Human Rights Act 1998 – Article 6 of European Convention on Human Rights – Civil litigants’ right to impartial hearing – Whether decision-making processes under planning, highways, transport and compulsory purchase legislation compatible with Convention – Whether compatibility supplied by High Court supervision – Whether special considerations apply to planning decisions taken pursuant to call in of applications and recovery of jurisdiction over appeals
On 13 December 2000 the Divisional Court, in a judgment affecting four sets of otherwise unrelated proceedings, held that certain decision-making powers exercisable by the Secretary of State for the Environment, Transport and the Regions (SSETR) were not compatible with Article 6(1) of the European Convention on Human Rights: see [2001] EGCS 5. Article 6(1) states that “in the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
Among the provisions held to be incompatible were: (i) section 77 of the Town and County Planning Act 1990, which enables the SSETR to call in a planning application that would otherwise be decided at a local level; and (ii) para 3(1) of Schedule 6 to the same Act, whereby the SSETR can direct that a planning appeal otherwise determinable by an inspector should be determined by the SSETR. In so holding, the Divisional Court rejected the SSETR’s contention, largely based upon the decision of the European Court of Human Rights (the ECHR) in Bryan v United Kingdom A/335-A [1996] 2 EGLR 123, that the decision-making process as a whole, including the right of appeal to, and the reviewing role of, the High Court, did comply with Article 6. The SSETR and certain other interested parties appealed to the House of Lords, arguing that the Divisional Court had proceeded upon a wrong understanding of the jurisprudence applied by the ECHR in Bryan and in related cases.
Held: The appeal was allowed.
As stated by Lord Green MR in B Johnson & Co (Builders) Ltd v Minister of Health [1947] 2 All ER 395 at p398, the functions in question were fundamentally administrative, subject only to the quasi-judicial obligation to give fair consideration to objections. Following such consideration, the decision maker had to make a policy decision, which, on ordinary democratic principles, could be questioned in parliament but not in the courts. It was accordingly neither necessary nor desirable for the decision maker to approach his task with the open mind expected of a judge.
While the Convention made no inroad on democratic principles, the ECHR had affirmed that Article 6(1) could apply to the making of administrative decisions by virtue of their possible effect upon private law rights: see Ringeisen v Austria (No 1) A/13 (1979-80) 1 EHRR 455, as affirmed in Köenig v Germany (No 1) A/27 (1979-80) 2 EHRR 170. In applying the article to decisions of the kind under consideration, the EHRR required that if the decision-making process did not itself comply with the article, the relevant body had to be subject to the control of a judicial body possessing a “full jurisdiction” that did provide the required guarantees (the review requirement): see Albert and Le Compte v Belgium A/58 (1983) 5 EHRR 533.
However, when considering what amounted to a full jurisdiction, the ECHR had recognised that the jurisdiction had to be as full as the nature of the case required, and that the review requirement did not call for an independent reassessment of the merits of a policy decision: see Zumtobel v Austria A/268-A (1994) 17 EHRR 116, as applied to English planning law issues in Bryan, Varey v United Kingdom 26662/95 The Times 30 January 2001 and Chapman v United Kingdom 27238/95 The Times 30 January 2001. Contrary to the view taken by the Divisional Court, the reasoning in Bryan was not limited to decisions taken by planning inspectors, as they could not entertain policy considerations any different to those that would operate upon the mind of the SSETR. For that reason, no useful purpose would be served by replacing the present system with one that left the final word with the inspectorate.
The English judicial review system had, in any event, been strengthened by the rightful acceptance of the continental doctrine of proportionality, which enabled the court, inter alia, to quash a decision due to a misunderstanding or ignorance of an established and relevant fact: see, for example, R v Criminal Injuries Compensation Board, ex parte A [1998] QB 659.
Jonathan Sumption, David Elvin QC, Philip Sales and James Maurici (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment, Transport and the Regions; Stephen Hockman QC, Kevin Leigh and Gordon Nardell (instructed by Jennings Son & Ash) appeared for Holding & Barnes plc; Keith Lindblom QC, Craig Howell Williams and Hereward Phillpot (instructed by Marrons, of Leicester) appeared for Alconbury Developments Ltd; Paul Stanley and Tim Eicke (instructed by David Barney & Co, of Stevenage) appeared for Huntington Says No Party and Nene Valley Association; Gregory Jones and Paul Hardy (instructed by the solicitor to Cambridgeshire County Council) appeared for the council; Martin Kingston QC and Peter Goatley (instructed by the solicitor to Huntingdonshire District Council) appeared for the council; Roderick Macdonald QC and Andrew Webster (instructed by the solicitor to the Advocate General) appeared for the Advocate General; John Howell QC and Rabinder Singh (instructed by the Treasury Solicitor) appeared as amici curiae.
Alan Cooklin, barrister