First Class Law Dissertation: To what extent has Article 6(1) ECHR innovated upon the existing principles of natural justice in administrative law in the UK?

by Legal Author on August 12, 2013

justitia human rights legal dissertationWe are pleased to welcome law graduate Rachael Johnston as she publishes her first class law dissertation entitled: “  To what extent has Article 6(1) ECHR innovated upon the existing principles of natural justice in administrative law in the UK?”. Connect with Rachael Johnston on LinkedIn here.

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Contents

I. Introduction

II. The Position Before the Human Rights Act

–          The Principles of Natural Justice

–          The Strasbourg Jurisprudence

–          Scotland and England

III. The Extensive Scope of Article 6(1) ECHR

–          A Private Law Paradigm

–          The Outer Boundaries of Article 6(1)

IV. The Content of Protection Under Article 6(1)

–          Adjudication under the Human Rights Act: a Deferential

Approach?

–          The Policy/Fact-Finding Distinction

–          The Requirements of an Independent and Impartial Tribunal

–          Evaluation of the Approach to Protecting Procedural Fairness Under Article 6(1)

V. Concluding Remarks

VI. Bibliography

 

I. Introduction

With the inception of the Human Rights Act 1998 (HRA) into UK law came a new era of rights adjudication. This statute meant that Convention rights were directly enforceable in courts across the country. It provides that it is unlawful for all public authorities to act incompatibly with the fundamental rights protected by the European Convention on Human Rights (ECHR). 1 The civil element of Article 6(1) ECHR, providing for the right to a fair trial, was regarded as having particularly wide-reaching implications for the way in which government decision-making was to be conducted. 2 The standards imposed by the HRA were thought to have particular influence in terms of the judiciary’s methods of statutory interpretation and review of administrative acts. 3 As such, its impact on administrative law, and the wider constitutional setting in the UK, was expected to be significant.

Although the requirements of natural justice under the common law have traditionally sought to ensure procedural fairness in decision-making, these are now ‘buttressed’ by the protections afforded by Article 6(1); thus a new approach to protecting procedural rights is required. 4 But the innovations of Article 6(1) have not been without their problems. Article 6(1) provides that: ‘in the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ 5 The phrase ‘civil rights and obligations’ at the heart of Article 6(1) and its interpretation have proved pivotal in determining its effect on administrative law in the UK. 6 Described as ‘a problem of exceptional complexity’, 7 both the domestic and Strasbourg courts have wrestled with the extent to which Article 6(1) applies to administrative decision-making.

In some instances Article 6(1) has required that procedural protection be afforded to novel situations in the administrative sphere, and the courts have responded to this expansive interpretation of the scope of the Article by relaxing the requirements of an independent and impartial tribunal in looking at the proceedings as a whole to determine fairness. Related to this is the debate surrounding the sufficiency of review under the right of appeal to guarantee such procedural safeguards. Furthermore, there are the substantive requirements of Article 6(1), to which the courts have responded by modifying the test of bias and by imposing more stringent requirements in terms of independence of the judiciary.

At the outset, it is noted that each of these separate innovations and resulting problems are interconnected. 8 Additionally, the issues and policies at play have been coaxed to the forefront of a background of wider debate surrounding the standards of review of executive action under the HRA, in both Scotland and England; the relationship between the judiciary and other branches of government; and statutory interpretation. This study will examine the state of procedural protection before the HRA, introducing the relevant concepts for discussion. It will then move on to evaluate the extent to which the interpretation of the provisions of Article 6(1) has brought novel considerations to matters of applicability of procedural fairness. Finally, it evaluates the receptiveness of the judiciary in implementing the procedural safeguards as required by the Convention and the extent to which this has impacted upon the effect Article 6(1) has had.

II. The Position Before the Human Rights Act

The Principles of Natural Justice

The principles of natural justice have long been accepted to be judge-made. In brief, they encompass the notion that the individual be given an adequate hearing and that the adjudicator is unbiased. 9 In terms of applicability, due process rights have traditionally been applied to a wide range of interests and decision-making bodies. 10 Although specific legislation may occasionally provide guidance on the applicability of procedural fairness, it often does not address the issue. 11 Thus the courts have generally proceeded on the basis that process rights are triggered where the claimant has a right, interest or legitimate expectation which justifies the application of procedural protection. 12

Arguably, the criteria for the applicability of natural justice are fairly open-ended. Procedural protection may be triggered where the applicant has a recognised proprietary or personal right, 13 but the term ‘interest’ is wider. It has been held to encompass the situation where the individual does not have any substantive entitlement in law in the particular case. 14 Thus process rights have been held to be applicable where unions and trade associations have been concerned and the applicant merely has an interest, rather than a substantive entitlement. 15 Furthermore, where a public body has made a representation to the applicant to the effect that they are eligible for procedural protection, such a legitimate expectation would give rise to protection. 16

In deciding the content of procedural rights for a particular case, the courts will employ a balancing test where they weigh up the interests of the individual with the effects on the administration. 17 Thus the courts may consider that the full array of safeguards is applicable (such as notice, representation, an oral hearing, and cross-examination), or that considerably less are appropriate, with a broad spectrum in between. 18 Inherent in such a balancing exercise is flexibility; indeed, Lord Loreburn freely acknowledged the necessity of such flexibility in the approximation of applicability of procedural safeguards. 19 In deploying this technique, Craig observes that ‘process rights are modelled on those of the ordinary courts, and any balancing is undertaken within this context.’ 20 However, in non-adjudicative procedures, such as the realm of social welfare, there has been hesitancy in applying procedural checks. In this sphere, there has been an inclination to accord a great deal of deference to the public body administering the benefit. 21 Furthermore, the principles of natural justice have not been extended to ‘the making of norms of a legislative nature’, or to policymaking. 22

As well as the right to hearing and its attached safeguards, there is also the rule against bias. Under the common law, the decision-maker must not have a pecuniary or personal interest in the outcome of the proceedings. 23 The test for bias has changed over time due to issues of clarity and the influence of the ECHR. In McCarthy it was held to be a ‘reasonable suspicion of bias’. 24 Confusion ensued when Lord Denning M.R. articulated a slightly different formulation: a ‘real likelihood’. 25 However, in Gough, the House of Lords held that the same test should be applied in all cases of apparent bias, 26 and, in terms of degree, the test should be whether there was a real danger of bias. 27 This approach was subject to adaptation in Porter v Magill.[28] There it was held that, in accordance with the principles utilised by the ECtHR, the test was whether ‘the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’. 28 The influence of Article 6 on the common law rule of bias is thus readily apparent from the case law adapting the test to secure compliance with the Convention.

Although the common law may secure the right to an impartial decision-maker where the precepts of natural justice are deemed to apply, there has been some debate as to whether it also provides for the independence of that decision-maker. Some of the ambiguity surrounding this issue stems from the fact that conceptually impartiality and independence are interrelated. This is demonstrated by the fact that in Re Medicaments the Court of Appeal asserted that there is a requirement in the common law that the decision-maker be independent: ‘the requirement that the tribunal should be independent and impartial is one that has long been recognised by English common law.’ 29 However, the case itself actually concerned a claim of bias rather than institutional independence, and thus it is doubtful how much authority can be taken from this. 30

Hence it is arguable that the requirement of an ‘independent’ tribunal can be attributed to being one of the innovations of Article 6. Juss comments: ‘It is interesting to note that Article 6 has forced English judges to recognise and develop a right to an independent and impartial adjudication’. 31 Nevertheless, there is some authority for the proposition that independence existed in the common law before the internalisation into UK law of Article 6. The matter of independence was directly raised in Bewry.[33] Here, it was alleged that the Housing Benefit Review Board, partly comprised of local council members who had rejected the initial application for housing benefits, was not independent. 32 Article 6 did not apply as the facts of the case occurred before the enactment of the HRA. Thus Moses J considered the common law and stated that ‘the right of review of a determination of a statutory entitlement is akin to the right of access to a court and carries with it a right to an independent and impartial tribunal.’ 33 As a result, the common law provided protection similar to that under Article 6(1). Although this reasoning was questioned in McLellan,[36] these doubts do not seem to relate to the existence of such a principle. 34 Consequently it appears that this is authority for the premise that where Article 6(1) is not engaged (where the applicant’s ‘civil’ rights and obligations are not being determined), the common law may afford similar protection. 35 The extent to which Article 6(1) has influenced the development of the domestic jurisprudence in this area will be examined in Part IV.

