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( 155 .)


incorporate the case law of the Court of Human Rights into domestic law. It
incorporates only the text of the Convention rights themselves. What the
Human Rights Act says about the case law of the Court of Human Rights is that
domestic courts ˜must take [it] into account™ (s 2(1)). While such case law must
be taken into account, it does not necessarily have to be followed. Nonetheless,
in Daly the House of Lords ruled that domestic courts should follow the
European Court of Human Rights in adopting proportionality as a ground of
review in cases concerning Convention rights.

R (Daly) v Secretary of State for the Home Department [2001]
UKHL 26, [2001] 2 AC 532
The applicant, a prisoner, stored in his cell correspondence with his solicitor
about his security categorisation. Like all prisoners, he was subject to a standard
cell searching policy set out in a Security Manual issued as an instruction to
prison governors by the Secretary of State. The policy required that prisoners
678 British Government and the Constitution

be excluded during cell searches to prevent intimidation and to prevent prison-
ers from acquiring a detailed knowledge of search techniques, and provided that
o¬cers were to examine, but not read, any legal correspondence in the cell to
check that nothing had been written on it by the prisoner, or stored between its
leaves, which was likely to endanger prison security.
The House of Lords unanimously held that a prisoner retained, along with
the rights of access to a court and to legal advice, the right to communicate
con¬dentially with a legal adviser under the seal of legal professional privilege;
that such rights could be curtailed only by clear and express words and then only
to the extent reasonably necessary to meet the ends which justi¬ed the curtail-
ment; that a policy of requiring a prisoner™s absence whenever privileged legal
correspondence held by him in his cells was examined, by giving rise to the
possibility that an o¬cer might improperly read it and to the inhibiting e¬ect
such possibility would have on the prisoner™s willingness to communicate freely
with his legal adviser, amounted to an infringement of the prisoner™s right to
legal professional privilege; that the reasons advanced for that infringement,
namely the need to maintain security, order and discipline in prisons and to
prevent crime, might justify the exclusion during examination of privileged
correspondence of an individual prisoner who was attempting to intimidate or
disrupt a search, or whose past conduct had shown that he was likely to do so,
but not a policy of routinely excluding all prisoners, whether intimidatory or
not; and that, therefore, the policy was unlawful.
The test of review to be adopted in such cases was set out in the opinion of
Lord Steyn, with which all their Lordships hearing the appeal agreed.

Lord Steyn: . . . The contours of the principle of proportionality are familiar. In de Freitas
v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC
69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in deter-
mining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court
should ask itself:
˜whether: (i) the legislative objective is sufficiently important to justify limiting a fun-
damental right; (ii) the measures designed to meet the legislative objective are ratio-
nally connected to it; and (iii) the means used to impair the right or freedom are no
more than is necessary to accomplish the objective.™
Clearly, these criteria are more precise and more sophisticated than the traditional grounds
of review. What is the difference for the disposal of concrete cases? Academic public lawyers
have in remarkably similar terms elucidated the difference between the traditional grounds
of review and the proportionality approach: see Jowell, ˜Beyond the rule of law: towards con-
stitutional judicial review™ [2000] PL 671 [his Lordship cited further academic authorities to
similar effect]. The starting point is that there is an overlap between the traditional grounds
of review and the approach of proportionality. Most cases would be decided in the same way
whichever approach is adopted. But the intensity of review is somewhat greater under the
proportionality approach. Making due allowance for important structural differences between
various convention rights, which I do not propose to discuss, a few generalisations are
679 The courts: judicial review and liability

perhaps permissible. I would mention three concrete differences without suggesting that my
statement is exhaustive. First, the doctrine of proportionality may require the reviewing court
to assess the balance which the decision maker has struck, not merely whether it is within
the range of rational or reasonable decisions. Secondly, the proportionality test may go
further than the traditional grounds of review inasmuch as it may require attention to be
directed to the relative weight accorded to interests and considerations. Thirdly, even the
heightened scrutiny test developed in R v Ministry of Defence, ex p Smith [1996] QB 517,
554 is not necessarily appropriate to the protection of human rights. It will be recalled that
in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexu-
als in the army. The challenge based on article 8 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (the right to respect for private and family life)
foundered on the threshold required even by the anxious scrutiny test. The European Court
of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom (1999)
29 EHRR 493 . . . [T]he intensity of the review, in similar cases, is guaranteed by the twin
requirements that the limitation of the right was necessary in a democratic society, in the
sense of meeting a pressing social need, and the question whether the interference was
really proportionate to the legitimate aim being pursued.
The differences in approach between the traditional grounds of review and the propor-
tionality approach may therefore sometimes yield different results. It is therefore important
that cases involving Convention rights must be analysed in the correct way. This does not
mean that there has been a shift to merits review. On the contrary, as Professor Jowell [2000]
PL 671, 681 has pointed out the respective roles of judges and administrators are funda-
mentally distinct and will remain so.

