Alconbury  UKHL 23;  2 All ER 929 (9th May, 2001)
HOUSE OF LORDS
Lord Slynn of Hadley Lord Nolan Lord Hoffmann Lord Hutton Lord Clyde
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
REGINA v SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS (ORIGINAL APPELLANT AND CROSS-RESPONDENT) EX PARTE HOLDING AND BARNES PLC (ORIGINAL RESPONDENTS AND CROSS-APPELLANTS) (ON APPEAL FROM THE QUEEN’S BENCH DIVISION OF THE HIGH COURT OF JUSTICE) REGINA v SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS (ORIGINAL APPELLANT AND CROSS-RESPONDENT) EX PARTE ALCONBURY DEVELOPMENTS LIMITED AND OTHERS (RESPONDENTS) AND OTHERS (CROSS-APPELLANTS) (ON APPEAL FROM THE QUEEN’S BENCH DIVISION OF THE HIGH COURT OF JUSTICE) REGINA v SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS (APPELLANT) EX PARTE LEGAL & GENERAL ASSURANCE SOCIETY LIMITED (ON APPEAL FROM THE QUEEN’S BENCH DIVISION OF THE HIGH COURT OF JUSTICE) (CONJOINED APPEALS)
ON 9 MAY 2001
 UKHL 23
LORD SLYNN OF HADLEY
1. These three appeals come direct to the House pursuant to section 12 of the Administration of Justice Act 1969 from decisions of the Divisional Court (Tuckey LJ and Harrison J) in a judgment given on 13 December 2000. Although there are differences between the three cases they raise broadly the same question as to whether certain decision making processes of the Secretary of State for the Environment, Transport and the Regions (“the Secretary of State”) are compatible with article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) as incorporated in the Human Rights Act 1998 (“the 1998 Act”). There was a consequential question as to whether if these processes are not compatible there should be a declaration under section 4 of the 1998 Act.
2. The Divisional Court held that the following statutory provisions were incompatible with article 6 and accordingly made a declaration of incompatibility under section 4 of the 1998 Act:
- (a) The
Town and Country Planning Act 1990(i)section 77
- (excluding the words inserted into sub section 79(4) by paragraph 19 of Schedule 7 to the
Planning and Compensation Act 1991
- paragraphs 3 and 4 of Schedule 6 (insofar as it applied to section 79);
Transport and Works Act 1992sections 1
- The Highways Act 1980 sections 14(3)(a), 16(5)(a), 18(3)(a) and 125 and paragraphs 1, 7 and 8 of Part 1 of Schedule 1;
- The Acquisition of Land Act 1981 section 2 (3) and paragraph 4 of Schedule 1.
3. The Secretary of State appeals against all these decisions and declarations. Since a related question had arisen in Scotland in County Properties Ltd v The Scottish Ministers 2000 SLT 965, the Lord Advocate has intervened in support of the application that the decision of the Divisional Court be reversed on the basis that article 6(1) does not apply to the decision making processes under review and on the basis that they are not in any event incompatible with a Convention right. The role of other parties to the proceedings will appear in a brief summary of facts to which I turn. I summarise briefly because the facts are more fully set out in the judgment of the Divisional Court to which reference can be made and which it is not helpful to repeat
Alconbury Developments Ltd (“AD”) has agreed with the Ministry of Defence, the owner of a disused airfield at Alconbury, that if planning permission is given AD will redevelop the site into a national distribution centre in return for financial payments to the Ministry. AD applied to Huntingdon District Council (“HDC”) for planning permission for the overall scheme with adjunct facilities and approach road and rail sidings. It also applied under various individual applications for planning permission for parts of the scheme. There were related applications (1) to Cambridge County Council (“CCC”) as the waste disposal authority for planning permission to construct a temporary recycling depot on part of the site; (2) to HDC for permission to set up a commercial air freight operation though this was opposed by a group of local residents (“Huntsnap”) and the application was withdrawn in March 1998; (3) to the Secretary of State under section 1 of the Transport and Works Act for permission to build a rail connection between the airfield and the east coast rail line together with railway sidings within the airfield.
5. On 4 August 1998 the Secretary of State refused a request to call in the planning application to be determined by him but after the HDC dismissed the overall application for planning permission and the CCC failed to determine the application for the waste recycling depot within the prescribed period, AD’s appeals were “recovered” by the Secretary of State for determination by him under paragraph 3 of Schedule 6 to the Town and Country Planning Act rather than by an inspector appointed by the Secretary of State. This was done on the basis that “the appeals relate to proposals for development of major importance, having more than local significance”.
6. An inspector was appointed to hold an inquiry at which for various reasons Huntsnap and an association of Nene Valley residents (“NVA”) together with English Nature, a statutory body, appeared. Huntsnap and NVA contended that the proceedings were contrary to article 6. AD accordingly applied for judicial review of the Secretary of State’s decision in order to clarify the position, contending that the Secretary of State’s decisions to take jurisdiction over the planning appeals and the TWA applications were lawful. CCC supported AD; HDC Huntsnap and NVA opposed it On the present appeal AD and CCC support the Secretary of State. HDC and NVA contend that the Divisional Court were right in holding that there was a breach of section 6(1) but wrong in its decision on section 6(2). The Secretary of State was bound to act so as to avoid incompatibility with the Convention and therefore to permit the appeal to be determined by an independent inspector.
Holding & Barnes Plc (“HB”) applied for planning permission to use land at Canvey Island for the storage and sale of damaged cars. The Health & Safety Executive objected because the development was near to gas storage on some neighbouring sites but the executive was willing to reconsider the position if modifications to the proposal could be made. The local planning authority on 2 May 2000 resolved that it was minded to grant permission. On 25 July 2000 the Secretary of State directed, pursuant to section 77 of the Town & Country Planning Act that the application should be referred to him because of (a) the nature of the proposed use, (b) the impact it could have on the future economic prosperity of Canvey Island and (c) the site’s location close to hazardous installations. It is that direction which HB challenged on an application for judicial review.
8. Legal & General Assurance Society Ltd. These proceedings are brought by the Secretary of State at the invitation of Legal & General Assurance Society Ltd (“L & G”). The issue relates to an improvement scheme at junction 13 of the A34/M4 proposed by the Secretary of State through the Highway Authority. There are complex details of a dual two-lane carriageway all-purpose road, 100 metres to the west of the existing junction 13, together with connected slip and side roads. In August 1993 following an inquiry, orders were confirmed for the work to go ahead. The court quashed part of one of the side road orders and new draft orders were published on 17 February 2000 followed by a draft compulsory purchase order on 24 February 2000. Following objections the Secretary of State appointed an inspector to hold a public inquiry into the draft order. L & G which own some land the subject of the draft compulsory purchase order invited the Secretary of State to seek a ruling of the court as to the compatibility of the proceedings with the Convention. L & G decided not to be represented in the proceedings and the Attorney General appointed counsel as amici curiae in that case both before the Divisional Court and before the House.
9. The Divisional Court set out with clarity the details of the legislation relevant to these cases. I gratefully adopt their account in paragraphs 30 to 52 of the judgment and accordingly I only summarise the essential characteristics with which these appeals are concerned.
