Developers have human rights too

The Human Rights Act 1998 will be fully implemented throughout the United Kingdom next month. One of the commonest misconceptions in relation to the general incorporation of Convention rights by the Act is that this will be a matter of concern primarily to civil libertarian and criminal lawyers only. The recent decision of Lord MacFadyen in County Properties Limited v The Scottish Ministers,1 shows how wrong that view is. The case illustrates how the Convention rights may impact on traditional areas of commercial law and how the Convention may be prayed in aid of corporate bodies to further their interests.

Case summary

County Properties was a petition for judicial review by a developer of a decision by the Scottish Ministers to call in an application for listed building consent and to appoint a Reporter to hear a public inquiry in relation to that application following the notification of opposition to the proposed development by Historic Scotland, an executive agency of the Scottish Ministers.

It was argued on behalf of the petitioners that these decisions were not compatible with the petitioners’ Convention rights to a hearing before an independent and impartial tribunal and hence ultra vires the Scottish Ministers since Reporters in planning inquiries were insufficiently independent of the Executive as to meet the requirements of Article 6(1) ECHR. Somewhat surprisingly the respondents admitted in their answers to the petition that the Reporter did not constitute “an independent and impartial tribunal in terms of Article 6.1 of [the Convention] in the circumstances of this case”, but claimed that the petitioners’ statutory right of appeal to the Court of Session under Section 58 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 from any decision of the Scottish Ministers following the public inquiry and the Reporter’s recommendation was sufficient to satisfy the requirements of Article 6(1) ECHR, relying in this regard on the decision of the Strasbourg Court in Bryan v United Kingdom.2

In finding in favour of the petitioners, Lord MacFadyen distinguished Bryan on its facts, finding: first, that in the present case the Reporter (unlike an Inspector in the English system) did not establish the facts after a planning inquiry; that the primary objector in the inquiry was an executive agency of the Scottish Ministers and hence there was an identity between participant and ultimate decision maker such as to contravene the principle of nemo iudex in causa sua; and that the statutory appeal on points of law to the court would be insufficient since “matters of aesthetic and planning judgment will form a major part of what has to be decided” and consequently the court’s ability to “interfere with the respondents’ planning judgment is even more restricted than the scope for review of matters of pure fact.” In the absence of any access by the petitioners to a court with full jurisdiction to review and decide upon the substantive planning issues in the case, there was said to be a breach of Article 6(1). Lord MacFadyen noted as follows (at paragraphs 26-27):

“It is the petitioners’ Convention right to have their civil rights determined by an independent and impartial tribunal. In my view the respondents’ decision to call in the application for their own decision has brought about a situation in which the determination of the petitioners’ civil rights will be made by the respondents, who are admittedly not independent and impartial, and against whose decision there is only a limited right of appeal to this court. The limitations on the right of appeal are such that it may well be impossible for this court, although indisputably an independent and impartial tribunal, to bring those qualities to bear on the real issues in the case. The suggestion that the adequacy of the right of appeal cannot be judged until the grounds on which the petitioners seek to bring the respondents’ decision under review are identified is in my view not only unsound in principle but also thoroughly impractical. In the result I am satisfied that in the circumstances of this case determination of the petitioners’ application for listed building consent by the respondents after an inquiry conducted by the Reporter would not satisfy the requirements of Article 6(1). It follows, in my opinion, that the respondent’s decision to call in that application was incompatible with the petitioners’ Convention rights, and therefore ultra vires of the respondents by virtue of section 57(2) of the Scotland Act.”

Case comment

This decision by Lord MacFadyen effectively declares the present system of planning inquiries to be contrary to the requirements of the Convention. If it stands, the decision will require radical changes in the system of planning control in Scotland.

Lord MacFadyen’s decision that the statutory right of appeal to the court under the planning legislation did not provide an effective remedy sufficient to cure the admitted breaches of Article 6(1) is one which is reached without significant discussion or analysis of the relevant Strasbourg case law. His approach seems to have been influenced by the fact that in neither Starrs and another v Ruxton3 (the decision of Lord Justice Cullen, Lord Prosser and Lord Reid finding prosecutions before temporary sheriffs to be incompatible with Article 6(1)) or in Clancy v Caird4, (the decision of Lord Sutherland, Lord Coulsfield and Lord Penrose finding that the hearing of civil cases before temporary judges to be compatible with Article 6(1) ECHR) was the line of argument pursued.5

