R v Secretary of State for the Home Department, ex parte Daly (2001)

Indian courts do not follow House of Lords decisions as binding law, but they read them closely. Daly is cited in India for one short passage: Lord Steyn's explanation of how proportionality differs from Wednesbury review. The Supreme Court used it in Om Kumar v Union of India (2000) when it discussed proportionality in Indian administrative law.

The case gives you two things for Unit 3:

• a clear statement that "There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where convention rights are at stake";
• the three-stage proportionality test (adopted from de Freitas), and Lord Steyn's three concrete differences between proportionality and traditional review.

It is also a good example of a court striking down a blanket policy because it restricted a fundamental right more than necessary.

After six high-risk prisoners escaped from HMP Whitemoor in September 1994, an inquiry found that cells had not been searched properly, partly because officers had been intimidated or "conditioned" by prisoners. On 31 May 1995 the Home Secretary introduced a cell-search policy for all closed prisons in England and Wales. Under it, prisoners had to be absent while their cells were searched, and during a search staff had to examine legal correspondence "thoroughly in the absence of the prisoner" — only far enough to check that it was genuine legal correspondence, not to read it.

Mr Daly, a long-term prisoner, challenged the policy. In the House of Lords he confined his challenge to one point: the rule that a prisoner may never be present when his legally privileged correspondence is examined. He accepted that cells must be searched at random, that searches could take place in his absence, and that officers could examine legal papers to check they were genuine. He argued only that the examination should ordinarily take place in the prisoner's presence. The Court of Appeal had upheld the policy.

1. Did the policy infringe the prisoner's common law right to the confidentiality of privileged legal correspondence?
2. If so, did s. 47(1) of the Prison Act 1952 authorise an infringement of that extent — was the policy a necessary response to the needs of security, order and discipline?
3. (Lord Steyn) What is the correct standard of review where Convention rights are at stake — the Wednesbury/Smith standard, or proportionality?

The appeal was allowed. The House declared paragraphs 17.69 to 17.74 of the Security Manual unlawful and void so far as they required prisoners always to be absent when their privileged legal correspondence was examined.

Lord Bingham: the common law right

A prisoner keeps certain rights despite his imprisonment. Among them are three closely related rights: "the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege." Lord Bingham stated the rule of construction: "Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment."

He had "no doubt that the policy infringes Mr Daly's common law right to legal professional privilege". A prisoner who knows his papers may be examined in his absence will be less willing to write candidly to his lawyer, and "In an imperfect world there will necessarily be occasions when prison officers will do more than merely examine prisoners' legal documents".

Lord Bingham: the blanket policy went too far

Some examination was justified. But the policy applied to every prisoner in every closed prison, regardless of his conduct. A prisoner who tries to intimidate or disrupt a search can be excluded, "but no justification is shown for routinely excluding all prisoners, whether intimidatory or disruptive or not, while that part of the search is conducted." He concluded: "The policy cannot in my opinion be justified in its present blanket form."

Four further points supported this: the Prisons Ombudsman had upheld a similar complaint; one prison (Full Sutton) already let prisoners have their papers sealed in a bag and searched in their presence; the Scottish standing order provided for searches in the prisoner's presence; and only two items had ever been found hidden among legal documents.

So "the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners." Section 47(1) did not authorise "such excessive intrusion", so the Home Secretary had no power to make the policy in that form.

Lord Bingham declined to draft a replacement rule. Any rule should give prisoners a general right to be present, but must allow them to be excluded where there is good cause, and must let the authorities respond to sudden emergencies or urgent intelligence.

Lord Bingham: the Convention gives the same result

The same result followed under Article 8 of the Convention: the policy interfered with Mr Daly's right to respect for his correspondence "to an extent much greater than necessity requires." Lord Bingham noted that common law and Convention will not always agree. In Smith and Grady v United Kingdom the European Court had found that the English approach gave no effective remedy "because the threshold of review had been set too high." Under the Human Rights Act 1998, domestic courts "must themselves form a judgment whether a convention right has been breached".

Lord Steyn: proportionality is not Wednesbury

Lord Steyn agreed with Lord Bingham and added one point. In an earlier case (Mahmood) the Master of the Rolls had described review of decisions affecting human rights in words that sounded like the traditional Wednesbury test, and like its "heightened scrutiny" version in R v Ministry of Defence, ex p Smith. Lord Steyn said this needed clarification: "There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where convention rights are at stake."

He adopted the three-stage test from the Privy Council's decision in de Freitas, under which the court asks "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally 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." There is overlap, and "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." He gave three concrete differences:

1. "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."
2. "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."
3. "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." — as Smith and Grady had shown, where the European Court reached the opposite result.

But proportionality is still review, not appeal: "This does not mean that there has been a shift to merits review." The roles of judges and administrators "are fundamentally distinct and will remain so." And the intensity of review depends on the subject matter: "In law context is everything."

Lord Cooke: the common law goes deep

Lord Cooke agreed with both speeches. He stressed that the common law by itself was a sufficient source of the right to confidential legal advice: "some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them." He also said that the day would come when Wednesbury would be seen as "an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation."

Lord Hutton and Lord Scott agreed with Lord Bingham and with Lord Steyn's remarks on Mahmood.

1. A general statutory power to make prison rules (s. 47(1) of the Prison Act 1952) does not authorise interference with a prisoner's right to confidential legal correspondence beyond what is reasonably necessary to meet the purposes that justify it. A blanket policy excluding every prisoner while his privileged correspondence is examined goes beyond that, and is unlawful.
2. Where Convention rights are at stake, the court must apply proportionality, not Wednesbury or Smith reasonableness. Proportionality asks whether the objective is important enough, whether the measure is rationally connected to it, and whether it impairs the right no more than necessary. It is more intense than traditional review, but it is not merits review.

• Direct question: Distinguish Wednesbury unreasonableness from the doctrine of proportionality. Quote Lord Steyn's "material difference" sentence, set out the de Freitas three-stage test, then give his three differences. End with the warning that proportionality is not merits review.
• Indian link: Discuss the doctrine of proportionality in Indian administrative law. Use Daly as the English source that the Supreme Court drew on in Om Kumar v Union of India (2000). Point out that the three-stage test fits review of action that restricts fundamental rights.
• Problem question: a department adopts a rule applying to everyone, although only a few people cause the problem it targets. Use Lord Bingham's reasoning: a blanket rule that restricts a fundamental right more than necessary cannot be justified, and a narrower rule that allows exclusion for good cause would meet the objective.
• Say clearly in any answer that this is a House of Lords decision, persuasive in India, not binding.