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(e)
A new statutory basis for vexatious litigant orders and constitutional
requirements
In Hong Kong, as discussed in Section 3
above, constitutional protection of the right
of access to the courts and to a fair and public hearing is given potency by BL 35 and
Hong Kong residents shall not be restricted unless as prescribed by law."
Accordingly, given the abovementioned doubts as to the legal foundations of the
"extended Grepe v Loam order", it is the Working Party's view that we should ensure
that the innovations of Ebert v Venvil are secured by a clearly-defined statutory rule
specifically empowering the courts to stop threatened abuse in the form of new
proceedings without the need for intervention by the Secretary for Justice.
It is true that Lord Woolf in Ebert v Venvil discounted any possible inconsistency
between extended Grepe v Loam orders and Art 6(1) of the ECHR (our equivalent
being BOR 10) on the ground that "Article 6 does no more than reflect the approach of
the common law indicated by Laws J in Reg v Lord Chancellor, Ex parte Witham
[1998] QB 575." However, the analysis in Ex p Witham proceeds explicitly on the
orthodox basis that access to the courts is a constitutional right at common law which
can only be abrogated by the legislature. That was the basis on which Laws J
commented that the common law provides no lesser protection of access to the courts.
Thus, Laws J stated (at 581) :-
"In the unwritten legal order of the British state, at a time when the common law continues to
accord a legislative supremacy to Parliament, the notion of a constitutional right can in my
judgment inhere only in this proposition, that the right in question cannot be abrogated by the
state save by specific provision in an Act of Parliament, or by regulations whose vires in
main legislation specifically confers the power to abrogate. General words will not suffice.
And any such rights will be creatures of the common law, since their existence would not be
the consequence of the democratic political process but would be logically prior to it."
His Lordship continued (at 585) :-
"It seems to me, from all the authorities to which I have referred, that the common law has
clearly given special weight to the citizen's right of access to the courts. It has been described
as a constitutional right, though the cases do not explain what that means. In this whole
argument, nothing to my mind has been shown to displace the proposition that the executive
cannot in law abrogate the right of access to justice, unless it is specifically so permitted by
Parliament; and this is the meaning of the constitutional right."
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