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[HOUSE OF LORDS] |
REGINA v. SECRETARY OF STATE FOR THE HOME |
DEPARTMENT, Ex parte BRIND AND OTHERS |
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Crown - Minister - Statutory powers - Statutory discretion to restrict broadcasting - Minister directing broadcasters to refrain from broadcasting direct speech by persons representing terrorist and other specified groups - Whether decision reasonable - Whether European doctrine of proportionality applicable - Broadcasting Act 1981 (c. 68), s. 29(3) |
Statute - Construction - International convention - As aid to con- struction - Convention to which United Kingdom signatory not incorporated into domestic law - Whether recourse to convention permissible - Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), art. 10 |
By directives issued under section 29(3) of the Broadcasting Act 19811 and clause 13(4) of the licence and agreement made with the British Broadcasting Corporation and approved by Parliament, the Secretary of State required the Independent Broadcasting Authority and the B.B.C. respectively to refrain from broadcasting "any matter" consisting of or including words spoken by persons appearing or being heard on programmes where such persons represented organisations proscribed under the Prevention of Terrorism (Temporary Provisions) Act 1984 or the Northern Ireland (Emergency Provisions) Act 1978 and certain other specified groups, or where the words spoken supported or invited support for such organisations. The directives were expressly not applicable to proceedings in Parliament or to parliamentary and local electoral campaigns. By way of clarification the Secretary of State indicated that they only referred to statements made directly by the relevant persons and that no restriction was imposed on the broadcasting of film or still pictures of such persons speaking the words together with a voice-over account of them in paraphrase or verbatim. In proceedings for judicial review, the applicants, who were concerned in the broadcasting of programmes relating to news and current affairs, sought, inter alia, a declaration that the Secretary of State's decision to issue the directives was ultra vires and unlawful. They claimed that in contravening article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in conflicting with the broadcasters' duties, in particular to preserve due impartiality under section 4 of the Act of 1981 and under the licence and agreement, the directives were outside the Secretary of State's powers under section 29(3) and clause 13(4). They further claimed that the directives were disproportionate to the mischief at which they were aimed, namely to prevent intimidation by, |
1 Broadcasting Act 1981, s. 29(3): see post, p. 716E. |
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or undeserved publicity and an appearance of political legitimacy for, such organisations, and were unreasonable so as to amount to an unlawful exercise of the Secretary of State's powers. The Divisional Court of the Queen's Bench Division dismissed the application, and the Court of Appeal dismissed an appeal by the applicants. |
On appeal by the applicants:- |
Held, dismissing the appeal, that the European Convention for the Protection of Human Rights and Fundamental Freedoms was not part of English domestic law and, although the presumption that Parliament had intended to legislate in conformity with it might be resorted to in order to resolve ambiguity or uncertainty in a statutory provision, there was no such ambiguity or uncertainty in the wording of section 29(3) of the Broadcasting Act 1981 and there was no presumption that the Secretary of State's discretion thereunder had to be exercised in accordance with the Convention; that to apply the doctrine of "proportionality" would involve the court in substituting its own judgment of what was needed to achieve a particular object for that of the Secretary of State on whom that duty had been laid by Parliament; and that, while any restriction of the right of freedom of expression could only be justified by an important competing public interest, it was impossible to say that the Secretary of State, in concluding that the modest restrictions imposed by the directives were justified by the important public interest of combating terrorism, had exceeded the limits of his discretion or acted unreasonably in making them (post, pp. 747G-748C, 748H-749B, 749F-750A, 750E, 751A-G, 759B-D, 760C-D , 761E-F,G-762B, 763A-B, 764E-F, 766G-H). |
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, C.A. applied. |
Decision of the Court of Appeal, post, pp. 711B et seq; [1990] 2 W.L.R. 787; [1990] 1 All E.R. 469 affirmed. |
The following cases are referred to in their Lordships' opinions: |
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A. |
Chundawadra v. Immigration Appeal Tribunal [1988] Imm.A.R. 161, C.A. |
Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935, H.L.(E.) |
Fernandes v. Secretary of State for the Home Department [1981] Imm.A.R. 1, C.A. |
Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 751; [1982] 2 W.L.R. 918; [1982] 2 All E.R. 402, E.C.J. and H.L.(E.) |
Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R. 924; [1968] 1 All E.R. 694, C.A. and H.L.(E.) |
Rayner (J. H.) (Mincing Lane) Ltd. v. Department of Trade and Industry [1990] 2 A.C. 418; [1989] 3 W.L.R. 969; [1989] 3 All E.R. 523, H.L.(E.) |
Reg. v. Chief Immigration Officer, Heathrow Airport, Ex parte Salamat Bibi [1976] 1 W.L.R. 979; [1976] 3 All E.R. 843, C.A. |
Reg. v. Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] A.C. 240; [1986] 2 W.L.R. 1; [1986] 1 All E.R. 199, H.L.(E.) |
Reg. v. Secretary of State for Transport, Ex parte de Rothschild [1989] 1 All E.R. 933, C.A. |
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Reg. v. Secretary of State for Transport, Ex parte Pegasus Holdings (London) Ltd. [1988] 1 W.L.R. 990; [1989] 2 All E.R. 481 |
Salomon v. Commissioners of Customs and Excise [1967] 2 Q.B. 116; [1966] 3 W.L.R. 1223; [1966] 3 All E.R. 871, C.A. |
Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] A.C. 1014; [1976] 3 W.L.R. 641; [1976] 3 All E.R. 665, C.A. and H.L.(E.) |
The following additional cases were cited in argument in the House of Lords: |
Attorney-General v. British Broadcasting Corporation [1981] A.C. 303; [1980] 3 W.L.R. 109; [1980] 3 All E.R. 161, H.L.(E.) |
Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248; [1987] 3 All E.R. 316, Sir Nicolas Browne-Wilkinson V.-C., C.A. and H.L.(E.) |
Broome v. Cassell & Co. Ltd. [1972] A.C. 1027; [1972] 2 W.L.R. 645; [1972] 1 All E.R. 801, H.L.(E.) |
Chung Chi Cheung v. The King [1939] A.C. 160; [1938] 4 All E.R. 786, P.C. |
Cinnamond v. British Airports Authority [1980] 1 W.L.R. 582; [1980] 2 All E.R. 368, C.A. |
Commercial and Estates Co. of Egypt v. Board of Trade [1925] 1 K.B. 271, C.A. |
Edmonton Journal v. Attorney-General for Alberta (1989) 64 D.L.R. (4th) 577 |
Findlay, In re [1985] A.C. 318; [1984] 3 W.L.R. 1159; [1984] 3 All E.R. 801, H.L.(E.) |
Groppera Radio A.G. v. Switzerland (1990) 12 E.H.R.R. 321, E.C.H.R. |
Johnston v. Chief Constable of the Royal Ulster Constabulary (Case 222/84) [1987] Q.B. 129; [1986] 3 W.L.R. 1038; [1986] 3 All E.R. 135, E.C.J. |
K.D. (A Minor) (Ward: Termination of Access), In re [1988] A.C. 806; [1988] 2 W.L.R. 398; [1988] 1 All E.R. 577, H.L.(E.) |
Lock International Plc. v. Beswick [1989] 1 W.L.R. 1268; [1989] 3 All E.R. 373 |
Markt Intern and Beermann v. Germany (1989) 12 E.H.R.R. 161, E.C.H.R. |
Raymond v. Honey [1983] 1 A.C. 1; [1982] 2 W.L.R. 465; [1982] 1 All E.R. 756, H.L.(E.) |
Reg. v. Barnsley Metropolitan Borough Council, Ex parte Hook [1976] 1 W.L.R. 1052; [1976] 3 All E.R. 452, C.A. |
Reg. v. Board of Visitors of H.M. Prison, The Maze, Ex parte Hone [1988] A.C. 379; [1988] 2 W.L.R. 177; [1988] 1 All E.R. 321, H.L.(N.I.) |
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Reg. v. Brent London Borough Council, Ex parte Assegai (unreported), 11 June 1987, D.C. |
Reg. v. Miah [1974] 1 W.L.R. 683; [1974] 2 All E.R. 377, H.L.(E.) |
Reg. v. Secretary of State for the Home Department, Ex parte Bhajan Singh [1976] Q.B. 198; [1975] 3 W.L.R. 225; [1975] 2 All E.R. 1081, C.A. |
Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514; [1987] 2 W.L.R. 606; [1987] 1 All E.R. 940, H.L.(E.) |
Reg. v. Secretary of State for the Home Department, Ex parte Phansopkar [1976] Q.B. 606; [1975] 3 W.L.R. 322; [1975] 3 All E.R. 497, C.A. |
Reg. v. Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd. [1988] A.C. 858; [1988] 2 W.L.R. 654; [1988] 1 All E.R. 961, H.L.(E.) |
Times Newspapers Ltd. v. United Kingdom (Application No. 13166/87) (unreported), 12 July 1990, E.C.H.R. |
W. v. United Kingdom, 8 July 1987, Series A No. 121, E.C.H.R. |
West Rand Central Gold Mining Co. Ltd. v. The King [1905] 2 K.B. 391 |
Wheeler v. Leicester City Council [1985] A.C. 1054; [1985] 3 W.L.R. 335; [1985] 2 All E.R. 1106, H.L.(E.) |
The following cases are referred to in the judgments of the Court of Appeal: |
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A. |
Attorney-General v. British Broadcasting Corporation [1981] A.C. 303; [1980] 3 W.L.R. 109; [1980] 3 All E.R. 161, H.L.(E.) |
Chundawadra v. Immigration Appeal Tribunal [1988] Imm.A.R. 161, C.A. |
Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935, H.L.(E.) |
Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 751; [1982] 2 W.L.R. 918; [1982] 2 All E.R. 402, E.C.J. and H.L.(E.) |
K. D. (A Minor) (Ward: Termination of Access), In re [1988] A.C. 806; [1988] 2 W.L.R. 398; [1988] 1 All E.R. 577, H.L.(E.) |
Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R. 924; [1968] 1 All E.R. 694, H.L.(E.) |
Raymond v. Honey [1983] 1 A.C. 1; [1982] 2 W.L.R. 465; [1982] 1 All E.R. 756, H.L.(E) |
Reg. v. Barnsley Metropolitan Borough Council, Ex parte Hook [1976] 1 W.L.R. 1052; [1976] 3 All E.R. 452, C.A. |
Reg. v. Board of Visitors of H.M. Prison, The Maze, Ex parte Hone [1988] A.C. 379; [1988] 2 W.L.R. 177; [1988] 1 All E.R. 321, H.L.(N.I.) |
Reg. v. Brent London Borough Council, Ex parte Assegai (unreported), 11 June 1987, D.C. |
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Reg. v. Secretary of State for Transport, Ex parte Pegasus Holdings (London) Ltd. [1988] 1 W.L.R. 990; [1989] 2 All E.R. 481 |
Salomon v. Commissioners of Customs and Excise [1967] 2 Q.B. 116; [1966] 3 W.L.R. 1223; [1966] 3 All E.R. 871, C.A. |
Waddington v. Miah [1974] 1 W.L.R. 683; [1974] 2 All E.R. 377, H.L.(E.) |
The following additional cases were cited in argument in the Court of Appeal: |
Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248; [1987] 3 All E.R. 316, Sir Nicolas Browne-Wilkinson V.-C., C.A. and H.L.(E.) |
Broome v. Cassell & Co. Ltd. [1972] A.C. 1027; [1972] 2 W.L.R. 645; [1972] 1 All E.R. 801, H.L.(E.) |
Fernandes v. Secretary of State for the Home Department [1981] Imm.A.R. 1, C.A. |
Lock International Plc. v. Beswick [1989] 1 W.L.R. 1268; [1989] 3 All E.R. 373 |
Reg. v. Chief Immigration Officer, Heathrow Airport, Ex parte Salamat Bibi [1976] 1 W.L.R. 979; [1976] 3 All E.R. 843, C.A. |
Reg. v. General Medical Council, Ex parte Colman (unreported) 25 November 1988, D.C. |
Reg. v. Secretary of State for the Home Department, Ex parte Bhajan Singh [1976] Q.B. 198; [1975] 3 W.L.R. 225; [1975] 2 All E.R. 1081, C.A. |
Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514; [1987] 2 W.L.R. 606; [1987] 1 All E.R. 940, H.L.(E.) |
Reg. v. Secretary of State for the Home Department, Ex parte Phansopkar [1976] Q.B. 606; [1975] 3 W.L.R. 322; [1975] 3 All E.R. 497, D.C. and C.A. |
APPEAL from the Divisional Court of the Queen's Bench Division. |
By a notice of application for judicial review dated 24 January 1989 the applicants, Donald Brind, Fred Emery, Alexander Graham, Victoria Leonard, Scarlett McGwire, Thomas Nash and John Pilger, sought (1) a declaration that the decision of the Secretary of State for the Home Department given by directives dated 19 October 1988 requiring the British Broadcasting Corporation and the Independent Broadcasting Authority to refrain from broadcasting specified matter were ultra vires and void, and (2) an order of certiorari to quash the decision. The grounds on which relief was sought were, inter alia, (1) that the dir- ectives were in breach of article 10 of the Convention for the Pro- tection of Human Rights and Fundamental Freedoms 1953 in that there was no pressing social need for such an interference with free speech, and in empowering the Secretary of State to make directives, Parliament could not have intended to authorise him to contravene article 10 of the Convention; (2) the directives were disproportionate to the mischief at which they were aimed; and (3) they were perverse in that no reasonable Secretary of State properly directing himself could have made them; further or in the alternative (4) that section 29(3) of the Broadcasting Act 1981 and clause 13(4) of the B.B.C. licence did not empower the |
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Secretary of State to give directives which prevented or hindered the Independent Broadcasting Authority and the British Broadcasting Corporation from fulfilling their duties under the Act of 1981 or the charter and licence, in particular in preserving due impartiality. |
On 26 May 1989 the Divisional Court (Watkins L.J., Roch and Judge JJ.) dismissed the application. By a notice of appeal dated 20 June 1989 the applicants appealed on the grounds, inter alia, that the Divisional Court had erred in the following respects: (1) that having accepted that where, as here, Parliament had conferred a discretionary power in section 29(3) of the Act of 1981, article 10 of the Convention (which guaranteed freedom of speech) constituted an implied limitation on the exercise of that power since Parliament could not have intended to authorise the minister to act in breach of the Convention, the court erred in failing to consider whether the Secretary of State was in breach of article 10, which only permitted interferences with freedom of speech where there was a pressing social need in order to advance one of a number of defined objectives; the court wrongly confined itself to considering whether it was perverse for the Secretary of State to conclude that there existed a pressing social need; (2) the court failed to conclude that the decision was in breach of article 10 in that there was no pressing social need for the restriction of expression; (3) the court erred in law in relation to the concept of proportionality, wrongly concluding that it was not a ground of judicial review that the decision of the Secretary of State was out of proportion to the benefit to be obtained or the mischief to be avoided; (4) that the court erred by failing to find that the decision was perverse; (5) the court erred in failing to find a breach of article 10, a lack of proportionality and perversity by reason of the following: (a) the directives removed an important aspect of editorial control from broadcasters to the government, impeding the performance of their duties to report current affairs impartially, and (b) the Independent Broadcasting Authority had statutory duties under section 4(1)(a) to (f) of the Act of 1981 to ensure that nothing was included in broadcast programmes offensive to good taste or decency or was likely to be offensive to public feeling, and to ensure that due impartiality was preserved. Similar duties arose under the British Broadcasting Corporation's Charter, licence and agreement. There had been no suggestion by the Secretary of State that such duties had been breached. |
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The facts are stated in the judgment of Lord Donaldson of Lymington M.R. |
Anthony Lester Q.C. and David Pannick for the applicants. The appeal raises issues of considerable general interest and importance in respect of free speech in a democratic society. The applicants neither are, nor represent, the persons or bodies whose statements are the subject of the directives issued by the Secretary of State. The applicants are journalists and a member of the public and their concern is that without reasonable justification the directives interfere with the rights and duties of broadcasters to inform and with the right of the public to be informed about current affairs so that they can thereby form their own view on matters of public moment. |
