David Miranda and the Constraints of the "Prescribed by Law" Requirement: Miranda v. Home Secretary, [2014] EWHC 255

Laws L.J. delivered the judgment of the Divisional Court yesterday in Miranda v. Home Secretary, [2014] EWHC 255, a judgment explained by Rosalind English and Carl Gardner, and aspects of which have also been discussed by Fiona de Londras and Colin Murray. Miranda, en route to Berlin to share confidential information with a journalist, was detained in Heathrow Airport under Schedule 7 of the Terrorism Act because officers wanted to question and search him. He challenged the legality of the detention, raising unsuccessful arguments based on freedom of expression and use of power for an improper purpose.

In the course of his judgment Laws L.J. threw a couple of digs, one at the UK Supreme Court and one at the European Court of Human Rights. Mark Elliott adjudges the dig aimed at London to have hit its mark, but in my view Laws L.J. at best grazed the cheek of Strasbourg.

Fettering of Discretion and the Reasonableness Test

In Canada, a global reasonableness test is supposed to be applied in the review of administrative decisions, even where the allegation is that the decision-maker abused its discretion. The Supreme Court said as much in 2003 (see paras. 22-25).

But some of the traditional grounds of review for abuse of discretion fit uneasily under the general rubric of reasonableness. Bad faith is one: surely a decision taken in bad faith is objectionable per se, with no need to ask whether the bad faith was unreasonable (if that question even makes any sense!).