from that principle to the system of constitutional supremacy. He referred to the judgment of Iacobucci J in Vriend v. Alberta, 1998 (1) SCR 493 where the judge said that after the Canadian Charter of Rights and Freedoms, Canada has moved from parliamentary supremacy to constitutional supremacy. He said:

"When the Charter was introduced, Canada went, in the words of former Chief Justice Brian Dickson, from a system of parliamentary supremacy to constitutional supremacy. Simply put, each Canadian was given individual rights and freedoms which no government or legislature could take away"

Laws LJ., stated that in the present state of evolution, the British system may be said to stand at an intermediate stage between parliamentary supremacy and constitutional supremacy."

Thus, from the above decisions, the concept of access to justice, can be understood as constituting an integral part of the constitutional and common law jurisdictions, and is considered sacrosanct and attempts to lightly interfere with the right are generally viewed strictly.