The directives, made under section 29(3) of the Broadcasting Act 1981 in respect of the Independent Broadcasting Authority, and clause 13(4) of the licence and agreement, in respect of the B.B.C., represent an unprecedented interference with free speech in peace time. They involve the prior censorship by the state of the content of television and radio programmes broadcast in the United Kingdom and overseas. They remove an important aspect of editorial control from broadcasters to |
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the government, yet do not result from any criticisms levelled against the broadcasters by the government or Parliament. The effect of the directives is to deprive the public of being shown information which might assist them about current affairs in Northern Ireland. They impose difficult decisions on the broadcasters in determining what material falls within the scope of the directives, and what lies outside, so that the performance of the broadcasters' duties to report current affairs impartially is impeded. |
The directives are sweepingly broad, the ban on broadcasting covers any subject matter and is not confined to terrorism or the threat of terrorism. The Secretary of State relies on the very wide powers conferred on him by Parliament, which, if taken literally, are absolute and unlimited. Although on their face the words of section 29(3) are clear they cannot be taken as conferring so wide a power. It is the constraints which should be placed on their construction which is in issue. Section 29(3) and clause 13(4) are ambiguous and unclear in that each is arguably capable of bearing the following interpretations: (1) "matter" relates to specific information and there is no power to impose a blanket ban on the broadcasting of all information from a particular source; (2) there is no power to ban broadcasting of information for reasons which are covered by section 4 of the Act, and by analogous provisions in the licence, in particular to prevent crime or to prevent offence to the public. The mischief at which the section is directed must have been one for which the Act provides no other remedy. If the matter fell within section 4, there is no power to use either section 29(3) or clause 13(4). Any other construction would frustrate the policy and objects of the statutory scheme. Section 29(3) is not intended to confer power on a minister to impose a ban on anything said in relation to a particular group or section of the community. It is only available to meet a compelling public interest where that is necessary. It is because of this ambiguity that the court can and should narrowly define the scope of the relevant powers so as to ensure consistency with both the statutory objects and with the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). |
Parliament in empowering the Secretary of State to act under section 29(3), and clause 13(4), cannot have intended to authorise him to act in breach of an international treaty obligation of the United Kingdom government, namely article 10 of the Convention. It is a principle of statutory construction that the words of a statute passed after a treaty to which the United Kingdom was a party and dealing with the subject matter of the international obligation are to be construed, if they reasonably can be, as intended to carry out the obligation, and not to be |
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The case law demonstrates that English courts now refer to the relevant provisions of the Convention and to judgments of the European Court interpreting those provisions, for the purpose of ensuring where possible that the domestic law is in conformity with the Convention. That is the approach whether the court is construing legislation, reviewing the exercise of administrative discretion, or declaring and applying the common law. Where however an Act of Parliament cannot be construed so as to be consistent with the Convention, then the English courts must apply the statute and leave the complainant to seek redress on the international plane. |
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The courts are wrong to consider that the application of the doctrine of proportionality will cause chaos in litigation. That is to misunderstand |
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The policy and objects of the Act of 1981 are not hard to find, namely to set in place and maintain a system or rŽgime by which television and radio are provided to the public by independent broadcasters under the general aegis of the I.B.A. That is the effect of |
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sections 1 to 4. Within that frame it is the general responsibility of the I.B.A. to monitor and safeguard the quality of programmes: see section 2(1) and (2) and section 4(10). From that it follows that the policy of the statute would be frustrated if the powers conferred by section 29 were used by the Secretary of State to arrogate to himself that overall responsibility and to take on the burden cast by statute on the I.B.A. |
It follows that the section 29 powers are to be used specifically in relation to matters concerning the public or the national interest, care for which is the particular responsibility of the government, where the Secretary of State takes the view that action under section 29 is called for. That approach to the construction of the statute correctly shows a balance between the general responsibility of the I.B.A. and occasional governmental intrusion. There could therefore in appropriate circumstances be an overlap with section 4 where the situation is sufficiently grave to require and justify his taking action. |
It is accepted that the Convention is not incorporated into domestic law: see Chundawadra v. Immigration Appeal Tribunal [1988] Imm. A.R. 161; Fernandes v. Secretary of State for the Home Department |
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It is therefore illegitimate to have recourse to the Convention where, as here, there is no ambiguity in the primary legislation. Ambiguity in secondary legislation does not provide a legitimate reason for the court to have regard to the Convention. Either the secondary legislation is intra vires or it is not. |
With regard to the merits, the evidence demonstrates that the Secretary of State did not stray outside the parameters set by the policy and objects of the statutory provisions. He discerned the public interest in an area peculiarly within the responsibility of government, namely to |
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respond to terrorists deploying broadcasting media for their own ends. Nor could his decision be characterised as perverse. There is no restriction on reporting what is said by the proscribed organisations, it is only the distinct quality of viva voce interviews which is caught. The decision to make the directives in the present terms is a matter of political judgment. While two views may reasonably be held on the subject, it is impossible to assert that one of them can appropriately be challenged for perversity. |
The Secretary of State has not sufficiently answered the challenge of perversity. In particular he has not explained why, in the absence of any criticism in respect of past behaviour, he did not request the broadcasting authorities to deal with the matter under their own statutory powers, nor why, applying the heightened scrutiny test, as he should have, he has used powers to remove the fundamental right of freedom of speech. |
The policy and objects of the statutory scheme include the maintenance of a broadcasting system which protects and encourages freedom of expression without unnecessary government interference or control. The responsibility for regulating programme content rests with the broadcasters, independent of intervention save in the most pressing circumstances. They have the responsibility of ensuring that programmes |
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do not offend against good taste or decency, are not likely to incite crime or lead to disorder or to be offensive to public feeling. Theirs is the responsibility for the preservation of due impartiality. Given that statutory policy and structure, the Secretary of State's directives cannot amount to a proper exercise of his powers within the framework of the Act and the licence and agreement. |
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6 December. The following judgments were handed down. |
LORD DONALDSON OF LYMINGTON M.R. The applicants, who are journalists, sought judicial review of directives to the British Broadcasting Corporation ("the B.B.C.") and the Independent Broadcasting Authority ("the I.B.A.") issued by the Secretary of State for the Home Department on 19 October 1988. A Divisional Court consisting of Watkins L.J., Roch and Judge JJ. dismissed their application on 26 May 1989 and the applicants now appeal. |
The directives |
The directives were in identical terms, save that in the case of that addressed to the B.B.C. the Secretary of State purported to act in pursuance of clause 13(4) of the licence and agreement between him and the B.B.C. dated 2 April 1981, whilst in the case of that addressed to the I.B.A. the Secretary of State purported to act in pursuance of section 29(3) of the Broadcasting Act 1981. |
The text common to both directives was: |
"to refrain from broadcasting any matter which consists of or includes - any words spoken, whether in the course of an interview or discussion or otherwise, by a person who appears or is heard on the programme in which the matter is broadcast where - (a) the person speaking the words represents or purports to represent an organisation specified in paragraph 2 below, or (b) the words support or solicit or invite support for such an organisation, other than any matter specified in paragraph 3 below. 2. The organisations referred to in paragraph 1 above are: (a) any organisation which is for the time being a proscribed organisation for the purposes of the Prevention of Terrorism (Temporary Provisions) Act 1984 or the Northern Ireland (Emergency Provisions) Act 1978; and (b) Sinn Fein, Republican Sinn Fein and the Ulster Defence Association. 3. The matter excluded from paragraph 1 above is any words spoken - (a) in the course of proceedings in Parliament, or (b) by or in support of a candidate at a parliamentary, European parliamentary or local election pending that election." |
The elaboration of the directives |
The B.B.C. expressed doubt as to the exact scope of the directive and Mr. C. L. Scoble, an assistant under-secretary in the Home Office and head of the broadcasting department, wrote to the B.B.C. on 24 |
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October 1988, sending a copy to the I.B.A. That letter, which had been seen and approved by the Home Secretary, was in the following terms: |
"As you know, when I met B.B.C. officials on 20 October to discuss the notice which the Home Secretary sent to the B.B.C. the previous day, a number of points were raised concerning its interpretation on which the B.B.C. had doubts. We explained the Home Office approach to the drafting on these points and the scope of the restrictions which it was intended should be imposed on broadcast programmes. I promised to put what we said in writing so that the B.B.C. would be left in no doubt as to the effect of the notice. |
"It was asked whether the notice applied only to direct statements by representatives of the organisations or their supporters or whether it applied also to reports of the words they had spoken. We confirmed, as the Home Secretary has made clear in Parliament, that the correct interpretation (and that which was intended) is that it applies only to direct statements and not to reported speech, and that the person caught by the notice is the one whose words are reported and not the reporter or presenter who reports them. Thus the notice permits the showing of a film or still picture of the initiator speaking the words together with a voice-over account of them, whether in paraphrase or verbatim. We confirmed that programmes involving the reconstruction of actual events, where actors use the verbatim words which had been spoken in actuality, are similarly permitted. |
"For much the same reason, we confirmed that it was not intended that genuine works of fiction should be covered by the restrictions, on the basis that the appropriate interpretation of "a person" in paragraph 1 of the notice is that it does not include an actor playing a character. |
"The B.B.C. also asked whether a member of an organisation or one of its elected representatives could be considered as permanently representing that organisation so that all his words, whatever their character, were covered by the notice. We confirmed that the Home Office takes the view that this is too narrow an interpretation of the word 'represents' in paragraph 1(a) of the text. A member of an organisation cannot be held to represent that organisation in all his daily activities. Whether at any particular instance he is representing the organisation concerned will depend upon the nature of the words spoken and the particular context. Where he is speaking in a personal capacity or purely in his capacity as a member of an organisation which does not fall under the notice (for example, an elected council), it follows, from that interpretation, that paragraph 1(a) will not apply. Where it is clear, from the context and the words, that he is speaking as a representative of an organisation falling under the notice, his words may not be broadcast directly, but (as mentioned above) can be reported. (He may, of course, come within the scope of paragraph 1(b), if his words contain support for the organisation.) Although there may be borderline occasions when this distinction will require a careful |
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exercise of judgment, we believe that the great majority of broadcast material will fall clearly within one case or the other. |
"We confirmed that direct broadcast coverage of statements in court would be subject to the present notice, but that this did not raise practical issues since broadcast coverage of court proceedings is not currently permitted in this country. Statements falling within the notice that were made in court proceedings in countries where direct broadcast coverage was permitted could not be broadcast directly here, but, again, the words could be fully reported. Similarly, the exemption under paragraph 3(a) of the notice applies only to proceedings in Parliament at Westminster, and not to the European Parliament or Parliaments in other countries. |
"I hope that this statement, which constitutes what the Home Office believes to be the correct interpretation of the notice and which represents the Home Secretary's intentions in issuing it, will be of help to you in providing advice to the corporation's staff." |
The Secretary of State's reasons for issuing the directives |
These I take from his statement made to both Houses of Parliament on 19 October 1988: |
"For some time broadcast coverage of events in Northern Ireland has included the occasional appearance of representatives of para-military organisations and their political wings, who have used these opportunities as an attempt to justify their criminal activities. Such appearances have caused widespread offence to viewers and listeners throughout the United Kingdom, particularly just after a terrorist outrage. The terrorists themselves draw support and sustenance from access to radio and television - from addressing their views more directly to the population at large than is possible through the press. The government have decided that the time has come to deny this easy platform to those who use it to propagate terrorism. Accordingly, I have today issued to the chairmen of the B.B.C. and the I.B.A. a notice, under the licence and agreement and under the Broadcasting Act 1981 respectively, requiring them to refrain from broadcasting direct statements by representatives of organisations proscribed in Northern Ireland and Great Britain and by representatives of Sinn Fein, Republican Sinn Fein and the Ulster Defence Association. The notices will also prohibit the broadcasting of statements by any person which support or invite support for these organisations. The restrictions will not apply to the broadcast of proceedings in Parliament, and in order not to impair the obligation on the broadcasters to provide an impartial coverage of elections the notices will have a more limited effect during election periods. Copies of the notices have today been deposited in the Library, and further copies are available from the Vote Office so that hon. members will be able to study their detailed effect. These restrictions follow very closely the lines of similar provisions which have been operating in the Republic of Ireland for some years. Representatives of these organisations are prevented from appearing on Irish television, but because we have had no equivalent |
