Pragmatism and Theory in English Law - College of Social Sciences ...

The Weaknesses of the Pragmatic Tradition 115
the rights of suspects and continue to pursue illegal detention
practices. 29
Let me now take another kind of issue which also raises
the Diceyan approach to constitutional rights. We have, of
course, no constitution guaranteeing the freedom of the
press in English law, and Dicey's approach was to say that
there was no such thing as a freedom of the press. The freedom
of the press simply follows from the ordinary rules of
English law which say that everybody is free to do anything
which is not specifically prohibited, but he does so under
and subject to the law. So the press may publish anything it
chooses provided it observes the law of libel, the law of contempt
and all the other laws which may affect the transmission
or publication of information. In Harman v. Home
Office 30 a question was raised as to the liability of a solicitor
for contempt of court in passing on to a journalist documents
in her possession under a discovery order, even
though those documents had been read out in open court
and could have been taken down by any reporter present.
Lord Diplock, delivering the leading judgment in that case
insisted that the case raised no questions about fundamental
rights. Indeed, he prefaced his speech by saying that the
case had attracted a good deal of publicity and that it was
therefore desirable to clear up misconceptions by saying
what the case was not about.
"It is not about freedom of speech, freedom of the press,
openness of justice or documents coming into the 'public
domain'; nor [he added for good measure, disagree-
29 For a more general discussion of the weakness of habeas corpus as a
remedy for protecting fundamental rights today, see Lester, "The Constitution:
Decline and Renewal," in The Changing Constitution (ed. Jowell
and Oliver 1985), at pp. 290-291.
30 |"19831 1 A.C. 280.