R v Secretary of State for the Home Department, Ex parte Daly

Facts

A Home Office policy required all prisoners to be absent while prison officers examined the legally privileged correspondence held in their cells during cell searches. Daly, a long-term prisoner, challenged the policy as infringing his common law right to confidentiality of legal correspondence and being beyond the general rule-making power in s. 47(1) of the Prison Act 1952. He sought a declaration that the blanket policy was unlawful.

Issues

• Does a general statutory power authorise a blanket policy interfering with a prisoner's right to legal professional privilege?
• What is the proper intensity of review — Wednesbury or proportionality — where a basic/Convention right is engaged?

Arguments

Daly argued that requiring his absence during examination of privileged correspondence inhibited candid communication with his legal adviser and risked the documents being read, infringing legal professional privilege to an unnecessary extent. The Home Secretary argued the general rule-making power in s. 47(1) authorised the policy as a security measure.

Held

The House of Lords held the blanket policy unlawful. A power conferred in general terms does not authorise interference with fundamental rights beyond what is reasonably necessary; legal professional privilege could be curtailed only to the minimum extent required for prison security. The policy interfered with the right far more than necessity demanded and was therefore ultra vires s. 47(1). The House recognised that where a Convention or basic right is engaged the court applies a proportionality test — asking whether the measure is the least intrusive means and strikes a fair balance — which is more intrusive than traditional Wednesbury review.

Ratio decidendi

Where administrative action interferes with a fundamental/Convention right, the court reviews it on the principle of proportionality, requiring that the interference be the minimum necessary to achieve the legitimate objective; a blanket policy exceeding that minimum is ultra vires a general statutory power.

Significance

A landmark in moving English administrative law from Wednesbury towards proportionality for cases engaging fundamental rights (following the Human Rights Act 1998). Cited in Indian discussions (Om Kumar; Coimbatore) on the least-restrictive/necessity component of proportionality; builds on Ex p. Leech and Ex p. Anderson.

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