Judgments - Regina v Her Majesty's Attorney General (Appellant) ex parte Rusbridger and another (Respondents)

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    57. Approaching the matter in that way, I am satisfied that the present is not a very exceptional case of that kind. The claimants have published articles supporting a transition to a republic and, even though Mr Rusbridger specifically drew the articles to the attention of the Attorney-General, they have not been prosecuted. They want to publish similar articles in the future and, if they do so, they will not be prosecuted then either. Their decisions as to whether or not to publish such articles are not affected in any way by the existence of section 3. The issue of the compatibility or incompatibility of that section with article 10 is therefore moot so far as the claimants are concerned. It is also moot in respect of other people: the claimants themselves make the point that "It is most unlikely that the issue will ever be decided by the criminal courts in the course of an actual prosecution, given the absence of any such prosecution (despite some published republican advocacy) over the last century." The Divisional Court is therefore being asked to make a declaration about a point of criminal law because a criminal court will never have to decide it. So far from this being the kind of very exceptional case where the interests of justice require that the claimants should be able to obtain a declaration from the Divisional Court, it is exactly the kind of case where they should not.

    58. It is not the function of the courts to keep the statute book up to date. That important responsibility lies with Parliament and the executive. As long ago as 1977 the Law Commission recommended reform of the law of treason and allied offences. Parliament has not so far found the time to enact legislation to give effect to that recommendation. Successive Home Secretaries have given a higher priority to other reforms. While that might seem unfortunate, it is ultimately a matter for the political judgment of the executive and Parliament. The claimants are, of course, free to use their influence in a campaign to try to change that political judgment. But it would be wrong in principle for the courts to allow the claimants to go on with proceedings where the only favourable outcome of any practical use to them would be a declaration of incompatibility that they could use to further any such political campaign.


My Lords,

    59. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. I agree with Lord Steyn that this appeal should be allowed for the reasons set out in his speech, with the consequence that the Court of Appeal's order would be quashed. I add a few remarks of my own.

    60. Lord Steyn has described section 3 of the 1848 Act as a relic of a bygone age. I agree. It is inconceivable that it could be invoked in the 21st Century in order to punish anyone who advocates that a republican form of government should be established by peaceful means. Mr Rusbridger himself (in his first letter to the Attorney General) said that the law had "become in effect a dead letter". In the statement of facts which Mr Rusbridger verified he said no more than that he was "concerned" about the law. Before this House his counsel did not challenge the Court of Appeal's observation that Mr Rusbridger was not losing sleep because of the 1848 Act.

    61. In my opinion it is most undesirable that obsolete statutes should remain unrepealed. Quaint language and interesting historical associations are no justification for preserving obsolete statutes in a mummified state. But as the Attorney General replied to Mr Rusbridger, it is still the role of the legislature, rather than that of the courts, to decide whether to repeal or retain legislation. Sections 3 and 4 of the Human Rights Act 1998 are intended to promote and protect human rights in a practical way, not to be an instrument by which the courts can chivvy Parliament into spring-cleaning the statute book, perhaps to the detriment of more important legislation. Such a spring-cleaning process might have some symbolic significance but I can see no other practical purpose which this litigation would achieve.

    62. However to conclude (as I do) that the litigation is unnecessary does not display the slightest enthusiasm for the continued existence of section 3 of the 1848 Act if and so far as it could theoretically apply to the expression of political opinion advocating non-violent constitutional change.

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