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restrictions in the United Kingdom they can nevertheless be seen on B.B.C. and I.T.V. [Independent Television] services in Northern Ireland, where their appearances cause the gravest offence, and in Great Britain. The government's decision today means that both in the United Kingdom and in the Irish Republic such appearances will be prevented. Broadcasters have a dangerous and unenviable task in reporting events in Northern Ireland. This step is no criticism of them. What concerns us is the use made of broadcasting facilities by supporters of terrorism. This is not a restriction on reporting. It is a restriction on direct appearances by those who use or support violence. I believe that this step will be understood and welcomed by most people throughout the United Kingdom. It is a serious and important matter on which the House will wish to express its view. For that reason, we shall be putting in hand discussions through the usual channels so that a full debate on the matter can take place at an early date." |
In addition, I should refer to an affidavit sworn by Mr. Scoble in opposition to this application in which he said: |
"9. The Secretary of State's reasons for taking the action complained of are set out in the reports of those debates. [See: Hansard, 19 October, 2 November, 8 December 1988] I would draw attention to four matters which influenced him in reaching his decision. The first was that offence had been caused to viewers and listeners by the appearance of the apologists for terrorism, particularly after a terrorist outrage. Secondly, such appearances had afforded terrorists undeserved publicity, which was contrary to the public interest. Thirdly, these appearances had tended to increase the standing of terrorist organisations and create the false impression that support for terrorism is itself a legitimate political opinion. Fourthly, the view was taken that broadcast statements were intended to have, and did in some cases have, the effect of intimidating some of those at whom they were directed. For example, following the bomb attack on the home of Sir Kenneth Bloomfield, head of the Northern Ireland Civil Service, Mr. Gerry Adams warned that civil servants employed in the role of "military advisers" in the Six Counties ran the risk of attack. 10. As appears from the reports of the parliamentary debates, the purpose of the notices is to deny direct access to radio and television to those who support or seek to promote terrorism. The notices do not restrict the secondhand reporting of events; the activities of terrorist organisations and the statements of their apologists may still be reported, as they are in the press; but such persons are prevented from making the statements themselves on television and radio. This point was made clear in my letter of 24 October 1988 to the secretary of the B.B.C., in which I also indicated that it was not intended that genuine works of fiction should be covered by the restrictions. 11. In framing the restrictions the Secretary of State was careful to ensure that the notices went no further than was necessary to provide that air time was denied to terrorists, para-military |
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organisations and those who support them. In this respect it is noteworthy that the notices contain express exceptions for words spoken in the course of proceedings in Parliament or by, or in support of, a candidate at a parliamentary, European parliamentary or local election pending that election. This is because the Secretary of State considered that it was right, in a parliamentary democracy, that the verbatim coverage of candidates' speeches at an election and of parliamentary proceedings should not be restricted. In this respect the notices do not go as far as the equivalent notice issued in the Republic of Ireland, which contains no exception for elections and parliamentary proceedings. . . . 12. Finally, I should make it clear that the decision to issue notices to the broadcasters in October 1988 should not be taken as implying that the government considered that the broadcasting authorities had failed in the past to observe their duties in relation to the contents of broadcasts. Rather there was a recognition that, in relation to the particular concerns about the direct access of terrorists, para-military organisations and those who support them to radio and television, the government should itself for the reasons I have given use its powers in the public interest to act to prevent such access." |
Parliamentary approval |
On 2 November 1988 a motion: |
"That this House approves the Home Secretary's action in giving [directives] to the B.B.C. and I.B.A. to restrict the broadcasting of statements made by Northern Ireland terrorist organisations and their apologists" |
was carried by 243 votes to 179. On 8 December 1988 a motion to take note of the Secretary of State's action was debated and agreed to without a division in the House of Lords. |
The relationship between Parliament and the courts |
It will undoubtedly strike some people as strange that, the directives having been approved by Parliament, the courts should be prepared to entertain applications to judicially review them, since Parliament is supreme under our constitution. I can well understand such a reaction and it is very important that it should be answered and dispelled. |
Parliament is indeed supreme, subject to immaterial exceptions stemming from European Community law which does not include the European Convention for the Protection of Human Rights and Fundamental Freedoms. If Parliament had passed an Act containing the restrictions imposed by the Secretary of State's directives, the courts could and would have had nothing to consider or say. However, where Parliament authorises ministers to take executive action, it is the duty of the courts in appropriate cases to consider whether ministers have exceeded that authority. This is such a case so far as the I.B.A. directive is concerned. The Secretary of State's authority being derived from Parliament and contained in an Act of Parliament. |
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When Parliament debated the directive it was not concerned to ratify the Secretary of State's actions, that is to say to give lawful authority to something which was unlawful when it was done. Indeed, under our unwritten constitution Parliament could not have done so by a simple motion in each House. It would have required a statute. Nor was Parliament considering whether the Secretary of State's action was or was not lawful, the matter with which we are concerned. Instead, it was considering whether, assuming the Secretary of State's action was lawful, it approved of such action. Unlike Parliament, it is not for the courts to approve or disapprove of ministers' actions. The proceedings in Parliament do indeed show quite clearly that reasonable men and women can take two quite different views on whether the Secretary of State should have issued the directives, but what matters to us is something quite different, namely, had he the power to do so? |
Precisely the same point - had the Secretary of State the necessary power - arises in the context of the directive to the B.B.C., but in that case it depends not upon the extent of his authority under an Act of Parliament, but the extent of the authority which he reserved to himself under the licence and agreement dated 2 April 1981. However, in both cases the answer to the question is to be found in the true construction of similar words and accordingly, for present purposes, there is no practical distinction between the two directives. If one is authorised, so is the other. If one is unauthorised, so is the other. |
The Secretary of State's authority |
The crucial words of section 29(3) of the Broadcasting Act 1981 are: |
"the Secretary of State may at any time by notice in writing require the Authority to refrain from broadcasting any matter or classes of matter specified in the notice; and it shall be the duty of the Authority to comply with the notice." |
The crucial words of clause 13(4) of the licence and agreement dated 2 April 1981 are: |
"The Secretary of State may from time to time require the Corporation to refrain at any specified time or at all times from sending any matter or matters of any class specified in such notice; . . ." |
Grounds of challenge |
In this court, as in the Divisional Court, the applicants sought judicial review upon four main grounds: (1) Parliament, in empowering the Secretary of State to act under section 29(3) of the Act and, by a parity of reasoning, clause 13(4) of the B.B.C. licence and agreement, cannot have intended to authorise a breach of article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which relates to freedom of expression and, to the extent that the Secretary of State has acted in breach of article 10, he has exceeded his powers. (2) The Secretary of State acted ultra vires his powers to the extent that the directives were disproportionate to the mischief which he |
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was seeking to control. (3) The directives were perverse and therefore unlawful. (4) The directives were unlawful because they conflicted with the duties of the I.B.A. and the B.B.C. to preserve due impartiality in accordance with section 4(1)(f) of the Act of 1981 and with the resolution of the Board of Governors which underlies the B.B.C.'s licence. |
The European Convention for the Protection of Human Rights and Fundamental Freedoms |
There have been a number of cases in which the European Convention for the Protection of Human Rights and Fundamental Freedoms has been introduced into the argument and has accordingly featured in the judgments. In most of them the reference has been fleeting and usually consisted of an assertion, in which I would concur, that you have to look long and hard before you can detect any difference between the English common law and the principles set out in the Convention, at least if the Convention is viewed through English judicial eyes. However, in this case we are invited to grapple with the fundamental question of the effect of the Convention as distinct from any common law to the like effect. Indeed, this was in the forefront of the argument of Mr. Lester appearing for the applicants, and of the counter-argument of Mr. Laws, appearing for the Secretary of State. |
The Convention is contained in an international treaty to which the United Kingdom is a party and, by article 1, binds its signatories to "secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention." The United Kingdom Government can give effect to this treaty obligation in more than one way. It could, for example, "domesticate" or "patriate" the Convention itself, as has been done in the case of the treaties mentioned in the European Communities Act 1972, and there are many well-informed supporters of this course. Their view has not, as yet, prevailed. If it had done so, the Convention would have been part of English domestic law. Alternatively, it can review English common and statute law with a view to amending it, if and in so far as it is inconsistent with the Convention, at the same time seeking to ensure that all new statute law is consistent |
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with it. This is the course which has in fact been adopted. Whether it has been wholly successful is a matter for the European Court of Human Rights in Strasbourg and not for the English courts. By contrast, the duty of the English courts is to decide disputes in accordance with English domestic law as it is, and not as it would be if full effect were given to this country's obligations under the Treaty, assuming that there is any difference between the two. |
It follows from this that in most cases the English courts will be wholly unconcerned with the terms of the Convention. The sole exception is when the terms of primary legislation are fairly capable of bearing two or more meanings and the court, in pursuance of its duty to apply domestic law, is concerned to divine and define its true and only meaning. In that situation various prima facie rules of construction have to be applied, such as that, in the absence of very clear words indicating the contrary, legislation is not retrospective or penal in effect. To these can be added, in appropriate cases, a presumption that Parliament has legislated in a manner consistent, rather than inconsistent, with the United Kingdom's treaty obligations. |
Thus far I have referred only to primary legislation, but it is also necessary to consider subordinate legislation and executive action, whether it be under the authority of primary or secondary legislation. Mr. Lester submits that, where there is an ambiguity in primary legislation and it may accordingly be appropriate to consider the terms of the Convention, the ambiguity may sometimes be resolved by imputing an intention to Parliament that the delegated power to legislate or, as the case may be, the authority to take executive action, shall be subject to the limitation that it be consistent with the terms of the Convention. This I unhesitatingly and unreservedly reject, because it involves imputing to Parliament an intention to import the Convention into domestic law by the back door, when it has quite clearly refrained from doing so by the front door. |
Whatever the width of the authority conferred by section 29(3) of the Act and by clause 13(4) of the agreement and licence, matters to which I must return, there is in my judgment no ambiguity in either. It follows that, whilst the Secretary of State, in deciding whether or not to issue a directive and the terms of that directive, is free to take account of the terms of the Convention, as at some stage he undoubtedly did, he was under no obligation to do so. It also follows that the terms of the Convention are quite irrelevant to our decision and that the Divisional Court erred in considering them, even though, in the end, it concluded that it derived no assistance from this consideration. |
The definition of "matter" |
It is convenient to dispose of this ground before considering the other grounds, both because, if sound, it would be decisive and because |
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the true construction of the section and of the clause is an essential foundation for any consideration of whether the directives are open to attack on any of the other grounds which are advanced. |
It is quite clear that "matter" refers to what is broadcast, i.e. sounds or sounds and pictures, including writing transmitted as a picture. To this extent the word can indeed be said to relate to specific information, using that word in its widest sense. However, information can be classified not only in terms of content or subject matter, but also in terms of its source. Accordingly, a directive in the terms of these directives would constitute a requirement that the broadcasting authority refrain from broadcasting a particular class of matter. |
"Where the Minister is of the opinion that the broadcasting of a particular matter or any matter of a particular class would be likely to promote, or incite to, crime or would tend to undermine the authority of the state, he may by order direct the Authority to refrain from broadcasting the matter or any matter of the particular class, and the Authority shall comply with the order." |
O'Higgins C.J. held, at p. 364: |