10. It is important to make clear that these appeals are not concerned directly with issues which affect the vast majority of applications for planning permission. Those applications are dealt with by elected local authorities and not by the Secretary of State even though local authorities have to take into account the development plan for their area which does reflect national policies, guidance and instructions given by the Secretary of State. Nor are the present appeals concerned with the majority of appeals from such local authority decisions which are decided by inspectors on the Secretary of State’s behalf even though those inspectors may be full-time officials of the Planning Inspectorate and even though they must have regard to the Secretary of States’s policies and the framework document setting out their functions. The present appeals under the Town and Country Planning Act are concerned only with applications which are “called in” by the Secretary of State under section 77 of the Act and those appeals which are “recovered” by the Secretary of State under paragraph 3 of Schedule 6 to the Act. The Divisional Court found that of some 500,000 planning applications each year about 130 were “called in” by the Secretary of State and of some 13,000 appeals to the Secretary of State each year about 100 were “recovered” by the Secretary of State. In both types of case the Secretary of State followed to a large extent the recommendations of the inspectors. These figures of 130 and 100 are not insignificant and they concern important questions, important both to the individual and to the nation, but the figures do show the limits of the question raised on the appeals.
11. It is therefore important to see what are the statutory powers under these various sections.
12. Under section 77 of the TCPA the Secretary of State may (1) give directions requiring applications for planning permission to be referred to him instead of being dealt with by local planning authorities:
- “(5) Before determining an application referred to him under this section, the Secretary of State shall, if either the applicant or the local planning authority wish, give each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.”
13. By the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (SI 2000/1624) the applicant and the local planning authority are entitled to appear before the inspector (“the person appointed”) to call and cross examine witnesses and to make representations.
14. Section 78 of the Town and Country Planning Act provides for an applicant who has been refused planning permission or granted planning permission subject to conditions to appeal to the Secretary of State. Before determining an appeal, the Secretary of State is required by section 79(2), if the appellant or the local planning authority wish, to give them an opportunity to be heard by a person appointed by the Secretary of State. By paragraph 1 of Schedule 6 to the Act, the Secretary of State may prescribe classes of appeals to be determined by appointed persons rather than by the Secretary of State. By paragraph 3(1) of Schedule 6 the Secretary of State “may, if he thinks fit, direct that an appeal which would otherwise fall to be determined by an appointed person shall instead be determined by the Secretary of State”. Such direction shall state the reasons for which it is given and it is to be served on the appellant, the local planning authority and any person who has made representations.
15. The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 which replaced the Town and Country Planning Act (Inquiries Procedure) Rules 1992 (SI 1992/2039) with effect from 1 August 2000, apply to any local inquiry ordered by the Secretary of State before he determines an application for planning permission referred to him under section 77 or an appeal to him under section 78 of the Act.
16. When an inspector is holding an inquiry leading to an appeal which he will determine himself or when he is holding an inquiry before the Secretary of State decides an application for planning permission called in by him under section 77, or before the Secretary of State determines an appeal under section 78 “recovered” by him, the procedures are broadly the same until the inspector’s final report. When an inspector takes a decision he must set out that decision with reasons and notify the parties. When, however, he is holding an inquiry before the Secretary of State takes a decision he must state his conclusions and make his recommendations. There is an important provision in rule 17 (5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000:-
- “(5) If, after the close of an inquiry, the Secretary of State—
- differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or
- takes into consideration any new evidence or new matter of fact (not being a matter of government policy),
- “and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it: and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the re-opening of the inquiry. . . .
- “(7) The Secretary of State may, as he thinks fit, cause an inquiry to be re-opened, and he shall do so if asked by the applicant or the local planning authority in the circumstances mentioned in paragraph (5) and within the period mentioned in paragraph (6); and where an inquiry is re-opened (whether by the same or a different inspector)—
- the Secretary of State shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of the matters with respect to which further evidence is invited; and
- paragraphs (3) to (8) of rule 10 shall apply as if the references to an inquiry were references to a re-opened inquiry.”
17. In relation to applications made under the Transport & Works Act 1992 in relation to the construction and operation of a railway and to authorise the compulsory acquisition of land and to grant any necessary planning permission, under the Transport and Works Act, the decision is taken by the Secretary of State. Where an objection is received, a public inquiry must be held if the objector wishes. The provisions of the Transport and Works (Inquiries Procedure) Rules 1992 (SI 1992/2817) are broadly similar to those found in the Town and Country Planning (Inquiries Procedure) (England) Rules 2000.
18. The Highways Act 1980 gives to the Secretary of State power to make orders in relation to existing and proposed highways and to empower the highway authorities for trunk roads to stop up or improve highways in prescribed circumstances. If a local inquiry is held, the inspector appointed reports his conclusions and recommendations to the Secretary of State. The Highways (Inquiries Procedure) Rules 1994 (SI 1994/3263) contain similar provision to those in the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. The Secretary of State may make an order with or without modification but if he disagrees with his inspector’s conclusions or recommendations the Secretary of State must follow a procedure similar to that in rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000: see rule 26(4) of the Highways (Inquiries Procedure) Rules 1994. When exercising his powers under the Highways Act, the Secretary of State is given power to acquire land compulsorily. The Acquisition of Land Act 1981 and the Compulsory Purchase by Ministers (Inquiries Procedure) Rules 1994 (SI 1994/3264) provide for a public local inquiry to be held if an objection is received. The inspector makes his conclusions and recommendations to the Secretary of State. If the latter disagrees he is required once again to follow a procedure similar to that in rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000.
19. The various statutes provide for judicial review rather than for an appeal on the facts or the merits of the decision. Thus in section 288 of the Town and Country Planning Act 1990
- “288. Proceedings for questioning the validity of other orders, decisions and directions
- If any person—
- is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—
- that the order is not within the powers of
- , or
- that any of the relevant requirements have not been complied with in relation to that order; or
- is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—
- that the action is not within the powers of
- , or
- that any of the relevant requirements have not been complied with in relation to that action,
- he may make an application to the High Court under this section.”
20. Section 22 of the Transport and Works Act 1992, the provisions for challenge set out in paragraph 2 of Schedule 2 to the Highways Act 1980 and section 23 of the Acquisition of Land Act 1981 are similar.
21. The essence of the complaints in all these cases is that there is a violation of article 6 of the European Convention for the Protection of Human Rights incorporated in Schedule 1 to the Human Rights Act 1998. Article 6 provides as follows
- “Right to a Fair Trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . “.
22. The second and third paragraphs of the article are concerned with criminal offences and are not relevant to the present appeal.
23. The contention in these proceedings is that the processes which I have set out, violate article 6. These are civil rights which are determined without a fair and public hearing by an independent and impartial tribunal established by law.
