R v Secretary of State for the Home Department, Ex parte Brind (Brind, Ex parte)

An administrative discretion expressed in broad terms remains confined by the purposes of its enabling legislation and by ordinary principles of judicial review. Where its exercise restricts a fundamental right, the justification requires close scrutiny. The court must nevertheless exercise a supervisory rather than appellate jurisdiction.

An unincorporated treaty creates no directly enforceable domestic rights. It may assist in construing genuinely ambiguous legislation, but cannot supply unstated limits on an otherwise unambiguous statutory discretion.

A restriction on freedom of expression must be supported by an important competing public interest. The reviewing court asks whether a reasonable decision-maker could reasonably regard the restriction as justified. European proportionality was not adopted as a separate domestic ground of review.

The Home Secretary directed the BBC and the Independent Broadcasting Authority to refrain from broadcasting direct statements by representatives or supporters of specified terrorist and paramilitary organisations. The directions were made under section 29(3) of the Broadcasting Act 1981 and clause 13(4) of the BBC Licence and Agreement. Reported speech, dubbed speech and election or parliamentary material remained permissible.

The appellants, principally broadcast journalists, sought judicial review. They contended that the directions frustrated the statutory scheme, were unreasonable, failed properly to respect Article 10 of the European Convention on Human Rights, and were disproportionate.

The challenge failed in the Divisional Court and the Court of Appeal. The central questions before the House were whether the Home Secretary had exceeded his statutory discretion and whether the Convention or a distinct proportionality doctrine supplied an additional domestic ground of review.

1. Disposition. The House unanimously dismissed the appeal and affirmed the Court of Appeal's order. All five Law Lords concluded that the Home Secretary had acted within his powers.

2. Limits on statutory discretion. Lord Ackner held that section 29(3) of the Broadcasting Act 1981, although broad, was not unfettered. In accordance with Padfield and others v Minister of Agriculture, Fisheries and Food and others [1968] AC 997, it could be used only to advance the Act's policy and purposes. The reserve power did not frustrate section 4(1) or its requirement of due impartiality.

3. The Convention. Lord Bridge and Lord Ackner held that the unincorporated European Convention on Human Rights was not part of domestic law and could not create enforceable rights or obligatory limits on administrative discretion. A court may prefer a Convention-compatible construction where statutory language is genuinely ambiguous. Section 29(3), however, presented no such ambiguity. Treating Article 10 as a mandatory relevant consideration would incorporate the Convention through judicial review without legislation. Lord Roskill expressly agreed with Lord Bridge, while Lord Lowry particularly agreed with Lord Ackner.

4. Supervisory review and fundamental rights. Lord Bridge held that a restriction on freedom of expression required justification by an important competing public interest. The primary assessment belonged to the Home Secretary, while the court made the secondary judgment whether a reasonable Secretary of State could reasonably regard the restriction as justified. Lord Templeman adopted materially the same supervisory inquiry and emphasised that the court could not substitute its view for the Home Secretary's informed judgment. Lord Ackner and Lord Lowry likewise treated Wednesbury review as supervisory rather than appellate, while requiring close scrutiny where a fundamental right was affected.

5. Application. The defeat of terrorism was a public interest of the first importance. The directions restricted only the manner of presenting statements, principally the transmission of the speaker's own voice. They did not prevent reporting, paraphrase, dubbing or the display of the speaker's image. Lord Bridge, Lord Templeman, Lord Ackner and Lord Lowry regarded the interference as minimal and the Home Secretary's reasons as compelling or reasonably open to him.

6. Proportionality. The House declined to adopt European proportionality as a separate ground of domestic judicial review in this case. Lord Roskill, whose observations Lord Bridge approved, said that adoption would substitute the court's assessment for the ministerial judgment entrusted by Parliament. Lord Ackner found no present basis for applying the European doctrine before incorporation of the Convention. Lord Lowry considered that it would improperly extend supervisory review towards an appeal on the merits. Lord Roskill and Lord Bridge nevertheless left open possible case-by-case development of proportionality in the future.

1. House of Lords: In R v Secretary of State for the Home Department, Ex parte Brind (Brind, Ex parte) [1991] 2 WLR 588, the House unanimously dismissed the appeal and affirmed the Court of Appeal's order.
2. Court of Appeal (Civil Division): By an order dated 6 December 1989, the court upheld the rejection of the challenge. No citation is stated in the judgment.
3. Divisional Court of the High Court: The application for judicial review failed. No citation is stated in the judgment.