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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Secretary of State for the Home Department, ex p. Brind [1991] UKHL 4 (07 February 1991)
URL: http://www.bailii.org/uk/cases/UKHL/1991/4.html
Cite as: [1991] 1 AC 696, [1991] AC 696, [1991] 1 All ER 720, [1991] UKHL 4, [1991] 2 WLR 588

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JISCBAILII_CASE_IMMIGRATION
JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/251

    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:-

    1. Offence had been caused to viewers and listeners by the
      appearance of the apologists for terrorism, particularly after
      a terrorist outrage.

    2. Such appearances had afforded terrorists undeserved publicity
      which was contrary to the public interest.

    3. 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:-

    1. 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.

    2. 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.

    3. 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.

    4. 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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