Magna Carta in UK Law

Delay of this order appears to me to infringe at least two human rights recognised, and therefore protected, by English law. This hallowed principle of our law is now reinforced by the European Convention on Human Rights to which it is now the duty of our public authorities in administering the law, including the Immigration Act, and of our Courts in interpreting and applying the law, including the Act, to have regard: see the case of Bhajan Singh in this Court, 19th May 1973.

Section 141 of the Mental Health Act 1959 places a hindrance on the recourse of a class of citizens to the courts of justice. The mischief and the parliamentary objective must be similar. It must have been conceived that, unless such classes of potential litigant enjoy something less than ready and unconditional access to the courts, there is a real risk that their fellow-citizens would be, on substantial balance, unfairly harassed by litigation.

At the end of the day, however, I accept the submission of Mr Chamberlain that the original order made against RB authorised, and authorised only, detention in a hospital (see section 37 and section 41(3)(a) of the MHA, set out above). It has been so regarded since at least the time of the well-known provisions of clause 39 of Magna Carta, which in due course found its reflection in article 9 of the Universal Declaration of Human Rights and article 5 of the Convention.

As we are all well aware, no adult citizen of the United Kingdom is liable to be confined in any institution against his will, save by the authority of law. That is a fundamental constitutional principle, traceable back to chapter 29 of Magna Carta 1297, and before that to chapter 39 of Magna Carta 1215. There are, of course, situations in which the law sanctions detention. The most obvious is in the case of those suspected or convicted of crime.

Powers therefore exist to ensure that those who suffer from mental illness may, in appropriate circumstances, be involuntarily admitted to mental hospitals and detained. But, and it is a very important but, the circumstances in which the mentally ill may be detained are very carefully prescribed by statute. Thus we find in the statute a panoply of powers combined with detailed safeguards for the protection of the patient.

It was urged that we ought not to strike out a man's action without trial because it meant depriving him of his right to come to the Queen's Courts. Magna Carta was invoked against us as if we were in some way breaking its provisions. To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it. "To no-one will we deny or delay right or justice". Magna Carta: Ch. 40.

And, he submitted, the right of a "belonger" not to be excluded from the territory to which he belonged was just such a fundamental principle. As support for its existence, in addition to chapter 29 of Magna Carta, Sir Sydney cited the statement of Blackstone, Commentaries on the Laws of England (15th edition, 1809) vol 1, p 137, that "no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal."