R (Daly) v Home Secretary [2001] UKHL 26; [2001] 2 AC 532

Key point

  • In obiter, Lord Steyn argued that the intensity of review is greater under proportionality review than under traditional Wednesbury unreasonableness

Facts 

  • The Home Secretary issued a document requiring prisoners to be removed from their cells during routine searches, including examination of legal correspondence on the suspicion that the contents are criminal 
  • Daly applied for judicial review on the basis that these searches breached his common law right that the confidentiality of privileged legal correspondence
  • Note that this case did not in fact involve Convention rights, has the HRA had not been in effect at the time of the facts of this case, thus the comments on proportionality were strictly obiter

Held (House of Lords)

  • Appeal allowed; the policy infringed upon D’s common law right

Lord Bingham

Common law right

  • To the extent that it infringes a prisoner’s common law right to privilege, the policy can be justified as a necessary and proper response to the acknowledged need to maintain security, order and discipline in prisons and to prevent crime: [18] – [22]

Convention and proportionality

  • He stressed at [23] that in this case, common law and the Convention yield the same result, but he acknowledged that this might not always be so, as seen in Smith and Grady v UK
  • The difference is that under the HRA, “domestic courts must themselves form a judgment whether a convention right has been breached”

Lord Steyn

Comparison of rationality and proportionality

  • At [27], Lord Steyn argued that the intensity of review is greater under proportionality for the following reasons:
    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 applied in Smith is insufficient to protect human rights as it fails to consider weight and balance, following Smith and Grady v UK
  • Although most cases will be decided the same way under both standards of review, the differences pointed out above mean that some times there will be different results: [27] – [28]
  • However, he was keen to stress at [28] that proportionality review does not amount to a merits review by the court, that its intensity will depend on context, stating that “[i]n law context is everything.”

Commentary

  • Lord Bingham sought to emphasise the protection the common law afforded to human rights, in examining whether the common law right was infringed, he adopted a balancing test similar to proportionality
  • Lord Steyn’s analysis on the differences between proportionality and Wednesbury is doubtful
    • Lord Steyn’s approach is inconsistent with later cases such as Kennedy and Pham, where the Supreme Court reasoned that both rationality review and proportionality review involve considerations of weight and balance
    • However, in the very case itself, Lord Bingham’s analysis of whether the common law right was infringed involved a balancing exercise similar to proportionality, that extended beyond asking whether the policy was rational