7
SILVER AND OTHERS v. THE UNITED KINGDOM JUGDMENT
before Parliament and made in accordance with the negative resolution
procedure, that is, they come into operation unless Parliament otherwise
resolves.
The rules made by the Home Secretary currently in force, a number of
which relate to prisoners’ correspondence, are the Prison Rules 1964, as
amended ("the Rules").
26. With a view to securing uniformity of practice throughout prison
establishments, the Home Secretary also issues to prison governors
management guides or directives in the form of Standing Orders ("Orders")
and Circular Instructions ("Instructions"). Unless otherwise authorised,
governors are required to comply with these directives, but they do not
have, or purport to have, the force of law.
At the time of the events giving rise to this case and until 30 November
1981, both Orders and Instructions contained, in addition to directives on
the control of prisoners’ correspondence, internal rules and guidance of a
general nature concerning the day to day administration of the prison. The
Orders and Instructions were made available to Members of both Houses of
Parliament for reference but not to the public or prisoners, although the
latter received, by means of cell cards, information about certain aspects of
the control of correspondence.
With effect from 1 December 1981, the directives on prisoners’
correspondence were substantially revised. In addition, revised Orders
relating to correspondence have been published in their entirety, matters of a
management or administrative nature which do not concern a prisoner’s
entitlement to correspond and were considered inappropriate for publication
having been eliminated from the Orders and embodied in Instructions. The
Rules themselves have not been amended, although the Government
indicated at the hearing before the Court that as soon as practicable Rule
34(8) (see paragraph 29 below) would be repealed in so far as it affected
correspondence.
27.
As far as prisoners’ correspondence is concerned, the Home
Secretary’s directives to governors were and are intended to serve a dual
function: on the one hand, to circumscribe the discretion conferred on
governors by the Rules, and, on the other, to state the manner in which the
Home Secretary has decided in certain respects to exercise his own
discretionary powers thereunder. The principal provisions which the Rules
contain on the subject are set out below, accompanied by a summary of:
(a) the relevant Orders and Instructions in force until 30 November 1981;
and
(b) the changes that took effect after that date.