Entering into a new dawn, our society has undergone great changes. In order to cope with this newly developed situation, the government has expanded, both in its structure and power. Simultaneously, the scope of administrative law has been enormously and significantly widened. The legal system of United Kingdom has been highly respected all around the globe, as it is refined and highly developed. Theoretically, there should be rules that protect the rights of the citizens and prevent the government from abusing its power so as to preserve the accountability, transparency and effectiveness of the government.
This aspect of law, however, was hardly developed until the early seventieths due to the reluctance of the judges to step in and challenge the legislature and the executive. Recently, the courts are getting more and more prepared to intervene and grant remedies for grievances caused by unfair and illegal public action. They are further empowered by the codification of the Human Rights Act 1998 to review the primary legislation and to declare its incompatibility. This enlightening development has been reflected by the proliferation of cases, which succeeded in getting a judicial remedy.
One of the examples of this legal battle is the case Hirst v Secretary of State for the Home Department1. During the course of this essay I shall discuss this case in further detail and evaluate its legal implication in the development of public law. The case involved John Hirst, a prisoner who was enthusiastically involved in campaigning for prisoners' rights. He wanted to communicate with the media through telephones interviews. Issues concerning the legitimate interest of the prisoners would be discussed so as to arouse public attention on this specific area.
He suggested that these interviews would be pre-recorded and scrutinized by the authority prior to broadcast. However, the Secretary of State said that permission would only be granted in 'wholly exceptional circumstances'. His request was therefore rejected. As a result of this unsatisfied refusal, he applied for a judicial review. He claimed that the refusal was unlawful as it infringed his fundamental right under the Human Rights Act 1998 and his right to freedom of speech under article 10 of the European Convention for the Protection of Human Rights.
He alleged that the reason used by the Secretary of State to justify his decision was a blanket policy, which was highly disproportionate. Therefore, he wanted the court to quash this rejection and grant him a declaration. Before entering into a more thorough analysis of the case, the outcome of the case has to be first mentioned. After a detail evaluation on the arguments submitted by both the claimant and the defendant, Judge Elias J concluded that the points submitted by the defendant were relevant. The prison authority did have the responsibility and discretion to ban Hirst's application.
A quashing order would therefore not be granted. Nevertheless, a relief in terms of a declaration could be granted as Judge Elias J said 'in all circumstances the denial of the claimant the right to contact the media by telephone... is unlawful. ' 2 In order to know why such a conclusion was reached, it is essential to acknowledge the issues of the case. Referring to the judgment, the issue in this case was 'whether article 10(2) justifies the interference with the claimant's right of access to the media by telephone.
'3 To justify the lawfulness of the interference, the doctrine of proportionality had to be precisely examined. It was also the application of this principle in justifying the interference that elevated the significance of this case in the development of Public law. In measuring this issue, the judge first took the relevant legislative provision into consideration. According to the Prison Act 1952, the Secretary of State has the discretion 'to make rules for the regulation and management of prisons.
' Communications to the exterior are subjected to various scrutinies, both in terms of the formats and the contents. There are materials that cannot be discussed. Harsher censorship is imposed on telephone calls. It is viewed as 'a method of last resort. ' Phone interviews by the media can only be allowed when there is a legitimate purpose such as a miscarriage of justice, which can never be achieved by written correspondence or visits. This allegation was proposed by the judgment of the House of Lords in Simms 4.
The defendant said that the exercise of its discretion to impose these restrictions on the prisoners as well as its rejection of the claimant's request were justifiable. The base of its argument was founded on Article 10(2) of the European Convention. It states that the exercise of the freedom of speech 'are prescribed by law... for the prevention of disorder or crime... ' Thus, Order and discipline were the elementary elements that the authority had to preserve. Once these restrictions were loosened, it would be very difficult for the authority to maintain its control over the prisoners.
Rejection could lead to potential disruption. Moreover, the authority worried that it did not have sufficient resources to deal effectively with these demands. As long as there was the existence of written correspondence, which could serve as an alternative, it was regarded by the prison authority as unnecessary to grant further concession. The judge accepted the defendant's arguments, as they sounded relevant and reasonable. However, the lawfulness of these arguments had to be justified against the principle of proportionality.
It is the application of this principle that signifies the significance of this case in the development of public law. The principle of proportionality is regarded as a 'general principle of law'5 originated in continental Europe. It was said by Lord Diplock 'to mean not using a steam hammer to crack a nut. '6 It assumes that the authorities should be cautious when they make decisions with their discretionary power. They cannot go beyond what is necessary to achieve their objectives, especially when a restriction on the fundamental right of a person is involved.
In deciding whether a decision is arbitrary, it has to be coherent with a tripartite test based on balancing, necessity and suitability. This idea is reinforced by Lord Clyde in de Freitas case 7 that in justifying the proportionality of a measure, the court has to consider the following, '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.
' This principle was frequently referred to in our case. In fact, it constituted the chief issue that had to be clarified in settling this case. The claimant alleged that his right to freedom of speech was disproportionately breached since his request was not granted. Therefore what we have to do is to examine the nature of the freedom of speech so as to set the context for the principle of proportionality to function. This fundamental right is promulgated in Article 10 of the European Court of Human Rights. It has been highly appreciated and observed by the community.
Judge Elias J stressed that this right was too important to be 'lost as part of the sentence of imprisonment itself,'8 unless it was clearly indicated. Nevertheless, it has been logically recognized that a certain level of deprivation of liberty of a prisoner is certain, inevitable and lawful as a result of his detention in custody. As Lord Philips in Mellor case 9 said 'the consequences that the punishment of imprisonment has on the exercise of human rights are justifiable provided that they are not disproportionate to the aim of maintaining a penal system designed both to punish and to deter. '