Human rights law

By Stephen Grosz, Bindman & Partners

Planning and human rightsR v Secretary of State for the Environment, Transport and the Regions, ex parte Holding & Barnes plc and others (The Times, May 10, 2001)Lawyers hoping that the Human Rights Act would change the face of planning will be disappointed by the House of Lords' decision.Last December, the divisional court made the first order under the Human Rights Act declaring provisions of primary legislation to be incompatible with rights granted by the European Convention on Human Rights.Lord Justice Tuckey and Mr Justice Harrison ruled that it was objectionable in terms of article 6 for the secretary of state to be the judge in his own cause where his policy was in play.

In other words, he could not be both policy maker and decision taker.Last month the House of Lords - the case leap-frogged the Court of Appeal - unanimously overturned the decision.The appeals related to: planning applications which the secretary of state 'calls in', that is to say, those that he determines instead of the local planning authority; planning appeals which he 'recovers', that is to say, those that he determines instead of an inspector; and appeals in respect of compulsory purchase orders, which the secretary of state decides after an inquiry before an inspector.Although such decisions are a tiny minority, the appeals indicate the courts' approach to the judicial control of administrative interference with property rights.

Article 6 of the convention requires that disputes about 'civil rights' must be determined by an 'independent and impartial tribunal'.

According to the Strasbourg court, where the initial decision-making body does not satisfy article 6, there must be subsequent control by a judicial body that provides all the fair trial guarantees.

It must also have 'full jurisdiction' to decide questions of both law and fact.

In these appeals the environment secretary conceded that he was not independent and impartial.

But, he said, anyone aggrieved could appeal or apply for judicial review to the High Court, which complies with article 6 and has 'full jurisdiction'.

The respondents disagreed, contending that the High Court could not substitute its own findings of fact, could not decide on the propriety of government policy and could review the decision only on recognised public law grounds.

The divisional court agreed with the respondents - as both the policy maker and the decision taker, the environment secretary was judge in his own cause, and there needed to be an independent decision on all issues, including policy.

For the House of Lords, a system in which planning decisions could be overturned by unaccountable judges or inspectors would be profoundly undemocratic (although almost all decisions are made in this way).Planning being a matter of policy, it was right that the policy merits and expediency of such decisions should be matters for elected bodies and ministers answerable to Parliament (although most ministerial decisions are made by officials and few are subject to parliamentary scrutiny).

It is clear from Lord Hoffmann's reasoning that the Lords' decision is limited to control of the use of property rights, which are among the most qualified of convention rights.

In an important passage, he characterised the convention as a marriage of democracy and the rule of law, and he identified a hierarchy of rights.

On the one hand there are absolute rights (which may not be violated in any circumstances) and those which might be overridden only in very restricted circumstances.

The courts had a duty to protect all such rights from majority decision, to the point of declaring infringing legislation incompatible with the convention.

On the other hand, '...

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'.Property rights, being 'heavily qualified by considerations of the public interest', fell into this latter category.

In such cases, democracy required that politicians or administrators make the initial decision, subject only to judicial review, the principles of which give effect to the rule of law.Dealing with the requirement of judicial control of administrative decisions, the Lords explained that 'full jurisdiction' could not be applied mechanically or literally.

Lord Hoffmann explained that it did not mean full decision-making power but rather 'full jurisdiction to deal with the case as the nature of the decision requires'.

European scrutiny of interference with property rights has been notably less strict than in relation to other rights.Furthermore, planning is a specialised area in which the judges are not necessarily equipped to conduct a full review of the merits, and certainly not questions of policy.

The Lords were against enlarging the grounds of judicial review to a more merits-based or policy-based review.

However, they appear to have accepted that in future the judicial review court should look more closely at misunderstanding or ignorance of established and relevant fact.

In addition, Lord Slynn and Lord Clyde accepted that the court can apply the test of proportionality to all decisions, not only to those which are scrutinised against the Human Rights Act or EU law.

Where property decisions are concerned, courts will in any event consider lawfulness not just under traditional domestic law but also by reference to the right to property under article 1 of protocol 1.

But practitioners should be careful to ensure that this decision is confined within the specialised area of property and planning.

Different considerations may apply to other areas, particularly where more strictly protected human rights are at stake.

Furthermore, the case leaves unresolved the inequalities that exist between planning applicants on the one hand and objectors on the other.

The decision is interesting for other reasons.

Dealing with the obligation to take Strasbourg case law into account, Lord Slynn said that although a national court is not bound by its decisions, in the absence of some special circumstances it should follow any clear and constant jurisprudence of the Strasbourg court.

By contrast, Lord Hoffmann expressed 'considerable doubt' as to whether European case law should be followed if it compelled a conclusion fundamentally at odds with the distribution of powers under the British constitution.

Lord Slynn is certainly right that a court should find a violation where Strasbourg would do so.The Human Rights Act is intended to resolve rights issues at home and avoid the trip to Strasbourg.

Fortunately, Lord Hoffmann found the relevant Strasbourg case law to be acceptable, thereby avoiding the dilemma in this case.

It is also interesting that the Lords paid particular regard to the concurring opinion of the UK's commission member (now a judge of the Strasbourg court) Nicolas Bratza, in Bryan v United Kingdom, a case about planning enforcement in the UK.

The Lords clearly considered that Mr Bratza's opinion had influenced the court's final decision and that he had a particular insight into the issue.

UK judges have given separate opinions in a number of recent judgments involving this country, and they are clearly intended more for home consumption than for export.

Practitioners will need to read them attentively.

It is also significant that the House of Lords was prepared to rule on compatibility at a preliminary stage in the procedure, before completion of the various planning inquiries.

A declaration of incompatibility would not have bound the parties, nor would it have affected the validity of the statutory provisions in question.

However, the executive would have taken account of a declaration in deciding whether to continue the inquiry process or to amend the procedure to avoid an adverse finding in Strasbourg.