Regina
v.
Secretary of State for the Home Department (Respondent) ex
parte Brind and others (Appellants)
JUDGMENT
Die Jovis 7° Februarii 1991
Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Secretary of State for the
Home Department ex parte Brind and others, That the Committee
had heard Counsel as well on Monday the 19th as on Tuesday the
20th, Wednesday the 21st and Thursday the 22nd days of
November last, upon the Petition and Appeal of Donald Malcolm
Brind of 30 Cloudesdale Road, London SW17, Fred Albert Emery
of 4 Woodsyre, London SE26, Alexander Graham of 31 Stanhope
Gardens, London N6, Victoria Leonard of 138 Thorpedale Road,
London N4, Scarlett McGwire of 102 Finsbury Park Road, London
N4, Thomas Edward Nash of 25 Avenall Road, London N5 and John
Edward Pilger of 57 Hambalt Road, London SW4, praying that the
matter of the Order set forth in the Schedule thereto, namely
an Order of Her Majesty’s Court of Appeal of the 6th day of
December 1989, might be reviewed before Her Majesty the Queen
in Her Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioners might have
such other relief in the premises as to Her Majesty the Queen
in Her Court of Parliament might seem meet; as upon the case
of the Secretary of State for the Home Department lodged in
answer to the said Appeal; and due consideration had this day
of what was offered on either side in this Cause:
Tt is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Civil Division) of the 6th day of December 1989
complained of in the said Appeal be, and the same is hereby,
Affirmed and that the said Petition and Appeal be, and the
same is hereby, dismissed this House: And it is further
Ordered, That the Appellants do pay or cause to be paid to the
said Respondent the Costs incurred by him in respect of the
said Appeal, the amount thereof to be certified by the Clerk
of the Parliaments if not agreed between the parties.
Cler: Parliamentor:
Judgment: 7.2.91
REGINA
v.
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(RESPONDENT)
ex parte
BRIND AND OTHERS
(APPELLANTS)
Lord Bridge of Harwich
Lord Roskill
Lord Templeman
Lord Ackner
Lord Lowry
LORD BRIDGE OF HARWICH
My Lords,
This appeal has been argued primarily on the basis that the
power of the Secretary of State, under section 29(3) of the
Broadcasting Act 1981 and under clause 13(4) of the Licence and
Agreement which governs the operations of the BBC, to impose
restrictions on the matters which the IBA and the BBC
respectively may broadcast may only be lawfully exercised in
accordance with Article 10 of the European Convention on Human
Rights. Any exercise by the Secretary of State of the power in
question necessarily imposes some restriction on freedom of
expression. The obligations of the United Kingdom, as a party to
the Convention, are to secure to every one within its jurisdiction
the rights which the Convention defines including both the right to
freedom of expression under Article 10 and the right under Article
13 to “an effective remedy before a national authority” for any
violation of the other rights secured by the Convention. It is
accepted, of course, by the appellants that, like any other treaty
obligations which have not been embodied in the law by statute,
the Convention is not part of the domestic law, that the courts
accordingly have no power to enforce Convention rights directly
and that, if domestic legislation conflicts with the Convention, the
courts must nevertheless enforce it. But it is already well settled
that, in construing any provision in domestic legislation which is
ambiguous in the sense that it is capable of a meaning which
either conforms to or conflicts with the Convention, the courts
will presume that Parliament intended to legislate in conformity
with the Convention, not in conflict with it. Hence, it is
submitted, when a statute confers upon an administrative authority
a discretion capable of being exercised in a way which infringes
any basic human right protected by the Convention, it may
similarly be presumed that the legislative intention was that the
discretion should be exercised within the limitations which the
Convention imposes. I confess that I found considerable persuasive
force in this submission. But in the end I have been convinced
that the logic of it is flawed. When confronted with a simple
choice between two possible interpretations of some specific
statutory provision, the presumption whereby the courts prefer that
which avoids conflict between our domestic legislation and our
international treaty obligations is a mere canon of construction
which involves no importation of international law into the
domestic field. But where Parliament has conferred on the
executive an administrative discretion without indicating the
precise limits within which it must be exercised, to presume that
it must be exercised within Convention limits would be to go far
beyond the resolution of an ambiguity. It would be to impute to
Parliament an intention not only that the executive should exercise
the discretion in conformity with the Convention, but also that the
domestic courts should enforce that conformity by the importation
into domestic administrative law of the text of the Convention and
the jurisprudence of the European Court of Human Rights in the
interpretation and application of it. If such a presumption is to
apply to the statutory discretion exercised by the Secretary of
State under section 29(3) of the Act of 1981 in the instant case,
it must also apply to any other statutory discretion exercised by
the executive which is capable of involving an infringement of
Convention rights. When Parliament has been content for so long
to leave those who complain that their Convention rights have
been infringed to seek their remedy in Strasbourg, it would be
surprising suddenly to find that the judiciary had, without
Parliament’s aid, the means to incorporate the Convention into
such an important area of domestic law and I cannot escape the
conclusion that this would be a judicial usurpation of the
legislative function.
But I do not accept that this conclusion means that the
courts are powerless to prevent the exercise by the executive of
administrative discretions, even when conferred, as in the instant
case, in terms which are on their face unlimited, in a way which
infringes fundamental human rights. Most of the rights spelled out
in terms in the Convention, including the right to freedom of
expression, are less than absolute and must in some cases yield to
the claims of competing public interests. Thus, Article 10(2) of
the Convention spells out and categorises the competing public
interests by reference to which the right to freedom of expression
may have to be curtailed. In exercising the power of judicial
review we have neither the advantages nor the disadvantages of
any comparable code to which we may refer or by which we are
bound. But again, this surely does not mean that in deciding
whether the Secretary of State, in the exercise of his discretion,
could reasonably impose the restriction he has imposed on the
broadcasting organisations, we are not perfectly entitled to start
from the premise that any restriction of the right to freedom of
expression requires to be justified and that nothing less than an
important competing public interest will be sufficient to justify it.
The primary judgment as to whether the particular competing
public interest justifies the particular restriction imposed falls to
be made by the Secretary of State to whom Parliament has
entrusted the discretion. But we are entitled to exercise a
secondary judgment by asking whether a reasonable Secretary of
State, on the material before him, could reasonably make that
primary judgment.