Daly is authority for the proposition that, in cases concerning Convention
rights, our courts are to apply the test of proportionality set out in Lord Steyn™s
opinion. We have already seen, in addition, that domestic courts should apply
a test of proportionality in appropriate cases concerning Community law.
Outwith these two contexts, however, it remains the case that proportionality is
not an established ground of review. In purely domestic contexts, courts should
continue to apply Wednesbury unreasonableness or irrationality, and not pro-
portionality. This has been con¬rmed by both the Court of Appeal in England
and the Inner House of the Court of Session in Scotland: see R (Association of
British Civilian Internees: Far East Region) v Secretary of State for Defence [2003]
QB 1397 and Somerville v Scottish Ministers [2006] CSIH 52. For an apparently
contrary view, albeit one that predates these authorities, see Lord Slynn in
R (Alconbury) v Secretary of State for the Environment [2001] UKHL 23, [2003]
2 AC 295, at [51]. Further important remarks about the limits of, and the appro-
priate use of, proportionality as a ground of judicial review are contained in
R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL
15, [2006] 2 WLR 719, [26]“[34] and [68].
As Daly demonstrates, in interpreting Convention rights and working
out their implications and limits the courts have a new constitutional role to
680 British Government and the Constitution

perform, in the di¬cult enterprise of reconciling the interests of society with
the rights and freedoms of the individual. A court may have to undertake this
task albeit that the legislature, or the executive, has chosen to strike the balance
in a particular way between the rights of the individual and the interests of
society. One question that arises in this context is whether the court should
show some ˜deference™ to such decisions where they have been made by an
elected legislature or a democratic government.
The European Court of Human Rights allows a ˜margin of appreciation™,
a certain freedom of action, to state authorities, recognising that they have a
greater awareness of local circumstances than an international court does,
which may justify a restriction of Convention rights. In Hatton v United
Kingdom (2003) 37 EHRR 28 at [97] the European Court reiterated ˜the funda-
mentally subsidiary role of the Convention™:

The national authorities have direct democratic legitimation and are, as the Court has held
on many occasions, in principle better placed than an international court to evaluate local
needs and conditions. In matters of general policy, on which opinions within a democratic
society may reasonably differ widely, the role of the domestic policy maker should be given
special weight.

(See further [98]“[103] and [123] of the judgment.) The doctrine of the margin
of appreciation is not applicable in the domestic context, but our courts
concede to the legislature and executive ˜a discretionary area of judgment
within which policy choices may legitimately be made™ (Lord Steyn in R v A
(No 2) [2001] UKHL 25, [2002] 1 AC 45 at [36]. ˜In some circumstances™, said
Lord Hope in R v DPP, ex p Kebilene [2000] 2 AC 326, 381:

it will be appropriate for the courts to recognise that there is an area of judgment within
which the judiciary will defer, on democratic grounds, to the considered opinion of the
elected body or person whose act or decision is said to be incompatible with the Convention.

This restraint upon judicial intervention is commonly expressed as a require-
ment to show ˜deference™ to the decision-maker, but in R (Prolife Alliance) v BBC
[2003] UKHL 23, [2004] 1 AC 185 at [75], Lord Ho¬mann remarked that
the question is rather one of deciding, as a matter of law, ˜which branch of
government has in any particular instance the decision-making power and
what the legal limits of that power are™. Accordingly, he continued (at [76]),
˜when a court decides that a decision is within the proper competence of the
legislature or executive, it is not showing deference. It is deciding the law.™ (See
too Lord Walker at [144].) A similar analysis was applied by Lord Bingham in
A v Secretary of State for the Home Department [2005] 2 AC 68 at [29] (see
further on this case chapter 11). (Compare the approach of Lord Steyn in
˜Deference: a tangled story™ [2005] PL 346 and see further Edwards, ˜Judicial
681 The courts: judicial review and liability

deference under the Human Rights Act™ (2002) 65 MLR 859; Jowell, ˜Judicial
deference: servility, civility or institutional capacity?™ [2003] PL 592 and
Clayton, ˜Judicial deference and “democratic dialogue”™ [2004] PL 33.)
The greater the ˜deference™, or the greater the discretionary area of judgment
accorded to the decision-maker, the less likely it is that the new proportionality
test will yield results that would not have been obtained under the older stan-
dards of Wednesbury unreasonableness. This is illustrated in the following case.

R (Farrakhan) v Secretary of State for the Home Department [2002]
EWCA Civ 606, [2002] QB 1391
Louis Farrakhan, the leader of a religious, social and political group in the
United States known as the ˜Nation of Islam™, wished to travel to the United
Kingdom to speak at a number of public engagements. The Secretary of
State decided that Farrakhan should be excluded from the United Kingdom on
the basis that his presence here would pose a signi¬cant threat to community
relations, in particular to relations between the Muslim and Jewish communi-
ties, and a potential threat to public order for that reason. Farrakhan sought
judicial review of this decision. The judge at ¬rst instance (Turner J) held that
the Secretary of State had failed to demonstrate objective justi¬cation for
excluding Farrakhan and quashed the decision to exclude him. The Court
of Appeal unanimously allowed the Secretary of State™s appeal, the judgment of
the court being handed down by Lord Phillips MR. The judgment listed a series
of factors the court had taken into account in terms of what it called ˜the margin
of discretion™.

