Alconbury

Article 6(1) may apply when an administrative planning or compulsory-purchase decision directly determines civil rights. It does not require policy and expediency to be decided by a tribunal empowered to substitute its view for that of a democratically accountable minister.

Where the initial decision-maker lacks independence, compliance is assessed across the process as a whole. The reviewing court must have jurisdiction appropriate to the decision’s subject matter, the manner in which it was made and the issues raised. Judicial review of legality, rationality, material considerations, factual foundation and procedural fairness, combined with a procedurally fair public inquiry, provides sufficient control of ministerial planning decisions.

These conjoined appeals came directly from the Divisional Court under section 12 of the Administration of Justice Act 1969. The Divisional Court had declared several provisions governing planning, transport works, highways and compulsory purchase incompatible with article 6(1) of the Convention.

Alconbury Developments Ltd concerned planning appeals recovered by the Secretary of State and an application for authority to construct railway works. Holding & Barnes Plc concerned a planning application called in by the Secretary of State. Legal & General Assurance Society Ltd concerned highway works and the proposed compulsory acquisition of land.

The common issue was whether decisions affecting property could lawfully be made by a minister who formulated and applied government policy, given the availability of public inquiries, statutory challenges and judicial review by the High Court.

Disposition. The House unanimously allowed the Secretary of State’s appeals, dismissed the cross-appeals and set aside the declarations of incompatibility.

1. Per Lord Slynn of Hadley, Lord Clyde and Lord Hutton, the disputed administrative processes directly affected civil property rights and therefore engaged article 6(1). Lord Hoffmann accepted that the Strasbourg jurisprudence required the adequacy of judicial control to be examined. The Secretary of State was not an independent and impartial tribunal because he formulated and applied policy, but that conclusion did not determine whether the process as a whole complied with article 6(1).

2. Per Lord Slynn, Lord Hoffmann, Lord Clyde and Lord Hutton, a first-stage administrative decision may comply with article 6(1) when it is subject to subsequent control by an independent court having full jurisdiction appropriate to the case. The sufficiency of that control depends on the decision’s subject matter, the manner in which it was reached and the content of the dispute. Full jurisdiction does not invariably require a rehearing or power to substitute findings and judgment on every issue.

3. Planning, highway and compulsory-purchase decisions involve policy, expediency and assessments of the public interest. Applying Bryan v United Kingdom (1995) 21 EHRR 342, the House held that article 6(1) did not require courts to reconsider their planning merits. Judicial review was sufficient because it could address errors of law, improper purposes, irrelevant or omitted considerations, irrationality, unsupported or materially erroneous facts and procedural unfairness. Public inquiries, independent fact-finding by inspectors, reasoned decisions and opportunities to answer departures from inspectors’ factual conclusions strengthened that control.

4. Per Lord Nolan, Lord Hoffmann, Lord Clyde and Lord Hutton, Parliament could entrust policy decisions to a minister answerable to Parliament. The combination of making and applying policy did not itself create disqualifying bias. The administrative character of the function identified in B Johnson & Co (Builders) Ltd v Minister of Health [1947] 2 All ER 395 was consistent with democratic accountability, while judicial review preserved the rule of law.

5. Per Lord Slynn, Lord Nolan, Lord Hoffmann and Lord Hutton, neither another government department’s financial interest nor departmental promotion of a scheme automatically invalidated the process. A particular decision remained open to challenge if an irrelevant financial interest, undisclosed factual matter or other public-law error materially affected it.

Lord Slynn further observed that proportionality should be recognised within English administrative law and that a material mistake about an established and relevant fact may justify intervention. Those propositions were unnecessary to the outcome because the existing grounds of review were already sufficient.

1. House of Lords: In Alconbury [2001] UKHL 23, the House unanimously allowed the Secretary of State’s appeals and set aside the declarations of incompatibility.
2. Divisional Court of the Queen’s Bench Division: Tuckey LJ and Harrison J held on 13 December 2000 that the impugned statutory decision-making provisions were incompatible with article 6(1) and made declarations under section 4 of the Human Rights Act 1998.