24. There is really no complaint about the inquiry conducted by an inspector or about the safeguards laid down for evidence to be called and challenged and for representations and objections to be heard. It is not suggested that the inspector himself is not independent and impartial even though he is a member of eg the Planning Inspectorate in the case of planning appeals. The essential complaint is that when a decision is taken, not by such an inspector but by the Secretary of State or one of the Ministers of State or an Under Secretary on behalf of the Secretary of State there is such an interest in the decision that the person concerned cannot be regarded as an independent and impartial tribunal. The Secretary of State or his department, it is said, lays down policy and directs what he or the department considers to be the most efficient and effective use of land in what he sees to be the public interest. They issue guidance and framework directions which local authorities, inspectors and officials operating the planning system must follow. All of these are bound to affect the mind of the Secretary of State when he takes decisions on called in applications or on appeals which he recovers, it is alleged. Moreover it is said that in the case of Alconbury there is a particular factor in that the land in question is owned by another Government department, the Ministry of Defence.
25. Mr Kingston. on behalf of HDC also criticised the correspondence and minutes relevant to the Alconbury project. He contends that the role of the officials involved at the Planning and Transport Division in the Government Office for the Region (“GO”) was such that there was a real connection not only with planning matters and planning ministers but also with transport ministers and officials and their policies. A site visit by the Parliamentary Under-Secretary for Transport may not have been prejudicial to the determination of the application before the matter was taken over by the Secretary of State. It was quite different once he took over the case for his own decision. As it was put in the case, even leaving aside the fact that the Secretary of State was carrying out his own policy “it is quite clear that the structures in place in relation to cases where the Secretary of State has recovered jurisdiction do not preserve any appearance of independence”.
26. Your Lordships have been referred to many decisions of the European Court of Human Rights on article 6 of the Convention. Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court which is likely in the ordinary case to follow its own constant jurisprudence.
27. It is not necessary to refer to all these cases but some statements of principle by the European Court of Human Rights are important in guiding the House in the present decisions. A preliminary question has arisen as to whether a dispute over administrative law matters of the present kind involved the determination of “civil rights”. At first sight to a common lawyer there appears a difference and that difference might seem stronger to a lawyer in a civil law country. In Ringeisen v Austria (No 1) (1971) 1 EHRR 455, para 94, however, the court said
- “For article 6(1) to be applicable to a case (‘contestation’) it is not necessary that both parties to the proceedings should be private persons, which is the view of the majority of the Commission and of the Government. The wording of article 6(1) is far wider; the French expression ‘contestations sur (des) droits et obligations de caractère civil’ covers all proceedings the result of which is decisive for private rights and obligations. The English text, ‘determination of . . . civil rights and obligations’, confirms this interpretation.
- “The character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc) are therefore of little consequence.”
See also Kaplan v United Kingdom (1980) 4 EHRR 64, 85, Allan Jacobsson v Sweden (1989) 12 EHRR 56.
28. In Fredin v Sweden  13 EHRR 784, the court accepted that disputes under planning rules could affect civil rights to build on the applicant’s land. Despite the submissions of the Lord Advocate that a decision on a called in application is not a “contestation” on the basis of these and a number of other cases it seems to me plain that this dispute is one which involves the determination of “civil rights” within the meaning of the Convention.
29. The European Court of Human Rights has, however, recognised from the beginning that some administrative law decisions which affect civil rights are taken by ministers answerable to elected bodies. Where there is a two stage process ie there is such an administrative decision which is subject to review by a court, there is a constant line of authority of the European court that regard has to be paid to both stages of the process. Thus even where “jurisdictional organs of professional associations” are set up:
- “Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body which has full jurisdiction and does provide the guarantees of article 6(1).”
(Albert and Le Compte v Belgium (1983) 5 EHRR 533, para 29). See also Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, Golder v The United Kingdon (1975) 1 EHRR 524.
30. In Kaplan v United Kingdom 4 EHRR 64, the Commission noted, at paragraph 150, that:
- “it is a feature of the administrative law of all the contracting states that in numerous different fields public authorities are empowered by law to take various forms of action impinging on the private rights of citizens.”
The Commission referred to its earlier opinion in Ringeisen v Austria (No 1) where having referred to a number of examples of State regulation the Commission had stated:
- “These examples, to which numerous others could be added, seem to indicate that it is a normal feature of contemporary administrative law that the rights and obligations of the citizen, even in matters which relate very closely to his private property or his private activities, are determined by some public authority which does not fulfil the conditions laid down in article 6(1) with respect to independent and impartial tribunals.”
31. The Commission continued, at paragraph 159, in relation to judicial review:
- “It is also a common feature of their administrative law, and indeed almost a corollary of the grant of discretionary powers, that the scope of judicial review of the relevant decisions is limited.”
And at paragraph 161:
- “An interpretation of article 6(1) under which it was held to provide a right to a full appeal on the merits of every administrative decision affecting private rights would therefore lead to a result which was inconsistent with the existing, and long-standing, legal position in most of the contracting states.”
32. In ISKCON v United Kingdom Application No 20490/92, 8 March 1994 (a decision of the Commission) a local authority served an enforcement notice on ISKCON alleging a material change of use of the land. ISKCON appealed against the notice under section 174(2) of the Town and Country Planning Act 1990 and after a report by an inspector the Secretary of State largely confirmed the enforcement notice. The High Court and the Court of Appeal rejected ISKCON’S appeal. On a complaint under the Convention the Commission recalled that an appeal under section 289 of the Town and Country Planning Act 1990 lay only on a point of law but it took into account that the local authority could only take proceedings within the limits of section 174 of that Act and that in accordance with its own structure plans and the policy guidance laid down by the Secretary of State ISKCON could then seek a determination as to whether the legal requirements had been met. The Commission concluded
- “The Commission recalls that the High Court dealt with each of ISKCON’S
- grounds of appeal on its merits, point by point, without ever having to decline jurisdiction. Moreover, it was open to ISKCON to contend in the High Court that findings of fact by the inspector and/or the Secretary of State were unsupported by evidence, as they could have argued that the administrative authorities failed to take into account an actual fact or did take into account an immaterial fact. Finally, the High Court could have interfered with the administrative authorities’ decisions if those decisions had been irrational having regard to the facts established by the authorities.
- “It is not the role of article 6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities on questions of expediency and where the courts do not refuse to examine any of the points raised; article 6 gives a right to a court that has ‘full jurisdiction’ (cf [
Zumtobel v Austria
- (1993) 17 EHRR 116, para 32]).”
33. In Bryan v United Kingdom (1995) 21 EHRR 342, a case which it is necessary to refer to in some detail since it has been followed in later cases, an applicant was served with an enforcement notice requiring him to demolish buildings erected without planning permission. He complained that the inspector’s decision did not satisfy article 6(1). The court and the Commission described the role of the inspector and the procedures to be followed under the Town and Country Planning Act including both his duty under the Framework Directive of the Secretary of State to exercise independent judgment and not to be or to be seen to be subject to any improper influence and to act fairly but at the same time to have regard to the policies promulgated by the Secretary of State on matters of planning. Both the Commission and the court accepted that there had been a fair hearing before the inspector. Because however the inspector’s appointment to hear the appeal could be revoked in a situation where the executive’s own policies may be in issue, the inspector did not satisfy the requirements of article 6 that there must be an independent and impartial tribunal.
