In the eagerly awaited House of Lords decision on the three cases known as "Alconbury", the five law lords have unanimously decided that the present British planning system is to all intents and purposes effectively compliant with the requirements of Article 6 of the European Convention on Human Rights (ECHR), which establishes the right to a fair hearing by an impartial and independent tribunal.
The Alconbury decision considered three separate procedures which are commonplace in development proposals:
1. The ability of the Secretary of State to determine an application which he had "called in" for determination by himself rather than the local planning authority.
2. The ability of the Secretary of State to make a decision on a proposal where he had "recovered"; jurisdiction from his appointed Inspector, on the basis that the appeals related to proposals for development of major importance.
3. Whether it is lawful for the Secretary of State to promote and ultimately confirm proposals for new roads under the Highways Act. The Judgment is also relevant to the ability of the Secretary of State to approve applications promoted under the Transport and Works Act 1992, and compulsory purchase under the Acquisition of Land Act 1981.
The previous High Court judgment had made a declaration that parts of the Town and Country Planning Act 1990, Transport and Works Act 1992, Highways Act 1980, and Acquisition of Land Act 1981 were incompatible with Article 6 of the European Convention. In short, the question which the House of Lords had to consider was whether it was contrary to the ECHR for the Secretary of State to act both as policy maker and decision taker in relation to the applications which came before him. There was also a subsidiary issue ( raised in the Alconbury case itself ), as to whether or not it was lawful for the Secretary of State to act as decision taker when he would have a financial interest in the outcome of the proposed development.
The main points of the judgment are:
1. In a democracy, where the Courts have jurisdiction to conduct a judicial review of the lawfulness and fairness of a decision, a Government minister can be both a policy maker and a decision taker without there being a violation of Article 6 of the ECHR.
2. Governments are elected to make policy, and it is not inconsistent with the ECHR that the Secretary of State should take his own policies into account when making decisions on development proposals which come before him.
3. The Secretary of State does not and is not required to act independently and impartially when making decisions based on his policy. He is, however, required to act lawfully, and the existing principles of judicial review are adequate to ensure this.
4. The correct question is whether there is a sufficient process of judicial control to review the legality of the decisions taken and the procedures followed. None of the judgments made by the European Court of Human Rights requires that the Court should have "full jurisdiction"; to review the policy or overall merits of a planning decision.
5. The present process of judicial review in the UK covers not only points of law but also questions such as the rationality of the decision and the fairness of the decision making process. There is no need to enlarge the present scope of judicial review in order to accommodate the requirements of the Human Rights Act.
6. Grounds of objection based on the Secretary of State having a financial interest in the outcome of a decision might be appropriate if raised as objections to the ultimate decision itself, but are insufficient to disqualify the Secretary of State from acting as the decision taker.
7. The European Court 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.
8. On questions of policy, the Inspector is obliged to apply the Secretary of State's policy and so is no more independent than the Secretary of State. However, this is a matter on which independence is unnecessary, because the power of judicial review, paying full respect to the views of the Inspector or Secretary of State on questions of policy or expediency, is sufficient to satisfy Article 6.
9. On the other hand, in deciding questions of primary fact, the Inspector is no bureaucrat, but acts as an expert tribunal, in a quasi judicial manner, and is sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact.
10. Because the Secretary of State does not act as an independent and impartial tribunal, it is not unlawful if he receives confidential advice and recommendations from civil servants in his own department. Because his constitutional role is to formulate and apply Government policy, the fact that both the formulation of policy and its application require the advice and assistance of civil servants is no more than the Court would expect.
The reasoning used by the Law Lords in this decision can also be applied to any other circumstances in which the decision taker is also the policy maker.
For further information please contact one of the following partners from our planning group Chris Williams, (chris.williams@cms-cmck.com or on +44 (0) 20 7367 3571) or Tony Kitson (tony.kitson@cms-cmck.com or on +44 (0) 20 7367 3556).