"The word 'matter' which is used in the subsection is wide enough to cover a broadcast made on behalf of a named political party (irrespective of its contents) or any broadcast (however described) by any person or group of persons representing a named political party. It is such a matter which is prohibited and the order is not directed against a broadcast by a particular person as an individual, or against any group of individuals as such. It is directed against a broadcast on behalf of Sinn Fein or by any person or persons purporting to represent that organisation. It seems to me that such a prohibition is fully contemplated by the subsection." |
The "Padfield" ground of challenge |
Mr. Lester submits that the policy and objectives of the Act of 1981, also embodied in the B.B.C.'s licence, include the following: (a) maintaining a broadcasting system which protects and encourages freedom of expression without unnecessary government interference or control; (b) hence vesting responsibility for regulating programme content in the broadcasting organisations, independent of government interference or control, save in the most exceptional and pressing circumstances; (c) hence conferring responsibility upon the independent broadcasting organisations for ensuring that programmes do not offend good taste or decency, are not likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling, and that due impartiality is preserved. |
This I largely accept. Section 4(1) of the Act gives the Independent Broadcasting Authority instructions on how independent broadcasting is to be conducted and similar provisions apply to the B.B.C. It provides: |
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"It shall be the duty of the Authority to satisfy themselves that, so far as possible, the programmes broadcast by the Authority comply with the following requirements, that is to say - (a) that nothing is included in the programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling; (b) that a sufficient amount of time in the programmes is given to news and news features and that all news given in the programmes (in whatever form) is presented with due accuracy and impartiality; (c) that proper proportions of the recorded and other matter included in the programmes are of British origin and of British performance; (d) that the programmes broadcast from any station or stations contain a suitable proportion of matter calculated to appeal specially to the tastes and outlook of persons served by the station or stations and, where another language as well as English is in common use among those so served, a suitable proportion of matter in that language; (e) in the case of local sound broadcasting services, that the programmes broadcast from different stations for reception in different localities do not consist of identical or similar material to an extent inconsistent with the character of the services as local sound broadcasting services; and (f) that due impartiality is preserved on the part of the persons providing the programmes as respects matters of political or industrial controversy or relating to current public policy. In applying paragraph (f), a series of programmes may be considered as a whole." |
Against this background it is reasonably clear that the reserve powers contained in section 29(3) and clause 13(4) are not intended to be used frequently and indeed this is the first occasion upon which they have ever been used. But I do not think that this answers the question of whether those powers are all-embracing or whether they are limited to situations in which the broadcasting authorities would not themselves be bound to refrain from broadcasting in pursuance of their duty under section 4. |
Quite clearly, the narrower construction would be consistent with the policy and objectives of the Act. But so, subject to some important qualifications, would the wider construction. This qualification is that the Secretary of State could not lawfully require the broadcasters to broadcast matter which would involve them in a breach of their duties under section 4 or its equivalent or to refrain from broadcasting a notice calling attention to the fact that a directive had been given, this being an entrenched right under section 29(2) and (4). |
I should have hesitated for long before holding that Parliament intended the Secretary of State to have authority either covertly to censor programmes or to require the broadcasting authorities to present news programmes otherwise than with due accuracy and impartiality, but I do not so read the power. That being so, I see no reason why the words of section 29(3) should not be given their natural meaning and, so read, the power is quite clearly all-embracing, subject only to the qualification which I have noted. |
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Proportionality |
"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 the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community; . . ." |
In the instant case the Divisional Court held that ground 2 (proportionality) and ground 3 (Wednesbury unreasonableness) were identical. Watkins L.J. continued: |
"The contention arising from them is that the principle of proportionality in the law of the United Kingdom being one test or tool to be used in resolving the question, was the decision under consideration unreasonable in the sense that the decision was one which no reasonable minister properly directing himself as to the law could have taken? Applying that test, if, for example, a sledge hammer is taken to crack a nut when there are a pair of efficient nut crackers readily available, that is a powerful indication that the decision to use the sledge hammer was absurd - unreasonable. Our response to that is, in our view, the law of the United Kingdom has not developed so that a decision, which is neither perverse nor absurd and which is one which a reasonable minister properly taking into account the relevant law could take, becomes unlawful |
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simply because it can be shown that it was not in proportion to the benefit to be obtained or the mischief to be avoided by the taking of the decision. In our opinion the application of such a concept of proportionality would result in the courts substituting their own decisions for that of the minister, and that is something which the courts of this country have consistently declined to do. The court will not arrogate to themselves executive or administrative decisions which should be taken by executive or administrative bodies." |
The reality is that judicial review is a jurisdiction which has been developed and is still being developed by the judges. It has many strands and more will be added, but they are and will always be closely interwoven. But however the cloth emerges from the loom, it must never be forgotten that it is a supervisory and not an appellate jurisdiction. As Watkins L.J. pointed out, acceptance of "proportionality" as a separate ground for seeking judicial review rather than a facet of "irrationality" could easily and speedily lead to courts forgetting the supervisory nature of their jurisdiction and substituting their view of what was appropriate for that of the authority whose duty it was to reach that decision. |
Due impartiality |
The applicants submit that the directives are unlawful, because they conflict with the duty of the B.B.C. and the I.B.A. to preserve "due impartiality." In so submitting it seems to me that they misappreciate the nature of the duty in at least two respects. |
The first is that it operates in the real world in which there will always be obstacles to giving every shade of opinion equal air time. This is well recognised in the context of parliamentary by-elections, where it is quite impossible to treat all candidates alike if the programme is not either to be wholly uninformative or of inordinate length. In the result, the principal contenders are rightly given more air time than others and some fringe candidates receive only a mention, whose length is dictated largely by the length of the official description of their candidature. The directive is simply another obstacle of the existence of which account |
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has to be taken by the broadcasting authorities when giving effect to their duty to preserve due impartiality. |
The second is that the duty is to preserve due impartiality. It is for the broadcasting authorities to determine what constitutes the appropriate degree of impartiality, but they will not, I am sure, lose sight of their further obligation not to include in their programmes matter which is likely to encourage or incite to crime or to be offensive to public feeling. Furthermore, it is not self-evident that any impartiality is due to those who support or excuse attempts to achieve political change by terrorism. |
This submission is quite unarguable. |
Irrationality |
Under this head I include Wednesbury unreasonableness, perversity and lack of proportionality. |
A decision whether or not to give directives under section 29(3) of the Act and under clause 13(4) of the licence and agreement and, if so, in what terms, involves the Secretary of State in making a delicate and difficult political judgment. In the nature of things it is likely that there will be more than one tenable decision. But it is a judgment to be made by the Secretary of State and not by the courts, whose right and duty to intervene only arises in the event that the Secretary of State reaches an untenable decision in the sense that he can be shown to have taken account of matters which are irrelevant or failed to take account of matters which were relevant or in which the decision is manifestly wrong as falling outside the wide spectrum of rational conclusions. |
Perhaps the most startling feature of the directives is how little they restrict the supply of the "oxygen of publicity" to the organisations specified in the directives. They have no application in the circumstances mentioned in paragraph 3 (proceedings in the United Kingdom Parliament and elections) and, by allowing reported speech either verbatim or in paraphrase, in effect put those affected in no worse a position than they would be if they had access to newspaper publicity with a circulation equal to the listening and viewing audiences of the programmes concerned. Furthermore, on the applicants' own evidence, if the directives had been in force during the previous 12 months, the effect would have been minimal in terms of air time. Thus, Independent Television News ("I.T.N.") say that eight minutes twenty seconds (including repeats) out of 1200 hours, or 0.01 per cent., of air time would have been affected. Furthermore, it would not have been necessary to omit these items. They could have been recast into a form which complied with the directives. |
If, therefore, the directives are to be criticised at all, it must be on the basis that any use of the power will or may damage the reputation of the British broadcasting authorities for total independence from the government of the day and that this price was not worth paying for so small an effect. To this the applicants would add, although it is inherent in the use of the power, that making sure of compliance with the directives adds a further complication to the preparation and presentation of programmes which the broadcasting authorities could well do without. |
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For my part, I am quite unable to hold that the Secretary of State's decision was one which was not fully open to him in the exercise of his judgment. Accordingly, it is not one which should or can be reviewed by the courts. |
For these reasons, I would dismiss the appeal. |
Therefore, it was submitted, there is an international obligation imposed upon the United Kingdom by article 1 directly to secure the rights and freedoms set out in Section 1, including article 10, to everyone within the jurisdiction of the United Kingdom. The choice of means of giving effect to that obligation is to be made by the United Kingdom; but, it was submitted, the United Kingdom is obliged to achieve the aim by whatever appropriate means, of securing those rights and freedoms in the domestic law of this country, whether common law or statute law, and in the administrative practices of the United Kingdom Government and of public authorities within the meaning of article 10(2) of the Convention. |
Article 13 of the Convention provides: |
"Everyone whose rights and freedoms as set forth in this Convention [i.e. including article 10] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." |
Mr. Lester referred to Lithgow v. United Kingdom (1986) 8 E.H.R.R. 329, 397, paras. 205-206. |
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Mr. Lester acknowledged that the obligation of the United Kingdom to secure the right to freedom of expression, as guaranteed by article 10, and to secure that right under the domestic legal order, cannot be effected in the courts of this country where the alleged violation is required by Act of Parliament, because the Convention does not require the availability of a domestic remedy to challenge the compatibility of the statute with the Convention. In such a case, Mr. Lester also acknowledged, the Convention provides a remedy for a violation only on the international plane, i.e. before the European Commission and Court of Human Rights. |
It was next submitted that the rights and freedoms of the Convention have not been expressly incorporated by statute into the domestic law of this country because successive governments have considered that it was unnecessary to take that step so as to comply with the obligations imposed by the Convention. Successive governments must be taken, it was said, to have assumed that the existing arrangements within our domestic legal order comply with those obligations so that the Convention rights and remedies are directly secured and so that there are effective national remedies. |
Thus the courts of this country now refer - and must now refer - to the relevant provisions of the Convention, and to the judgments of the European Court of Human Rights, interpreting those provisions, for the purpose of ensuring, where possible, that our domestic law is in conformity with the Convention. That must be done when construing legislation as when reviewing the exercise of administrative discretion or declaring and applying the common law. Only if an Act of Parliament cannot be construed so as to be consistent with the Convention must the courts of this country apply the statute and leave the complainant to seek redress in Strasbourg. |
Mr. Lester acknowledged, in the course of argument, that, upon applying those principles to this case, the consequence would be that the court must imply into section 29(3) of the Act of 1981 words substantially to the following effect: "Provided that no such notice may be given as constitutes a breach of the Convention in respect of any person affected by it within the United Kingdom." |
The Act of 1981 is a consolidation Act. It is not in dispute that the original enactment of section 29(3) was made after ratification of the Convention by the United Kingdom on 8 March 1951. A substantially identical power was enacted by section 9 of the Television Act 1954. The responsible minister was then the Postmaster-General and the |
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potential recipient of a notice was the Independent Television Authority. It may be noted that section 3 of that Act contained general provisions as to programmes similar to those now contained in section 4 of the Act of 1981. The authorities relied upon by Mr. Lester are all after the date of the first enactment but his contention, as I understand it, is that Parliament enacted the original provision by reference to the common law of this country as to the construction of statutes and the following cases are no more than the development of the known principles of that law. |