Applying these principles to the circumstances of the case,
of which I gratefully adopt the full account given in the speech of
my learned and noble friend Lord Ackner, I find it impossible to
2 –
say that the Secretary of State exceeded the limits of his
discretion. In any civilised and law-abiding society the defeat of
the terrorist is a public interest of the first importance. That
some restriction on the freedom of the terrorist and his supporters
to propogate his cause may well be justified in support of that
public interest is a proposition which I apprehend the appellants
hardly dispute. Their real case is that they, in the exercise of
their editorial judgment, may and must be trusted to ensure that
the broadcasting media are not used in such a way as will afford
any encouragement or support to terrorism and that any
interference with that editorial judgment is necessarily an
unjustifiable restriction on the right to freedom of expression.
Accepting, as I do, their complete good faith, I nevertheless
cannot accept this proposition. The Secretary of State, for the
reasons he made so clear in Parliament, decided that it was
necessary to deny to the terrorist and his supporters the
opportunity to speak directly to the public through the most
influential of all the media of communication and that this
justified some interference with editorial freedom. I do not see
how this judgment can be categorised as unreasonable. What is
perhaps surprising is that the restriction imposed is of such limited
scope. There is no restriction at all on the matter which may be
broadcast, only on the manner of its presentation. The viewer
may see the terrorist’s face and hear his words provided only that
they are not spoken in his own voice. I well understand the
broadcast journalist’s complaint that to put him to the trouble of
dubbing the voice of the speaker he has interviewed before the
television camera is an irritant which the difference in effect
between the speaker’s voice and the actor’s voice hardly justifies.
I well understand the political complaint that the restriction may
be counter-productive in the sense that the adverse criticism it
provokes outweighs any benefit it achieves. But these complaints
fall very far short of demonstrating that a reasonable Secretary of
State could not reasonably conclude that the restriction was
justified by the important public interest of combating terrorism.
I should add that I do not see how reliance on the doctrine of
“proportionality” can here advance the appellants’ case. But I
agree with what my noble and learned friend Lord Roskill says in
his speech about the possible future development of the law in
that respect.
I would dismiss the appeal.
LORD ROSKILL
My Lords,
I agree that this appeal must be dismissed. For the reasons
given in the speech of my noble and learned friend Lord Bridge of
Harwich which I have had the advantage of reading in draft and
with which I entirely agree. I add some observations of my own
only on one matter, namely, the principle of “proportionality.”
Reliance was placed on behalf of the appellants upon a passage in
the speech of my noble and learned friend, Lord Diplock, in
C.C.S.U. v. Minister for the Civil Service [1985] AC 374 at 410,
where, after establishing his triple categorisation of the fields in
which judicial review might operate, he added:
– 3 –
“That is not to say that further development on a case by
case basis may not in course of time add further grounds. I
have in mind particularly the possible adoption in future of
the principle of ‘proportionality’ which is recognised in the
administrative law of several of our fellow members of the
European Economic Community; but to dispose of the instant
case the three already well-established heads that I have
mentioned will suffice.”
In that passage my noble and learned friend was concerned
to make plain, first, that his triple categorisation was not
exhaustive and, secondly, that the time might come when further
grounds might require to be added notably by reason of the
“possible adoption” of that principle in this country. He clearly
had in mind the likely increasing influence of Community law upon
our domestic law which might in time lead to the further adoption
of this principle as a separate category and not merely as a
possible reinforcement of one or more of these three stated
categories such as irrationality. My noble and learned friend
emphasized that any such development would be likely to be on a
case by case basis. I am clearly of the view that the present is a
not a case in which the first step can be taken for the reason
that to apply that principle in the present case would be for the
court to substitute its own judgment of what was needed to
achieve a particular objective for the judgment of the Secretary of
State upon whom that duty has been laid by Parliament. But so
to hold in the present case is not to exclude the possible future
development of the law in this respect, a possibility which has
already been canvassed in some academic writings.
LORD TEMPLEMAN
My Lords,
Freedom of expression is a principle of every written and
unwritten democratic constitution. That principle is not absolute;
there are exceptions. The principle and the exceptions are the
subject of Article 10 of the European Convention on Human Rights
and the decisions of the European Court of Human Rights. The
United Kingdom adheres to the Convention and Her Majesty’s
Government are satisfied that the laws of the United Kingdom are
in conformity with their obligations under the Convention.
The Home Secretary, in the exercise of powers conferred on
him by Parliament, has imposed restrictions on freedom of
expression within the terms and for the reasons set forth in the
evidence and in the speech of my noble and learned friend, Lord
Ackner. The Home Secretary has forbidden the television and
radio authorities knowingly to allow a member or supporter of a
recognised terrorist organisation to make a live transmission. The
Home Secretary has imposed this restriction because, supported by
a majority of the members of the House of Commons, he believes
that the live appearances of terrorist members and supporters
cause outrage and fear and to give a wholly false impression of
the strength and legitimacy of terrorism, thus encouraging
terrorism which is a foul crime.
– 4 –
The discretionary power of the Home Secretary to give
directions to the broadcasting authorities imposing restrictions on
freedom of expression is subject to judicial review, a remedy
invented by the judges to restrain the excess or abuse of power.
On an application for judicial review, the courts must not
substitute their own views for the informed views of the Home
Secretary. In terms of the Convention, as construed by the
European Court, a “margin of appreciation” must be afforded to
the Home Secretary to decide whether and in what terms a
restriction on freedom of expression is justified.
The English courts must, in conformity with the Wednesbury
principles discussed by Lord Ackner, consider whether the Home
Secretary has taken into account all relevant matters and has
ignored irrelevant matters. These conditions are satisfied by the
evidence in this case, including evidence by the Home Secretary
that he took the Convention into account. If these conditions are
satisfied, then it is said on Wednesbury principles the court can
only interfere by way of judicial review if the decision of the
Home Secretary is “irrational” or “perverse.”
The subject matter and date of the Wednesbury principles
cannot in my opinion make it either necessary or appropriate for
the courts to judge the validity of an interference with human
rights by asking themselves whether the Home Secretary has acted
irrationally or perversely. It seems to me that the courts cannot
escape from asking themselves whether a reasonable Secretary of
State, on the material before him, could reasonably conclude that
the interference with freedom of expression which he determined
to impose was justifiable. In terms of the Convention, as
construed by the European court, the interference with freedom of
expression must be necessary and proportionate to the damage
which the restriction is designed to prevent.
My Lords, applying these principles I do not consider that
the court can conclude that the Home Secretary has abused or
exceeded his powers. The broadcasting authorities and journalists
are naturally resentful of any limitation on their right to present a
programme in such manner as they think fit. But the interference
with freedom of expression is minimal and the reasons given by
the Home Secretary are compelling.
I, too, would dismiss this appeal.
