P rugby club refused to condemn its players for playing rugby in SA during apartheid and so in response the LA, D, under its powers to regulate the use of its own lands and general statutory duty to promote race relations, prevented the rugby club from playing for 12 months.
In CA, majority said that the council was entitled to take such action. Browne-Wilkinson LJ (dissenting) disagreed, saying: It is a constitutional principle that in absence of words to the contrary a person is free to at as he please. Freedom of speech exists not because of an express provision (NB pre-HRA) but because it is not prevented by law, except to the extent that it is libellous. Therefore general words should not be taken as sanctioning the interference with fundamental rights- only express words will do. Therefore if in exercising a discretion which does not purport to give the DM the power to contravene fundamental rights, the DM takes into account a person’s willingness to use their speech in a certain way/avoid expressing certain views, then the decision is unlawful as it is taking into account a legally irrelevant factor.
HL agreed with Browne-Wilkinson LJ in holding that the LA acted unlawfully. However it approached the issue on the basis that the LA’s action was Wednesbury unreasonable. IT misused statutory powers.
Lord Roskill: Rather than the “wider” approach of Lord BW, he sticks to (1) Wednesbury unreasonableness in the decision arrived at and (2) unfairness in procedure e.g. asking the club to assent to 4 broad questions which the club couldn’t really answer, such as “does the club agree that the tour is an affront to all black people”.
BW’s approach seems far sounder. It explicitly recognises that the purpose of discretion must not include the breach of fundamental rights unless this is explicitly stated. Furthermore Wednesbury unreasonableness doesn’t seem right here- Roskill acknowledged that th council may have had perfectly valid reasons in arriving at their decision, which would surely place them below the high threshold of Wednesbury unreasonableness.