R (Alconbury Ltd) v Environment Secretary [2001] UKHL 23

Key points

  • The fact that an administrative decision was made a by non-independent decision-maker was not enough, by itself, to violate Article 6(1) ECHR; judicial review principles under common law ensured compliance with Convention rights
  • Lord Slynn argued that proportionality should be adopted as a free-standing standard of review in common law, beyond the application of the Human Rights Act 1998
  • Lord Slynn also reiterated his dicta in CICB that courts could quash a decision for misunderstanding or ignorance of an established and relevant fact

Key Point

  • The fact that an administrative decision was made a by non-independent decision-maker was not enough, by itself, to violate Article 6(1) ECHR; the scope of judicial review for procedural impropriety ensured compliance with Convention rights

Facts

  • In three cases heard together, the relevant Secretary of State had called in, and decided, various planning permission applications under various statutory powers
  • In all cases, applications for judicial review were brought as to whether this decision-making power was compatible with Article 6(1) of the ECHR, which guaranteed the right to have civil rights and obligations determined by an independent and impartial tribunal

Held (House of Lords)

  • Appeals allowed; the Secretary of State had not acted unlawfully
  • There was no violation of Art.6(1) ECHR as set out in Part 1 of Sch.1 to HRA 1998

Lord Slynn of Hadley

Impartiality

  • The fact that the Secretary of State directed policy as to the use of land did not, without more, make him impartial – the powers he held were given to him precisely so that he could carry out government policy: [48]

Judicial control

  • Strasbourg case law states that even if the tribunal is not necessarily impartial in its nature, it may be regarded as compliant with Article 6 if there are sufficient judicial controls to ensure Article 6 compliance within the tribunal: Albert and Le Compte v Belgium (1983) 18 EHRR 533 (at [29]): [44]
  • The reviewing Court should not review the substantive merits of the Secretary’s decision (the factual basis), ‘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’: [49]
  • The Court can, however, review for the legality of his decision-making procedure (misinterpreting his powers, taking irrelevant considerations into account, failing to take account of relevant issues, reaching a perverse decision etc) and the procedure followed: [50]
  • Furthermore, in Criminal Injuries Compensation Board, “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…”
  • These principles of review are sufficient to ensure compliance with the standards set by the jurisprudence of the ECtHR, and to satisfy the requirements of Art.6 ECHR: [54]; p. 321H-322A

Proportionality as a general standard of review (in obiter)

  • “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”: [51]

Lord Nolan

  • “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 [read; a Court] would not only be a recipe for chaos: it would be profoundly undemocratic.” [60]