34. However having set out the national court’s powers of review the court like the majority of the Commission concluded that in that case the High Court’s powers of review were sufficient to comply with article 6. The court noted, at paragraph 44, that an appeal to the High Court was only on points of law and therefore:
- “not capable of embracing all aspects of the inspector’s decision. . . In particular, as is not infrequently the case in relation to administrative law appeals in the Council of Europe member states, there was no rehearing as such of the original complaints submitted to the inspector; the High Court could not substitute its own decision on the merits for that of the inspector; and its jurisdiction over the facts was limited.”
35. The court continued, in paragraph 45-47, that in assessing the sufficiency of the review available before the High Court
- “45. . . . it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.
- “46 In this connection the court would once more refer to the uncontested safeguards attending the procedure before the inspector, the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness and impartiality. Further any alleged shortcomings in relation to these safeguards could have been subject to review by the High Court.
- “47. . . The High Court had jurisdiction to entertain the remaining grounds of the applicant’s appeal [ie other than his contention that as a matter of fact and degree the buildings could from their appearance and layout be considered to have been designed for the purposes of agriculture]. And his submissions were adequately dealt with point by point. These submissions, as the Commission noted, went essentially to questions involving ‘a panoply of policy matters such as development plans, and the fact that the property was situated in a Green Belt and a conversation area.’
- “Furthermore, even if the applicant had sought to pursue his appeal under ground (b), the court notes that, while the High Court could not have substituted its own findings of fact for those of the inspector, it would have had the power to satisfy itself that the inspector’s findings of fact or the inferences based on them were neither perverse nor irrational.
- “Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by article 6(1). It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe member states. Indeed, in the instant case, the subject matter of the contested decision by the inspector was a typical example of the exercise of discretionary judgement in the regulation of citizens’ conduct in the sphere of town and country planning.
- “The scope of review of the High Court was therefore sufficient to comply with article 6(1).”
36. The respondents contend that this judgment does not assist the Secretary of State since his decision making process was not of a quasi-judicial nature; he did not have to exercise an independent judgment, there was no obligation to uphold the principles of openness, fairness and impartiality.
37. In Chapman v United Kingdom, Application No 27238/95, (unreported) 18 January 2001, the question arose as to the refusal of planning permission and the service of an enforcement notice against Mrs Chapman who wished to place her caravan on a plot of land in the Green Belt. The refusal of planning permission and the enforcement notice were upheld by the inspector. The court like the majority of the Commission held that there had been no violation of article 6.
- “124. The court recalls that in the case of
- . . . it held that in the specialised area of town planning law full review of the facts may not be required by article 6 of the Convention. It finds in this case that the scope of review of the High Court, which was available to the applicant after a public procedure before an inspector, was sufficient in this case to comply with article 6(1). It enabled a decision to be challenged on the basis that it was perverse, irrational, had no basis on the evidence or had been made with reference to irrelevant factors or without regard to relevant factors. This may be regarded as affording adequate judicial control of the administrative decisions in issue.”
38. It is also to be noted that in Howard v United Kingdom Application No 10825/84 (unreported) 16 July 1987, a submission that the power of appeal under section 23 of the Acquisition of Land Act 1981 did not provide an adequate remedy to challenge a compulsory purchase order so was not an effective remedy within the meaning of article 13 of the Convention was rejected as inadmissible.
39. In Varey v United Kingdom, Application No 26662/95 (unreported) 27 October 1999 the Commission concluded on the challenge to a planning decision that the fact that an inspector’s recommendation had been rejected by the Secretary of State did not mean that there had been a violation of article 6. The Secretary of State had given reasoned decisions on the basis of facts found by the inspectors
- “and the matters relied on by him in overruling their recommendations could be challenged on appropriate grounds before the High Court. Consequently in these circumstances the Commission is satisfied that the power of review of the process by the High Court ensures adequate judicial control of the administrative decisions in issue.” (paragraph 86)
40. The House has been referred to many other cases some involving other member states where the administrative provisions and the judicial control were in different terms. I do not refer to these only because it seems to me that in the recent cases to which I have referred the court has given an indication of the principle to be followed sufficiently for the disposal of the present case.
41. On the basis which I have accepted that the planning, compulsory purchase and other related decisions do affect civil rights even if the procedures and decisions are of an administrative law nature rather than strictly civil law in nature, the first question is, therefore, whether the decision of the Secretary of State which effectively determined these rights in itself constitutes “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
42. “Independent” and “impartial” may import different concepts but there is clearly a link between them and both must be satisfied. It is not suggested that there is actual bias against particular individuals, on the part of the Secretary of State or the officials who report to him or who advise him. But it is contended that the Secretary of State is involved in laying down policy and in taking decisions on planning applications in accordance with that policy. He cannot therefore be seen objectively to be independent or impartial. The position is said to be even more critical when roadworks and compulsory purchases are initiated by the Highways Agency or when as in the Alconbury case the land involved belongs to another ministry of the Crown.
43. Before the House the Secretary of State did not contend that in dealing with called in or recovered matters he is acting as an independent tribunal. He accepts that the fact that he makes policy and applies that policy in particular cases is sufficient to prevent him from being an independent tribunal and for the same reasons he is not to be seen as an impartial tribunal for the purposes of article 6 of the Schedule to the 1998 Act.
44. But the many decisions of the European Court of Human Rights make it plain that one does not stop there. A choice was recognised as early as Albert and Le Compte v Belgium 5 EHRR 533, para 29 that:
- “either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1).”
45. These judgements also show that the test whether there is a sufficient jurisdictional control is not a mechanical one. It depends on all the circumstances.
46. On the basis of these decisions it is in my view relevant as a starting point to have regard to such procedural safeguards as do exist in the decision making process of the Secretary of State even if in the end, because he is applying his policy to which these controls do not apply, he cannot be seen as an impartial and independent tribunal. The fact that an inquiry by an inspector is ordered is important. This gives the applicant and objectors the chance to put forward their views, to call and cross examine witnesses. The inspector as an experienced professional makes a report, in which he finds the facts and in which he makes his recommendations. He has of course to take account of the policy which has been adopted in e.g. the development plan but he provides an important filter before the Secretary of State takes his decision and it is significant that in some 95% of the type of cases with which the House is concerned, the Secretary of State accepts his recommendation. The Divisional Court had evidence, that other steps are taken to ensure that the contentions of the applicant and the objectors are adequately considered. Thus the Divisional Court quoted evidence in paragraph 62 of their judgment as to the way in which it is sought to ensure that all material considerations needed to reach an informed, fair, unbiased and reasonable decision could be arrived at as quickly as practicable. Decisions were taken by ministers who so far as possible had no connection with the area from which the case came and in respect of the decision officer who dealt with the case it was said, in paragraph 63, that he:
- “works separately from the casework team of which he is nominally a part, does not discuss the merits of the planning decisions before him with an individual either within or without GO East, is not copied into or involved in the preparation of the Regional Planning Guidance (RPG) or the exercise of any of the Secretary of State’s powers of intervention under the Town and Country Planning Act, and only has before him the information which the inspector would have had at the inquiry into the particular appeal or called in application, together with any representation made after the close of the inquiries (all relevant parties are given the opportunity to comment on any such representations where they are material or raise new matters).”
