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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
    1. Congreve v Home Office [1976] QB 629; [1976] 1 All ER 697.
    2. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    3. Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694
    4. H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871
    5. British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165
    6. Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724
    7. Robertson v Minister of Pensions [1948] 2 All ER 767
    8. Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496
    9. Western Fish Products Ltd v Penwith District Council and another [1981] 2 All ER 204
    10. R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643
    11. Brind and others v Secretary of State for the Home Department [1991] 1 All ER 720
    12. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256; [1996] QB 517
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Brind and others v Secretary of State for the Home Department [1991] 1 All ER 720

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, accordingly exercised his powers under cl 13 of the licence and agreement between the Secretary of State and the British Broadcasting Corp (the BBC) (Cmnd 8233) and s 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 BBC and the Independent Broadcasting Authority (the IBA) 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....

The appellants are neither the BBC nor the IBA. They are (with one exception) broadcast journalists who are members of the National Union of Journalists (the NUJ). The exception is Mr Nash, who is employed by the NUJ and who relies on broadcasting for the provision of information about current affairs

The relevant legislative and contractual provisions

(i) By ss 2 and 3 of the Broadcasting Act 1981 the functions, duties and powers of the IBA are defined.

(ii) By s 4(1) of the 1981 Act:

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 [including]-(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. (If) 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.

(iii) By s 29(3) of the 1981 Act:

Subject to subsection (4) the Secretary of State may at any time by notice in writing require the Authority [the IBA] 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 cl 13(4) of the licence and agreement made between the BBC 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 organization 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 organizations referred to in paragraph 1 above are-(a) any organization 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, 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 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 BBC 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...".

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 appellants that the Secretary of State in issuing these directives has acted unlawfully. The attack has concentrated essentially on s 29(3) of the Broadcasting Act 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 cl 13(4) of the licence and agreement. It is of course common ground that s 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 (138 HC Official Report (6th series) col 885 500 HL Official Report (5th series) cols 1139-1140):

"For some time broadcast coverage of events in Northern Ireland has included the occasional appearance of representatives of paramilitary 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 has decided that the time has come to deny this easy platform to those who use it to propagate terrorism. ....".

On 2 November 1988 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 BBC and IBA to restrict the broadcasting of statements made by Northern Ireland terrorist 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; and (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 1981 Act in particular s 4(1)

It is of course accepted by Mr Laws on behalf of the Secretary of State that the discretion given to him by s 29(3) is not an absolute or unfettered discretion. It is a discretion which is to be exercised according to law and therefore must be used only to advance the purposes for which it was conferred. It has accordingly to be used to promote the policy and objects of the Act (see Padfield v Minister of Agriculture Fisheries and Food). It is further accepted on behalf of the Secretary of State that the powers under s 29(3) can be properly categorised as 'reserve' powers in the sense that they are to be used infrequently. In fact they have only been used once previously.

In the Divisional Court and Court of Appeal much was made of the words in s 4(1)(f): 'due impartiality'. The argument was not repeated before your Lordships. I can find nothing in para (f) to suggest that the policy and objects of s 4(1) are in any way frustrated by the Secretary of State's exercise of his reserve powers where, in the proper exercise of his discretion, he considers it appropriate to do so.

(2) The directives were unlawful on 'Wednesbury' grounds

Save only in one respect, namely the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71(1953); Cmd 8969), which is the subject matter of a later heading, it is not suggested that the minister failed to call his attention to matters which he was bound to consider, nor that he included in his considerations matters which were irrelevant. In neither of those senses can it be said that the minister acted unreasonably. The failure to mount such a challenge in this appeal is important. In a field which concerns a fundamental human right, namely that of free speech, close scrutiny must be given to the reasons provided as justification for interference with that right...