Strasbourg Jurisprudence

Based on the principle that a democratic society is founded on the rule of law, the ECtHR has stated ‘the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and purpose of that provision’. 36 Thus the Strasbourg Court has given Article 6(1) a purposive and, debatably, expansive interpretation. 37 The phrase ‘civil rights and obligations’ has been held to require that the ECtHR makes its own autonomous judgment in deciding where such rights and obligations arise in a dispute. 38 However, the Court has not formulated a definition of this term. Its approach instead has been to rule on a case-by-case basis. 39 Arguably, such a method necessarily lends itself to the incremental development of the meaning of the phrase. Accordingly, Harris contends that: ‘the Court’s interpretation of the wording of Article 6(1) has evolved over time, to the point where its fair trial guarantee has a much greater reach than was first apparent and, in particular, provides a basis for controlling executive action by governments far more than might have been expected.’ 40 Thus it is apparent that Article 6(1) has the potential to require, firstly, that procedural safeguards be implemented in a wide range of situations and, secondly, to raise issues about the scope of judicial review under the traditional common law.

One of the main issues of the Strasbourg jurisprudence on Article 6(1) is that the phrase ‘civil rights and obligations’ is concerned with essentially private law rights. 41 The early cases established that the phrase not only encompassed those rights which were clearly of a private nature (such as personal or property rights), but also extended to include ‘all proceedings the result of which is decisive for private rights and obligations’. 42 This differs from the common law in that, traditionally, the judiciary have been ‘mindful of the plethora of administrative bodies and the different interests of the claimant’. 43 Thus the domestic courts have not accorded much importance to whether the interest was, in juridical terms, strictly classified as a right. 44 Through this interpretation, Article 6(1) has been extended to situations such as grants of licences, 45 planning determinations, 46 and social security benefits, 47 with no outer boundaries as to applicability determined as of yet by the ECtHR. As a consequence, this wide interpretation gives Article 6(1) the capacity to impose ‘new and far-reaching restraints’ upon the use of discretion by administrative bodies. 48

Where Article 6(1) is engaged, the applicant is entitled to a fair hearing by an independent and impartial tribunal established by law. From the Strasbourg jurisprudence, factors with which to have regard in determining whether a body is independent are: the manner of its appointment, the existence of guarantees from outside pressure, its term of office, and if the body presents an appearance of independence. 49 Further, in Ringeisen v Austria it was held that the decision-maker should be independent from the parties and the executive. 50 Impartiality entails that: ‘First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.’ 51 However, it has been held that, where an administrative body making the decision does not comply with Article 6(1), it must be subject to the control of a judicial body that is independent and impartial. 52 Thus, compatibility may depend upon the existence of adequate appeal rights, or judicial review, to a judicial body having ‘full jurisdiction’, which provides the guarantees of Article 6(1). 53 ‘Full jurisdiction’ has been held to mean that the reviewing court can consider the complaint for itself; it must also be able to quash the decision being challenged and find that a new decision should be made by an impartial body. 54 But this does not require that the reviewing body be able to substitute its judgment on the merits. 55 When assessing the sufficiency of review, the ECtHR will have regard to the subject-matter and the statutory setting. 56 It is apparent from this that, in determining the sufficiency of the scope of review required to satisfy Article 6(1), there is potential for it to demand more intensive standards of judicial scrutiny.

Thus, with the inception of Convention rights into domestic law, the implications that Article 6(1) would have on administrative procedure and the ways in which it would interact with the rules of natural justice were viewed with interest. 57 On a wider level, in the immediate aftermath of the coming into force of the HRA, some commentators noted possible indications that the UK’s constitution was ‘moving from being based in practice and convention, to one where the rule of law, in the form of fundamental rights, [was]…the foundational principle.’ 58 Conversely, in terms of Article 6(1) specifically, there were fears that the principles of natural justice derived from the common law would merge with those based on the HRA. 59 This might necessarily alter the approach of the UK judiciary into ‘a single body of law theorised on the foundation of the central role of rights’. 60

Additionally, there was concern as to the effect that the higher standards of judicial scrutiny required under the HRA would have on the scope of judicial review as it was traditionally known.  Feldman, for example, anticipated the potential for a diminution of the significance between substantive and other grounds of review, stating that such an ‘injection of generalised substantive values into the legal rules which delimit the four corners of public authorities’ powers’ would affect the procedural grounds of judicial review in domestic law. 61 These concerns were not unwarranted; it has been argued that ‘the question of the reach of judicial review has…been further complicated – rather than resolved – by the HRA.’ 62 This matter will be further examined in Part IV.

However, the commencement of the HRA did not herald the beginning of the impact the Convention has had on administrative law in the UK. Before the HRA came into force in domestic law, its indirect effect was recognised by the English judiciary: ‘…the Convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law.’ 63 However, the position in Scotland was markedly different. It has been said that, in contrast to England in the 1990s, that ‘Scottish courts had accorded barely any recognition to the European Convention on Human Rights’. 64 But aside from the difference in respect paid to human rights within the respective jurisdictions before the HRA, is there a different standard of procedural protection stemming from the difference in scope of judicial review?

Scotland and England

In determining the boundaries of review in England, there must be a ‘public element’, as judicial review is a public law remedy. 65 In comparison, the applicability of judicial review in Scotland is based on no such public/private divide. Although the grounds are the same in both jurisdictions, in West Lord Hope stated that in Scotland, differing from England, ‘the competency of the application [for judicial review] does not depend upon any distinction between public law and private law, nor is it correct in regard to issues about competency to describe judicial review as a public law remedy.’ 66 Instead, where the decision-maker is exercising a jurisdiction, it is based on the existence of a ‘tripartite relationship’ between the decision-maker, the individual affected and a third party who delegated the decision-making power. 67 This means that powers derived solely from contract and review of ‘domestic tribunals’ (the internal disciplinary bodies of, for example, professional bodies and trade unions) are not excluded from review in Scotland. 68

Such a distinction has some repercussions in terms of the effect of s.6(1) HRA, which stipulates that public bodies may not act incompatibly with the Convention. In determining whether a body is a ‘public authority’, s.6(3)(b) HRA provides this definition extends to persons exercising functions of a public nature. Thus, certain ‘private’ and non-statutory bodies may be amenable to judicial review from this formulation. 69 In England, these bodies are not subject to judicial review where the decision-making is dependent upon contractual relationships. 70 Since in Scotland the application of judicial review is not reliant on the public-private divide, ‘public law protections have been given a much broader reach as a result of the particular tests used by the…Scottish courts.’ 71

However, in accepting that the different tests for availability of review in the two jurisdictions result from different perceptions as to the function of this remedy, McHarg argues that, ‘in many cases, this functional divergence makes little or no difference to the practice of judicial review in each jurisdiction’. 72 Furthermore, despite this nexus within which to subject a wider range of bodies to review, there is no evidence of the Scottish courts providing higher standards of procedural protection for individuals. 73 Thus, despite both the ideological and slight operational differences in the scope of judicial review between Scotland and England, it appears that, practically, the vast majority of cases will be treated the same and therefore there is no obvious disparity in reviewability of human rights claims between the two jurisdictions.

III. The Extensive Scope of Article 6

A Private Law Paradigm

In determining Article 6’s initial applicability, the courts must consider whether the decision at issue determines the applicant’s ‘civil right’. As discussed in Part II, the effectively ‘private law’ meaning the Strasbourg court has accorded the phrase requires that analysis as to whether Article 6(1) is engaged is predicated upon an essentially private law paradigm. 74 This innovation of Article 6(1) has provided the judiciary with new interpretative challenges. Due to the fact that the Strasbourg Court has read the terms of Article 6(1) expansively and in an arguably incremental manner, it has proven difficult for UK courts to follow ever-developing and unclear ECtHR jurisprudence. Consequently, there are concerns as to the outer boundaries of Article 6’s scope and thus to what extent it requires procedural safeguards in different areas of administrative decision-making.

The unease as to the ever-expanding scope of Article 6(1) relates to the fact that it is difficult to draw specific principles from the Strasbourg jurisprudence and thus determining where the Article is applicable is a challenge. For example, some ECtHR cases emphasise the nature of the connection between the claimant’s interest and rights in private law. 75 However, others focus on the fact that public law rights may be analogous to rights in private law. 76 Thus, where under the common law the courts will employ a balancing exercise between the competing considerations in determining if procedural safeguards should apply, Craig argues that Strasbourg does not consider whether or not the interest affected is important enough to merit procedural protection. 77 Rather, in one form or another, it bases its reasoning as to the applicability of Article 6(1) on whether the interest affected does in some way resemble rights in private law. 78 Therefore, in cases concerning Article 6(1), the domestic courts must apply an alien paradigm of reasoning to that usually undertaken in the common law in determining the applicability of procedural safeguards.

As a result, the procedural protection afforded by Article 6(1) has been extended to areas not classically regarded as within the sphere of public law. Juss contends that ‘…Since many matters that were hitherto classified as private will now become public once they are seen as affecting the “civil rights and obligations” of a party, the dividing line between public law and private law will need re-drawing’. 79 As a consequence, many matters that were previously not justiciable under public law will now fall within the scope of Article 6(1) in judicial review applications. 80 This is an indication of the potential of Article 6(1) to impose more stringent procedural safeguards in new and innovative areas, and raises questions as to the appropriateness of judicialisation of administrative decision-making procedures.

However, the domestic courts have not been wholly surprised by the expansion of Article 6’s safeguards to cover administrative decision-making, as the traditional conception of procedural fairness necessitates judicial scrutiny of the legality of basically all governmental decisions affecting the individual. 81 Although protection may be afforded under the common law already, problems have arisen from the fact that ‘Article 6(1) was intended to have a more limited application than a common lawyer would suppose’; 82 thus it was not envisaged that the arguably more structurally rigid requirements of an independent and impartial tribunal contained with its terms would be extended to apply to such a range of decision-making processes. Consequently, the judiciary has expressed dismay at the extent to which there is still potential for the scope of ‘civil rights and obligations’ to be expanded further. 83 In Begum, Lord Millet said that, in developing its jurisprudence extending the scope of Article 6 to cover administrative decision-making, ‘the Strasbourg Court has not proceeded by reference to principle or on policy grounds; instead it has adopted an incremental and to English eyes a disappointingly formalistic approach, making it difficult to know where the line will finally come to be drawn.’ 84

As a result, the courts have had to grapple with the reality that the wide reach of Article 6 requires the imposition of an independent and impartial tribunal in areas in which due process rights have traditionally been more flexible. In applying the strictures of the Article Lord Bingham has stated:

The narrower the interpretation given to “civil rights”, the greater the need to insist on review by a tribunal exercising full powers. Conversely, the more elastic the interpretation given to “civil rights”, the more flexible must be the approach to the requirement of independent and impartial review if the emasculation (by over-judicialisation) of administrative welfare is to be avoided. 85

This has been recognised in numerous cases, with evidence of the courts either seeking to constrain the reach of Article 6 and its applicability in certain areas, or struggling to decide how to apply the requirements of an independent and impartial tribunal to decisions initially made by administrative bodies. 86

The Outer Boundaries of Article 6(1)

The extent to which the ambit of Article 6 has been expanded to encompass a wide range of administrative bodies is demonstrated by the application of these principles to social security provisions. 87 Where the right to social security benefits was once regarded as existing under public law, it is now regarded as a ‘full’ civil right. 88 The significance of this innovation of Article 6 is apparent from the dissenting opinion in Feldbrugge, which pointed out that the phrase ‘civil rights and obligations’ was intended to mean only those rights that were adjudicated upon by the civil courts. 89

With the application of the Article 6 safeguards thus extended, the courts have had to adjust their approach from the common law tradition of according decision-making bodies almost unfettered discretion in this sphere. 90 Craig argues that the courts have drawn a distinction within this field between cases concerning interests analogous to private rights (such as those of a patrimonial nature), and those concerning discretionary regulation and welfare, with only the former engaging Article 6. 91 Indeed, in Feldbrugge, the first case to find that social welfare benefits fell within ‘civil rights and obligations’, the ECtHR reasoned that ‘the right in question was a personal, economic and individual right, a factor that brought it close to the civil sphere.’ 92 Accordingly, citing this authority in Begum, Lord Hoffmann summarised that ‘the most important feature of the right to a social welfare payment was that it is individual, economic and flowing from specific statutory rules.’ 93 Thus a differentiation could be made between adjudication of private rights which require the safeguards of an independent and impartial tribunal, and discretionary schemes of social welfare, ‘where utilitarian considerations could be taken into account when deciding on the regime of administration’. 94 Such an approach therefore constrains the reach of the protections of Article 6 in that it is not held to apply to discretionary benefits.

Furthermore, in Croydon, Baroness Hale discussed the applicability of Article 6, obiter.[98] Her Ladyship considered that, if a ‘civil’ right was of a private nature, the applicant must be able to consider himself the holder of such right. The section of the legislation allegedly conferring the right depended upon ‘an evaluation of some very “soft” criteria rather than specific rules’ and, as consequence, it was ‘difficult to say at what point the applicant may consider himself to be the holder of such a right’. 95 As a result, if this could be considered a ‘civil right’, it lay at the periphery of Article 6(1). 96 Lord Hope, more daringly, determined that, for the purposes of engaging Article 6(1), a public law decision must decide a ‘private right’. 97 Consequently, Stilitz argues that this decision ‘may be seen, at a minimum, as firmly endorsing the House of Lords’ approach in Begum, and perhaps as indicating an increasing willingness to limit the boundaries of Article 6 altogether.’ 98 However, although it may be acceptable that the judiciary is keen to see the scope of Article 6 given limits, and that this necessitates that decisions of a discretionary nature in this area are held to be outwith its reach, it seems pertinent to recognise that the very fact the conferral of the substantive benefit is made on a discretionary basis renders procedural safeguards even more important in this context. 99

This vein of reasoning continued in Ali v Birmingham City Council. 100 There, the Supreme Court stated that when the applicability of Article 6 to claims under statutory schemes for social welfare provision was considered, a distinction could be drawn between those benefits whose substance was defined precisely, and those benefits which were dependent on the exercise of judgment by the relevant authority. Only in the case of the former category could the applicant consider herself the holder of an individual right. Instances of the latter, where it was required that there be a series of evaluative judgments by the authority as to whether the statutory criteria were satisfied, did not amount to a ‘civil right’ under Article 6. 101 Carrying on his line of reasoning from Croydon, Lord Hope also spoke of the necessity of there being an ‘assertable right’ for Article 6(1) to be engaged, and the significance of the ECtHR’s references to a ‘private right’ which is recognisable under domestic law, in Loiseau v France.[106] His Lordship expressly stated that this case was an opportunity to ‘provide a greater degree of certainty into this area of public law’. 102 Stilitz argues that this case ‘represents the first attempt by the Supreme Court to lay down a marker as to where the scope of “civil rights” for the purposes of Article 6(1) must end.’ 103 Furthermore, it appears that the Article 6 ‘onslaught’ on local authority decision-making has been halted, albeit perhaps only temporarily, by this finding. 104

The area of social welfare and discretionary welfare schemes undoubtedly require considerations of efficiency of administration, the democratic status of the elected decision-maker, and the danger that over-judicialisation of such processes poses to their operation, but this does not mean that procedural safeguards should be neglected in this field of decision-making. Craig argues that ‘the fact that the substantive benefit sought by the claimant is discretionary provides no basis for the conclusion that process rights should be inapplicable’. 105 Furthermore, as has been mentioned, the common law has traditionally not left a claimant in a strong position in terms of procedural protection in this sphere. Moreover, under the tests that the domestic courts have formulated, it is arguable that the distinction between a substantive entitlement and a discretionary benefit is problematic in its uncertainty. 106 Thus it appears that, in attempting to constrain the reach of Article 6, the judiciary have limited its protection in an area where it could have been instrumental for the individual.

There have also been instances where the domestic courts have abdicated the responsibility of determining whether Article 6 was applicable altogether, instead deciding the issues on the basis of whether ‘full jurisdiction’ of an appeal court cures the alleged lack of independence and impartiality of the administrative decision-maker. 107 For example, in Begum the House of Lords declined to decide on the matter as to whether there was a civil right for the purposes of Article 6; instead their Lordships determined the issue in terms of compliance with the ‘independent and impartial tribunal’ issue. In bypassing the issue of whether the applicant has a ‘civil right’ for the purposes of Article 6, the domestic courts are therefore able to contain the scope of Article 6, preferring to leave any development in this area up to the ECtHR. This ties in with the principle enunciated in R(on the application of Ullah) v Special Adjudicator – that national courts are under a duty to ‘keep pace’ with Strasbourg jurisprudence as it evolves over time. 108 Interpreting ‘civil rights’ still more broadly than the ECtHR had done ‘would not have been to dilute or weaken the effect of existing Strasbourg case law’. 109 On the contrary, it would have extended the applicability of the safeguards of Article 6 still further, thus risking the emasculation through over-judicialisation of administrative decision-making. The domestic courts appear unwilling to take that step before Strasbourg does.

IV. The Content of Protection Under Article 6(1)

As has been outlined above, the courts in the UK have struggled to apply the requirements of Article 6 and to determine the situations in which it is applicable to administrative decision-making procedures. This chapter will examine the extent to which the judiciary has been receptive to the innovations of Article 6 to substantive procedural protection and the wider questions as to the scope of judicial review that the Article and the HRA raise. In some areas, the courts have been able to expand upon the protection which Article 6 may afford an individual, but in other areas they have seen fit to defer to the executive in order to protect the efficacy and efficiency of decision-making.

Adjudication under the HRA: A Deferential Approach?