LORD ACKNER
My Lords,
In October 1988 the Government reached the conclusion that
it was no longer acceptable in the national interest that spokesmen
for terrorist organisations, para-military organisations and those
who support them should have direct access to television and
radio. The Secretary of State for the Home Department, the
respondent, accordingly exercised his powers under Clause 13 of
the Licence and Agreement between the Secretary of State and
– 5 –
the British -Broadcasting Corporation (“the BBC”) and section 29 of
the Broadcasting Act 1981. By directives, dated 19 October 1988,
as further explained and defined in a letter dated 24 October 1988
from the Home Office he required the BBC and the Independent
Broadcasting Authority (“the IBA”) to refrain from broadcasting the
direct statements (not the reported speech) by a person who
represents or purports to represent a specified organisation or who
supports or solicits or invites support for such an organisation.
The organisations concerned are those proscribed under the
Prevention of Terrorism (Temporary Provisions) Act 1984 and the
Northern Ireland (Emergency Provisions) Act 1978 together with
Sinn Fein, Republican Sinn Fein and the Ulster Defence
Association. These organisations are involved in terrorism, or in
promoting or encouraging it, that is to say they are organisations
which exist to further a political aim by the use of violence. It
is an offence to belong to such proscribed organisations or to
support any of them in particular ways. Although not proscribed,
Sinn Fein, from which Republican Sinn Fein broke away, is known
to be the political arm of the Provisional Movement; its spokesmen
are apologists for the use of violence for political ends. The
Ulster Defence Association is a para-military organisation, some of
whose members engage in terrorism, often claiming terrorist acts
in the name of the Ulster Freedom Fighters, itself proscribed
under the Northern Ireland emergency provisions. These facts
deposed to by Mr. Scoble, an Assistant Under-Secretary of State in
the Home Office and Head of the Broadcasting Department, in his
affidavit sworn on 15 March 1989, have not been challenged.
The appellants are neither the BBC nor the IBA. They are
(with one exception) broadcast journalists who are members of the
National Union of Journalists (“the NUJ”). The exception is Mr.
Nash, who is employed by the NUJ and who relies on broadcasting
for the provision of information about current affairs.
The relevant legislative and contractual provisions
“(i) By sections 2 and 3 of the Broadcasting Act 1981 the
functions, duties and powers of the IBA are defined.
“(ii) By section 4(1) of the Broadcasting Act 1981, ‘it shall be
the duty of the Authority to satisfy themselves that, so far
as possible, the programmes broadcast by the Authority
comply with the following requirements’ including:-
‘(a) that nothing is included in the programmes which
offends against good taste or decency or is likely to
encourage or incite to crime or to lead to disorder or
to be offensive to public feeling;
‘(b) that a sufficient amount of time in the programmes
is given to news and news features and that all news
given in the programmes (in whatever form) is
presented with due accuracy and impartiality,’ and
‘(f) that due impartiality is preserved on the part of the
persons providing the programmes as respects matters
of political or industrial controversy or relating to
current public policy.’
– 6 –
“(iii) By section 29(3) of the Broadcasting Act 1981, ‘Subject to
sub-section (4) the Secretary of State may at any time by
notice in writing require the Authority [the IBA] to refrain
from broadcasting any matter or classes of matter specified
in the notice; and it shall be the duty of the Authority to
comply with the notice.’
“(iv) By Clause 13(4) of the Licence and Agreement made
between the BBC and the Secretary of State on 2nd April
1981, ‘the Secretary of State may from time to time
require the Corporation to refrain at any specified time or
at all times from sending any matter or matters of any
class specified in such notice.”
The Directives
The text common to both directives is as follows:
“1. . . . to refrain from broadcasting any matter which
consists of or includes –
any words spoken, whether in the course of an interview or
discussion or otherwise, by a person who appears or is heard
on the programme in which the matter is broadcast where –
‘(a) the person speaking the words represents or
purports to represent an organisation specified in
paragraph 2 below, or
‘(b) the words support or solicit or invite support
for such an organisation,
other than any matter specified in paragraph 3 below.
2. The organisations referred to in paragraph 1 above
are –
‘(a) any organisation which is for the time being a
proscribed organisation for the purposes of the
Prevention of Terrorism (Temporary Provisions) Act
1984 or the Northern Ireland (Emergency Provisions)
Act 1978; and
‘(b) Sinn Fein, Republican Sinn Fein and the Ulster
Defence Association.
3. The matter excluded from paragraph 1 above is any
words spoken –
‘(a) in the course of proceedings in Parliament, or
‘(b) by or in support of a candidate at a
parliamentary, European parliamentary or local
election pending that election.”
The essential parts of the letter of 24 October, which
further defined and explained the directives, read as follows:
– 7 –
“It was asked whether the Notice applied only to direct
statements by representatives of the organisations or their
supporters or whether it applied also to reports of the words
they had spoken. We confirmed, as the Home Secretary has
made clear in Parliament, that the correct interpretation
(and that which was intended) is that it applies only to
direct statements and not to reported speech, and that the
person caught by the Notice is the one whose words are
reported and not the reporter or presenter who reports
them. Thus the Notice permits the showing of a film or
still picture of the initiator speaking the words together
with a voice-over account of them, whether in paraphrase or
verbatim. We confirmed that programmes involving the
reconstruction of actual events, where actors use the
verbatim words which had been spoken in actuality are
similarly permitted.
“For much the same reason, we confirmed that it was not
intended that genuine works of fiction should be covered by
the restrictions, on the basis that the appropriate
interpretation of ‘a person’ in paragraph 1 of the Notice is
that it does not include an actor playing a character.
“The BBC also asked whether a member of an organisation
or one of its elected representatives could be considered as
permanently representing that organisation so that all his
words, whatever their character, were covered by the
Notice. We confirmed that the Home Office takes the
view that this is too narrow an interpretation of the word
‘represents’ in paragraph l(a) of the text. A member of an
organisation cannot be held to represent that organisation in
all his daily activities. Whether at any particular instance
he is representing the organisation concerned will depend
upon the nature of the words spoken and the particular
context. Where he is speaking in a personal capacity or
purely in his capacity as a member of an organisation which
does not fall under the Notice (for example, an elected
Council), it follows, from that interpretation, that paragraph
l(a) will not apply. Where it is clear, from the context and
the words, that he is speaking as a representative of an
organisation falling under the Notice, his words may not be
broadcast directly, but (as mentioned above) can be
reported. (He may, of course, come within the scope of
paragraph Kb), if his words contain support for the
organisation.) Although there may be borderline occasions
when this distinction will require a careful exercise of
judgment, we believe that the great majority of broadcast
material will fall clearly within one case or the other.”