47. On the decision making process I do not suggest that one can make artificial distinctions between different branches of a Government department. I refer to what was said by Lord Diplock in Bushell v Secretary of State for the Environment  AC 75, 95. But there is nothing unusual or sinister in the methods provided for planning decisions to be taken by the Executive in the United Kingdom. The European Court of Human Rights has recognised that in many European countries planning decisions are made by elected or appointed officers with a limited judicial review even though the extent of this may vary from state to state. In B Johnson & Co (Builders) Ltd v Minister of Health  2 All ER 395, 399 Lord Green MR recognised the importance of the administrative stage of the decision.
- “the raising of the objections to the order, the consideration of the matters so raised and the representations of the local authority and the objectors – is merely a stage in the process of arriving at an administrative decision. It is a stage which the courts have always said requires a certain method of approach and method of conduct, but it is not a lis inter partes, and for the simple reason that the local authority and the objectors are not parties to anything that resembles litigation. A moment’s thought will show that any such conception of the relationship must be fallacious, because on the substantive matter, viz whether the order should be confirmed or not, there is a third party who is not present, viz the public, and it is the function of the minister to consider the rights and the interests of the public. . . . It may well be that, on considering the objections, the minister may find that they are reasonable and that the facts alleged in them are true, but, nevertheless, he may decide that he will overrule them. His action in so deciding is a purely administrative action, based on his conceptions as to what public policy demands.”
48. The adoption of planning policy and its application to particular facts is quite different from the judicial function. It is for elected Members of Parliament and ministers to decide what are the objectives of planning policy, objectives which may be of national, environmental, social or political significance and for these objectives to be set out in legislation, primary and secondary, in ministerial directions and in planning policy guidelines. Local authorities, inspectors and the Secretary of State are all required to have regard to policy in taking particular planning decisions and it is easy to overstate the difference between the application of a policy in decisions taken by the Secretary of State and his inspector. As to the making of policy, Wade & Forsyth Administrative Law, 8th ed (2000) p 464:
- “It is self-evident that ministerial or departmental policy cannot be regarded as disqualifying bias. One of the commonest administrative mechanisms is to give a minister power to make or confirm an order after hearing objections to it. The procedure for the hearing of objections is subject to the rules of natural justice in so far as they require a fair hearing and fair procedure generally. But the minister’s decision cannot be impugned on the ground that he has advocated the scheme or that he is known to support it as a matter of policy. The whole object of putting the power into his hands is that he may exercise it according to government policy.”
As Mr Gregory Jones put it pithily in argument it is not right to say that a policy maker cannot be a decision maker or that the final decision maker cannot be a democratically elected person or body.
49. Accepting this method of proceeding, the question as the European court has shown, is whether there is a sufficient judicial control to ensure a determination by an independent and impartial tribunal subsequently. The judgments to which I have referred do not require that this should constitute a rehearing on an application by an appeal on the merits. It would be surprising if it had required this in view of the difference of function between the minister exercising his statutory powers, for the policy of which he is answerable to the legislature and ultimately to the electorate, and the court. What is required on the part of the latter is that there should be a sufficient review of the legality of the decisions and of the procedures followed. The common law has developed specific grounds of review of administrative acts and these have been reflected in the statutory provisions for judicial review such as are provided for in the present cases. See as relatively straightforward examples: Ashbridge Investments Ltd v Minister of Housing and Local Government  1 WLR 1320 and Stringer v Minister of Housing and Local Government  1 WLR 1281.
50. It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps—failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness and natural justice requires, the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control. But none of the judgments before the European Court of Human Rights requires that the court should have “full jurisdiction” to review policy or the overall merits of a planning decision. This approach is reflected in the powers of the European Court of Justice to review executive acts under article 230 of the European Community Treaty.
- “It shall for this purpose have jurisdiction in actions brought by a Member State, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.”
51. The European Court of Justice does of course apply the principle of proportionality when examining such acts and national judges must apply the same principle when dealing with Community law issues. There is a difference between that principle and the approach of the English courts in Associated Provincial Picture Houses Ltd v Wedensbury Corporation  1 KB 223. But the difference in practice is not as great as is sometimes supposed. The cautious approach of the European Court of Justice in applying the principle is shown inter alia by the margin of appreciation it accords to the institutions of the Community in making economic assessments. I consider that even without reference to the Human Rights Act the time has come to recognise that this principle is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing. Reference to the Human Rights Act however makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied: see R v Secretary of State for the Home Department, Ex p Turgut  Imm LR 306; R v Secretary of State for the Home Department, Ex p Mahmood. The Times, 9 January 2001
52. This principle does not go as far as to provide for a complete rehearing on the merits of the decision. Judicial control does not need to go so far. It should not do so unless Parliament specifically authorises it in particular areas.
53. In R v Criminal Injuries Compensation Board, Ex p A  2 AC 330, 344 I accepted that the court had jurisdiction to quash for a misunderstanding or ignorance of an established and relevant fact. I remain of that view which finds support in Wade & Forsyth Administrative Law, 7th ed (1994), pp 316-318 I said:
- “Your Lordships have been asked to say that there is jurisdiction to quash the board’s decision because that decision was reached on a material error of fact. Reference has been made to
Wade & Forsyth, Administrative Law,
- 7th ed. (1994), pp 316-318 in which it is said:
- ‘Mere factual mistake has become a ground of judicial review, described as “misunderstanding or ignorance of an established and relevant fact”,
[Secretary of State for Education and Science v Tameside Metropolitan Borough Council AC 1014
- , 1030], or acting “upon an incorrect basis of fact” . . . This ground of review has long been familiar in French law and it has been adopted by statute in Australia. It is no less needed in this country, since decisions based upon wrong facts are a cause of injustice which the courts should be able to remedy. If a “wrong factual basis” doctrine should become established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a misapprehension of law.’
e Smith, Woolf and Jowell, Judicial Review of Administrative Action,
- 5th ed. (1995), p 288:
- ‘The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention.'”
54. I accordingly hold that in relation to the judicial review of the Secretary of State’s decision in a called in application or a recovered appeal under the planning legislation and to a review of the decisions and orders under the other statutes concerned in the present appeals, there is in principle no violation of article 6 of the European Convention on Human Rights as set out in the Schedule to the Human Rights Act 1998. The scope of review is sufficient to comply with the standards set by the European Court of Human Rights. That is my view even if proportionality and the review of material errors of fact are left out of account: they do, however, make the case even stronger. It is open to the House to rule on that question of principle at this stage of the procedure in the various cases.
55. I do not consider that the financial interests of the Ministry of Defence automatically precludes a decision on planning grounds by the Secretary of State, or that the communication between Government departments and site visits by ministers to which reference has been made in argument in principle vitiate the whole process. If of course specific breaches of the administrative law rules are established, as for example if the financial interests of the Government were wrongly taken into account by the Secretary of State, then, specific challenges on those grounds may be possible on judicial review.
56. I would accordingly allow the appeals dismiss the cross appeals and set aside the declarations of the Divisional Court.
57. I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Slynn of Hadley. I gratefully adopt his account of the facts and of the issues raised in these appeals.