Before giving consideration to the cases relied upon by Mr. Lester it is necessary, I think, to define the point of constitutional principle which Mr. Laws has raised against the applicants' main argument on this point. It is uncomplicated. An international treaty such as the Convention for the Protection of Human Rights and Fundamental Freedoms is made by the executive government. It does not directly affect the domestic law of this country, which can be changed only by Parliament. It is not within the powers of the court, by application of a rule of statutory construction, to import into the laws of this country provisions of a treaty for direct application by the court. Only Parliament can do that. It would be usurpation of the legislative power of Parliament for the court to do more than to construe the legislation which Parliament has passed in order to establish its meaning. To do that it may, and must, apply the rules of construction of statutes established in our law and by reference to which Parliament legislates. The court will, therefore, construe the primary legislation in that way. The court may have regard to a relevant treaty obligation in that process of construction. Thereafter, the court must apply the law of this country in deciding whether the act of the minister under the legislation is lawful or not. The court cannot, said Mr. Laws, decide whether an act of the minister, which is lawfully within the power given by Parliament, is a breach of the obligation of the United Kingdom under the Convention. |
For my part, I approach consideration of the authorities in the belief that the submission of Mr. Laws is apparently correct in principle. There must, I think, be clear binding authority before I could be persuaded that a common law principle of statutory construction has had the effect, as contended for by Mr. Lester, of incorporating provisions of the Convention into the law of this country to the extent described in his submission. |
"it is a principle of construction of United Kingdom statutes . . . that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it." |
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To use the principle there stated by Lord Diplock for the purpose of construing primary legislation, where there is ambiguity, is to perform what has always been the proper task of the court, namely to determine the meaning of the legislation passed by Parliament. To use that principle to justify the reviewing by the court of the substantial validity of the action of the minister, which is otherwise lawful as within the powers given by Parliament, is, in my judgment, to misapply the principle for a purpose for which it was plainly not intended. None of the other cases carries the argument any further forward. |
I would dismiss the appeal for the reasons given by Lord Donaldson of Lymington M.R. |
MCCOWAN L.J. Mr. Lester argued before this court that recourse to article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms can be had because there is an ambiguity in the language of the relevant statutory provision, section 29(3) of the Broadcasting Act 1981. That reads (and the words of clause 13(4) of the licence and agreement between the Secretary of State and the B.B.C. sufficiently correspond for it to be unnecessary to consider them separately): |
"Subject to subsection (4), the Secretary of State may at any time by notice in writing require the Authority to refrain from broadcasting any matter or classes of matter specified in the notice; and it shall be the duty of the Authority to comply with the notice." |
On the face of it, Mr. Lester conceded, the words appear clear. However, he submits, they cannot mean what they say because if they did the power given by them to the Secretary of State would be unrestricted, whereas there clearly ought to be some restriction. |
I turn to consider what the Divisional Court made of this aspect of the case. Giving the judgment of the court, Watkins L.J. said: |
I regret that I am unable to agree with the Divisional Court on this aspect. In Saloman v. Commissioners of Customs and Excise [1976] 2 Q.B. 116, 143, Diplock L.J. said: |
"If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty's treaty obligations . . ." |
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I conclude, therefore, that Mr. Laws has rightly submitted before us, as he did before the Divisional Court, on the basis of binding authority, that recourse to article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms can only be had if there is some ambiguity in the language of section 29(3). |
However, in the course of his argument to us Mr. Lester suggested two further ambiguities in section 29(3). The first is that "matter" relates to specific information, and no power is given by the section to impose a blanket ban on the broadcasting of all information from a particular source. I am wholly unable to accept that argument. The words "any matter" are plain and all-embracing and I see no ground for putting any gloss upon them. |
Next, Mr. Lester advanced an argument on ambiguity which placed reliance on the words of section 4(1) of the Act. These, in so far as they are relevant, read: |
"It shall be the duty of the Authority to satisfy themselves that, so far as possible, the programmes broadcast by the Authority comply with the following requirements, that is to say - (a) that nothing is included in the programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling; (b) that a sufficient amount of time in the programmes is given to news and news features and that all news given in the programmes (in whatever form) is presented with due accuracy and impartiality. . . . (f) that due impartiality is preserved on the part of the persons providing the programmes as respects matters of political or industrial controversy or relating to current public policy." |
Mr. Lester argued that the mischief at which section 29(3) was directed must have been one for which the Act otherwise provided no remedy. If it is a matter which section 4(1) covers, there is no power to use section 29(3). |
In defending his direction under section 29(3) in the House of Commons, the then Secretary of State for the Home Department, Mr. Hurd, said: |
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"The broadcasters have had a whole series of individually difficult decisions to take and I am glad that they have recently taken some which illustrate the point that I have been making. From their point of view it is more clear and straightforward for them to operate under a notice of this sort, for which I take responsibility and which this House will debate, than to have to operate at their discretion, sometimes in difficult circumstances." |
Mr. Lester submitted that, however well-intentioned the Secretary of State may have been in this respect, he had no power to give a direction under section 29(3) telling the broadcasters to do what they are required to do under section 4(1). |
If the intention of the legislature had been to remove from the ambit of section 29(3) anything covered by section 4(1) it would have been very easy for them to have provided so expressly. I see nothing in the terms of the Act to cause me to infer such a restriction. As we can see in the present case, what the Secretary of State is requiring the broadcasters to do under his direction, the broadcasters were plainly not prepared to do pursuant to section 4(1) without such a direction. |
Mr. Lester sought to counter this argument by saying that the Secretary of State could have gone to the courts for an order of mandamus requiring the broadcasting authorities, pursuant to their duties under section 4(1), to do the very things which are contained in his direction under section 29(3). Had he taken this course, however, he could well have been met by the answer that he had another remedy which he should pursue, namely, a direction under section 29(3). To my mind, the words I have quoted from the Secretary of State well illustrate why there may be good reasons for the Secretary of State to intervene and give direction under section 29(3) in a matter which falls within the scope of section 4(1). In any event, I am in no doubt that he is so empowered by the statute. |
Accordingly, I am unpersuaded by Mr. Lester that there is any ambiguity in the language of section 29(3). It follows, in my judgment, that article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms has no part to play in the determination of this case. It is to be noted that the Divisional Court, which thought otherwise, having looked at article 10, did not find that it assisted the applicants' case. |
Next, Mr. Lester argued that proportionality, that is to say that administrative action must not be disproportionate to the mischief at which it is aimed, or as he more colourfully put it, a sledge hammer must not be used to crack a nut, is a principle of English public law. I do not accept that. In my judgment, it is simply one aspect of the question of reasonableness. If the Secretary of State has in this case taken a sledge hammer to crack a nut, that may well demonstrate that he has acted as no reasonable Secretary of State would. |
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viewers and listeners by the appearance on a programme of an apologist for terrorism, particularly after a terrorist outrage; the undeserved publicity given to terrorists by such appearances; the tendency of those appearances to increase the standing of terrorist organisations and to create the false impression that support for terrorism is itself a legitimate political opinion; and that broadcast statements were intended to have and sometimes had the effect of intimidating some of those at whom they were directed. |
These reasons were amplified by the Secretary of State in a speech he made to the House of Commons on 2 November 1988, reliance upon which was placed by the applicants. In pointing out the difference between "direct access" and "report," he said: |
"It is not simply that people are affronted - we can live with affront - by the direct access of men of violence and supporters of violence to television and radio. That direct access gives those who use it an air and appearance of authority which spreads further outwards the ripple of fear that terrorist acts create in the community. The terrorist act creates the fear and the direct broadcast spreads it. The men of violence and their supporters have used this access with skill. They do not hope to persuade - this is where we get into the cosy luxury of discussion which is unreal - but to frighten. So far from being outlaws hunted by the forces of law and order and pursued by the courts, they calmly appear on the screen and, thus, in the homes of their victims and the friends and neighbours of their victims." |
No obvious irrationality is to be discerned in those reasons. What then are the criticisms of them made by the applicants and their supporters? These are not, I am bound to say, always wholly consistent. Thus, one of the applicants, Donald Malcolm Brind, a news producer for B.B.C. television news and current affairs programmes, says in his affidavit: |
"part of the process of returning Northern Ireland to 'normal politics,' is to draw nationalist supporters back into the political process, which would be achieved by greater consideration and expression of their views rather than less." |
On the other hand, the applicants rely on an affidavit from Jonathan Dimbleby, who has worked both for the B.B.C. and Independent Television, in which he says: |
"How much better it would be if the electorate were permitted to hear the weasel words, the half-baked logic, the mealy-mouthed falsehoods of the terrorists; how much better to see them subjected to thorough cross-examination in the full and merciless glare of the television lens . . ." |
Mr. Dimbleby's view, as a journalist, is of course a perfectly tenable one. But I find it quite impossible to hold that the Secretary of State's political judgment, that the appearance of terrorists on programmes increases their standing and lends them political legitimacy, is one that no reasonable Secretary of State could hold. It is, it should be noted, |
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also the political judgment of the terrorists, or they would not be so anxious to be interviewed by the media or so against the Secretary of State's ban. |
The Government case is that the direction in question is not a restriction on reporting but only on direct appearances of those who use or support violence. The applicants argue that the inevitable consequence will be to hinder the communication of ideas and information about Northern Ireland to the public. But how, I ask myself, can that be, when the B.B.C. and I.T.N. continue to be permitted to report what a member of a proscribed organisation has said? Or is the answer that the ideas of such a member have much more impact when he is seen or heard expressing them, which is indeed the very point being made by the Government? In a letter from Sir David Nicholas, the editor of I.T.N., relied on by the applicants, he points to the small incidence of Sinn Fein interviews before the ban, only amounting to a total running time of slightly less than 4½ minutes on 16 days over the space of a year. Yet, he is not suggesting for a moment that I.T.N. was unable before the ban to do its job of reporting what was going on or being said in Northern Ireland. I find it difficult, therefore, to believe that the loss of those four and a half minutes of direct appearances would have seriously detracted from the accuracy and informative nature of their reporting. |
Cold water is poured by the applicants on the Secretary of State's fear of intimidation, when there is nothing to stop reporting of the fact that these things have been said. A newspaper article is relied on by the applicants written by Mr. John Birt, the Deputy Director-General of the B.B.C., in which he says: |
"The notice means that the cold words of statements by members of listed organisations can be broadcast verbatim - whatever their content. But there can be no actuality of those speaking on behalf or in support of the listed organisations." |
It seems to me not unreasonable to anticipate that terrorists would seek to use the media for purposes of intimidation. Moreover, this is the very context in which I would expect direct appearance to make a crucial difference. If the B.B.C. or I.T.N. saw fit to report a terrorist threat at all, they would no doubt do so in their customary dead-pan style - Mr. Birt's "cold words." I should have thought it was obvious that that would indeed have very much less impact on the viewers than the passion and menace that one could expect from a terrorist supporter delivering the same message. |
Finally, the applicants argue that the Secretary of State is by his direction interfering with the broadcasting authorities' duty under section 4(1) to present all news and news features with "due impartiality" and to preserve "due impartiality" in the provision of programmes as respects matters of political controversy. In the second of the reasons given by Mr. Scoble for the directions, he speaks of the "undeserved publicity" given to terrorists by such appearances. If the applicants' point on "due impartiality" means anything, it must mean that such publicity is not undeserved. The applicants have, however, in my judgment, failed to give proper weight to the qualification of "impartiality" by the word |
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"due." "Due," as defined in the dictionary, means not merely "owing" but also "merited, appropriate, rightful." I quite accept that it is appropriate to show impartiality between two extremes of terrorism; and indeed the Home Secretary's direction is aimed at both Sinn Fein and the Ulster Defence Association. But I cannot believe that it was the intention of the legislators in passing the Broadcasting Act 1981 that the I.B.A. must be impartial between the terrorists and the terrorised. |
If, indeed, the B.B.C. and the I.T.N. believe that such impartiality is called for by them, this would serve to show how necessary it is for the Government to have power to give a direction such as the one in question here. However, I cannot imagine that they believe any such thing or that they practise it. Such is plain, indeed, from a letter from Sir David Nicholas, Editor of I.T.N., relied on by the applicants, in which he proclaims with pride the ability which his organisation has shown "to demonstrate the true mercilessness of terrorism." |
For all those reasons I am unpersuaded that the Secretary of State has been guilty of any irrationality in issuing the direction in question. I too would therefore dismiss the appeal. |
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Solicitors: Stephens Innocent; Treasury Solicitor. |