It can thus be seen that the directives, as further defined
and explained, do not restrict the reporting of statements made by
terrorists or their supporters. What is restricted is the direct
appearance on television of those who use or support violence,
themselves making their statements (“actuality reporting”). Thus
the activities of terrorist organisations and statements of their
apologists may still be reported, as they are in the press; but such
persons are prevented from making the statement themselves on
the television and the radio. Publicity for their statements can be
achieved, inter alia, by the dubbing of what they have said, using
– 8 –
actors to impersonate their voices. These limited restrictions can
be contrasted with those which have been in operation for many
years in the Republic of Ireland, where not only is the direct
appearance on television of those who use or support violence
banned, but even the very statements which they make.
The issue
The appeal is concerned with a challenge by way of judicial
review. It is contended by the appellants that the Secretary of
State in issuing these directives has acted unlawfully. The attack
has concentrated essentially on section 29(3) of the Broadcasting
Act 1981, and for the purpose of this appeal the point has not
been taken as to whether different principles might be applied to
the contractual powers of the Secretary of State under and by
virtue of clause 13(4) of the Licence and Agreement. It is of
course common ground that section 29(3) gives to the Secretary of
State a wide discretion. The issue, expressed quite shortly, is
whether in issuing these directives he has exceeded his
discretionary powers, thus acting ultra vires and therefore
unlawfully.
The Secretary of State’s reasons for his action
The Secretary of State’s decision was the subject matter of
a statement made on 19 October in both Houses of Parliament and
was followed by debates in both Houses. The statement reads as
follows:
“For some time broadcast coverage of events in Northern
Ireland has included the occasional appearance of
representatives of paramilitary organisations and their
political wings, who have used these opportunities as an
attempt to justify their criminal activities. Such
appearances have caused widespread offence to viewers and
listeners throughout the United Kingdom, particularly just
after a terrorist outrage.
“The terrorists themselves draw support and sustenance from
access to radio and television – from addressing their views
more directly to the population at large than is possible
through the press. The Government have decided that the
time has come to deny this easy platform to those who use
it to propagate terrorism. Accordingly, I have today issued
to the Chairmen of the BBC and the IBA a notice, under
the licence and agreement and under the Broadcasting Act
1981 respectively, requiring them to refrain from
broadcasting direct statements by representatives of
organisations proscribed in Northern Ireland and Great
Britain and by representatives of Sinn Fein, Republican Sinn
Fein and the Ulster Defence Association. The notices will
also prohibit the broadcasting of statements by any person
which support or invite support for these organisations. The
restrictions will not apply to the braodcast of proceedings in
Parliament, and in order not to impair the obligation on the
broadcasters to provide an impartial coverage of elections
the notices will have a more limited effect during election
periods. Copies of the notices have today been deposited in
– 9 –
the Library, and further copies are available from the Vote
Office so that hon. Members will be able to study their
detailed effect.
“These restrictions follow very closely the lines of similar
provisions which have been operating in the Republic of
Ireland for some years. Representatives of these
organisations are prevented from appearing on Irish
television, but because we have had no equivalent
restrictions in the United Kingdom they can nevertheless be
seen on BBC and ITV services in Northern Ireland, where
their appearances cause the gravest offence, and in Great
Britain. The Government’s decision today means that both
in the United Kingdom and in the Irish Republic such
appearances will be prevented.
“Broadcasters have a dangerous and unenviable task in
reporting events in Northern Ireland. This step is no
criticism of them. What concerns us is the use made of
broadcasting facilities by supporters of terrorism. This is
not a restriction on reporting. It is a restriction on direct
appearances by those who use or support violence.
“I believe that this step will be understood and welcomed by
most people throughout the United Kingdom. It is a serious
and important matter on which the House will wish to
express its view. For that reason, we shall be putting in
hand discussions through the usual channels so that a full
debate on the matter can take place at an early date.”
On 2 November there was a debate in the House of
Commons on the motion that: “This House approves the Home
Secretary’s action in giving directions to the BBC and IBA to
restrict the broadcasting of statements made by Northern Ireland
terrorists organisations and their apologists”. That motion was
carried by 243 votes to 179. On 8 December a motion to take
note of the Home Secretary’s action was debated and agreed to
without a division in the House of Lords. The Secretary of State’s
reasons for taking the action complained of are set out in the
Hansard Reports of those debates and were before your Lordships.
The four matters which influenced the Secretary of State were
highlighted by Mr. Scoble in his affidavit. These are:-
-
-
-
Offence had been caused to viewers and listeners by the
appearance of the apologists for terrorism, particularly after
a terrorist outrage. -
Such appearances had afforded terrorists undeserved publicity
which was contrary to the public interest. -
These appearances had tended to increase the standing of
terrorist organisations and to create a false impression that
support for terrorism is itself a legitimate political opinion.
-
-
(4) Broadcast statements were intended to have, and did in
some cases have, the effect of intimidating some of those
at whom they were directed.
The Challenge
– 10 –
I now turn to the bases upon which it is contended that the
Secretary of State exceeded his statutory powers:-
1. The directives frustrated the policy and the objects of the
1981 Act in particular section 4 (1).
It is of course accepted by Mr. Laws on behalf of the
Secretary of State that the discretion given to him by section
29(3) is not an absolute or unfettered discretion. It is a discretion
which is to be exercised according to law and therefore must be
used only to advance the purposes for which it was conferred. It
has accordingly to be used to promote the policy and objects of
the Act (see Padfield and others v. The Minister of Agriculture,
Fisheries and Food and others [1968] AC 997). It is further
accepted on behalf of the Secretary of State that the powers
under section 29(3) can be properly categorised as “reserve” powers
in the sense that they are to be used infrequently. In fact they
have only been used once previously.
In the Divisional Court and Court of Appeal much was made
of the words in section 4(l)(f) – “due impartiality”. The argument
was not repeated before your Lordships. I can find nothing in
paragraph 4(1)(f) to suggest that the policy and objects of section
4(1) are in any way frustrated by the Secretary of State’s exercise
of his reserve powers where, in the proper exercise of his
discretion, he considers it appropriate to do so.
