R v Secretary of State for the Home Department, ex p Brind [1991] UKHL 4; [1991] 1 AC 696; [1991] 1 All ER 720; [1991] 2 WLR 588
JUDICIAL REVIEW – PROPORTIONALITY
Facts
The applicants sought a judicial review of directives issued by the Home Secretary. The directives required the BBC and Independent Broadcasting Authority to refrain from broadcasting direct statements by people representing specified organisations, or words supporting or inviting support for them. The organisations included those proscribed by anti-terror legislation and three additional named organisations. The Home Secretary’s stated policy behind the restrictions was to prevent these organisations from appearing to be politically legitimate, and to prevent them from engaging in intimidation. The applicants brought the argument that the ban was disproportionate. Reported speech was permitted, including pictures of a speaker accompanied by another person’s voice repeating the words.
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Issues
The key issue before the House of Lords was whether proportionality might be invoked as an independent ground of review in English law. The applicants also argued that the Home Secretary’s discretion had to be exercised consistently with Article 10 of the European Convention on Human Rights.
Decision/Outcome
Dismissing the appeal, the House held that the restrictions were within the Home Secretary’s powers and were not unreasonable in the Wednesbury sense. A reasonable Home Secretary could regard the limited interference with freedom of expression as justified by the public interest in combating terrorism. The House did not adopt proportionality as a separate ground of review. At the time, the Convention had not been incorporated into domestic law. Although it could assist in interpreting ambiguous legislation, the statutory discretion was not ambiguous, and requiring compliance with Article 10 would have incorporated the Convention through judicial decision. On the future adoption of proportionality, the Lords differed in their views: Lords Bridge and Roskill expressed the opinion that proportionality might be incorporated by the law, but that this was not an appropriate case for the court to pursue such a development; by contrast, Lord Ackner suggested that proportionality would require the court to inquire as to the substantive merits of the decision, and that, unless and until Parliament incorporated the Convention, there was no present basis for applying the European Court’s proportionality doctrine.
