Hence, how far can freedom of expression be reasonably restricted is just a question of proportionality. Does 'the prevention of disorder or crime' justify a broader scope of interference in the case of a prisoner than an ordinary person? It was agreed unanimously by the Court of Appeal in the case of Samaroo 10, that two questions have to be asked. Firstly, 'can the objective be achieved by means which are less interfering? ' Secondly, 'Does the measure have an excessive or disproportionate effect on the interests of affected persons?
' It clearly demonstrates the requirement expected from the authorities when they make their decisions that they have to be proportionate and go no further than what is necessary to fulfill their objectives. Judge Elias J also based his ruling on this test. It facilitated him to justify the refusal made by the Secretary of State as what was termed by Lord Bingham of Cornhill in Dally 11 as a blanket policy that was too inflexible and unlawful.
The decision of this case, which has already been quoted in the above paragraph, shows that this case is perfectly in line with the precedents of the previous cases. The declaration of the unlawfulness of this decision shows that the courts are more willing to step in and justify the policies of the public authorities on the basis of proportionality, especially when the policies have a substantial influence on the fundamental rights of a person.
However, this tendency was only developed and intensified recently on an incremental case-by-case basis after the incorporation of the Human Right Act 1998. Lord Diplock first addressed it in the GCHQ case12. But it was never welcomed by the academics and the judges. They viewed it with hostility. A reading of the article of Sophie Boyron13 definitely makes one more tentative about its application in England. She labeled the suggested adoption of this principle in England as 'Painting with too Broad a brush', which would lead to 'problems of an institutional and conceptual nature.
' She reached this conclusion, as she, so as the other academics believed that the similarity between proportionality and Wednesbury unreasonableness, which had already found its place in English administrative law, would generate legal confusion. Moreover, the use of this principle would definitely widen the scope for the judiciary to interfere with the sphere of legislation and executive. Not only did this undermine the supremacy of Parliament, it also upset the separation of power, which is the foundation of the English constitution. This fear was also shared by the court.
Lord Hoffman in his article comments on the decision reached by the Court of Appeal in Brind's case14. Judging from the hesitation of the law lords to apply the principle of proportionality in this case, he concluded that judges 'are understandably very reluctant to take the responsibility for questioning the opinion of executive government… ' 15 Fortunately, the attitude of the court has greatly changed, which is motivated by the constant influence of the European law and the acknowledgment of the necessity to preserve natural justice.
The contemporary gesture of the court can be summarized by the dictum of Bingham MR in Smith's case that 'The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable. '16 In short, the courts have become more and more active in conducting judicial reviews so as to ensure that the rights of the people are preserved. Nevertheless, a balance has to be struck between the application of proportionality and the interference.
It is of utmost importance that the court has to know to what extent should it interfere with the process of decision-making. In assessing the proportionality of a decision, a line between the executive and the judiciary has to be unambiguously drawn. The courts should not be too involved in decision-making, so that the judiciary will not appear to be offensive and the original structure of power can be preserved. This has also been strictly observed by Judge Elias J in Hirst's case. The discretionary power possessed by the prison authority was acknowledged.
It was a discretion granted by the Parliament so that the authority could issue any rule as long as they were designed to achieve the legitimate aim that was to preserve discipline and order. Therefore the court was not entitled to quash its decision. Deference had to be paid to the legislature that 'courts should not easily be persuaded to condemn what has been done, especially where it has been done in primary legislation… '17 Most importantly, 'It is not the function of the court to frame policy for the government and it would be constitutionally improper for it to seek to do so.
'18 Nevertheless, a declaration on the unlawfulness of the policy was considered to be an appropriate relief that could be granted by the court to the claimant. The granting of such a declaration was a clever and reasonable approach. The grievance of the claimant was pacified. On the other hand, it also preserved a certain degree of respect to the omnipotence of the Parliament. This signifies the proper function of proportionality in English administrative law and proves that this principle can work in harmony with the Wednesbury unreasonableness.
It is undeniable that the impact of proportionality on the development of public law is unpredictably huge. Firstly, it prevents the decision-makers from abusing their power. The tripartite test provides the authorities with proper frameworks that they can rely on when they make their decisions. This tends to increase the sensitivity of the decision-makers to ensure 'their means to have a reasonable relation to ends. '19 Secondly, the quality of the administration will be improved due to the emphasis of this principle on the provision of alternatives.
The officials are encouraged to discuss and create options that are less oppressive. Through comparison and contrast, a better policy will be generated. Last but not the least, the import of this principle from the continent facilitates the combination of the English and the continental law theories, which serves to enhance the comprehensibility of the English law. These are the three merits, which slightly distinct it from Wednesbury unreasonableness. To conclude, the decision of Hirst clearly indicates a moderate and suitable adoption of proportionality.
It does not imply 'an abandonment of the judicial restraint associated with the Wednesbury formulation. '20 On the contrary, it provides the English administration with so many constructive stimulations and facilitates the court to achieve a fair judgment when it deals with human rights issues. Under such favourable circumstances, I cannot see any reason why it cannot be explicitly applied and adopted in English law. As what Lord Hoffman said in his article 'a sense of proportion' is needed so as to realize 'Perhaps the outcome is less revolutionary that the protagonist of the proportionality expect.