2. The directives were unlawful on “Wednesbury” grounds
Save only in one respect, namely the European Convention
for the Protection of Human Rights and Fundamental Freedoms,
which is the subject matter of a later heading, it is not suggested
that the Minister failed to call his attention to matters which he
was bound to consider, nor that he included in his considerations
matters which were irrelevant. In neither of those senses can it
be said that the Minister acted unreasonably. The failure to
mount such a challenge in this appeal is important. In a field
which concerns a fundamental human right – namely that of free
speech – close scrutiny must be given to the reasons provided as
justification for interference with that right. Your Lordships’
attention was drawn to the case of Regina v. Secretary of State
ex parte de Rothschild [1989] 1 All E.R. 933, a case which
concerned compulsory purchase and therefore involved, albeit
somewhat indirectly, another fundamental human right – the
peaceful enjoyment of one’s possessions (see article 1 of the First
Protocol to the Convention). In that case Slade L.J. at page 939
said:
“Given the obvious importance and value to land owners of
their property rights, the abrogation of those rights in the
exercise of his discretionary power to confirm a compulsory
purchase order would, in the absence of what he perceived
to be a sufficient justification on the merits, be a course
which surely no reasonable Secretary of State would take.”
Slade L.J. was in no sense increasing the severity of the
Wednesbury test. He was applying that part of it which requires
the decision-maker to call his attention to matters that he is
– 11 –
obliged to consider. He was emphasising the Secretary of State’s
obligation to identify the factors which had motivated his decision
so as to ensure that he had overlooked none which a reasonable
Secretary of State should have considered.
There remains however the potential criticism under the
Wednesbury grounds expressed by Lord Greene M.R. [1948] 1 K.B.
223, 234 that the conclusion was “so unreasonable that no
reasonable authority could ever have come to it.” This standard
of unreasonableness, often referred to as “the irrationality test”,
has been criticised as being too high. But it has to be expressed
in terms that confine the jurisdiction exercised by the judiciary to
a supervisory, as opposed to an appellate, jurisdiction. Where
Parliament has given to a Minister or other person or body a
discretion, the court’s jurisdiction is limited, in the absence of a
statutory right of appeal, to the supervision of the exercise of
that discretionary power, so as to ensure that it has been
exercised lawfully. It would be a wrongful usurpation of power by
the judiciary to substitute its, the judicial view, on the merits and
on that basis to quash the decision. If no reasonable Minister
properly directing himself would have reached the impugned
decision, the Minister has exceeded his powers and thus acted
unlawfully and the court in the exercise of its supervisory role,
will quash that decision. Such a decision is correctly, though
unattractively, described as a “perverse” decision. To seek the
court’s intervention on the basis that the correct or objectively
reasonable decision is other than the decision which the Minister
has made, is to invite the court to adjudicate as if Parliament had
provided a right of appeal against the decision – that is, to invite
an abuse of power by the judiciary.
So far as the facts of this case are concerned it is only
necessary to read the speeches in the Houses of Parliament, and in
particular those of Mr. David Alton, Lord Fitt and Lord
Jakobovits, to reach the conclusion, that whether the Secretary of
State was right or wrong to decide to issue the directives, there
was clearly material which would justify a reasonable Minister
making the same decision. In the words of Lord Diplock in The
Secretary of State for Education and Science v. Tameside
Metropolitan Borough Council [1977] AC 1014 at 1064;-
“The very concept of administrative discretion involves a
right to choose between mere than one possible course of
action upon which there is room for reasonable people to
hold different opinions as to which is to be preferred”.
In his speech in the House of Commons on 2 November 1988
the Secretary of State in emphasising the significance of imposing
a restriction, not on the reporting of the material uttered by
terrorists and those supporting them, but on their direct
appearance on television, said:-
“It is not simply that people are affronted – we can live
with affront – by the direct access of men of violence and
supporters of violence to television and radio. That direct
access gives those who use it an air and appearance of
authority which spreads further outwards the ripple of fear
that terrorist acts create in the community. The terrorist
act creates the fear and the direct broadcast spreads it.
– 12 –
The men of violence and their supporters have used this
access with skill. They do not hope to persuade – this is
where we get into the cosy luxury of discussion which is
unreal – but to frighten. So far from being outlaws hunted
by the forces of law and order and pursued by the courts,
they calmly appear on the screen and, thus, in the homes of
their victims and the friends and neighbours of their
victims.”
McCowan L.J., in his judgment, pointed out that the
criticisms made by the appellants and their supporters were not
wholly consistent. He quoted from the affidavit of Donald
Malcolm Brind, a news producer for BBC television news and
current affairs programmes. In his affidavit he said:-
“… part of the process of returning Northern Ireland to
“normal polities’, is to draw nationalist supporters back into
the political process, which would be achieved by greater
consideration and expression of their views rather than less.”
He contrasted this with an affidavit relied on by the
appellants from Jonathan Dimbleby, who has worked both for the
BBC and Independent Television. In his affidavit he says:-
“How much better it would be if the electorate were
permitted to hear the weasel words, the half-baked logic,
the mealy-mouthed falsehoods of the terrorists; how much
better to see them subjected to thorough cross-examination
in the full and merciless glare of the television lens . . . “.
Your Lordships will, I am sure, need no persuading that all
cross-examinations are not thorough. Indeed there are occasions
where some may wonder whether an incompetent cross-examination
is the product solely of lack of preparation. A deficient cross-
examination can significantly advance the terrorist’s cause.
I entirely agree with McCowan L.J. when he said that he
found it quite impossible to hold that the Secretary of State’s
political judgment that the appearance of terrorists on programmes
increases their standing and lends them political legitimacy, is one
that no reasonable Home Secretary could hold. As the learned
Lord Justice observed “It is, it should be noted, also the political
judgment of the terrorists, or they would not be so anxious to be
interviewed by the media or so against the Home Secretary’s ban”.
Mr. Lester has contended that in issuing these directives the
Secretary of State has used a sledgehammer to crack a nut. Of
course that is a picturesque way of describing the Wednesbury
“irrational” test. The Secretary of State has in my judgment used
no sledgehammer. Quite the contrary is the case.
I agree with Lord Donaldson M.R. who, when commenting on
how limited the restrictions were, said in his judgment:
“They have no application in the circumstances mentioned in
paragraph 3 (proceedings in the United Kingdom Parliament
and elections) and, by allowing reported speech either
verbatim or in paraphrase, in effect put those affected in
no worse a position than they would be if they had access
– 13 –
to newspaper publicity with a circulation equal to the
listening and viewing audiences of the programmes
concerned. Furthermore, on the applicants’ own evidence, if
the directives had been in force during the previous twelve
months, the effect would have been minimal in terms of air
time. Thus, ITN say that eight minutes twenty seconds
(including repeats) out of 1200 hours, or 0.01%, of air time
would have been affected. Furthermore, it would not have
been necessary to omit these items. They could have been
recast into a form which complied with the directives.”
Thus the extent of the interference with the right to
freedom of speech is a very modest one. On the other hand the
vehemence of the criticism of the Secretary of State’s decision is
perhaps a clear indication of the strength of the impact of the
terrorist message when he is seen or heard expressing his views.