D. E. C. P. |
The applicants appealed. |
Anthony Lester Q.C. and David Pannick for the applicants. One vital question that the appeal raises is whether our developing system of public law recognises that administrative decisions may be reviewed by reference to two principles: (1) that administrative decisions should not, without a pressing social need, interfere with fundamental rights and freedoms, including the right to freedom of expression, as recognised in the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) and in the common law; (2) that a lawful power should not be used in an excessive manner (the principle of proportionality). |
It is common ground between the parties that, for the purposes of judicial review, nothing turns on the fact that the relevant power is statutory in the case of the I.B.A. and non-statutory in the case of the B.B.C. |
The Secretary of State relies on the very wide powers that have been conferred upon him by Parliament. Although the provisions conferring these powers are expressed in unlimited terms, there is no dispute that the decision of the Secretary of State to make the directives is subject to judicial review on public law principles. What is in dispute is the nature and extent of those public law principles and the appropriate legal test |
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to be applied in reviewing the Secretary of State's exercise of his public powers. |
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same, whatever the route (the common law, the Convention, Wednesbury, proportionality, etc.). |
The House of Lords has already held, in the context of judicial review of ministerial powers under the Immigration Act 1971, that anxious or rigorous scrutiny is involved where fundamental human rights |
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The courts ensure compliance with article 13 to the extent permitted by the sovereign legislature, that is to say, except where Parliament has made clear that it is authorising conduct in breach of the Convention. It follows that the United Kingdom is obliged by the Convention directly to "secure" the right to freedom of expression guaranteed by article 10 and to secure that right under the domestic legal order, in some form or another, to everyone within the jurisdiction of the United Kingdom. |
There is nothing novel or startling about the proposition that the courts should have regard to the relevant provisions of the Convention when construing the proper scope of public powers. [Reference was made to Halsbury's Laws of England, 4th ed., vol. 8 (1974), p. 550, para. 830 and Wade, Administrative Law, 5th ed. (1982), p. 371; 6th ed. (1988), p. 415.] |
Other Commonwealth courts have had regard to the European Convention and its case law for the purpose of construing national |
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The directives are an unprecedented interference with free speech in this country in peacetime. They involve the prior censorship by the state of the content of television and radio programmes broadcast here and overseas. It is clear on the evidence that the directives (a) remove an important aspect of editorial control from the broadcasters to the Government, (b) prevent the public from being shown material that may assist to inform them as to current affairs in Northern Ireland and (c) oblige broadcasters to make difficult decisions as to whether the material to be broadcast falls within or without the directives. The in- evitable consequence of the directives will be to hinder the communication of ideas and information about Northern Ireland to the public and to deter broadcasters from reporting Northern Ireland politics. |
It is true that the directives have been discussed in Parliament, but if, on analysis, the Secretary of State has acted ultra vires his powers the fact that Parliament has approved of his actions is no defence. |
On judicial review, it is necessary for the court to consider the arguments presented in defence of the ban and to assess whether it |
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What Wade, Administrative Law, 6th ed., says, at pp. 407-409, should be recognised as having hitherto been the reality and the good |
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sense of the matter: judicial review is concerned with abuse of power, both as to substance and procedure, with a flexible standard of review applied, according to the context. |
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In the present case, as the Parliamentary debates in particular show, the Secretary of State did have regard, in deciding whether and how to exercise his power, to the need to give due weight to freedom of expression in the broadcasting media. The consideration of whether measures against terrorist interests were required in the public interest as a restriction on such freedom was integral to the approach that he, as a reasonable Secretary of State, adopted to his decision-making process under the Act of 1981, given in particular sections 2(2) and 4(1). |
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The I.B.A.'s duty under section 4(1)(f) of the Act of 1981 is to comply, so far as possible, with the requirement "that due impartiality is preserved on the part of the persons providing the programmes as respects matters of political or industrial controversy or relating to current public policy." The B.B.C. owes a similar duty under the resolution of its board of governors. The Secretary of State's section 29(3) directives are not inconsistent with those duties. The section 4(1)(f) obligation is to preserve "due impartiality," which imports the concept of that which is appropriate or merited. No such impartiality is owed to the supporters of or apologists for terrorism. The directives do not frustrate the I.B.A.'s section 4(1)(f) obligation of the B.B.C.'s equivalent duty: they merely constitute one factor, amongst others, of which account has to be taken in exercising the broadcaster's general duties. |
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This is a review of an exercise of discretionary power by the Secretary of State; the only question, therefore, is whether he has exceeded the power conferred on him by the Act of 1981 or by the B.B.C. charter. The decision thus depends on the application of conventional public law principles unless the applicants' argument is otherwise persuasive. The application of conventional principles, enshrined in English law, shows that the Secretary of State's decision was intra vires. There is no question of illegality and no question of procedural impropriety. As for irrationality, one could not find a clearer instance of a political balance to be struck as to which reasonable people might take different views. |
English common law provides as good a safeguard as the Convention. The question in English law is whether the Secretary of State has had regard to the matters to which he has to have regard, including the curtailment of freedom of speech. The House of Lords is, however, concerned with the correct juridical approach to the Convention. As a free-standing legal instrument, it is not properly in play in, and, not relevant to, these proceedings. The applicants' primary case regarding it invokes a proposition unknown to the law: that the review court should directly require the Secretary of State as a condition of the legality of his action to justify what he does by demonstrating that it complies with the Convention. They have to assert that, albeit the Convention aside his decisions were lawful, nevertheless they are rendered unlawful by reference to it. If that is correct, the question arises: by what proper jurisprudential route can the Convention render unlawful a decision that is otherwise lawful? The applicants cannot say that the Secretary of State has unlawfully failed to comply with the Convention, since they have conceded that it is not part of the law of England. It follows that any duty to comply with the Convention is not a duty arising under the law of England. It is not a legitimate route to say that, if the Act is |
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ambiguous, the courts would interpret it in accordance with the Convention whereas, if it is not ambiguous, it should be presumed that Parliament had the Convention in mind. There is no legitimate route open for incorporating the Convention into English law de facto. The court would be using the Convention as a test pro tanto of the legality of the decision. That would be tantamount to incorporating it into English law. |
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to say that the Secretary of State must comply with an obligation, but not to say that it is a fact to which he must give weight. The applicants do not say that the Secretary of State should have had regard to the Convention: they say that he should have followed it and applied its provisions. |
As to the construction of section 29(3), the applicants say that the court should look at it and imply into it an obligation: Parliament has incorporated it pro tanto, exactly as if a proviso had been added to it. The answer is that there is no principle of statutory construction that gives rise to such an implication: that it should be implied because Parliament must have approved the Convention. To say that an unfettered discretion is in itself ambiguous is not a proper use of the doctrine of ambiguity. |
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decide whether a programme should be banned. That can only be done by upsetting settled constitutional arrangements. |
The Court of Appeal were correct in the way in which they dealt with the Convention. [Reference was made to Cinnamond v. British Airports Authority [1980] 1 W.L.R. 582.] |
Lester Q.C. in reply. The Convention has a distinguished English legal pedigree. The idea behind it was derived from English constitutional law. The concepts are not peculiarly Continental concepts but English ones. However, the inadequacy of common law remedies has two consequences. (1) The United Kingdom has been held to be in breach of the Convention more frequently than any other state. The judicial approach of the English courts has much less influence than that of other European courts, because the English courts have insufficient regard to the Convention. (2) In view of that, it is no usurpation of the powers of Parliament for our courts to interpret the powers conferred by the Act of 1981 consistently with the object of the legislation, including the object not to authorise unnecessary interferences with free speech in a manner contrary to the Convention. |
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The test that the House of Lords should declare on the substantive issue is: did the Secretary of State have reasonable and justifiable grounds for concluding that the restriction on freedom of expression was necessary, having regard to the appreciation appropriate to a case where the minister's action impinges on a fundamental right? The test is objective. The court has to assess the acceptability (using the judicial standard) of what the minister has done. It is not enough for the minister to show that he had regard to the relevant factors and that he did not have regard to those that were irrelevant. He must also show that the result passes muster on reasonable and justifiable grounds. Where the means employed to achieve a legitimate aim are not reasonably necessary (applying the proportionality test) the decision will be ultra vires. It may be that this test would not satisfy the Convention, but it is acceptable as an English judicial approach. The Secretary of State says that the applicants are confusing obligation with a fact, but an obligation is a fact. |
Their Lordships took time for consideration. |
7 February 1991. LORD BRIDGE OF HARWICH. My Lords, 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 B.B.C., to impose restrictions on the matters which the I.B.A. and the B.B.C. respectively may broadcast may only be lawfully exercised in accordance with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). Any exercise by the Secretary of State of the powers 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 applicants 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 |
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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 judiciary 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. |
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 |
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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. |
Applying these principles to the circumstances of the case, of which I gratefully adopt the full account given in the speech of my noble and learned 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 applicants 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 applicants' 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. |
I would dismiss the appeal. |
LORD ROSKILL. My Lords, I agree that this appeal must be dismissed for the reasons given in the speech of my noble and learned friend, |
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"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 the 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." |
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" of that principle in this country. He clearly had in mind the likely increasing influence of Community law upon our domestic law which might in time lead to the further adoption of this principle as a separate category and not merely as a possible reinforcement of one or more of these three stated categories such as irrationality. My noble and learned friend emphasised that any such development would be likely to be on a case by case basis. I am clearly of the view that the present is a not a case in which the first step can be taken for the reason that to apply that principle in the present case would be for the court to substitute its own judgment of what was needed to achieve a particular objective for the judgment of the Secretary of State upon whom that duty has been laid by Parliament. But so to hold in the present case is not to exclude the possible future development of the law in this respect, a possibility which has already been canvassed in some academic writings. |
LORD TEMPLEMAN. My Lords, freedom of expression is a principle of every written and unwritten democratic constitution. That principle is not absolute; there are exceptions. The principle and the exceptions are the subject of article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) and the decisions of the European Court of Human Rights. The United Kingdom adheres to the Convention and Her Majesty's Government are satisfied that the laws of the United Kingdom are in conformity with their obligations under the Convention. |
The Home Secretary, in the exercise of powers conferred on him by Parliament, has imposed restrictions on freedom of expression within the terms and for the reasons set forth in the evidence and in the speech of my noble and learned friend, Lord Ackner. The Home Secretary has forbidden the television and radio authorities knowingly to allow a member or supporter of a recognised terrorist organisation to make a |
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live transmission. The Home Secretary has imposed this restriction because, supported by a majority of the members of the House of Commons, he believes that the live appearances of terrorist members and supporters cause outrage and fear and give a wholly false impression of the strength and legitimacy of terrorism, thus encouraging terrorism, which is a foul crime. |
The discretionary power of the Home Secretary to give directions to the broadcasting authorities imposing restrictions on freedom of expression is subject to judicial review, a remedy invented by the judges to restrain the excess or abuse of power. On an application for judicial review, the courts must not substitute their own views for the informed views of the Home Secretary. In terms of the Convention, as construed by the European Court, a margin of appreciation must be afforded to the Home Secretary to decide whether and in what terms a restriction on freedom of expression is justified. |