58. I too would allow the appeals, and would declare that the impugned decision-making procedures are not in breach of or incompatible with the Human Rights Act 1998. The case is one of great practical and constitutional importance for this country, and of importance also for the development of human rights law both in this country and abroad, and argument has ranged over a wide field. The central question, however, is the first of those raised in the agreed statement of facts and issues, namely whether the impugned procedures “are compatible with article 6(1) of the Convention as applied by the Human Rights Act … having regard to the existence of statutory rights of appeal to the High Court and of supervision of the procedures by way of judicial review”. The alternative to these procedures would effectively involve the removal from the appellant Secretary of State of his discretion over the grant of planning permission and other matters related to the ownership and enjoyment of land in the rare and often controversial cases in which he exercises it at present, and its vesting in some other person or body which constitutes “an independent and impartial tribunal” for the purposes of article 6(1). The precise nature of this alternative entity was not formulated by the respondents, but it would presumably be modelled on the Planning Inspectorate either in its present or in some modified form. Understandable, but, I think, also significant, was the absence of any suggestion that the discretion should be vested in the courts.
59. My Lords, this brings me at once to my reasons for concluding that the decision of the Divisional Court cannot be allowed to stand. They can be shortly stated.
60. The first, which reflects the obvious unsuitability of the courts as the arbiters in planning and related matters, is that the decision to be made, as explained by Lord Greene M R in B Johnson & Co (Builders) Ltd v Minister of Health  2 All ER 395, 399 is an administrative and not a judicial decision. In the relatively small and populous island which we occupy, the decisions made by the Secretary of State will often have acute social, economic and environmental implications. A degree of central control is essential to the orderly use and development of town and country. Parliament has entrusted the requisite degree of control to the Secretary of State, and it is to Parliament which he must account for his exercise of it. To substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic.
61. Electoral accountability alone is, of course, plainly insufficient to satisfy the rule of law. Are then the rights of the subject in planning and related matters adequately protected by the statutory provisions for appeal to the courts and by the process of judicial review? It is said that these remedies fail to meet the article 6(1) criterion because they do not permit a review of the decision of the Secretary of State on its merits. If this criticism is limited to the absence of a review of the decision on its planning merits it is indisputable. But a review of the merits of the decision-making process is fundamental to the courts’ jurisdiction. The power of review may even extend to a decision on a question of fact. As long ago as 1955 your Lordships’ House, in Edwards v Bairstow  AC 14, a case in which an appeal (from general commissioners of income tax) could only be brought on a question of law, upheld the right and duty of the appellate court to reverse a finding of fact which had no justifiable basis.
62. The reversal of a finding of fact in the field of planning would no doubt be highly unusual. I mention Edwards v Bairstow simply to illustrate the generosity with which the courts, including your Lordships’ House, have interpreted their powers to review questions of law. A similarly broad and generous approach has been adopted in the development of judicial review extending as it does not only points of law in the strict and narrow sense but to such matters as the rationality of the decision and the fairness of the decision-making process. One possibility canvassed in argument was that the powers of review as at present exercised by the courts might be enlarged in order to accommodate the requirements of the Human Rights Act. For my part, at least in the context of the present case, I see no need for that.
63. My Lords, I have found it reassuring to read, in the judgments of the European Court of Human Rights and of the Commission in the cases of Bryan 21 EHRR 342, ISHKON 8 March 1994, Chapman, 18 January 2001, and Varey, 27 October 1999 the expression of views which to my mind strongly support the contentions of the Secretary of State. If, as I understand to be the case, your Lordships are unanimous in considering that the appeals should be allowed, I trust that the decision of your Lordships’ House will be seen, not as in any way inconsistent with those decisions, but on the contrary as a contribution to the growth of Convention jurisprudence.
64. I would only add that the particular grounds of objection taken by some respondents to the role of the Secretary of State, such as the objection in Alconbury based on the ground of his having a financial interest in the matter, might if appropriate be raised as objections to the ultimate decision itself. They are insufficient to disqualify him in limine.
65. The issue in these three appeals is whether it is compatible with the Human Rights Act 1998 for Parliament to confer upon the Secretary of State the power to make decisions which affect people’s rights to the ownership, use or enjoyment of land. The Divisional Court has decided that article 6 of the European Convention requires such decisions to be made by independent and impartial tribunals. This would mean radical amendment to the system by which such decisions have been made for many years. In view of the importance of the case, your Lordships have given leave for an appeal to be brought directly from the Divisional Court.
66. Although the principle must be of general application, the contexts in which the question has arisen in these appeals are planning, highway improvement and compulsory purchase. In the first appeal (“the Alconbury case”), a company has applied for planning permission to construct a distribution centre of national significance on a disused American air base near Huntingdon. It could generate 7,000 new jobs but would obviously affect the lives of many people living in the neighbourhood. In the second appeal (“the Holding & Barnes case”), the respondents have applied for planning permission to use land at Canvey Island for the storage and sale of wrecked cars. Again, the activity will generate employment but the site is close to some gas storage installations and the Health and Safety Executive thinks that this would create a danger to people living in the area. In the third appeal (“the Legal and General case”), the respondent owns land near the interchange between the M4 motorway and the A34 trunk road at Newbury. The Highways Agency, a branch of the department of the Environment, Transport and the Regions, has promoted a road improvement scheme which would involve taking the respondent’s land.
67. In each of these cases the statutory decision maker is the Secretary of State. In the first two, this is by virtue of his exercise of a statutory discretion. In the Alconbury case, the application for planning permission has been refused by the Huntingdonshire District Council and the developer has appealed to the Secretary of State. The appeal could have been determined under Schedule 6 to the Town and Country Planning Act 1990 by an inspector appointed to conduct a public inquiry, but the Secretary of State has exercised his discretion under paragraph 3 of the Schedule to “recover” the appeal and decide it himself. In the Holding & Barnes case, the local planning authority was minded to grant permission but the Secretary of State has exercised his power under section 77 of the 1990 Act to “call in” the application and decide it himself. In the Legal and General case, the Secretary of State is the only statutory decision maker.
68. All three cases involve general social and economic issues. They concern the rights of individuals to use, enjoy and own their land. But the number of persons potentially interested is very large and the decisions involve the consideration of questions of general welfare, such as the national or local economy, the preservation of the environment, the public safety, the convenience of the road network, all of which transcend the interests of any particular individual.
Democracy and the rule of law
69. In a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them. Sometimes the subject-matter is such that Parliament can itself lay down general rules for enforcement by the courts. Taxation is a good example; Parliament decides on grounds of general interest what taxation is required and the rules according to which it should be levied. The application of those rules, to determine the liability of a particular person, is then a matter for independent and impartial tribunals such as the General or Special Commissioners or the courts. On the other hand, sometimes one cannot formulate general rules and the question of what the general interest requires has to be determined on a case by case basis. Town and country planning or road construction, in which every decision is in some respects different, are archetypal examples. In such cases Parliament may delegate the decision-making power to local democratically elected bodies or to ministers of the Crown responsible to Parliament. In that way the democratic principle is preserved.
