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

116 The Weaknesses of the Pragmatic Tradition
ing in this respect with the minority judges] does it in
my opinion call for consideration of any of those
human rights and fundamental freedoms which [are
protected by the European Convention of Human
Rights]." 31
The case was, said Lord Diplock, simply about the rules
governing the conduct of a solicitor who has obtained documents
under an order for discovery. Now I am bound to say
that this approach, based though it is on the traditional
Diceyan explanation of constitutional rights, seems very
unsatisfactory. What Lord Diplock totally failed to understand,
it seems to me, is that a case may be about more than
one question; indeed, even on the Diceyan view, constitutional
rights arise and must be decided incidentally in the
course of ordinary litigation. But that they do so arise it
seems utterly absurd to deny. Of course the Harman case
raised issues about the use of documents obtained in discovery
proceedings, but it also raised issues about the right
of the press to make use of information, as Lord Scarman
and Lord Simon rightly insisted in their dissenting speech.
But there is a second problem with the approach of Lord
Diplock and the other majority judges in the Harman case. If
it is insisted that our law recognises no such thing as a fundamental
or a constitutional right—and in the more recent
Guardian case 32 Lord Diplock again refused to treat the freedom
of the press as a "constitutional right"—then the
judges will be failing in one of their basic duties. They will
be failing to accord due weight to certain values in the
inescapable policy choices which they are called upon to
make as judges. Obviously, if our constitutional rights can
31 At p. 299.
32 Secretary of State v. Guardian Newspapers [1985] A.C. 339, at p. 345.