My Lords, applying these principles I do not consider that the court can conclude that the Home Secretary has abused or exceeded his powers. The broadcasting authorities and journalists are naturally resentful of any limitation on their right to present a programme in such manner as they think fit. But the interference with freedom of expression is minimal and the reasons given by the Home Secretary are compelling. |
I, too, would dismiss this appeal. |
LORD ACKNER. My Lords, in October 1988 the government reached the conclusion that it was no longer acceptable in the national interest that spokesmen for terrorist organisations, paramilitary organisations and those who support them should have direct access to television and radio. The Secretary of State for the Home Department, the respondent, |
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accordingly exercised his powers under clause 13 of the licence and agreement between the Secretary of State and the British Broadcasting Corporation ("the B.B.C.") and section 29 of the Broadcasting Act 1981. By directives, dated 19 October 1988, as further explained and defined in a letter dated 24 October 1988 from the Home Office he required the B.B.C. and the Independent Broadcasting Authority ("the I.B.A.") to refrain from broadcasting the direct statements (not the reported speech) by a person who represents or purports to represent a specified organisation or who supports or solicits or invites support for such an organisation. |
The organisations concerned are those proscribed under the Prevention of Terrorism (Temporary Provisions) Act 1984 and the Northern Ireland (Emergency Provisions) Act 1978 together with Sinn Fein, Republican Sinn Fein and the Ulster Defence Association. These organisations are involved in terrorism, or in promoting or encouraging it, that is to say they are organisations which exist to further a political aim by the use of violence. It is an offence to belong to such proscribed organisations or to support any of them in particular ways. Although not proscribed, Sinn Fein, from which Republican Sinn Fein broke away, is known to be the political arm of the Provisional Movement; its spokesmen are apologists for the use of violence for political ends. The Ulster Defence Association is a paramilitary organisation, some of whose members engage in terrorism, often claiming terrorist acts in the name of the Ulster Freedom Fighters, itself proscribed under the Northern Ireland emergency provisions. These facts deposed to by Mr. Scoble, an assistant under-secretary of state in the Home Office and head of the broadcasting department, in his affidavit sworn on 15 March 1989, have not been challenged. |
The applicants are neither the B.B.C. nor the I.B.A. They are (with one exception) broadcast journalists who are members of the National Union of Journalists ("the N.U.J."). The exception is Mr. Nash, who is employed by the N.U.J. and who relies on broadcasting for the provision of information about current affairs. |
The relevant legislative and contractual provisions |
(i) By sections 2 and 3 of the Act of 1981 the functions, duties and powers of the I.B.A. are defined. (ii) By section 4(1) of the Act of 1981: |
"It shall be the duty of the Authority to satisfy themselves that, so far as possible, the programmes broadcast by the Authority comply with the following requirements, that is to say - (a) that nothing is included in the programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling; (b) that a sufficient amount of time in the programmes is given to news and news features and that all news given in the programmes (in whatever form) is presented with due accuracy and impartiality; . . . (f) that due impartiality is preserved on the part of the persons providing the programmes as respects matters of political or industrial controversy or relating to current public policy. . . ." |
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(iii) By section 29(3) of the Act of 1981: |
"Subject to subsection (4), the Secretary of State may at any time by notice in writing require the Authority to refrain from broadcasting any matter or classes of matter specified in the notice; and it shall be the duty of the Authority to comply with the notice." |
(iv) By clause 13(4) of the licence and agreement made between the B.B.C. and the Secretary of State on 2 April 1981: |
"The Secretary of State may from time to time require the Corporation to refrain at any specified time or at all times from sending any matter or matters of any class specified in such notice . . ." |
The directives |
The text common to both directives is as follows: |
"1. . . . to refrain from broadcasting any matter which consists of or includes - any words spoken, whether in the course of an interview or discussion or otherwise, by a person who appears or is heard on the programme in which the matter is broadcast where - (a) the person speaking the words represents or purports to represent an organisation specified in paragraph 2 below, or (b) the words support or solicit or invite support for such an organisation, other than any matter specified in paragraph 3 below. 2. The organisations referred to in paragraph 1 above are - (a) any organisation which is for the time being a proscribed organisation for the purposes of the Prevention of Terrorism (Temporary Provisions) Act 1984 or the Northern Ireland (Emergency Provisions) Act 1978; and (b) Sinn Fein, Republican Sinn Fein and the Ulster Defence Association. 3. The matter excluded from paragraph 1 above is any words spoken - (a) in the course of proceedings in Parliament, or (b) by or in support of a candidate at a parliamentary, European parliamentary or local election pending that election." |
The essential parts of the letter of 24 October 1988, which further defined and explained the directives, read as follows: |
"It was asked whether the notice applied only to direct statements by representatives of the organisations or their supporters or whether it applied also to reports of the words they had spoken. We confirmed, as the Home Secretary has made clear in Parliament, that the correct interpretation (and that which was intended) is that it applies only to direct statements and not to reported speech, and that the person caught by the notice is the one whose words are reported and not the reporter or presenter who reports them. Thus the notice permits the showing of a film or still picture of the initiator speaking the words together with a voice-over account of them, whether in paraphrase or verbatim. We confirmed that programmes involving the reconstruction of actual events, where actors use the verbatim words which had been spoken in actuality, are similarly permitted. For much the same reason, we confirmed |
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that it was not intended that genuine works of fiction should be covered by the restrictions, on the basis that the appropriate interpretation of 'a person' in paragraph 1 of the notice is that it does not include an actor playing a character. |
"The B.B.C. also asked whether a member of an organisation or one of its elected representatives could be considered as permanently representing that organisation so that all his words, whatever their character, were covered by the notice. We confirmed that the Home Office takes the view that this is too narrow an interpretation of the word 'represents' in paragraph 1(a) of the text. A member of an organisation cannot be held to represent that organisation in all his daily activities. Whether at any particular instance he is representing the organisation concerned will depend upon the nature of the words spoken and the particular context. Where he is speaking in a personal capacity or purely in his capacity as a member of an organisation which does not fall under the notice (for example, an elected council), it follows, from that interpretation, that paragraph 1(a) will not apply. Where it is clear, from the context and the words, that he is speaking as a representative of an organisation falling under the notice, his words may not be broadcast directly, but (as mentioned above) can be reported. (He may, of course, come within the scope of paragraph 1(b), if his words contain support for the organisation.) Although there may be borderline occasions when this distinction will require a careful exercise of judgment, we believe that the great majority of broadcast material will fall clearly within one case or the other." |
It can thus be seen that the directives, as further defined and explained, do not restrict the reporting of statements made by terrorists or their supporters. What is restricted is the direct appearance on television of those who use or support violence, themselves making their statements ("actuality reporting"). Thus the activities of terrorist organisations and statements of their apologists may still be reported, as they are in the press; but such persons are prevented from making the statement themselves on the television and the radio. Publicity for their statements can be achieved, inter alia, by the dubbing of what they have said, using actors to impersonate their voices. These limited restrictions can be contrasted with those which have been in operation for many years in the Republic of Ireland, where not only is the direct appearance on television of those who use or support violence banned, but even the very statements which they make. |
The issue |
The appeal is concerned with a challenge by way of judicial review. It is contended by the applicants that the Secretary of State in issuing these directives has acted unlawfully. The attack has concentrated essentially on section 29(3) of the Act of 1981, and for the purpose of this appeal the point has not been taken as to whether different principles might be applied to the contractual powers of the Secretary of State under and by virtue of clause 13(4) of the licence and agreement. |
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It is of course common ground that section 29(3) gives to the Secretary of State a wide discretion. The issue, expressed quite shortly, is whether in issuing these directives he has exceeded his discretionary powers, thus acting ultra vires and therefore unlawfully. |
The Secretary of State's reasons for his action |
The Secretary of State's decision was the subject matter of a statement made on 19 October 1988 in both Houses of Parliament and was followed by debates in both Houses. The statement reads as follows: |
"For some time broadcast coverage of events in Northern Ireland has included the occasional appearance of representatives of para-military organisations and their political wings, who have used these opportunities as an attempt to justify their criminal activities. Such appearances have caused widespread offence to viewers and listeners throughout the United Kingdom, particularly just after a terrorist outrage. The terrorists themselves draw support and sustenance from access to radio and television - from addressing their views more directly to the population at large than is possible through the press. The Government have decided that the time has come to deny this easy platform to those who use it to propagate terrorism. Accordingly, I have today issued to the chairmen of the B.B.C. and the I.B.A. a notice, under the licence and agreement and under the Broadcasting Act 1981 respectively, requiring them to refrain from broadcasting direct statements by representatives of organisations proscribed in Northern Ireland and Great Britain and by representatives of Sinn Fein, Republican Sinn Fein and the Ulster Defence Association. The notices will also prohibit the broadcasting of statements by any person which support or invite support for these organisations. The restrictions will not apply to the broadcast of proceedings in Parliament, and in order not to impair the obligation on the broadcasters to provide an impartial coverage of elections the notices will have a more limited effect during election periods. Copies of the notices have today been deposited in the Library, and further copies are available from the Vote Office so that hon. members will be able to study their detailed effect. |
"These restrictions follow very closely the lines of similar provisions which have been operating in the Republic of Ireland for some years. Representatives of these organisations are prevented from appearing on Irish television, but because we have had no equivalent restrictions in the United Kingdom they can nevertheless be seen on B.B.C. and I.T.V. [Independent Television] services in Northern Ireland, where their appearances cause the gravest offence, and in Great Britain. The Government's decision today means that both in the United Kingdom and in the Irish Republic such appearances will be prevented. Broadcasters have a dangerous and unenviable task in reporting events in Northern Ireland. This step is no criticism of them. What concerns us is the use made of broadcasting facilities by supporters of terrorism. This is not a restriction on reporting. It is a restriction on direct appearances by those who use or support violence. I believe that this step will be |
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understood and welcomed by most people throughout the United Kingdom. It is a serious and important matter on which the House will wish to express its view. For that reason, we shall be putting in hand discussions through the usual channels so that a full debate on the matter can take place at an early date." |
On 2 November there was a debate in the House of Commons on the motion that: "this House approves the Home Secretary's action in giving directions to the B.B.C. and I.B.A. to restrict the broadcasting of statements made by Northern Ireland terrorists organisations and their apologists." That motion was carried by 243 votes to 179. On 8 December a motion to take note of the Home Secretary's action was debated and agreed to without a division in the House of Lords. The Secretary of State's reasons for taking the action complained of are set out in the Hansard reports of those debates and were before your Lordships. The four matters which influenced the Secretary of State were highlighted by Mr. Scoble in his affidavit. These are: (1) offence had been caused to viewers and listeners by the appearance of the apologists for terrorism, particularly after a terrorist outrage; (2) such appearances had afforded terrorists undeserved publicity which was contrary to the public interest; (3) these appearances had tended to increase the standing of terrorist organisations and to create a false impression that support for terrorism is itself a legitimate political opinion; (4) broadcast statements were intended to have, and did in some cases have, the effect of intimidating some of those at whom they were directed. |
The challenge |
I now turn to the bases upon which it is contended that the Secretary of State exceeded his statutory powers. |
1. The directives frustrated the policy and the objects of the Act of 1981, in particular section 4(1) |
In the Divisional Court and Court of Appeal much was made of the words in section 4(1)(f), "due impartiality." The argument was not repeated before your Lordships. I can find nothing in paragraph 4(1)(f) to suggest that the policy and objects of section 4(1) are in any way frustrated by the Secretary of State's exercise of his reserve powers |
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where, in the proper exercise of his discretion, he considers it appropriate to do so. |
2. The directives were unlawful on "Wednesbury" grounds |
"Given the obvious importance and value to landowners of their property rights, the abrogation of those rights in the exercise of his discretionary power to confirm a compulsory purchase order would, in the absence of what he perceived to be a sufficient justification on the merits, be a course which surely no reasonable Secretary of State would take." |
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though unattractively, described as a "perverse" decision. To seek the court's intervention on the basis that the correct or objectively reasonable decision is other than the decision which the minister has made is to invite the court to adjudicate as if Parliament had provided a right of appeal against the decision - that is, to invite an abuse of power by the judiciary. |