70. There is no conflict between human rights and the democratic principle. Respect for human rights requires that certain basic rights of individuals should not be capable in any circumstances of being overridden by the majority, even if they think that the public interest so requires. Other rights should be capable of being overridden only in very restricted circumstances. These are rights which belong to individuals simply by virtue of their humanity, independently of any utilitarian calculation. The protection of these basic rights from majority decision requires that independent and impartial tribunals should have the power to decide whether legislation infringes them and either (as in the United States) to declare such legislation invalid or (as in the United Kingdom) to declare that it is incompatible with the governing human rights instrument. But outside these basic rights, there are many decisions which have to be made every day (for example, about the allocation of resources) in which the only fair method of decision is by some person or body accountable to the electorate.
71. All democratic societies recognise that while there are certain basic rights which attach to the ownership of property, they are heavily qualified by considerations of the public interest. This is reflected in the terms of article 1 of Protocol 1 to the Convention:
- “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
- The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
72. Thus, under the first paragraph, property may be taken by the state, on payment of compensation, if the public interest so requires. And, under the second paragraph, the use of property may be restricted without compensation on similar grounds. Importantly, the question of what the public interest requires for the purpose of article 1 of Protocol 1 can, and in my opinion should, be determined according to the democratic principle – by elected local or central bodies or by ministers accountable to them. There is no principle of human rights which requires such decisions to be made by independent and impartial tribunals.
73. There is however another relevant principle which must exist in a democratic society. That is the rule of law. When ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law. The legality of what they do must be subject to review by independent and impartial tribunals. This is reflected in the requirement in article 1 of Protocol 1 that a taking of property must be “subject to the conditions provided for by law”. The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament. But this is not the occasion upon which to discuss the limits of judicial review. The only issue in this case is whether the Secretary of State is disqualified as a decision-maker because he will give effect to policies with which, ex hypothesi, the courts will not interfere.
The question of principle
74. My Lords, these basic principles are the background to the interpretation of article 6(1):
- “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.”
Apart from authority, I would have said that a decision as to what the public interest requires is not a “determination” of civil rights and obligations. It may affect civil rights and obligations but it is not, and ought not to be, a judicial act such as article 6 has in contemplation. The reason is not simply that it involves the exercise of a discretion, taking many factors into account, which does not give any person affected by the decision the right to any particular outcome. There are many such decisions made by courts (especially in family law) of which the same can be said. Such decisions may nevertheless be determinations of an individual’s civil rights (such as access to his child: compare W v United Kingdom (1987) 10 EHRR 29) and should be made by independent and impartial tribunals. But a decision as to the public interest (what I shall call for short a “policy decision”) is quite different from a determination of right. The administrator may have a duty, in accordance with the rule of law, to behave fairly (“quasi-judicially”) in the decision-making procedure. But the decision itself is not a judicial or quasi-judicial act. It does not involve deciding between the rights or interests of particular persons. It is the exercise of a power delegated by the people as a whole to decide what the public interest requires.
75. The distinction between policy decisions and determinations of right was put with great clarity by Lord Greene MR in B Johnson & Co (Builders) Ltd v Minister of Health  2 All ER 395, 398-399, when speaking of the decision to confirm a compulsory purchase order:
- “…[T]he functions of the minister in carrying these provisions into operation are fundamentally administrative… subject only to the qualification that, at a particular stage and for a particular and limited purpose, there is superimposed on his administrative character a character which is loosely described as ‘quasi-judicial’. The language which has always been construed as giving rise to the obligations, whatever they may be, implied in the words ‘quasi-judicial’ is to be found in the duty to consider the objections.…The administrative character in which he acts reappears at a later stage because, after considering the objections, which may be regarded as the culminating point of his quasi-judicial functions, there follows something which again, in my view, is purely administrative, viz, the decision whether or not to confirm the order. That decision must be an administrative decision, because it is not to be based purely on the view that he forms of the objections, vis-a-vis the desires of the local authority, but is to be guided by his view as to the policy which in the circumstances he ought to pursue… [O]n the substantive matter, viz, whether the order should be confirmed or not, there is a third party who is not present, viz, the public, and it is the function of the minister to consider the rights and the interests of the public. That by itself shows that it is completely wrong to treat the controversy between objector and local authority as a controversy which covers the whole of the ground. It is in respect of the public interest that the discretion that Parliament has given to the minister comes into operation.…His views on that matter he must, if necessary, defend in Parliament, but he cannot be called on to defend them in the courts.”
76. In principle, therefore, and apart from authority, I would say that article 6(1) conferred the right to an independent and impartial tribunal to decide whether a policy decision by an administrator such as the Secretary of State was lawful but not to a tribunal which could substitute its own view of what the public interest required. However, section 2(1) of the Human Rights Act 1998 requires an English court, in determining a question which has arisen in connection with a Convention right, to take into account the judgments of the European Court of Human Rights (“the European court”) and the opinions of the Commission. The House is not bound by the decisions of the European court and, if I thought that the Divisional Court was right to hold that they compelled a conclusion fundamentally at odds with the distribution of powers under the British constitution, I would have considerable doubt as to whether they should be followed. But in my opinion the Divisional Court misunderstood the European jurisprudence. Although the route followed by the European court has been a tortuous one and some of its statements require interpretation, I hope to demonstrate that it has never attempted to undermine the principle that policy decisions within the limits imposed by the principles of judicial review are a matter for democratically accountable institutions and not for the courts.
The European jurisprudence
77. The main European authorities are four decisions, two of the Commission and two of the European court, which deal specifically with the English planning system. But before I analyse these important cases, I must give a more general account of the development of the jurisprudence on the right to an independent and impartial tribunal.
78. As a matter of history it seems likely that the phrase “civil rights and obligations” was intended by the framers of the Convention to refer to rights created by private rather than by public law. In other words, it excluded even the right to a decision as to whether a public body had acted lawfully, which English law, with that lack of a clear distinction between public and private law which was noted by Dicey, would treat as part of the civil rights of the individual. Sir Vincent Evans, in his dissenting judgment in Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 EHRR 1, 36, said that an intention that the words should bear this narrow meaning appeared from the negotiating history of the Convention. In his dissenting judgment in König v Federal Republic of Germany (1978) 2 EHRR 170, Judge Matscher said that the primary purpose of article 6(1) was, by way of reaction against arbitrary punishments under the Third Reich, to establish the right to an independent court in criminal proceedings. The framers extended that concept to cases which, according to the systems of the majority of contracting states, fell within the jurisdiction of the ordinary courts of civil law. But there was no intention to apply article 6(1) to public law, which was on the continent a matter for the administrative courts.
79. These views of the meaning of “civil rights and obligations” are only of historical interest, because, as we shall see, the European court has not restricted article 6(1) to the determination of rights in private law. The probable original meaning, which Judge Wiarda said, at p 205, in König’s case was the “classical meaning” of the term “civil rights” in a civilian system of law, is nevertheless important. It explains the process of reasoning, unfamiliar to an English lawyer, by which the Strasbourg court has arrived at the conclusion that article 6(1) can have application to administrative decisions. The court has not simply said, as I have suggested one might say in English law, that one can have a “civil right” to a lawful decision by an administrator. Instead, the court has accepted that “civil rights” means only rights in private law and has applied article 6(1) to administrative decisions on the ground that they can determine or affect rights in private law.