Due to the enigmatic wording of s.6 HRA, a court wishing to utilise ‘hard-edged review’ could interpret it this as a duty imposed upon public authorities not to breach a person’s Convention rights, except where the public authority was obliged to do so by primary legislation. 110 Furthermore, since s.6(1) is applied to ‘public authorities’ (both the courts and the executive), this blurs the distinction between appeal and review. 111 The provision does not outline any different standards of review to be applied in either instance. Leigh argues that, if this was indeed the case, ‘the Act would be treated as a legislative mandate to abandon judicial deference to the executive, which could only then be maintained so far as the Convention itself permitted limitations to rights under the proportionality doctrine in the case of qualified rights’. 112 Even if this is not the reality, it certainly could be said that ‘the HRA is indicative of the UK’s constitution moving from being based in practice and convention, to one where the rule of law, in the form of fundamental rights, is the foundational principle.’ 113 This shift in thinking has, furthermore, been reflected in some judicial dicta, with Lord Nicholls declaring that the courts were ‘prepared to depart from a strict and narrow interpretation of the judiciary’s adjudicative role.’ 114

In particular, Article 6, specifically, has been said to have the potential to remodel administrative law throughout the UK. 115 Not only has the test for bias already been modified to conform with the Convention, but there has been extensive debate surrounding the issue of whether  judicial review is sufficient to correct deficiencies in administrative processes when a person’s ‘civil rights and obligations’ are being determined for the purposes of Article 6. Thus the provisions of Article 6 lend themselves to a more rigorous approach being adopted in terms of both the standards of review as well as the structural stringency of the procedural safeguards applied.

However, the UK is a system ‘unaccustomed to “constitutional” adjudication’ of this kind. 116 Traditionally, the role of the Courts in the UK has been seen as being interpreters of the law, rather than legislators. 117 Galligan contends that the deferential position of the courts stems from the fact that in terms of constitutional authority, Parliament should provide for rule-making procedures and, furthermore, courts are unsuited to the task of designing such procedures. 118 Although it has been argued that ‘this common law fiction had been questioned long before the passing of an Act [the HRA] which has had the effect of bringing the judicial role closer to those areas which had been said to be beyond its reach’, 119 some judges have continued to advocate receptiveness to the concept of deference. On the matter of the Human Rights Bill as it was advancing through Parliament, Lord Bingham observed: ‘those who hope for a surge of judicial activism may be disappointed’. 120 Thus it is apparent that there are varying attitudes within commentators and the judiciary as to the appropriateness of a deferential approach to human rights issues after the HRA.

In terms of the approach taken in Article 6 disputes, the broad scope accorded to the meaning of ‘civil right’ has resulted in it being applicable in more situations than was anticipated. With this reality has come the possibility that administrative decision-making may be subject to over-judicialisation, in that the safeguards of an independent and impartial tribunal are required to apply to decisions not traditionally seen as requiring such rigid judicial oversight. Juss observes that, ‘…under the Convention there could be an administrative decision that amounts to a determination of a person’s civil rights and obligations and yet does not satisfy the requirements of the article.’ 121 Furthermore, Sales observes that ‘the ECtHR’s wide view of the application of Article 6 has thus come into conflict with these traditional boundaries between executive and judicial decision-making, and the resulting tension has required the development of a compromise position in the ECtHR’s position’. 122 Therefore the judiciary, domestic and Strasbourg alike, have seen fit to defer to the executive role in some circumstances in terms of allowing that the safeguards of Article 6 are flexible.

Such deference has been developed by the domestic judiciary in a number of key judgments. It has been held that greater deference will be accorded to democratic powers where the subject matter is particularly within their constitutional remit, and greater or less deference will be due depending on whether the subject matter lies within the expertise of the democratic powers or of the courts. 123 In Kebilene, Lord Hope held that national courts should defer, ‘on democratic grounds, to the considered opinion of the elected body or person whose actual decision is said to be incompatible with the Convention’. 124 This would be the case particularly when issues of social and economic policy were raised. 125 Keen argues that, where the requirements of Article 6 are imposed upon an administrative body formulating and making policy decisions, ‘it is clear that, in appropriate cases, a degree of deference will be shown to…[the] other decision-maker.’ 126

Lord Hoffmann explored this concept of deference in Alconbury.[132] In some circumstances, where it was not possible to formulate general rules, and decisions were made on a case-by-case basis, Parliament will delegate decision-making to Ministers or local authorities, ‘thereby preserving the democratic principle’. 127 Recognising the threat of over-judicialisation of administrative procedure in regard to the requirements of Article 6, Lord Hoffmann said that the HRA ‘was no doubt intended to strengthen the rule of law but not to inaugurate the rule of lawyers’. 128 However, there were limits to this concept of deference. Although in some circumstances the courts recognise it is necessary that a public body must make decisions in policy areas, where an individual’s ‘civil right or obligation’ is being determined for the purposes of Article 6, there are issues of the requirements of an independent and impartial tribunal in that determination. 129 Sales argues that Alconbury can ‘claim to be the first major constitutional decision of the House of Lords under the HRA,  addressing as it does the proper areas for decision-making by the executive and the judiciary respectively.’ 130 In holding that it was not unfair for a Minister to have the final say in planning decisions and that the requirements of Article 6 are satisfied by the availability of judicial review, this decision has been described as ‘a landmark display of judicial restraint under the HRA’. 131

Thus Alconbury illustrates the potential of Article 6(1) to raise questions about the relationship between the judiciary and the executive in areas where, under the principles of natural justice, the courts have traditionally adopted a deferential and flexible approach to procedural protection. Galligan argues: ‘Policy-making raises its own issues of procedural fairness to which careful consideration should be given.’ 132 With this in mind, arguably the judiciary is reluctant to give effect to the full, and more rigid, requirements of Article 6(1). In continuing to recognise the more informed views of Parliament in this area, the courts are ensuring that Article 6(1) does not judicialise administrative decision-making beyond the extent already required by the Strasbourg jurisprudence.

In deciding the case in this way, their Lordships established a distinction between policy- and fact-finding in the role of the decision-maker. 133 Lord Hoffmann held that where the question is one of policy or expediency, judicial review is sufficient out of respect for the decision of an administrative authority. 134 Following this, ‘it is only when one comes to findings of fact, or the evaluation of facts…that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.’ 135 Thus, where policy determinations are being made, incompatibility with Article 6 can be corrected though access to a court of ‘full jurisdiction’. 136 Leigh argues that ‘manipulation of this category gives considerable scope to the courts for widening or narrowing the application of judicial review.’ 137 Furthermore, Juss observes that: ‘Alconbury demonstrates that matters of national policy make it difficult to apply the strictures of Article 6 with full vigour.’ 138 From this, it is apparent that such a distinction between policy and fact-finding has allowed the judiciary to control, to some extent, the potential impact of Article 6 upon administrative decision-making and the scope of review under the HRA.

The Policy/Fact-Finding Distinction

Following Alconbury, the policy/fact-finding distinction has been important in determining whether the right of appeal to a body with full jurisdiction renders the overall procedure Article 6 compliant. It has continued to be relevant in planning cases but also in cases concerning social security benefits. In terms of planning, some cases have concentrated on the distinction between the two categories. 139  Friends Provident concerned the challenge to a grant of planning permission by the local council. 140 Although it was established that the council was independent for the purposes of Article 6, it was argued that, for the procedure as a whole to comply with the Convention, the Secretary of State should both call in the planning application and set up a public inquiry headed by an inspector. It was recognised that the judicial review of a decision made by a local authority might not meet the requirements of Article 6, where there were contested issues of fact. 141 However, since the main issue in the proceedings was the impact assessment accompanying the proposed building work, this was principally a matter of ‘local planning judgment, policy and expediency.’ 142 Thus this was not the sort of fact-finding investigation requiring the safeguards of a public inquiry in order to comply with Article 6. Craig argues that the decisions of both Alconbury and Friends Provident were ‘reached on the basis of constitutional arguments concerning the proper locus of policy-making in a democratic society’. 143 However, although a deferential approach is perhaps justified in this area of decision-making, the use of the policy/fact-finding distinction to limit the reach of the Article 6 safeguards debatably allows decisions to turn on issues of expediency of administration and implementation of policy, to the detriment of the individual’s Convention rights.

This issue has also arisen in Scotland. In County Properties v Scottish Ministers, the petitioners sought planning permission which required that Historic Scotland give its informal views on the application. 144 The application was called in by the Scottish Ministers, who had appointed a reporter. It was argued that neither the respondents nor the reporter were an independent and impartial tribunal. The Inner House of the Court of Session overturned the decision of the Lord Ordinary in the Outer House by following Alconbury and holding that while the reporter was not, on his own, an ‘independent and impartial tribunal’ for the purposes of Article 6(1), his compliance with the safeguards of the inquiry rules and the requirement of producing a reasoned report was subject to the control of the court. Because the Alconbury set of appeals were being dealt with in the English courts at the same time, and the decision of the Inner House followed that decision, Himsworth argues: ‘the role of the Inner House appeared to have been entirely overtaken by the resolution of the English appeal.’ 145 Thus, as reported by the Scottish Government, the approach of the superior Scottish courts has reflected that taken by both Strasbourg and the House of Lords (now Supreme Court) regarding the availability of appeal to a court with full jurisdiction curing any incompatibility of a decision made at first instance with Article 6(1). 146

The distinction between policy- and fact-finding was raised in Begum, which highlighted both the difficulties in applying such a differentiation and the debate surrounding the scope of review on appeal under Article 6(1). 147 This case concerned the offer of housing by a local authority to the applicant, who refused it. The refusal was reviewed by an officer of the local authority, who found it to be unreasonable. It was argued that the officer was not an independent and impartial tribunal for the purposes of Article 6(1). The proceedings turned on whether the right of appeal of the decision of the reviewing officer to the county court satisfied the requirements of the Article, despite the fact that it could not make fresh findings of fact. Thus, according to Alconbury, for such a procedure to be compliant with Article 6(1), either the appellate body was required to have ‘full jurisdiction’ in fact-finding, or the decision at first instance should be subject to safeguards to render it practically judicial. 148 Despite this, Lord Hoffmann did not follow his judgment in Alconbury. Instead, his Lordship stated that it would be ‘inappropriate’ to demand that findings of fact should be made by a body independent of the authority responsible for the administration of the homelessness scheme, 149 but that the overall procedure did need to be ‘lawful and fair’. 150 This entailed, according to his Lordship, that the intensity of review adopted by the appellate body ‘must depend upon what one considers to be most consistent with the statutory scheme’. 151 Moreover, Article 6(1) did not mandate ‘a more intensive approach to judicial review questions of fact’. 152

Thus from Begum it is apparent that the policy/fact-finding distinction ‘is not necessarily a neat and happy one’. 153 Despite the decision in Alconbury that deficiencies at first instance decision-making may be corrected by way of appeal to a body with ‘full jurisdiction’ (that is, jurisdiction to review the facts), the decision in Begum provides that ‘even where there are factual disputes Article 6 might not necessarily require that these should be determined by an independent tribunal.’ 154 Therefore the distinction between policy and fact-finding, as utilised by the courts in order to ensure that the requirements of Article 6(1) do not over-judicialise decision-making processes, can result in legal uncertainty. Furthermore, Begum illustrates that the courts are strongly resisting the threat of Article 6 in requiring a more intense form of judicial review of administrative decision-making in the policy-making sphere.

However, the concept that the availability of judicial review is sufficient to render the decision-making proceedings compatible with Article 6(1) overall has been called into question by the ECtHR since Begum. The Strasbourg Court held, without overruling Begum, that a distinction could be made between appeal bodies deciding ‘non-specialist’ issues of fact, and specialist issues, when determining the overall procedure’s compliance with Article 6(1). 155 As a consequence of this decision, the details of the administrative decision-making procedure itself must be scrutinised in order to determine whether, overall, it ensures independence and impartiality. 156 Reid observes that ‘although many administrative procedures have survived challenges under the Convention since the HRA took effect, there may be renewed challenges in areas that are argued to be closer to the Tsfayo position than to the standard planning cases.’ 157 Thus arguably Article 6(1) has brought greater potential for litigation in administrative law and thus negatively affects the efficacy and efficiency of the administration decision-making process. Furthermore, although Begum has not been undermined by Tsfayo,[164] the distinction drawn by the ECtHR has ‘wedged a crack’ between ‘specialist’ or ‘simple’ issues of fact. 158 Such a sub-distinction, already within an overarching category heading, will further add to the concerns that Article 6(1) gives rise to ‘casuistic’ distinctions. 159

Overall, in administrative decision-making in this sphere, the archetypal situation is that a public body has had conferred upon it a discretionary power, which involves formulating policy determinations in instances where a ‘civil right’ of an applicant is engaged. 160 Such a decision-maker will probably not be independent. 161 But, as shown by Lord Hoffmann’s dicta in Alconbury, this is due to the fact that Parliament has chosen that such matters be determined by a democratically accountable body: ‘It is the exercise of a power delegated by the people as a whole to decide what the public interest requires.’ 162 This is a clear indication that the courts do not wish to become embroiled in political decisions just because the invasive nature of Article 6’s scope and requirements require that they adjudicate on administrative decision-making.

The Requirements of an Independent and Impartial Tribunal

Article 6(1) has also sparked debate as to the extent to which the decision-making procedures and structures in the UK secure the right to an ‘independent and impartial’ tribunal. In doing so, it has also required that the judiciary reconsider its own role in this framework. 163 Letts argues that ‘the provisions of Article 6(1) have opened the door to the possibility of more radical investigations of the institutional independence of tribunals than were feasible through use of common law rules of natural justice alone.’ 164 In imposing the requirement that decisions determining an applicant’s civil rights for the purposes of Article 6(1) be made by not only an impartial but also an institutionally independent tribunal, judicial independence has arguably been afforded a new status within the constitution. 165

Although the concepts of independence and impartiality are interrelated, there are important differences between them. The considerations the ECtHR takes into account when establishing independence are not encompassed in the common law conception of the rule against bias. 166 Thus Juss states: ‘Expansive as these common law principles are in their scope and application, European human rights law still goes further in concentrating on the entire breadth of interests that a decision-maker may have outside his judicial function.’ 167 While the common law highlights the importance that judges be independent from the parties to a case, it does not extend to guaranteeing that the decision-maker is also independent in an institutional sense. Masterman argues that ‘domestic provisions for the independence of the courts have not – by contrast with…Article 6(1) – placed any consistent emphasis on the more abstract need for courts to be structurally independent of other branches of government.’ 168

This has been the subject of litigation in the Scottish courts. Starrs v Ruxton concerned a challenge to the independence and impartiality of temporary sheriffs in Scotland, lodged as a devolution issue under the Scotland Act 1998. 169 At the time, temporary sheriffs could be appointed where a permanent full-time sheriff was unable to perform his duties, where there was a vacancy, or whether the Secretary of State considered it was expedient in the administration of justice. 170 Furthermore, there was no security of tenure for a temporary sheriff as such an appointment could be recalled at any time. 171 It was argued that these arrangements were incompatible with the right to a fair trial under Article 6(1). The key principles from the ECtHR jurisprudence were that justice had to be seen to be done and thus there must be ‘sufficient guarantees to exclude any legitimate doubt in this respect’. 172 It was held that under the existing arrangements there was a lack of, inter alia, security of tenure, financial security and statutory safeguards in terms of recall of their appointment. 173 Thus, as an institution, temporary sheriffs did not constitute an independent and impartial tribunal for the purposes of Article 6(1). 174

This reasoning suggests that the Court is ‘employing techniques and concepts commonplace in the comparative human rights jurisprudence’ by engaging in a balancing act, weighing up the relevant factors. 175 This, perhaps, is an indication that the Scottish Courts are willing to embrace the protection brought by Article 6(1) in comparison with traditional protection under the common law. In explaining the influence of the Convention on the mechanisms for ensuring the independence of the judiciary, Lord Reed stated:

Although the Convention protects rights which reflect democratic values and underpin democratic institutions, the Convention guarantees the protection of those rights through legal processes, rather than political processes… It would be inconsistent with the whole approach of the Convention if the independence of the courts itself rested upon convention rather than law. 176

Thus, despite the protection under common law for independence of the decision-maker from parties to a case, this dictum acknowledged that ‘the notion of judicial independence at the apex of the domestic structure was heavily reliant on both convention and understanding.’ 177 As a consequence, Article 6(1) has resulted in recognition of the need for institutional independence, to avoid perceptions of bias, as well as ensuring structural autonomy. 178

Partly as a consequence of this and other rulings, 179 ‘there has been a notable trend towards the formalisation of the relationship between the judiciary and other branches of government’. 180 Accordingly, to ensure compliance with Article 6(1), both the Scottish and Westminster Parliaments have passed legislation to ensure the institutional independence of the judiciary. 181 This leaves no doubt as to the innovation of Article 6(1) in this area: as a result of its provisions and the ECtHR jurisprudence, ‘the constitutional position of the judiciary has come under increasing scrutiny’ 182 and, furthermore, the institutions of the judiciary in both Scotland and England have been modified to comply with Article 6(1).

Evaluation of the Approach to Protecting Procedural Fairness Under Article 6(1)

The policy/fact-finding distinction, within the concept of the right of appeal to a body with full jurisdiction ‘curing’ the incompatibility of the first decision within Article 6(1), is problematic. Use of this differentiation may stem from judicial concerns that one of the effects of Article 6(1), if it is allowed to develop unchecked, will be to over-judicialise administrative processes where they determine an individual’s ‘civil’ rights and obligations. Although in certain areas of administrative decision-making, such as policy implementation, regard should be had to the democratic accountability of the policy-maker, this does not warrant, nor justify, the utilisation of a distinction which does not provide for a principled approach to the application of the safeguards of Article 6(1). Craig argues that ‘the courts have applied different criteria when deciding on this issue, or at the very least they have given prominence to different considerations.’ 183

Furthermore, it is unclear whether this distinction is relevant anymore. As has been established, the judgment in Begum advocated a ‘whole scheme’ approach, where, regardless of whether the appeal body could establish fresh findings of fact, the test should be whether the procedure overall was ‘lawful and fair’. 184 But, confusingly, Strasbourg has not overruled Begum: instead, it has distinguished it in recent case law and in doing so has introduced a further differentiation within the policy/fact-finding divide: that of ‘non-specialist’ and ‘specialist’ findings of fact. 185 The Scottish Government has already noted the undesirability of the use of the policy/fact-finding differentiation: ‘it would be better to improve the standards of initial decision-making to ensure that procedures are fair in all the circumstances’. 186

Criticism can also be extended to the approach of the domestic judiciary in determining the initial applicability of Article 6(1). It appears that, after Ali, Article 6(1) is not applicable to discretionary welfare schemes. However, such a limitation may have simply been a bold attempt to put an end to Article 6’s expansion rather than a consideration to what is best, in terms of availability of procedural safeguards, for the applicant. Indeed, Baker argues, ‘By throwing its weight behind the applicability issue…the Supreme Court…appears to have chosen to play a game of high stakes with the Strasbourg Court’. 187

Perhaps the reason for the introduction of conceptually difficult categorisations originates from the fact that, whereas the courts have been able to develop the principles of natural justice to be adaptable and complementary to the UK’s unique constitutional framework, particularly where administrative law is concerned, Article 6(1) has come as an ill-fitting ready-made paradigm. Indeed, Lord Hoffmann, citing the dissenting opinion in Konig,[195]  acknowledges the challenges that Article 6(1) brings in Alconbury: ‘Judge Matscher delivered a powerful dissent, saying that it was unwise to try to apply the pure judicial model of Article 6(1) to the decisions of administrative or domestic tribunals… If Article 6(1) was going to be applied to administrative law, it would have to be substantially modified.’ 188  It appears the domestic courts are still grappling with this reality in ensuring compliance with Article 6(1) is met.

VI. Concluding Remarks

Overall, the innovations of Article 6(1) have had a resounding impact on the landscape of administrative law in the UK, despite the efforts of the judiciary to constrain its reach where they deem it has departed from its appropriate function. The Article has extended procedural protection to novel areas of administrative decision-making, most notably social welfare schemes. Its expansive interpretation has required that the domestic judiciary relax the constraints of an ‘independent and impartial’ tribunal in areas where, traditionally, the democratically elected body has been deemed better placed to make decisions than the courts. In allowing for appeal rights to cure incompatibility with Article 6(1) at first instance, a distinction between ‘policy’ and ‘fact’ finding has been established; this in turn allows judges to manipulate the reach of the Article’s protections and, more often than not, defer to the executive. As a result, the case law in the areas of planning and social housing has produced some questionable principles, unsatisfactory results and ambiguous precedent.

However, these outcomes can be juxtaposed with the effect Article 6(1) has had on the UK in terms of the requirement of an independent and impartial tribunal. Early on in the life of the HRA, Article 6(1) and the ECtHR jurisprudence facilitated the adjustment of the test of bias in Britain to be Convention-compliant. Furthermore, it has transformed the structural framework of the institution of the judiciary by requiring that the ‘independence’ safeguard be based on organisational autonomy rather than secured merely through convention.

Related to these specific innovations is the question of sufficiency of scope of review upon appeal when Article 6 is engaged. There have been issues as to whether the existing scope is sufficiently invasive so as to secure compliance with Article 6(1) or whether ‘merits’ review is inevitable. The threat Article 6 poses to this area has been recognised by the judiciary in the UK. In prominent judgments they have defended the existing scope and thus have fought off the need to adjust the review model.

In conclusion, in light of the developing ‘human rights culture’ within the Contracting Parties to the ECHR, it is questionable to what extent the influences of Article 6 can be staved off for much longer. But bearing in mind the general approach of the judiciary in the UK to the stricter requirements and pervasive scope of Article 6(1), it is likely they will continue to fight against its expansion into other areas of administrative decision-making.

VI. Bibliography

Books

Bradley, A.W. & Ewing, K.D., Constitutional and Administrative Law, 13th ed., Pearson Education Ltd (2003)

Bradley, A.W., ‘The UK Before the Strasbourg Court’, in Finnie, W., Himsworth, C. & Walker, N. (eds.), Edinburgh Essays in Public Law, Edinburgh University Press (1991)

Craig, P., Administrative Law, Sixth Edition, Thomson Publishing (2008)

Endicott, T., Administrative Law, Oxford Publishing (2011)

Feldman, D., ‘Convention Rights and Substantive Ultra Vires’, in Forsyth, C. (ed.), Judicial Review and the Constitution, Oxford Publishing (2000)

Galligan, D.J., Due Process and Fair Procedure, Clarendon Press, Oxford (1996)

Harris, D. ‘The Scope of the Right to a Fair Trial Guarantee in Non-Criminal Cases in the ECHR’, in Morison, J., McEvoy  K. & Anthony, G. (eds.), Judges, Transition and Human Rights, Oxford University Press (2007)

Hickman, T., Public Law After the Human Rights Act, Hart Publishing (2010)

Jacob, J.M., Civil Justice in the Age of Human Rights, Ashgate (2007)

Keen, D. ‘Principles of Deference under the Human Rights Act’, in Fenwick, H., Phillipson G. & Masterman R. (eds.), Judicial Reasoning Under the Human Rights Act, Cambridge (2007)

Letts, P., ‘Natural Justice and Tribunals (UK)’, in Creyke, R., (ed.), Tribunals in the Common Law World, Federation Press (2008)

Leyland, P. & Anthony, G., Textbook on Administrative Law, 6th ed., Oxford University Press (2009)

Loveland, I., Constitutional Law, Administrative Law and Human Rights: A Critical Introduction, Oxford University Press (2009)

Masterman, R., ‘The Status of Strasbourg Jurisprudence in Domestic Law’, in Fenwick, H., Phillipson, G.  & Masterman, R. (eds.), Judicial Reasoning under the Human Rights Act, Cambridge (2007)

Masterman, R., The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the UK, Cambridge University Press (2010)

O’Neill, A., ‘Parliamentary Sovereignty and the Judicial Review of Legislation’, in McHarg, A. & Mullen, T. (eds.), Public Law in Scotland, Avizandum Publishing, Edinburgh (2006)

Reed, R. & Murdoch, J., A Guide to Human Rights Law in Scotland, Tottel Publishing (2008)

Tierney, S.,‘Constitutionalising the Role of the Judge’, in Human Rights and Scots Law, Boyle, A.E., Himsworth, C., Andrea, L. & MacQueen, H. (eds.), Hart Publishing (2002)

Academic Articles

Anderson, G., ‘Using Human Rights in Scottish Courts’, ELR Human Rights Survey 2000: 3-17

Baker, C. ‘Tomlinson: A Supreme Case of Clutching at Straws in the Wind: Part 1’, Journal of Housing Law 2010, 13(5): 76-82

Baker, C. ‘Tomlinson: A Supreme Case of Clutching at Straws in the Wind: Part 2’, Journal of Housing Law 2010, 13(6): 101-106

Lord Bingham of Cornhill, ‘Incorporation of the ECHR: The Opportunity and the Challenge’, [1998] 2 Jersey Law Review 257

Blair, S. & Martin, S. ‘Judicial Review Twenty Years On – Where are we now?’, Scots Law Times 2005, (31): 173-177

Craig, P., ‘Perspectives on Process: Common Law, Statutory and Political’, Public Law 2010, Apr: 275-296

Craig, P., ‘The Common Law, Shared Power and Judicial Review’, Oxford Journal of Legal Studies 2004, 24(2): 237-257

Craig, P., ‘The Courts, the HRA and Judicial Review’, 117 Law Quarterly Review 2001 (2001) 117, 589

Craig, P., ‘The Human Rights Act, Article 6 and Procedural Rights’, Public Law, 2003, Win: 753-773

Edwards, R.A., ‘Judicial Deference Under the Human Rights Act’, Modern Law Review 2002, 65(6): 859-882

Elliott, M., ‘Human Rights Act 1998 and the Standard of Substantive Review’, Cambridge Law Journal 2001, 60(2): 301-336

Harrison, J., ‘Judging the Judges: the New Scheme of Judicial Conduct and Discipline in Scotland’, Edinburgh Law Review 2009, 13(3): 427-444

Himsworth, C., ‘Planning Rights Convergence: A Note on County Properties and Alconbury’, ELR (2003) 6: 253-258

Juss, S. S., ‘Constitutionalising Rights Without a Constitution: the British Experience Under Article 6 of HRA 1998’, Statute Law Review 2006, 27(1): 29-60

O’Neill, A., ‘The European Convention and the Independence of the Judiciary – the Scottish Experience’, Modern Law Review 2000, 63(3): 429-441

Tierney, S., ‘Constitutionalising the Role of the Judge: Scotland and the New Order’ Edinburgh Law Review 2001, 5(1): 49-72

Tierney, S., ‘Human Rights and Temporary Sheriffs’, Edinburgh Law Review 2000, 4: 223-228

Internet Resources

McHarg, A. ‘Public Law, Private Law and the Distinctiveness of Scots Judicial Review’, http://ukconstitutionallaw.org/2012/01/20/aileen-mcharg-public-law-private-law-and-the-distinctiveness-of-scots-judicial-review/, January 20 2012

Sales, P., ‘The Human Rights Act: One Year On: The Domestic Art.6 Jurisprudence’, Administrative Bar Association, http://www.adminlaw.org.uk/docs/PhillipSales – 2 October 2001

Stilitz, D.,  http://www.11kbw.com/articles/docs/HumanRightsDanStiltz.pdf

Sutherland, R.,  ‘Introduction to Judicial Review in Scotland’, 2003, www.jonathanmitchel.info/uploads/judicialreview.pdf

Scottish Government Reports

‘The Use of Human Rights Legislation in the Scottish Courts’, 04 November 2004, found at http://www.scotland.gov.uk/publications/2004/11/20181/45877, last accessed 05/05/12

Case Law

UK Cases

A.G. of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629

Ali v Birmingham City Council [2010] UKSC 3

Begum v Tower Hamlets LBC [2003] 2 A.C. 430

Board of Education v Rice [1911] AC 179

Brown v Stott [2001] 2 WLR 817

Cooper v Wandsworth Board of Works (1863) 14 C.B. (N.S.) 180

County Properties 2000 SLT 965

Dawkins v Antrobus (1881) L.R. 17 Ch. D 615

Dimes v Grand Junction Canal Co Proprietors (1852) 3 HLC 759

In re Medicaments and Related Classes of Goods (No.2) [2001] 1 W.L.R. 700

In re Spectrum Plus Ltd (in liquidation) [2005] 2 AC 280

International Transport Roth GmbH v SSHD [2002] 3 WLR 344

R v Director of Public Prosecutions (ex p. Kebilene) (1999) 28 E.H.R.R CD1

Metropolitan Properties (FGC) Ltd v Lannon [1969] 1 Q.B. 577

Porter v Magill [2002] 2 A.C. 357

R v Gough [1993] A.C. 646

R v Lyons [2003] 1 AC 976

R v Sussex Justices ex p. McCarthy [1924] 1 K.B. 259

R (Alconbury Developments) v Secretary of State for the Environment, Transport and the Regions [2003] 2 A.C. 295

R(on the app of Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 820

R.(on the application of Bewry) v Norwich City Council [2002] HRLR 2

R.(on the application of McLellan) v Bracknell Forest BC [2002] Q.B. 1129

R(on the application of Ullah) v Special Adjudicator [2004] 2 AC 323

Ridge v Baldwin [1864] AC 40

Starrs v Ruxton 2000 JC 208

West v Secretary of State for Scotland 1992 SC 385

ECtHR Cases

Albert and Le Compte v Belgium (1991) 13 E.H.R.R. 415

Benthem v Netherlands (1985) A 97

Bryan v UK (1996) 21 E.H.R.R. 342

Delcourt v Belgium (1970) A 11

Findlay v UK (1997) 24 EHRR 221

Golder v UK (1975) 1 E.H.R.R. 524

Kaplan v UK (1994) 76 ADR 90

Kingsley v UK (Judgment of 7 November 2000)

McGonnell v UK (2000) 30 E.H.R.R. 289

Ringeisen v Austria (1979-80) 1 E.H.R.R. 513

Salesi v Italy (1993) 26 E.H.R.R. 187

Sporrong and Lonroth v Sweden (1982) A 52

Tsfayo v UK (60860/00) (2009) 48 EHRR 18

Legislation

Constitutional Reform Act 2005

Human Rights Act 1998

Judiciary and Courts (Scotland) Act 2008

Scotland Act 1998

Sheriff Court (Scotland) Act 1971

Town and Country Planning (S) Act 1997

International Treaties

European Convention for the Protection of Human Rights and Fundamental Freedoms


Notes:

  1. S.6(1) HRA.
  2. S.Juss, ‘Constitutionalising Rights Without a Constitution: the British Experience Under Article 6 of the Human Rights Act 1998’, Statute Law Review 2006, 27(1), 30.
  3. P.Leyland & G.Anthony, Textbook on Administrative Law, 6th edn., (Oxford, 2009), 183.
  4. A.W.Bradley & K.D.Ewing, Constitutional and Administrative Law, 13th edn., (Pearson, 2003), 712.
  5. European Convention of Human Rights and Fundamental Freedoms.
  6. A.W.Bradley, ‘The UK Before the Strasbourg Court’, in W.Finnie, C.Himsworth & N.Walker (eds.), Edinburgh Essays in Public Law, (Edinburgh, 1991), 202.
  7. Ibid.
  8. Juss, ‘Constitutionalising Rights Without a Constitution’, 31.
  9. P.Craig, Administrative Law, 6th edn., (Thomson, 2008), 371
  10. Ridge v Baldwin [1964] AC 40
  11. P.Craig, ‘The Common Law, Shared Power and Judicial Review’, OJLS 2004, 24(2), 247
  12. P.Craig, ‘The Human Rights Act, Article 6 and Procedural Rights’, PL 2003, Win, 753
  13. Cooper v Wandsworth Board of Works (1863) 14 C.B. (N.S.) 180
  14. P.Craig, ‘Perspectives on Process: Common Law, Statutory and Political’, Public Law 2010, Apr, 280
  15. Dawkins v Antrobus (1881) L.R. 17 Ch. D 615
  16. A.G. of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629
  17. Ibid., 378
  18. Ibid.
  19. Board of Education v Rice [1911] AC 179
  20. Craig, Administrative Law, 378
  21. Ibid., 414
  22. Craig, ‘Perspectives on Process’, 296
  23. Dimes v Grand Junction Canal Co Proprietors (1852) 3 HLC 759
  24. R v Sussex Justices ex p. McCarthy [1924] 1 K.B. 259, p.259, per Lord Hewart C.J.
  25. Metropolitan Properties (FGC) Ltd v Lannon [1969] 1 Q.B. 577, 598-600, 606
  26. R v Gough [1993] A.C. 646
  27. Craig, Administrative Law, 422
  28. Ibid, paras.102-103
  29. In re Medicaments and Related Classes of Goods (No.2) [2001] 1 W.L.R. 700, para.35
  30. Craig, Administrative Law, 435
  31. Juss, ‘Constitutionalising Rights Without a Constitution’,46
  32. Juss, ‘Constitutionalising Rights Without a Constitution’,46
  33. Para.29
  34. Craig, Administrative Law, 436, n.119
  35. Juss, ‘Constitutionalising Rights Without a Constitution’,46
  36. Delcourt v Belgium (1970) A 11, para.25
  37. R.Reed & J.Murdoch, A Guide to Human Rights Law in Scotland, (Tottel, 2008), 407
  38. Golder v UK (1975) 1 E.H.R.R. 524 at 536
  39. D.Harris, ‘The Scope of the Right to a Fair Trial Guarantee in Non-Criminal Cases in the ECHR’, in J. Morison, K.McEvoy & G.Anthony (eds.), Judges, Transition and Human Rights, (Oxford, 2007), 57
  40. Ibid., 55
  41. Juss, ‘Constitutionalising Rights Without a Constitution’,42
  42. Ringeisen v Austria (1979-80) 1 E.H.R.R. 513
  43. Craig, ‘The HRA, Art.6 and Procedural Rights’,753
  44. Ibid.
  45. Benthem v Netherlands (1985) A 97, para.36
  46. Sporrong and Lonroth v Sweden (1982) A 52, para.79
  47. Salesi v Italy (1993) 26 E.H.R.R. 187
  48. Reed & Murdoch, Human Rights and Scots Law, 420
  49. Bryan v UK (1996) 21 E.H.R.R. 342
  50. (1979-80) 1 E.H.R.R. 513
  51. Findlay v UK (1997) 24 EHRR 221,para.73
  52. Albert and Le Compte v Belgium (1991) 13 E.H.R.R. 415
  53. Craig, ‘The HRA, Art.6 and Procedural Rights’,761
  54. Kingsley v UK, Judgment 7 November 2000,para.58
  55. Kaplan v UK (1994) 76 ADR 90
  56. Craig ‘The HRA, Art.6 and Procedural Rights’,761
  57. D.Feldman, ‘Convention Rights and Substantive Ultra Vires’, in C.Forsyth (ed.), Judicial Review and the Constitution, (Oxford 2000), 263
  58. G.Anderson, ‘Using Human Rights Law in Scottish Courts’, ELR, Human Rights Survey 2000, 25: 10
  59. Feldman, ‘Convention Rights and Substantive Ultra Vires’, 263
  60. Ibid.
  61. Ibid.
  62. Leyland & Anthony, Textbook on Administrative Law, 226
  63. R v Lyons [2003] 1 AC 976 per Lord Bingham,para.13
  64. Anderson, ‘Using Human Rights Law in Scottish Courts’, 3
  65. O’Reilly v Mackman [1983] 2 AC 237.
  66. 1992 S.L.T. 636, p.650
  67. Ibid.
  68. A.McHarg, ‘Public Law, Private Law and the Distinctiveness of Scots Judicial Review’, http://ukconstitutionallaw.org/2012/01/20/aileen-mcharg-public-law-private-law-and-the-distinctiveness-of-scots-judicial-review/, January 20 2012, accessed on 12/03/12
  69. Leyland & Anthony, Textbook on Administrative Law, 229
  70. Ibid.
  71. Ibid.
  72. A.McHarg ‘Border Disputes: the Scope and Purposes of Judicial Review’, in A. McHarg & T. Mullen (eds.), Public Law in Scotland, (Edinburgh, 2006), 235
  73. Scottish Government Report, ‘The Use of Human Rights Legislation in the Scottish Courts’, 04 November 2004, found at http://www.scotland.gov.uk/publications/2004/11/20181/45877, last accessed 05/05/12
  74. Craig, ‘The HRA, Art.6 and Procedural Rights’,757
  75. Ringeisen v Austria  (1979-80) 1 E.H.R.R. 513
  76. Ferazzini v Italy (2002) 34 E.H.R.R. 45.
  77. Craig, ‘The HRA, Art.6 and Procedural Rights,756
  78. Ibid.
  79. Juss, ‘Constitutionalising Rights Without a Constitution’, 59
  80. Ibid., 42
  81. Begum v Tower Hamlets LBC [2003] 2 A.C. 430 per Lord Hoffmann, para.35, (hereafter Begum).
  82. Ibid.,para.85
  83. Ali v Birmingham City Council, [2010] 2 A.C. 39 per Lord Collins, para.60 (hereafter  Ali)
  84. Para.87
  85. Begum,para.5
  86. Craig, ‘The HRA, Art.6 and Procedural Rights’,754
  87. Harris, ‘The Scope of the Right to a Fair Trial Guarantee’, 56
  88. Salesi v Italy (1993) 26 E.H.R.R. 187
  89. Ali, per Lord Hope,para.35
  90. Reed & Murdoch, Human Rights and Scots Law, 420
  91. Craig, ‘The HRA, Art.6 and Procedural Rights’,768
  92. Feldbrugge v the Netherlands 8 EHRR 425,para.37
  93. Para.65
  94. Craig, ‘The HRA, Art.6 and Procedural Rights’, 768
  95. Ibid., para.40
  96. Ibid.
  97. Croydon, para.62
  98. Daniel Stilitz QC, ‘The Human Rights Act: 10 Years On’, October 2010, http://www.11kbw.com/articles/docs/HumanRightsDanStiltz.pdf., para.28, last accessed 29/2/12
  99. Craig, ‘The HRA, Art.6 and Procedural Rights’,758
  100. [2010] 2 A.C. 39
  101. Para.49
  102. Para.6
  103. Stilitz (2010), para.40
  104. Ibid.
  105. Craig, ‘The HRA, Art.6 and Procedural Rights’,758
  106. Ibid.
  107. See Chapter IV below.
  108. [2004] 2 AC 323, para.20
  109. Ali, para.38
  110. I. Leigh, ‘Standard of Judicial Review after the Human Rights Act’, in H. Fenwick, G. Phillipson & R. Masterman, Judicial Reasoning Under the Human Rights Act, (Cambridge, 2007), 179
  111. Ibid., 180
  112. Ibid., 179-180
  113. Anderson, ‘Using Human Rights Law in Scottish Courts’, 10
  114. In re Spectrum Plus Ltd (in liquidation) [2005] 2 AC 280 per Lord Nicholls, at para.16
  115. T. Endicott, Administrative Law, (Oxford, 2011), 89
  116. R. Masterman, ‘The Status of Strasbourg Jurisprudence in Domestic Law’, in Judicial Reasoning Under the Human Rights Act, (Cambridge, 2007), 85
  117. Ibid.
  118. D. Galligan, Due Process and Fair Procedure, (Oxford, 1996), 489
  119. Masterman , ‘The Status of Strasbourg Jurisprudence in Domestic Law’, 85
  120. Lord Bingham, ‘Incorporation of the ECHR: The Opportunity and the Challenge’, [1998] 2 Jersey Law Review 257, 269-270
  121. Juss, ‘Constitutionalising Rights Without a Constitution’, 32
  122. P.Sales, ‘The Human Rights Act: One Year On: The Domestic Art.6 Jurisprudence’, http://www.adminlaw.org.uk/docs/PhillipSales – 2 October 2001, p.5, last accessed 03/03/12
  123. International Transport Roth GmbH v SSHD [2002] 3 WLR 344, paras.376-8
  124. R v DPP (ex p. Kebilene) (1999) 28 E.H.R.R CD1, p.34
  125. Ibid.
  126. Sir D. Keen, ‘Principles of Deference under the Human Rights Act’, in Judicial Reasoning Under the Human Rights Act, (Cambridge, 2007), 207
  127. P. Craig, ‘The Courts, the Human Rights Act and Judicial Review’, 117 LQR 2001 (2001), 591
  128. Para.129
  129. Paras.69-73
  130. Sales, ‘The HRA: One Year On’, 6
  131. Endicott, Administrative Law, 90
  132. Galligan, Due Process and Fair Procedure, 488
  133. Paras.110 – 117; para189
  134. Para.117
  135. Para.117
  136. Leigh, ‘Standard of Judicial Review after the HRA’, 191-192
  137. Ibid.
  138. Juss, ‘Constitutionalising Rights Without a Constitution’, 34
  139. Craig, ‘The HRA, Art.6 and Procedural Rights’,764
  140. R(on the application of Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 820
  141. Per Forbes J, para.93
  142. Para.94
  143. Craig, ‘The Common Law, Shared Power and Judicial Review’, 248
  144. OH 2000 SLT 965; IH 2002 SC 79
  145. C. Himsworth, ‘Planning Rights Convergence: A Note on County Properties and Alconbury’, ELR 200, 6: 254
  146. Scottish Government Report 2004, para.3.25
  147. [2003] 2 A.C. 430
  148. Para.37
  149. Para.46
  150. Para.47
  151. Para.49
  152. Para.50
  153. Juss, ‘Constitutionalising Rights Without a Constitution’, 35
  154. Craig, ‘The HRA, Art.6 and Procedural Rights’, 767
  155. Tsfayo v UK (2009) 48 EHRR 18, para.46
  156. C. Reid, ‘Judicial-Review-Not-Always-a-Guarantee-of-a-Fair-Trial’, Scottish Planning & Environmental Law 2007, 119, 14
  157. Ibid.
  158. C. Baker, ‘Tomlinson:-A-Supreme-Case-of-Clutching-at-Straws-in-the-Wind:-Part 2’, Journal of Housing Law 2010, 13(6): 105
  159. Craig,-‘The-HRA,-Art.6-and-Procedural Rights’,-758
  160. Ibid., 767
  161. Ibid.
  162. Para.74
  163. S. Tierney,-‘Constitutionalising-the-Role-of-the-Judge:-Scotland-and-the-New-Order’ ELR 2001, 5(1):50-51
  164. P. Letts, ‘Natural-Justice-and-Tribunals-(UK)’, in R. Creyke (ed.), Tribunals in the Common Law World, (Federation, 2008), 49
  165. R. Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the UK, (Cambridge, 2010), 210
  166. See-Part-II,-above
  167. Juss,-‘Constitutionalising-Rights-Without-a-Constitution’,-31-32
  168. Masterman, The Separation of Powers in the Contemporary Constitution, 210
  169. 2000 JC 208
  170. S.11(2)-Sheriff-Court-(Scotland)-Act-1971
  171. S.11(4)-Sheriff-Court-(Scotland)-Act-1971
  172. Findlay v UK (1997) 24 EHRR 221, para.73
  173. A. O’Neill,-‘The-European-Convention-and-the-Independence-of-the-Judiciary – the-Scottish Experience’, MLR 2000, 63(3), 433
  174. Ibid.
  175. Anderson, ‘Using Human Rights Law in Scottish Courts’,10-11
  176. Starrs v Ruxton 2000 JC 208, 250 (Lord Reed)
  177. Masterman, The Separation of Powers in the Contemporary Constitution, 213
  178. Ibid., 212
  179. McGonnell v UK (2000) 30 E.H.R.R. 289
  180. J. Harrison, ‘Judging-the-Judges:-the-New-Scheme-of-Judicial-Conduct-and-Discipline-in-Scotland’, ELR 2009, 13(3), 427
  181. Constitutional-Reform-Act-2005-and-the-Judiciary-and-Courts-(Scotland)-Act-2008
  182. Harrison,-‘Judging-the-Judges’,427
  183. Craig,-‘The-HRA,-Art.6-and-Procedural-Rights’,762
  184. Lord-Hoffmann, -para.47
  185. Tsfayo v UK (2009) 48 EHRR 18
  186. Scottish-Government-Report-(2004), para.6.26
  187. Baker,-‘A-Supreme-Case-of-Clutching-at-Straws-in-the-Wind’, 105
  188. Para.82
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