R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX P BRIND

Ministerial discretion and the supremacy of European principles, force the judiciary to impose demarcation when the imposition of press regulation extends the powers of the executive beyond what some might consider ‘reasonable’ bounds.

At a time when the media was becoming central to the lives of the general public, there were numerous attempts by terrorist factions to use television as a means of political propagation.

In direct response, the Home Secretary of the time issued instructions to both the BBC (British Broadcasting Corporation) and the IBA (Independent Broadcasting Authority) to censor the speech and appearance of those representing such organisations, as to prevent viewers from taking offence and to cripple plans to advocate fear as a means of influence.

These orders fell under the terms of section 29(3) of the Broadcasting Act 1981 and clause 13(4) of the licences agreement between the BBC and IBA respectively, and while stymying the direct effects of terrorist representation, they were flexible enough to allow dubbed voiceovers for the sake of reporting, and also allowed the affected reporters to discuss the comments and associate the parties involved; therefore, not entirely curtailing the views and commentary of those included within the Prevention of Terrorism (Temporary Provisions) Act 1984 and the Northern Ireland (Emergency Provisions) Act 1978.

In an abject reaction of professional outrage, a number of prominent and established representatives of the associated media sought a judicial review on grounds that the censorship of those affected, stood in direct violation of article 10 (Freedom of Expression) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1953, while the use of those powers was disproportionate to their objectives and irrational in design, to the extent that such an abuse of power was in need of legal redress.

Heard first in the Divisional Courts, the application was dismissed on grounds that while the principles of the Convention were recognised, the executive powers granted to those qualified were never given lightly; and that on this occasion there was insufficient evidence to suggest the Home Secretary had acted ultra vires of his position.

Taken to the Court of Appeal, the appellants relied upon the principles held in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  whereby the reasonableness of the decision must reflect the objectives while balancing the needs of public interest; again citing that when allowing the Home Secretary to enforce the orders, the executive must have had the Convention principles in mind; and so, therefore allowed a breach that denied impartiality to those affected.

Having evaluated the arguments presented, the Court dismissed the appeal while allowing leave to the House of Lords, at which point the same contentions were used to urge the judiciary to intervene and quash the restrictions now in place, with particular emphasis on the very principles upon which judicial review was founded.

With due consideration of the points raised, the House reminded the appellants that judicial review was a means of management rather than contest for those displeased with case outcomes, while emphasis was placed upon the almost microscopic levels of disruption the censorship caused the broadcasters when accusations of impartiality, irrationality and unreasonableness were made.

When taken collectively, the House dismissed the appeal and ruled unanimously that regardless of what may appear as an abuse of power, was nothing more than a calculated protection of democracy; and that as expressed within article 10(1) of the Convention, those same rights of expression are subject to a degree of restriction where public interest requires it, while concluding that:

“In any civilised and law-abiding society the defeat of the terrorist is a public interest of the first importance.”

LIVERSIDGE v ANDERSON

Reasonableness within the confines of legislation and determination of that principle, fall into varying categories; while national security under times of war, further compounds the need for subjective action, when those bestowed executive powers must act to prevent dissent without fear of reprisal, or leave themselves undermined through abuse of legal recourse.

Acting upon the terms prescribed within the Defence (General) Regulations 1939, it was decided by the Secretary of State, to issue a writ that served to detain a suspected ‘threat’ while the country was at war with Germany.

For reasons undisclosed to the appellant on principle of national safety, the individual was held in indefinite detention in Brixton prison, as an act of subversion against known factions operating to weaken the country’s defences.

After almost a year, the appellant sought to challenge the validity of the writ, contesting that his imprisonment was on fraudulent grounds, and that the above legislation conferred limited powers of issue that on this occasion, were in need of evidential support over subjective opinion.

In addition to this, he requested that there ought to be proven grounds for his incarceration, and that those reasons needed to determine the eligibility to hold him.

In the first hearing, the court dismissed his claim but granted leave to appeal; after which, the Court of Appeal also refused to support any action taken against an executive order; however, they did allow appeal to the House of Lords for purposes of exploration.

As foundation of the appeal, section 18B of the regulations read that: 

“If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.”

Defence (General) Regulations 1939

This particular aspect of legislation was now left to the House to examine in detail before establishing if, under circumstances where no written evidence had been submitted to justify the writ, the Secretary of State was liable to produce such material as to satisfy the restricted liberty of an individual innocent of any criminal wrongdoing.

While in the immediate sense it ran risk of appearing beyond reproach and without just cause, the judges fully appreciated that in times of conflict it was ultra vires for the courts to expect confidential information to be brought into view to resolve what was essentially a claim for damages under the presumption of absolute civil liberty.

Despite fully appreciating the need for personal satisfaction and the variances of reasonableness within numerous forms of English law, it was felt that within a position shouldering tremendous responsibility for the safety and welfare of both the state and the public, the phrase “has reasonable cause” was ultimately to be interpreted as subjective to the Secretary of State, and not one for those bound to his decision, before reassuring the parties that:

“In no case are ordinary legal rights to be affected unless and then only to the extent that Parliament has enacted to the contrary.”

ASSOCIATED PROVINCIAL PICTURE HOUSES v WEDNESBURY CORP.

Acting ultra vires through the application of executive powers is not something alien to public authority decision-making, but it is equally important that those seeking legal review are clear as to exactly what has constituted a breach of their jurisdiction.

During the period following the second world war, there were three Acts that affected the opening times of cinematograph houses across the UK.

The first was the Cinematograph Act 1909, the second was the Sunday Entertainments Act 1932, and third was Defence Regulation 42B, which was introduced during the war, but remained effective until late 1947.

When it was decided by an issuing local authority to grant a trading licence to their local picture house, there came with it restrictions preventing any attendance by children aged below fifteen years of age, regardless of whether they were accompanied by an adult.

While appreciative of the opportunity to open on a day typically reserved for domestic pursuits, the appellants sought judicial review on grounds that such a restriction was self-defeating and thereby ‘unreasonable’.

As there were three Acts from which to rely upon, it was agreed that for the purposes of clarity the Sunday Entertainments Act was the most appropriate, and yet within the terms prescribed, section 1(1) provided that the issue of a licence was “subject to such conditions as the authority think fit to impose.” This, it was agreed, allowed the local authority to apply its discretion to the limitations of the permit, and so by extension, it had acted accordingly.

When heard in the first instance, the court dismissed the objections brought by the picture house, and after a brief but considered review of that decision, it was reiterated that while the courts are able to question the legal validity of executive decisions, they are not equipped nor predisposed, to challenge the illegitimacy of those limitations, unless the body in question has applied it powers outside the boundaries of reasonableness, and in ignorance of required objectives.

Relying upon the relevant case history behind these matters, there was (despite strong opposition by the commercial vendors) no precedent upon which their argument could stand; and so, the court noted that it was important to hold in mind the scope of discretion afforded local authorities when following statute before taking legal action, while further reminding the parties that:

“[T]he court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority.”