80. The seminal case is Ringeisen v Austria (No 1) (1971) 1 EHRR 455. This concerned an Austrian statute which required transfers of agricultural land to be approved by a District Land Transactions Commission with a right of appeal to a Regional Commission. In the absence of approval, the contract of sale was void. The purpose of the law was to keep agricultural land in the hands of farmers of small and medium holdings and the District Commission was required to refuse consent to a transfer which appeared to violate this policy. This was a classic regulatory power exercisable by an administrative body. The court nevertheless held that article 6(1) was applicable to its decision on the ground that it was “decisive” for the enforceability of the private law contract for the sale of land. Thus a decision on a question of public law by an administrative body could attract article 6(1) by virtue of its effect on private law rights. On the facts, the court held that article 6(1) had been satisfied because the Regional Commission was an independent and impartial tribunal.
81. The full implications of Ringeisen were not examined by the court until some years later. It led in König v Germany 2 EHRR 170 to a sharp disagreement between those members of the court who saw it as a means of enforcing minimum standards of judicial review of administrative and domestic tribunals and those who regarded it as a potential Pandora’s box and wanted to confine it as narrowly as possible. Dr. König was a surgeon charged with unprofessional conduct before a specialist medical tribunal attached to the Frankfurt Administrative Court. It withdrew his right to practice and run a clinic. He appealed to an administrative Court of Appeal and there followed lengthy and complicated proceedings. His complaint to the European court under article 6(1) was that he had been denied the right to a decision “within a reasonable time”. But this raised the question of whether, in principle, article 6(1) applied to disciplinary proceedings before an administrative court. By a majority, the court held that it did. On the Ringeisen principle, it affected private law rights such as his goodwill and his right to sell his services to members of the public.
82. Judge Matscher delivered a powerful dissent, saying that it was unwise to try to apply the pure judicial model of article 6(1) to the decisions of administrative or domestic tribunals. They might share some characteristics with courts (eg requirements of fairness) but in other respects they were different. For example, one could not apply the imperative of a public hearing to a professional disciplinary body. A private hearing might be more in the public interest. If article 6(1) was going to be applied to administrative law, it would have to be substantially modified.
83. The majority view which prevailed in König’s case has enabled the court to develop a jurisprudence by which it has imposed a requirement that all administrative decisions should be subject to some form of judicial review. Sweden, for example, has been held to be in breach of article 6(1) on a number of occasions because it lacked any procedure by which a Government decision could be challenged in the courts: see Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35; Bodén v Sweden (1987) 10 EHRR 367; Tre Traktörer Aktiebolag v Sweden (1989) 13 EHRR 309; Allan Jacobsson v Sweden (1989) 12 EHRR 56; Pudas v Sweden (1987) 10 EHRR 380; Zander v Sweden (1993) 18 EHRR 175; Skärby v Sweden (1990) 13 EHRR 90. In Benthem v The Netherlands (1985) 8 EHRR 1 the Netherlands was similarly held to be in breach because in constitutional theory the administrative court to which an appeal lay only tendered advice to the Crown which it was entitled to reject.
84. But the dissent of Judge Matscher in König’s case 2 EHRR 170 has been vindicated in the sense that the application of article 6 to administrative decisions has required substantial modification of the full judicial model. The cases establish that article 6(1) requires that there should be the possibility of some form of judicial review of the lawfulness of an administrative decision. But the European court, in deciding the extent to which such decisions should be open to review, has been in practice fairly circumspect. Its jurisprudence on this point has however been complicated by the apparent breadth of some statements in two cases concerning medical disciplinary proceedings in Belgium.
85. In Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 three doctors who had been suspended by a disciplinary tribunal sitting in private claimed that their right to a public hearing under article 6 had been infringed. They had a right of appeal to the Cour de Cassation, which did sit in public, but that was only on a point of law. The European court said, at paragraph 51, that this was not good enough:
- “article 6 draws no distinction between questions of fact and questions of law. Both categories of question are equally crucial for the outcome of proceedings relating to ‘civil rights and obligations’. Hence the ‘right to a court’ and the right to a judicial determination of a dispute cover questions of fact just as much as questions of law. Yet the Court of Cassation does not have jurisdiction to rectify factual errors or to examine whether the sanction is proportionate to the fault. It follows that article 6(1) was not satisfied…”
86. In the later case of Albert and Le Compte v Belgium (1983) 5 EHRR 533, in which a similar situation arose, the court said, at paragraph 29, that although disciplinary jurisdiction could be conferred upon professional bodies which did not meet the requirements of article 6(1) (eg because they were not “established by law” or did not sit in public):
- “Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1).”
87. The reference to “full jurisdiction” has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with article 6(1) has to be reviewable on its merits by an independent and impartial tribunal. It was certainly so relied upon by counsel for the respondents in these appeals. But subsequent European authority shows that “full jurisdiction” does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires.
88. This emerges most clearly from the decisions on the English planning cases, which I shall analyse later in some detail. But the leading European authority for the proposition that it is not necessary to have a review of the merits of a policy decision is Zumtobel v Austria (1993) 17 EHRR 116. The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Vorarlberg. The appropriate Government committee heard their objections but confirmed the order. They appealed to an administrative court which said that the Government had taken proper matters into account and that it was not entitled to substitute its decision for that of the administrative authority. They complained to the Commission and the European court that, as the administrative court could not “independently assess the merits and the facts of the case”, it did not have “full jurisdiction” within the meaning of the Albert and Le Compte formula. The European court said, at paragraph 32, that its jurisdiction was sufficient in the circumstances of the case, “[r]egard being had to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaints made by the Zumtobel partnership”.
Enforcement proceedings in English law
89. This background should make it easier to follow the reasoning of the Commission and the European court in the four cases in which they have specifically considered the English planning system. But before I examine these cases, it is necessary to say something more about certain aspects of English planning law. Since the appointed day under the Town and Country Planning Act 1947 (1 July 1948), planning permission has been required in respect of any development of land: see section 12(1) of the 1947 Act and now section 57(1) of the 1990 Act. Development without planning permission is a “breach of planning control”: see section 171A of the 1990 Act as inserted by section 4 of the Planning and Compensation Act 1991. But a breach of planning control does not in itself give rise to any criminal or civil liability. It is necessary for the local planning authority to take enforcement proceedings in accordance with Part VII of the 1990 Act.
90. In applying the distinction between policy decisions and the determination of rights, one would expect that, while the question of whether planning permission should be granted was a matter of policy, the question of whether a breach of planning control had taken place would involve a determination of right. It is no different in principle from a determination as to whether a person has contravened any other rule. No questions of policy are involved in the decision as to whether there has been a breach of planning control or not. So prima facie one would think that enforcement proceedings should fall within the category of decisions in which one was entitled to the judgment of an independent and impartial tribunal.
91. This was the view of Parliament when it enacted the 1947 Act. Section 23(1) provided that if it appeared to a local planning authority that there had been a breach of planning control, it could within a period of four years of the breach serve an “enforcement notice” upon the owner and occupier of the land. The notice could require him to restore the land to its previous condition or discontinue any use of the land. The notice took effect after a specified period of not less than 28 days and if the owner nevertheless failed to restore the land to its pr