Regina v Secretary of State for the Home Department, ex parte Brind and others

The House of Lords dismissed the appellants' challenge to directives issued by the Secretary of State under section 29(3) of the Broadcasting Act 1981 and clause 13(4) of the BBC Licence and Agreement which prohibited broadcasting direct statements by representatives or supporters of specified terrorist and paramilitary organisations. The court applied the supervisory Wednesbury standard of reasonableness to the Secretary of State's exercise of discretion and held that he had not exceeded the statutory power: a reasonable Secretary of State could conclude that the restriction on "actuality" broadcasting was justified by the important public interest of combating terrorism. The appellants' argument that Article 10 of the European Convention on Human Rights should be directly imported into domestic administrative law was rejected: the Convention may be used to resolve ambiguity in domestic law but it is not directly enforceable or to be incorporated by judicial decision into the limits of executive discretion in the absence of parliamentary enactment. The House also declined to develop or apply the continental proportionality doctrine as a separate ground of review in place of the established Wednesbury principles.

The appeal arose from directives issued in October 1988 by the Home Secretary requiring the BBC and the Independent Broadcasting Authority to refrain from broadcasting direct spoken statements by persons who represent or purport to represent certain specified organisations or whose words supported or solicited support for such organisations. The specified organisations were proscribed groups under United Kingdom terrorism legislation and certain other organisations identified in the directives. The appellants, principally broadcast journalists and persons reliant on broadcast media for information, sought judicial review, contending that the Secretary of State had acted ultra vires.

Nature of the claim: an application for judicial review seeking quashing of the directives on grounds that the Secretary of State exceeded his powers under the Broadcasting Act 1981 and the BBC Licence and Agreement, unlawfully interfered with freedom of expression, and failed properly to take into account Article 10 of the European Convention on Human Rights.

Procedural posture: the case came to the Appellate Committee by way of appeal against an order of the Court of Appeal dated 6 December 1989; the House of Lords heard argument and affirmed the Court of Appeal's order, dismissing the appeal.

Issues framed by the court:

• Whether the Secretary of State, in issuing the directives under section 29(3) and clause 13(4), acted within the scope of the powers conferred by Parliament or exceeded them (Padfield/Wednesbury principles);
• Whether Article 10 ECHR and the doctrine of proportionality should be applied by domestic courts to limit the executive's exercise of statutory discretion in this field;
• Whether the particular restrictions imposed were justified and proportionate to the important public interest of combating terrorism.

Reasoning and outcome: The majority held that the Secretary of State had acted within the statutory discretion. The House emphasised that the statutory discretion must be exercised for the purposes for which it was conferred and is reviewable on traditional Wednesbury grounds: the court's role is supervisory, not appellate. The Lords concluded there was material before the Secretary of State which made it open to a reasonable Minister to conclude that preventing direct broadcast appearances by terrorists and supporters would reduce undeserved publicity, reduce intimidation and serve the public interest in combating terrorism. On Convention argument, the court reiterated that the Convention is not part of domestic law and cannot be imported to fetter an otherwise lawful statutory discretion; it may, however, resolve ambiguities in statute. Finally, the House refused to adopt the continental doctrine of proportionality as a freestanding basis for judicial review in place of Wednesbury unreasonableness, although several members acknowledged its possible future development in English law.

The appeal was dismissed and the order of the Court of Appeal of 6 December 1989 was affirmed. The House held that the Secretary of State had acted within his statutory discretion under section 29(3) of the Broadcasting Act 1981 and clause 13(4) of the BBC Licence and Agreement; the interference with freedom of expression was a limited restriction justified by the important public interest of combating terrorism. The House also held that Article 10 of the European Convention on Human Rights cannot be directly imported into domestic administrative law to limit statutory discretion in the absence of parliamentary implementation, and declined to adopt proportionality as a separate ground of review in this case.

Appeal to the Appellate Committee of the House of Lords from an order of the Court of Appeal (Civil Division) dated 6 December 1989; the House of Lords affirmed the Court of Appeal's order and dismissed the appeal.