3. The Minister failed to have proper regard to the European
Convention for the Protection of Human Rights and
Fundamental Freedoms and in particular Article 10;
Article 10 reads as follows:
“1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
“2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.”
The Convention which is contained in an international treaty
to which the United Kingdom is a party has not yet been
incorporated into English domestic law. The appellants accept that
it is a constitutional principle that if Parliament has legislated and
the words of the statute are clear, the statute must be applied
even if its application is in breach of international law. In
Salomon v. Commissioners of Customs & Excise [1967] 2 Q.B. 116
Dipiock L.J. at 143 stated:
“If the terms of the legislation are clear and unambiguous
they must be given effect to, whether or not they carry out
Her Majesty’s treaty obligations.”
Much reliance was placed upon the observations of Lord
Diplock in Garland v. British Rail [1983] 2 AC 751 when he said
(at 771):
– 14 –
“… it is a principle of construction of United Kingdom
statutes . . . that the words of a statute passed after the
Treaty has been signed and dealing with the subject matter
of the international obligation of the United Kingdom, are
to be construed, if they are reasonably capable of bearing
such a meaning, as intended to carry out the obligation, and
not to be inconsistent with it.”
I did not take the view that Lord Diplock was intending to
detract from or modify what he had said in Salomon’s case.
It is well settled that the Convention may be deployed for
the purpose of the resolution of an ambiguity in English primary or
subordinate legislation. The case of Reg. v. Chief Immigration
Officer, Heathrow Airport and another, Ex parte Salamat Bibi
[1976] 1 W.L.R. 979 concerned a lady who arrived at London
Airport from Pakistan with two small children saying that she was
married to a man who was there and who met her. She was
refused leave to enter and an application was made for an order
of certiorari and also for mandamus on the ground that she ought
to have been treated as the wife of the man who met her at the
airport. During the course of argument a question arose about the
impact of the Convention and in particular Article 8 concerning
the right to private and family life and the absence of
interference by a public authority with that right.
In his judgment at p. 984 Lord Denning M.R. said:-
“The position as I understand it is that if there is any
ambiguity in our statutes, or uncertainty in our law, then
these courts can look to the Convention as an aid to clear
up the ambiguity and uncertainty . . . but I would dispute
altogether that the Convention is part of our law. Treaties
and declarations do not become part of our law until they
are made law by Parliament.”
In his judgment at p. 988 Geoffrey Lane L.J. said:
“It is perfectly true that the Convention was ratified by this
country . . . nevertheless, the Convention, not having been
enacted by Parliament as a statute, it does not have the
effect of law in this country; whatever persuasive force it
may have in resolving ambiguities it certainly cannot have
the effect of overriding the plain provisions of the Act of
1971 and the rules made thereunder.”
This decision was followed in Fernandes v. Secretary of
State for the Home Department [1981] Imm. A.R. 1 – another case
where Article 8 of the Convention was relied upon and where the
Court of Appeal held that the Secretary of State in exercising his
statutory powers was not obliged to take into account the
provisions of the Convention, it not being part of the law of this
country. The Convention is a treaty and may be resorted to in
order to help resolve some uncertainty or ambiguity in municipal
law. These decisions were most recently followed by the Court of
Appeal in Chundawadra v. Immigration Appeal Tribunal [1988] Imm.
A.R. 161.
– 15 –
Mr. Lester contends that section 29(3) is ambiguous or
uncertain. He submits that although it contains within its wording
no fetter upon the extent of the discretion it gives to the
Secretary of State, it is accepted that that discretion is not
absolute. There is however no ambiguity in section 29(3). It is
not open to two or more different constructions. The limit placed
upon the discretion is simply that the power is to be used only for
the purposes for which it is was granted by the legislation (the so-
called Padfield doctrine) and that it must be exercised reasonably
in the Wednesbury sense. No question of the construction of the
words of section 29(3) arises, as would be the case if it was
alleged to be ambiguous, or its meaning uncertain.
There is yet a further answer to Mr. Lester’s contention.
He claims that the Secretary of State before issuing his directives
should have considered not only the Convention (it is accepted that
he in fact did so) but that he should have properly construed it
and correctly taken it into consideration. It was therefore a
relevant, indeed a vital, factor to which he was obliged to have
proper regard pursuant to the Wednesbury doctrine, with the result
that his failure to do so rendered his decision unlawful. The
fallacy of this submission is however plain. If the Secretary of
State was obliged to have proper regard to the Convention, i.e. to
conform with Article 10, this inevitably would result in
incorporating the Convention into English domestic law by the back
door. It would oblige the Courts to police the operation of the
Convention and to ask itself in each case, where there was a
challenge, whether the restrictions were “necessary in a democratic
society . . .” applying the principles enunciated in the decisions of
the European Court of Human Rights. The treaty, not having been
incorporated in English law, cannot be a source of rights and
obligations and the question – did the Secretary of State act in
breach of Article 10 – does not therefore arise.
As was recently stated by Lord Oliver of Aylmerton in J.H.
Rayner Ltd. v. Dept. of Trade (The “International Tin Council
Case”) [1990] 2 A.C. 418 at 500:
“Treaties, as it is sometimes expressed, are not self-
executing. Quite simply, a treaty is not part of English law
unless and until it has been incorporated into the law by
legislation. So far as individuals are concerned, it is res
inter alios acta from which they cannot derive rights and by
which they cannot be deprived of rights or subjected to
obligations; and it is outside the purview of the court not
only because it is made in the conduct of foreign relations,
which are a prerogative of the Crown, but also because, as
a source of rights and obligations, it is irrelevant.
4. The Secretary of State has acted ultra vires because he has
acted in “in a disproportionate manner”
This attack is not a repetition of the Wednesbury
“irrational” test under another guise. Clearly a decision by a
Minister which suffers from a total lack of proportionality will
qualify for the “Wednesbury unreasonable” epithet. It is, ex
hypothesi, a decision which no reasonable Minister could make.
This is, however, a different and severer test.
– 16 –
Mr. Lester is asking your Lordships to adopt a different
principle – the principle of “proportionality” which is recognised in
the administrative law of several members of the European
Economic Community. What is urged is a further development in
English administrative law, which Lord Diplock viewed as a
possibility in C.C.S.U. v. Minister for the Civil Service [1985] A.C.
375 at 410.