"The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred." |
In his speech in the House of Commons on 2 November 1988 the Secretary of State in emphasising the significance of imposing a restriction, not on the reporting of the material uttered by terrorists and those supporting them, but on their direct appearance on television, said: |
"It is not simply that people are affronted - we can live with affront - by the direct access of men of violence and supporters of violence to television and radio. That direct access gives those who use it an air and appearance of authority which spreads further outwards the ripple of fear that terrorist acts create in the community. The terrorist act creates the fear and the direct broadcast spreads it. The men of violence and their supporters have used this access with skill. They do not hope to persuade - this is where we get into the cosy luxury of discussion which is unreal - but to frighten. So far from being outlaws hunted by the forces of law and order and pursued by the courts, they calmly appear on the screen and, thus, in the homes of their victims and the friends and neighbours of their victims." |
McCowan L.J., ante, p. 730E, in his judgment, pointed out that the criticisms made by the applicants and their supporters were not wholly consistent. He quoted from the affidavit of Donald Malcolm Brind, a news producer for B.B.C. television news and current affairs programmes. In his affidavit he said: |
"part of the process of returning Northern Ireland to 'normal politics,' is to draw nationalist supporters back into the political process, which would be achieved by greater consideration and expression of their views rather than less." |
He contrasted this, ante, p. 730F-G, with an affidavit relied on by the applicants from Jonathan Dimbleby, who has worked for both the B.B.C. and Independent Television. In his affidavit he says: |
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"How much better it would be if the electorate were permitted to hear the weasel words, the half-baked logic, the mealy-mouthed falsehoods of the terrorists; how much better to see them subjected to thorough cross-examination in the full and merciless glare of the television lens . . ." |
Your Lordships will, I am sure, need no persuading that all cross-examinations are not thorough. Indeed there are occasions where some may wonder whether an incompetent cross-examination is the product solely of lack of preparation. A deficient cross-examination can significantly advance the terrorist's cause. |
I entirely agree with McCowan L.J. when he said that he found it quite impossible to hold that the Secretary of State's political judgment that the appearance of terrorists on programmes increases their standing and lends them political legitimacy is one that no reasonable Home Secretary could hold. As he observed: "It is, it should be noted, also the political judgment of the terrorists, or they would not be so anxious to be interviewed by the media or so against the Secretary of State's ban." |
I agree with Lord Donaldson M.R. who, when commenting on how limited the restrictions were, said in his judgment, ante, p. 723: |
"They have no application in the circumstances mentioned in paragraph 3 (proceedings in the United Kingdom Parliament and elections) and, by allowing reported speech either verbatim or in paraphrase, in effect put those affected in no worse a position than they would be if they had access to newspaper publicity with a circulation equal to the listening and viewing audiences of the programmes concerned. Furthermore, on the applicants' own evidence, if the directives had been in force during the previous 12 months, the effect would have been minimal in terms of air time. Thus, [I.T.N.] say that eight minutes twenty seconds (including repeats) out of 1200 hours, or 0.01 per cent., of air time would have been affected. Furthermore, it would not have been necessary to omit these items. They could have been recast into a form which complied with the directives." |
Thus the extent of the interference with the right to freedom of speech is a very modest one. On the other hand the vehemence of the criticism of the Secretary of State's decision is perhaps a clear indication of the strength of the impact of the terrorist message when he is seen or heard expressing his views. |
3. The minister failed to have proper regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms and in particular article 10 |
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Article 10 reads as follows: |
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." |
"If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty's treaty obligations . . ." |
Much reliance was placed upon the observations of Lord Diplock in Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 751, 771 when he said: |
"it is a principle of construction of United Kingdom statutes . . . that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it." |
I did not take the view that Lord Diplock was intending to detract from or modify what he had said in Salomon's case. |
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and family life and the absence of interference by a public authority with that right. |
In his judgment Lord Denning M.R. said, at p. 984: |
"The position as I understand it is that if there is any ambiguity in our statutes, or uncertainty in our law, then these courts can look to the Convention as an aid to clear up the ambiguity and uncertainty . . . But I would dispute altogether that the Convention is part of our law. Treaties and declarations do not become part of our law until they are made law by Parliament." |
In his judgment Geoffrey Lane L.J. said, at p. 988: |
"It is perfectly true that that Convention was ratified by this country. . . . Nevertheless, the Convention, not having been enacted by Parliament as a statute, it does not have the effect of law in this country; whatever persuasive force it may have in resolving ambiguities it certainly cannot have the effect of overriding the plain provisions of the Act of 1971 and the rules made thereunder." |
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incorporating the Convention into English domestic law by the back door. It would oblige the courts to police the operation of the Convention and to ask themselves in each case, where there was a challenge, whether the restrictions were "necessary in a democratic society . . ." applying the principles enunciated in the decisions of the European Court of Human Rights. The treaty, not having been incorporated in English law, cannot be a source of rights and obligations and the question "Did the Secretary of State act in breach of article 10?" does not therefore arise. |
As was recently stated by Lord Oliver of Aylmerton in J. H. Rayner (Mincing Lane) Ltd. v. Department of Trade and Industry (the "International Tin Council case") [1990] 2 A.C. 418, 500: |
"Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant." |
4. The Secretary of State has acted ultra vires because he has acted in "in a disproportionate manner" |
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must ultimately result in the question "Is the particular decision acceptable?" and this must involve a review of the merits of the decision. Unless and until Parliament incorporates the Convention into domestic law, a course which it is well known has a strong body of support, there appears to me to be at present no basis upon which the proportionality doctrine applied by the European Court can be followed by the courts of this country. |
I would accordingly dismiss this appeal with costs. |
LORD LOWRY. My Lords, I agree with your Lordships that this appeal should be dismissed. In particular I agree with the observations of my noble and learned friend, Lord Ackner, whose speech relieves me of the need to consider the matter in detail and, taken in conjunction with the other observations which have fallen from your Lordships, could well be thought to render unnecessary any contribution by me to the debate. |
But the inspiration for the applicants' argument, if not perhaps the facts on which the argument is based, is closely linked with the principle of freedom of speech in a democratic society, so far as compatible with the safety of the state and the well-being of its citizens, which may provide a reason for me to say something. |
The directives complained of have been the occasion for an eloquent vindication of freedom of expression and the freedom to hold opinions and to impart and receive information, which is supported by affidavit evidence, the applicants' printed case and counsel's submissions. The case (ante, p. 737F-G) avers that it is clear on the evidence that the directives "remove an important aspect of editorial control from the broadcasters to the Government" and "prevent the public from being shown [sic] material that may assist to inform them as to current affairs in Northern Ireland" and "oblige broadcasters to make difficult decisions as to whether the material to be broadcast falls within or without the directives." It is further asserted that |
"the inevitable consequence of the directives will be to hinder the communication of ideas and information about Northern Ireland to the public and to deter broadcasters from reporting Northern Ireland politics." |
Administrative acts which had the effect contended for might well be justified, but they would certainly deserve the closest scrutiny. My noble and learned friend has, however, set out the facts, which show that television reporters and commentators, as well as reporting and commenting (like the press) on oral and written statements attributed to terrorists and supporters of terrorism, can, by interviews and other methods, make films of terrorists and supporters of terrorism which record the appearance and gestures of the persons depicted and the precise content, accent and emphasis of the words they use and can show the films on television. The only restriction is that, if the speaker was representing or purporting to represent an organisation specified in the directives, or the words used supported or solicited or invited support for such an organisation, the voiceof the speaker must not be |
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heard; on the other hand the words of the speaker can be spoken by someone else, who may be a professional actor using the same local accent, intonation and emphasis as the original speaker used, while the viewers see on the screen that speaker, his facial expression and his gestures, if any. A true appreciation of exactly what the Home Secretary's directives involve makes nonsense of the statement, adduced in evidence before your Lordships, that interviews can no longer be shown on television and also of the wider claim that television reports of and discussions concerning negotiations with and the utterances and activities of members of the scheduled organisations and their supporters are now impossible. Indeed, the issue which seems to arise is whether the disadvantage of exposing the Government to the misrepresentations of its attitude of which your Lordships have seen examples may outweigh the advantage to be derived from the directives themselves. |
Put thus (accurately, as applicants' counsel concede), the sole restriction is on transmitting the sound of the speaker's own voice. Therefore anything lost by either the broadcasters or the viewing public is, at best, only tenuously related to the freedoms in defence of which the present proceedings have been brought. My noble and learned friend, Lord Ackner, has drawn attention to the reasons for imposing this modest restriction which have been given by the Home Secretary and which, as McCowan L.J. has effectively pointed out, are not lacking in cogency. When, in addition, one has regard to the "political exception" and to the contrast between the present directives and the restrictions which have for 30 years existed in the Republic of Ireland, it is difficult to take seriously the applicants' description of the directives as the use of a sledgehammer to crack a nut. |
Mr. Lester and his junior, Mr. Pannick, put the applicants' case with force and skill, presenting a variety of tests, as your Lordships have already noted, by which to judge the impugned directives. For my own part, I do not see how the modest invasion of liberties which has occurred in this case could fail to satisfy any of the criteria which have been suggested, including those criteria which, in point of law, I, in common with your Lordships, have found unacceptable. |
I might be content to leave the matter thus, but what seems to me to give this case its importance is the variety and the potential effect of the legal weaponry which the applicants have deployed and the zeal with which the Secretary of State has met the assault, as if both parties were concerned to fight an impending battle in principle as well as the present one in practice. |
Because they are of general importance, I will mention just two points, which are closely related, the test of unreasonableness in judicial review and the doctrine of proportionality. |
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"Such an examination by a court would be justified only if a prima facie case were to be shown for holding that the Secretary of State had acted in bad faith, or for an improper motive, or that the consequences of his guidance were so absurd that he must have taken leave of his senses." |
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and decisions to call in aid decisions of a Court of Appeal reversing a judge's finding, it may be on a question of what is reasonable. To say what is reasonable was the judge's task in the first place and the duty of the Court of Appeal, after giving due weight to the judge's opinion, is to say whether they agree with him. In judicial review, on the other hand, the task of the High Court is as described above, and the task of the Court of Appeal and, when necessary, this House is to decide whether the High Court has correctly exercised its supervisory jurisdiction. |
Of course, whichever kind of jurisdiction is being exercised on the subject of reasonableness, there is bound to be a subjective element in the decision. There is no objective standard in either case which would allow the result to be foretold with certainty. The first requirement, however, is to ask the right question. |
In my opinion proportionality and the other phrases are simply intended to move the focus of discussion away from the hitherto accepted criteria for deciding whether the decision-maker has abused his power and into an area in which the court will feel more at liberty to interfere. |
The first observation I would make is that there is no authority for saying that proportionality in the sense in which the appellants have used it is part of the English common law and a great deal of authority the other way. This, so far as I am concerned, is not a cause for regret for several reasons: 1. The decision-makers, very often elected, are those to whom Parliament has entrusted the discretion and to interfere with that discretion beyond the limits as hitherto defined would itself be |
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Halsbury's Laws of England, 4th ed., vol. 1(1) reissue (1989), recognises proportionality in the context of administrative law as follows, at p. 144: |
"78. Proportionality. The courts will quash exercises of discretionary powers in which there is not a reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground of review in English law, but is regarded as one indication of manifest unreasonableness." |
(The High Court's decision in the instant case is cited in the copious footnotes to this paragraph as the authority for the concluding statement.) |
It finally occurs to me that there can be very little room for judges to operate an independent judicial review proportionality doctrine in the space which is left between the conventional judicial review doctrine and the admittedly forbidden appellate approach. To introduce an intermediate area of deliberation for the court seems scarcely a practical idea, quite apart from the other disadvantages by which, in my opinion, such a course would be attended. |
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Solicitors: Stephens Innocent; Treasury Solicitor. |
M. G. |