There remains however the potential criticism under the Wednesbury grounds expressed by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corp that the conclusion was 'so unreasonable that no reasonable authority could ever have come to it'. This standard of unreasonableness, often referred to as 'the irrationality test', has been criticised as being too high. But it has to be expressed in terms that confine the jurisdiction exercised by the judiciary to a supervisory, as opposed to an appellate, jurisdiction. Where Parliament has given to a minister or other person or body a discretion, the court's jurisdiction is limited, in the absence of a statutory right of appeal, to the supervision of the exercise of that discretionary power, so as to ensure that it has been exercised lawfully. It would be a wrongful usurpation of power by the judiciary to substitute its view, the judicial view, on the merits and on that basis to quash the decision. If no reasonable minister properly directing himself would have reached the impugned decision, the minister has exceeded his powers and thus acted unlawfully and the court, in the exercise of its supervisory role, will quash that decision. Such a decision is correctly, 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.

So far as the facts of this case are concerned it is only necessary to read the speeches in the Houses of Parliament, and in particular those of Mr David Alton, Lord Fitt and Lord Jakobovits, to reach the conclusion, that whether the Secretary of State was right or wrong to decide to issue the directives, there was clearly material which would justify a reasonable minister making the same decision. In the words of Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough [1976] 3 All ER 665 at 695, [1977] AC 1014 at 1064:

"The very concept of administrative discretion involves a right to choose between more than one possible course of action on 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 (139 HC Official Report (6th series) col 1082):

"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 LJ, in his judgment, pointed out that the criticisms made by the appellants and their supporters were not wholly consistent (see [1990] 1 All ER 469 at 487, [1990] 2 WLR 787 at 809). He quoted from the affidavit of Donald Malcolm Brind, a news producer for BBC 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 with an affidavit relied on by the appellants from Jonathan Dimbleby, who has worked both for the BBC and Independent Television. In his affidavit he says:

" 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 LJ 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 the learned Lord Justice observed ( [1990] 1 All ER 469 at 487, [1990] 2 WLR 787 at 810): "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 be so against the Home Secretary's ban".

Mr Lester QC has contended that in issuing these directives the Secretary of State has used a sledgehammer to crack a nut. Of course that is a picturesque way of describing the Wednesbury 'irrational' test. The Secretary of State has in my judgment used no sledgehammer. Quite the contrary is the case.

I agree with Lord Donaldson MR who, when commenting on how limited the restrictions were, said in his judgment ( [1990] 1 All ER 469 at 481, [1990] 2 WLR 787 at 803):

"They have no application in the circumstances mentioned in para 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 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....

4) The Secretary of State has acted ultra vires because he has acted in 'in a disproportionate manner'.

This attack is not a repetition of the Wednesbury 'irrational' test under another guise. Clearly a decision by a minister which suffers from a total lack of proportionality will qualify for the 'Wednesbury unreasonable' epithet. It is, ex hypothesi, a decision which no reasonable minister could make. This is, however, a different and severer test.

Mr Lester is asking your Lordships to adopt a different principle: the principle of 'proportionality' which is recognised in the administrative law of several members of the European Economic Community. What is urged is a further development in English administrative law, which Lord Diplock viewed as a possibility in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 950, [1985] AC 374 at 410.

In his written submissions, Mr Lester was at pains to record 'that there is a clear distinction between an appeal on the merits and a review based on whether the principle of proportionality has been satisfied'. He was prepared to accept that to stray into the realms of appellate jurisdiction involves the courts in a wrongful usurpation of power. Yet in order to invest the proportionality test with a higher status than the Wednesbury test, an inquiry into and a decision upon the merits cannot be avoided. Mr Pannick's (Mr Lester's junior) formulation - could the minister reasonably conclude that his direction was necessary? - must involve balancing the reasons, pro and con, for his decision...., albeit allowing him 'a margin of appreciation' to use the European concept of the tolerance accorded to the decision-maker in whom a discretion has been vested. The European test of 'whether the interference complained of corresponds to a pressing social need' (see Sunday Times v UK (1979) 2 EHRR 245 at 277) 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:.... The kind of unreasonableness for which a court can set aside an administrative act or decision is popularly called 'Wednesbury unreasonableness' from the name of the famous case, Associated Provincial Picture Houses Ltd v Wednesbury Corp, in which Lord Greene MR spoke of a decision 'so absurd that no sensible person could ever dream that it lay within the powers of the authority'. In Secretary of State for Education and Science v Tameside Metropolitan Borough [1976] 3 All ER 665 at 671, [1977] AC 1014 at 1026 Lord Denning MR referred to decisions 'so wrong that no reasonable person could sensibly take that view'. In Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 951, [1985] AC 374 at 410 Lord Diplock, having used irrationality as a synonym of Wednesbury unreasonableness, said that 'It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'....

