Introduction

English administrative law had, prior to the Human Rights Act, failed to develop effective protection for human rights against incursions by public officials and authorities. Much of the blame for the parlous defence of civil liberties and human rights can be attributed to the judges’ sentimental attachment to the Wednesbury test as the appropriate standard for reviewing official action. Under this test, action was only reviewable if it was so unreasonable that no reasonable decision-maker would have taken it. Long criticised for its circularity, imprecision and excessive deference to the executive, Wednesbury nevertheless continues to hold considerable sway.

Its influence can be seen clearly in Brind, in which – a mere fifteen years ago – the House of Lords ruled that the Home Secretary was not legally obliged to consider the Convention right of freedom of expression when imposing restrictions on television and radio interviews with people connected with a terrorist organisation. Their Lordships considered that to hold otherwise would amount to what they described as ‘back door’ incorporation of the Convention and that they should not rush in where (at that time) Parliament had chosen not to. The Convention's relevance was limited to instances of statutory ambiguity – something which in the circumstances of the case (concerning a very wide power to give ‘directions’ to broadcasters) their Lordships were reluctant to find.