In his written submissions, Mr. Lester was at pains to record
“that there is a clear distinction between an appeal on the merits
and a review based on whether the principle of proportionality has
been satisfied”. He was prepared to accept that to stray into the
realms of appellate jurisdiction involves the Courts in a wrongful
usurpation of power. Yet in order to invest the proportionality
test with a higher status than the Wednesbury test, an inquiry into
and a decision upon the merits cannot be avoided. Mr. Pannick’s
(Mr. Lester’s junior) formulation – could the Minister reasonably
conclude that his direction was necessary – must involve balancing
the reasons, pro and con, for his decision, albeit allowing him “a
margin of appreciation” to use the European concept of the
tolerance accorded to the decision-maker in whom a discretion has
been vested. The European test of “whether the interference
complained of corresponds to a pressing social need” must
ultimately result in the question – is the particular decision
acceptable? – and this must involve a review of the merits of the
decision. Unless and until Parliament incorporates the Convention
into domestic law, a course which it is well-known has a strong
body of support, there appears to me to be at present no basis
upon which the proportionality doctrine applied by the European
Court can be followed by the courts of this country.
I would accordingly dismiss this appeal with costs.
LORD LOWRY
My Lords,
I agree with your Lordships that this appeal should be
dismissed. In particular I agree with the observations of my noble
and learned friend Lord Ackner, whose speech relieves me from
the need to consider the matter in detail and, taken in conjunction
with the other observations which have fallen from your Lordships,
could well be thought to render unnecessary any contribution by
me to the debate.
But the inspiration for the appellants’ argument, if not
perhaps the facts on which the argument is based, is closely linked
with the principle of freedom of speech in a democratic society,
so far as compatible with the safety of the state and the well-
being of its citizens, which may provide a reason for me to say
something.
The directions complained of have been the occasion for an
eloquent vindication of freedom of expression and the freedom to
hold opinions and to impart and receive information, which is
supported by affidavit evidence, the appellants’ printed case and
counsel’s submissions. The case avers that it is clear on the
– 17 –
evidence that the directions “remove an important aspect of
editorial control from the broadcasters to the Government” and
“prevent the public from being shown (sic) material which may
assist to inform them as to current affairs in Northern Ireland”
and “oblige broadcasters to make difficult decisions as to whether
the material to be broadcast falls within or without the
directions”. It is further asserted that “the inevitable consequence
of the directions will be to hinder the communication of ideas and
information about Northern Ireland to the public and to deter
broadcasters from reporting Northern Ireland politics.”
Administrative acts which had the effect contended for
might well be justified, but they would certainly deserve the
closest scrutiny. My noble and learned friend has, however, set
out the facts, which show that television reporters and
commentators, as well as reporting and commenting (like the press)
on oral and written statements attributed to terrorists and
supporters of terrorism, can, by interviews and other methods,
make films of terrorists and supporters of terrorism which record
the appearance and gestures of the persons depicted and the
precise content, accent and emphasis of the words they use and
can show the films on television. The only restriction is that, if
the speaker was representing or purporting to represent an
organisation specified in the directions, or the words used
supported or solicited or invited support for such an organisation,
the voice of the speaker must not be heard; on the other hand the
words of the speaker can be spoken by someone else, who may be
a professional actor using the same local accent, intonation and
emphasis as the original speaker used, while the viewers see on
the screen that speaker, his facial expression and his gestures, if
any. A true appreciation of exactly what the Home Secretary’s
directions involve makes nonsense of the statement, adduced in
evidence before your Lordships, that interviews can no longer be
shown on television and also of the wider claim that television
reports of and discussions concerning negotiations with and the
utterances and activities of members of the scheduled organisations
and their supporters are now impossible. Indeed, the issue which
seems to arise is whether the disadvantage of exposing the
Government to the misrepresentations of its attitude of which your
Lordships have seen examples may outweigh the advantage to be
derived from the directions themselves.
Put thus (accurately, as appellants’ counsel concede) the sole
restriction is on transmitting the sound of the speaker’s own voice.
Therefore anything lost by either the broadcasters or the viewing
public is, at best, only tenuously related to the freedoms in
defence of which the present proceedings have been brought. My
noble and learned friend Lord Ackner has drawn attention to the
reasons for imposing this modest restriction which have been given
by the Home Secretary and which, as McCowan L.J. has
effectively pointed out, are not lacking in cogency. When, in
addition, one has regard to the “political exception” and to the
contrast between the present directions and the restrictions which
have for 30 years existed in the Republic of Ireland, it is difficult
to take seriously the appellants’ description of the directions as
the use of a sledgehammer to crack a nut.
Mr. Lester and his learned junior, Mr. Pannick, put the
appellants’ case with force and skill, presenting a variety of tests,
– 18 –
as your Lordships have already noted, by which to judge the
impugned directions. For my own part, I do not see how the
modest invasion of liberties which has occurred in this case could
fail to satisfy any of the criteria which have been suggested,
including those criteria which, in point of law, I, in common with
your Lordships, have found unacceptable.
I might be content to leave the matter thus, but what
seems to me to give this case its importance is the variety and
the potential effect of the legal weaponry which the appellants
have deployed and the zeal with which the respondent has met the
assault, as if both parties were concerned to fight an impending
battle in principle as well as the present one in practice.
Because they are of general importance, I will mention just
two points, which are closely related, the test of unreasonableness
in judicial review and the doctrine of proportionality.
The kind of unreasonableness for which a court can set
aside an administrative act or decision is popularly called
“Wednesbury unreasonableness” from the name of the famous case
reported at [1948] 1 KB 223 in which Lord Greene M.R. spoke of
a decision “so absurd that no sensible person could ever dream
that it lay within the powers of the authority”. In the Tameside
case [1977] AC 1014, 1026 Lord Denning M.R. referred to
decisions “so wrong that no reasonable person could sensibly take
that view”. In C.C.S.U. v. Minister for the Civil Service [1985]
A.C. 374, 410 Lord Diplock, having used irrationality as a synonym
of Wednesbury unreasonableness, said that “it applies to a decision
which is so outrageous in its defiance of logic or of accepted
moral standards that no sensible person who had applied his mind
to the question to be decided could have arrived at it”, while in
Nottinghamshire County Council v. Secretary of State for the
Environment [1986] AC 240, 247 Lord Scarman, when invited to
examine the detail and consequences of guidance given by the
Secretary of State, said:
“Such an examination by a court would be justified only if a
prima facie case were to be shown for holding that the
Secretary of State had acted in bad faith, or for an
improper motive, or that the consequences of his guidance
were so absurd that he must have taken leave of his
senses.”
These colourful statements emphasise the legal principle that
judicial review of administrative action is a supervisory and not an
appellate jurisdiction. I recall that in R. v. Nat Bell Liquors Ltd.
