R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696
R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696
JUDICIAL REVIEW – PROPORTIONALITY
Facts
The applicants sought a judicial review of directives issued by the Home Secretary. The directives placed limits on the broadcasting permission of individuals associated with organisations proscribed by anti-terror legislation. The policy behind the proscription 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. The proscription was limited to direct statements made by members of the organisations and was intended to deny the organisations the appearance of political legitimacy and to prevent intimidation. The applicants argued the ban was disproportionate.
Issues
The key issue before the House of Lords was whether proportionality might be invoked as a ground of review under UK law. A further question was whether the ban was in fact disproportionate.
Decision/Outcome
Dismissing the application, the House held that the ban was not disproportionate and was therefore within the powers of the Home Secretary. The comments of the House on the subject of proportionality as a grounds of review were therefore obiter dicta. The Lords differed in their views on this point: 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 the principle therefore had no proper place in UK law.
Updated 20 March 2026
This case summary accurately reflects the decision in R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696. The summary of the facts, issues, and the House of Lords’ reasoning is correct, including the characterisation of the proportionality remarks as obiter dicta and the divergence of opinion between their Lordships.
Readers should note, however, that the legal landscape on proportionality in English administrative law has developed substantially since 1991. The Human Rights Act 1998 incorporated Convention rights into domestic law, making proportionality a required ground of review in cases engaging those rights. More recently, the Supreme Court in R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 and, more significantly, in R (Pham) v Secretary of State for the Home Department [2015] UKSC 19, further considered the relationship between proportionality and traditional Wednesbury unreasonableness in domestic (non-ECHR) judicial review. The Supreme Court in R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 and subsequent cases has continued to develop this area. The debate Lord Ackner engaged in — whether proportionality could become a freestanding domestic ground of review outside the ECHR context — therefore remains live and has not been fully settled, though the trend in case law has moved considerably toward greater acceptance of proportionality. Brind remains an important historical reference point for that debate but should not be read as an accurate statement of the current limits of judicial review.