These colourful statements emphasise the legal principle that judicial review of administrative action is a supervisory and not an appellate jurisdiction.....

I believe that the subject is nowhere better discussed than by Sir William Wade in his authoritative textbook Administrative Law (6th edn, 1988) ch 12 'Abuse of Discretion' pp 388-462. The learned author, with the aid of examples covering more than a century, clearly demonstrates that what we are accustomed to call Wednesbury unreasonableness is a branch of the abuse, or misuse, of power: the court's duty is not to interfere with a discretion which Parliament has entrusted to a statutory body or an individual but to maintain a check on excesses in the exercise of discretion. That is why it is not enough if a judge feels able to say, like a juror or like a dissenting member of the Cabinet or fellow-councillor: 'I think that is unreasonable that is not what I would have done'. It also explains the emphatic language which judges have used in order to drive home the message and the necessity, as judges have seen it, for the act to be 'so unreasonable that no reasonable minister etc would have done it'. In that strong, and necessary, emphasis lies the danger. The seductive voice of counsel will suggest (I am not thinking specifically of the present case) that, for example, ministers, who are far from irrational and indeed are reasonable people, may occasionally be guilty of an abuse of power by going too far. And then the court is in danger of turning its back not only on the vigorous language but on the principles which it was intended to support. A less emotive, but, subject to one qualification, reliable test is to ask: 'Could a decision-maker acting reasonably have reached this decision?' The qualification is that the supervising court must bear in mind that it is not sitting on appeal, but satisfying itself whether the decision-maker has acted within the bounds of his discretion. For that reason it is fallacious for those seeking to quash administrative acts 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 important requirement, however, is to ask the right question....

Mr Lester, however, frankly relied on proportionality, a well-known concept of European law, as a doctrine calculated to advance his cause further than Wednesbury unreasonableness, but conceded that there was a clear distinction between an appeal on the merits and a review based on the principle of proportionality. Mr Pannick equally frankly drew the same distinction and posed the test: 'Could the minister reasonably conclude that his direction was necessary?' Here, of course, one comes back to the word 'reasonably'. I shall try to avoid repeating what has been said by my noble and learned friend Lord Ackner who has already referred to such phrases as 'margin of appreciation' and 'pressing social need'.

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 an abuse of the judges' supervisory jurisdiction. (2) The judges are not, generally speaking, equipped by training or experience, or furnished with the requisite knowledge and advice, to decide the answer to an administrative problem where the scales are evenly balanced, but they have a much better chance of reaching the right answer where the question is put in a Wednesbury form. The same applies if the judges' decision is appealed. (3) Stability and relative certainty would be jeopardised if the new doctrine held sway, because there is nearly always something to be said against any administrative decision and parties who felt aggrieved would be even more likely than at present to try their luck with a judicial review application both at first instance and on appeal. (4) The increase in applications for judicial review of administrative action (inevitable if the threshold of unreasonableness is lowered) will lead to the expenditure of time and money by litigants, not to speak of the prolongation of uncertainty for all concerned with the decisions in question, and the taking up of court time which could otherwise be devoted to other matters. The losers in this respect will be members of the public, for whom the courts provide a service.

1(1) Halsbury's Laws (4th edn reissue) para 78 recognises proportionality in the context of administrative law as follows:

  1. Proportionality. The courts will quash exercise 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 (see (1989) Times, 30 May) 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.