[1922] 2 AC 128, 156 Lord Sumner, admittedly speaking of an
attempted challenge to the validity of court proceedings, said that
the superior court’s jurisdiction was one “of supervision, not of
review.”
I believe that the subject is nowhere better discussed than
by Sir William Wade in Chapter 12 “Abuse of Discretion” (pp. 388-
462) of his authoritative textbook “Administrative Law” 6th edition
(1988). The learned author, with the aid of examples covering
more than a century, clearly demonstrates that what we are
accustomed to call Wednesbury unreasonableness is a branch of the
abuse, or misuse, of power: the court’s duty is not to interfere
– 19 –
with a discretion which Parliament has entrusted to a statutory
body or an individual but to maintain a check on excesses in the
exercise of discretion. That is why it is not enough if a judge
feels able to say, like a juror or like a dissenting member of the
Cabinet or fellow-councillor, “I think that is unreasonable; that is
not what I would have done.” It also explains the emphatic
language which judges have used in order to drive home the
message and the necessity, as judges have seen it, for the act to
be “so unreasonable that no reasonable Minister etc would have
done it.” In that strong, and necessary, emphasis lies the danger.
The seductive voice of counsel will suggest (I am not thinking
specifically of the present case) that, for example, Ministers, who
are far from irrational and indeed are reasonable people, may
occasionally be guilty of an abuse of power by going too far. And
then the court is in danger of turning its back not only on the
vigorous language but on the principles which it was intended to
support. A less emotive, but, subject to one qualification, reliable
test is to ask, “Could a decision-maker acting reasonably have
reached this decision?” The qualification is that the supervising
court must bear in mind that it is not sitting on appeal, but
satisfying itself whether the decision-maker has acted within the
bounds of his discretion. For that reason it is fallacious for those
seeking to quash administrative acts and decisions to call in aid
decisions of a Court of Appeal reversing a judge’s finding, it may
be on a question of what is reasonable. To say what is reasonable
was the judge’s task in the first place and the duty of the Court
of Appeal, after giving due weight to the judge’s opinion, is to say
whether they agree with him. In judicial review, on the other
hand, the task of the High Court is as described above, and the
task of the Court of Appeal and, when necessary, this House is to
decide whether the High Court has correctly exercised its
supervisory jurisdiction.
Of course, whichever kind of jurisdiction is being exercised
on the subject of reasonableness, there is bound to be a subjective
element in the decision. There is no objective standard in either
case which would allow the result to be foretold with certainty.
The important requirement, however, is to ask the right question.
The appellants have relied on the doctrine of proportionality.
That is, in one sense of the word, a deeply rooted and well
understood idea in English law. In a claim for damages for
personal injuries suffered by a workman allegedly through his
employer’s negligent system of work the court has to weigh the
risk of an accident, the likely severity of the consequences, the
expense and difficulty of taking precautions and the resources of
the employer with a view to deciding whether the employer failed
to take reasonable care for the safety of the workman. In
another field, as counsel once contended in R. v. Secretary of
State for Transport, Ex parte Pegasus Holdings (London) Ltd. [1988]
1 W.L.R. 990, 1001D, proportionality is simply a way of
approaching the Wednesbury formula: was the administrative act or
decision so much out of proportion to the needs of the situation as
to be “unreasonable” in the Wednesbury sense?
Mr. Lester, however, frankly relied on proportionality, a
well-known concept of European law, as a doctrine calculated to
advance his cause further than Wednesbury unreasonableness, but
conceded that there was a clear distinction between an appeal on
– 20 –
the merits and a review based on the principle of proportionality.
Mr. Pannick equally frankly drew the same distinction and posed
the test, “Could the Minister reasonably conclude that his direction
was necessary?” Here, of course, one comes back to the word
“reasonably”. I shall try to avoid repeating what has been said by
my noble and learned friend Lord Ackner who has already referred
to such phrases as “margin of appreciation” and “pressing social
need”.
In my opinion proportionality and the other phrases are
simply intended to move the focus of discussion away from the
hitherto accepted criteria for deciding whether the decision-maker
has abused his power and into an area in which the court will feel
more at liberty to interfere.
The first observation I would make is that there is no
authority for saying that proportionality in the sense in which the
appellants have used it is part of the English common law and a
great deal of authority the other way. This, so far as I am
concerned, is not a cause for regret for several reasons:-
-
-
-
The decision-makers, very often elected, are those to whom
Parliament has entrusted the discretion and to interfere with
that discretion beyond the limits as hitherto defined would
itself be an abuse of the judges’ supervisory jurisdiction. -
The judges are not, generally speaking, equipped by training
or experience, or furnished with the requisite knowledge and
advice, to decide the answer to an administrative problem
where the scales are evenly balanced, but they have a much
better chance of reaching the right answer where the
question is put in a Wednesbury form. The same applies if
the judges’ decision is appealed. -
Stability and relative certainty would be jeopardised if the
new doctrine held sway, because there is nearly always
something to be said against any administrative decision and
parties who felt aggrieved would be even more likely than
at present to try their luck with a judicial review
application both at first instance and on appeal. -
The increase in applications for judicial review of
administrative action (inevitable if the threshold of
unreasonableness is lowered) will lead to the expenditure of
time and money by litigants, not to speak of the
prolongation of uncertainty for all concerned with the
decisions in question, and the taking up of court time which
could otherwise be devoted to other matters. The losers in
this respect will be members of the public, for whom the
courts provide a service.
-
-
Volume 1(1) of Halsbury’s Laws of England 4th edition,
issued in 1989, recognises proportionality in the context of
administrative law at p. 144 as follows:
“78. Proportionality. The courts will quash exercises of
discretionary powers in which there is not a reasonable
relationship between the objective which is sought to be
achieved and the means used to that end, or where
– 21 –
punishments imposed by administrative bodies or inferior
courts are wholly out of proportion to the relevant
misconduct. The principle of proportionality is well
established in European law, and will be applied by English
courts where European law is enforceable in the domestic
courts. The principle of proportionality is still at a stage
of development in English law; lack of proportionality is not
usually treated as a separate ground of review in English
law, but is regarded as one indication of manifest
unreasonableness.”
(The High Court’s decision in the instant case is cited in the
copious footnotes to this paragraph as the authority for the
concluding statement.)
It finally occurs to me that there can be very little room
for judges to operate an independent judicial review proportionality
doctrine in the space which is left between the conventional
judicial review doctrine and the admittedly forbidden appellate
approach. To introduce an intermediate area of deliberation for
the court seems scarcely a practical idea, quite apart from the
other disadvantages by which, in my opinion, such a course would
be attended.
– 22 –
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