Lord Phillips MR: . . . Miss Carss-Frisk [Counsel for the Secretary of State] submitted that there
were factors in the present case which made it appropriate to accord a particularly wide
margin of discretion to the Secretary of State. We agree. We would identify these factors as
follows. First and foremost is the fact that this case concerns an immigration decision. As we
have pointed out, the European Court of Human Rights attaches considerable weight to
the right under international law of a state to control immigration into its territory. And the
weight that this carries in the present case is the greater because the Secretary of State is
not motivated by the wish to prevent Mr Farrakhan from expressing his views, but by concern
for public order within the United Kingdom.
The second factor is the fact that the decision in question is the personal decision of the
Secretary of State. Nor is it a decision that he has taken lightly. The history that we have set
out at the beginning of this judgment demonstrates the very detailed consideration, involv-
ing widespread consultation, that the Secretary of State has given to his decision.
The third factor is that the Secretary of State is far better placed to reach an informed deci-
sion as to the likely consequences of admitting Mr Farrakhan to this country than is the court.
The fourth factor is that the Secretary of State is democratically accountable for this
decision . . .
682 British Government and the Constitution

The other factor of great relevance to the test of proportionality is the very limited extent
to which the right of freedom of expression of Mr Farrakhan was restricted. The reality is that
it was a particular forum which was denied to him rather than the freedom to express his
views. Furthermore, no restriction was placed on his disseminating information or opinions
within the United Kingdom by any means of communication other than his presence within
the country. In making this observation we do not ignore the fact that freedom of expres-
sion extends to receiving as well as imparting views and information and that those within
this country were not able to receive these from Mr Farrakhan face to face.
. . . We have already indicated that to ascertain the reasons for Mr Farrakhan™s exclusion
it is appropriate to have regard to all the correspondence on the subject written by or on
behalf of the Secretary of State. The Secretary of State™s decision had turned upon his
evaluation of risk “ the risk that because of his notorious opinions a visit by Mr Farrakhan to
this country might provoke disorder. In evaluating that risk the Secretary of State had had
regard to tensions in the Middle East current at the time of his decision. He had also had
regard to the fruits of widespread consultation and to sources of information available to him
that are not available to the court. He had not chosen to describe his sources of information
or the purport of that information. We can see that he may have had good reason for not
disclosing his sources but feel that it would have been better had he been less diffident about
explaining the nature of the information and advice that he had received.
We consider that the merits of this appeal are finely balanced, but have come to the
conclusion that the Secretary of State provided sufficient explanation for a decision that
turned on his personal, informed, assessment of risk to demonstrate that his decision did not
involve a disproportionate interference with freedom of expression.

(d) Procedural impropriety and unfairness
The grounds of review considered thus far relate to the substance of public or
governmental decisions. The ¬nal ground of judicial review concerns fair pro-
cedures. In the GCHQ case Lord Diplock referred to this ground of review as
˜procedural impropriety™. ˜Breach of the rules of natural justice™ is an older
expression covering the same ground. There are two established rules of natural
justice: the ˜rule against bias™ and the ˜duty to hear the other side™, alternatively
and more straightforwardly known as the ˜duty to act fairly™. We shall consider
each in turn.

(i) Bias
If the decision-maker has a pecuniary interest in the matter to be decided he or
she is automatically disquali¬ed from making the decision. This was settled in
the classic case of Dimes v Grand Junction Canal Proprietors (1852) 3 HLC
759 and applies even if no allegation of the decision-maker actually being biased
can be made. That other direct interests, in addition to pecuniary interests, may
likewise lead to automatic disquali¬cation for bias was demonstrated by the
decision of the House of Lords in R v Bow Street Stipendiary Magistrate, ex p
683 The courts: judicial review and liability

Pinochet (No 2) [2000] 1 AC 119. The case concerned the relationship of Lord
Ho¬mann to a party (Amnesty International Charity Ltd) related to another
(Amnesty International) that had intervened in litigation before him. Even
though no allegation of actual bias was made against his Lordship the House of
Lords held that the decision of which he had been part could not stand.
In addition to cases of automatic disquali¬cation, a decision-maker may be
disquali¬ed from making a decision where the ˜fair-minded and informed
observer, having considered the facts, would conclude that there was a real
possibility™ of bias (Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, at [103]
(Lord Hope); see also R (Al-Hasan) v Secretary of State for the Home Department
[2005] UKHL 13, [2005] 1 WLR 688). This is known as apparent bias.
The rule against bias may cause di¬culties in administrative or governmen-
tal circumstances where the decision-maker has been elected to the position
whereby it may make a decision on the basis of a manifesto or campaign
commitment to resolve certain issues in a particular way. Take, for example,


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( 155 .)