R v Secretary of State for the Home Department, ex parte Brind

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Bridge of Harwich,Lord Roskill,Lord Templeman,Lord Ackner,Lord Lowry
Judgment Date07 Feb 1991
Judgment citation (vLex)[1991] UKHL J0207-1

[1991] UKHL J0207-1

House of Lords

Lord Bridge of Harwich

Lord Roskill

Lord Templeman

Lord Ackner

Lord Lowry

Regina
and
Secretary of State for the Home Department
(Respondent)
Ex Parte Brind and Others
(Appellants)
Lord Bridge of Harwich

My Lords,

1

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 judicial 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.

2

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.

3

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 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.

4

I would dismiss the appeal.

Lord Roskill

My Lords,

5

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] A.C. 374 at 410, where, after establishing his triple categorisation of the fields in which judicial review might operate, he added:

"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."

6

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"...

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