The approach of the Strasbourg Court in relation to the question of the adequacy of judicial review/appeal only points of law within the context of Article 6(1) has not been entirely consistent. In the 1988 decision W v United Kingdom6 the European Court of Human Rights considered that judicial review against a decision of a local authority regarding an individual’s access to his child who was in care was insufficient access to the courts for the purposes of Article 6(1). By contrast, as we have noted, in Bryan v United Kingdom7 the Strasbourg Court found that there was no breach of the requirements of Article 6(1) in the context of an appeal on a point of law only to the High Court from a decision of a planning inspector. It was held that, while the planning inspector was not wholly independent of the executive, there were enough procedural safeguards in his decision making process (a quasi-judicial adversarial process, a commitment to openness, fairness and impartiality) sufficient to ensure that in conjunction with the possibility of appeal on law in a manner identical to judicial review jurisdiction, there was sufficient to ensure conformity with Article 6(1) standards.

The Strasbourg Court has also considered the adequacy of judicial review as a remedy against the decisions of a public authority in the context of Article 13 ECHR (which has been excluded from the Convention rights incorporated under the Human Right Act 1998) which provides that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by a person acting in an official capacity.”

Thus, in Vilvarajah and Others v United Kingdom8 the European Court of Human Rights held that proceedings by way of judicial review afforded an effective remedy (for the purposes of Article 13 ECHR) to asylum applicants who were arguing that their return to their country of origin would expose them to the risk of torture or to inhuman or degrading punishment or treatment contrary to Article 3 ECHR. The Strasbourg Court held that in the context of domestic judicial review proceedings the applicants were able to, and did, advance the substance of the Convention arguments before the national courts which were able to carry out an independent assessment (applying a “most anxious scrutiny”) of the lawfulness of an individual’s extradition or expulsion in the context of Article 3 ECHR.9 In these cases, the European Court of Human Rights found that the test applied by the domestic courts in applications for judicial review of decisions by the Secretary of State in extradition and expulsion matters coincided with the Strasbourg Court’s own approach under Article 3 of the Convention.10

By contrast, in the Gay Service Personnel challenge, Smith and Grady v United Kingdom,11 the European Court of Human Rights held that the threshold of irrationality or unreasonableness in judicial review proceedings was “placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the Court’s analysis of complaints under Article 8 of the Convention”. It may be that the finding in Smith and Grady in relation to a breach of Article 13 ECHR effective remedy provision is specific to the fact that what was being unsuccessfully challenged before the domestic courts by way of judicial review was a blanket ban admitting of no exceptions expressive of general Government policy rather than the particular application of that ban to the cases of the specific individuals before the courts. Thus in its recent admissibility decision in T I v United Kingdom12, the European Court of Human Rights noted as follows:

“Assuming that the applicant’s complaints disclosed an arguable case for the purposes of Article 13 of the Convention, the Court notes that in previous cases it has found judicial review proceedings to be an effective remedy in relation to complaints raised under Article 3 in the context of deportation and extradition13. In those cases it was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment on the grounds that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take.

The Court finds no reason to differ in the present case. While the applicant relies on the Smith and Grady judgment, this concerned an area of discretionary policy in the armed forces where the threshold at which the courts could find the policy irrational was placed so high as to exclude any effective consideration of the key issue in the case. The Court is satisfied that in the present case the substance of the applicant’s complaint under the Convention - whether the Secretary of State could order his removal to Germany - did fall within the scope of examination of the courts which had the power to afford him the relief sought.

The applicant’s complaint is, accordingly, manifestly ill-founded and must be rejected pursuant to Article 35(3) and (4) of the Convention.”

It would appear somewhat counter-intuitive, however, if as a general rule judicial review is seen to be an adequate and sufficient remedy in relation to claims by an individual asylum seeker in removal and deportation cases of the possibility of breaches of his right to life or of the absolute prohibition against torture, but it is held to be an insufficient remedy for claims by a developer that its application to knock down a listed building has been properly considered in the context of planning law. It should be borne in mind, however, that the “effective remedy” provisions of Article 13 are generally regarded by the Strasbourg Court as being less strict than, and often subsumed under, the “fair trial” requirements of Article 6 (1).14

The justifiability of the breach of Convention rights

In any event, Lord MacFadyen’s decision also serves to highlight the radically different constitutional status of Convention rights in Scotland as compared to the rest of the United Kingdom on the question of the possibility of lawful breach of Convention rights.

Section 6(2) of the Human Rights Act 1998 effectively makes provision for a lawful breach of Convention rights if, (a) as a result of one or more provisions of primary Westminster legislation, a public authority (including the devolved Welsh institutions by virtue of Section 107(4)(a) of the Government of Wales Act and, by virtue of Sections 71(3)(a) and 71(4)(a) of the Northern Ireland Act 1998, the devolved Northern Ireland Legislative Assembly, Ministers and Department) could not have acted differently or (b) if the public authority was acting so as to give effect to or enforce Convention incompatible Westminster provisions.

Significantly, however, there is no such general tie in to Section 6(2) of the Human Rights Act in the case of the Scottish Parliament or Scottish Executive. Under Section 57(3) of the Scotland Act only the Lord Advocate when prosecuting any offence or acting in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland may rely upon Section 6(2) of the Human Rights Act to justify a breach by him of a Convention right on the grounds of the requirements of a contrary and incompatible provision of Westminster legislation. Without such specific Westminster derived authorisation, the Lord Advocate no longer has power to “move the court to grant any remedy which would be incompatible with the European Convention on Human Rights” as the Lord President noted in Lord Advocate v Scottish Media Newspapers Ltd.15 In relation to other Members of the Scottish Executive (and other acts of the Lord Advocate), Section 57(2) of the Scotland Act simply provides that they have no power to do any act so far as “incompatible with any of the Convention rights or with Community law”. As has been noted by Lord Penrose in Clancy v Caird:

“Section 57(2) is concerned with a further specific limitation on the powers of the [Scottish] Executive expressed by reference to the Convention and Community law. It is not a temporary or transitional provision. It will continue to apply after the Human Rights Act comes fully into force.”16

Similarly, Section 29(2)(d) of the Scotland Act puts an absolute and unqualified limit on the power of the Scottish Parliament to legislate in a manner which is incompatible with any of the Convention rights or with Community law.

The effect of this failure to tie in Scottish legislative activity to Section 6(2) of the Human Rights Act is that although the European Convention is formally being incorporated into domestic Scots law by the same statute as it incorporates into the laws of England and Wales and of Northern Ireland, the European Convention on Human Rights will be given a different constitutional status in Scotland from the rest of the United Kingdom. Under the Scotland Act 1998, the rights guaranteed under the Convention have the status of a higher law as against all and any legislation passed by the Scottish Parliament or any act or omission of a member of the Scottish Executive.  Breach of these rights cannot be justified in law. Thus whereas the English planning system may continue even if the Westminster statute on which it is based is found by the courts to be incompatible with the Convention, a judgment such as that of Lord MacFadyen in County Properties effectively bars the Scottish Executive and the Holyrood Parliament from operating, authorising or relying upon a similar system of planning controls in Scotland.

Conclusion

Standing that there is no possible justified breach of Convention rights for the devolved Scottish institutions, it is submitted that the judges in Scotland have to have particular care in understanding and applying Convention rights, if the business of Government is to be possible in Scotland. In Anderson and others v The Scottish Ministers17 Lord Rodger emphasised that (at paragraph 48) the courts had to seek to ensure “ a fair balance between the general interests of the community and the requirements of the protection of individuals’ fundamental rights”

It is respectfully submitted that this is the correct approach. Convention rights have always to be seen in the context of the particular circumstances in which they are claimed. They are fundamental but are rarely (the prohibitions against torture, slavery and forced labour being the exceptions) absolute rights. Thus, in relation to any claimed breach of a Convention right (for example, to a fair trial) a balancing exercise must be made between the interests of the general community and the legitimate expectations of the individual. Accordingly the expression and protection of fair trial rights may vary depending on the type of trial which is under consideration and the consequences which might flow from that trial. Developers and corporate bodies may, then, have different trial rights from individuals facing the possibility of the deprivation of their liberty.18 Past case law, whether from the Strasbourg institutions or from their domestic courts, should not be applied mechanistically or with an undue emphasis on the rules of precedent. Past cases do not establish the extent of Convention right - they simply provide examples of its application in particular circumstances.

Courts and practitioners in Scotland have now had over one year’s exposure to arguments based on the direct effect of Convention rights. We have had a head start over the rest of the United Kingdom in these matters. We have a particular responsibility to ensure that judgments from the Scottish courts on Convention will continue to provide a model for the proper understanding and application of the Convention in domestic law.