“Alconbury resolves all the problems of ministers making decisions which are

nevertheless compatible with Art 6 ECHR.”

“Alconbury was the post-HRA planning case waiting to happen”. This paper seeks to demonstrate

that while the Alconbury fact situation was certainly waiting to happen, the case does not, as

suggested, resolve all problems of ministers making decisions which are nevertheless compatible

with Art 6 of the European Convention on Human Rights (“ECHR”). On the contrary, Alconbury

brings to the fore unresolved problems as well as the inherent inadequacy of Art 6 to regulate

ministerial decision making. The discussion will begin by assessing the arguments in favour of the

contention that Alconbury 'resolves all problems', then move to critically reject said contention, and

conclude by offering an avenue the exploration of which may serve to illuminate, if not resolve, the

discussion and help pave the way for greater clarity and certainty in this area.

Alconbury concerned a minister, empowered by statute, who 'called in' both an application for

planning permission and an appeal against refusal of planning permission he felt he ought to hear.

The former is usually the domain of the local council, the latter that of an inspector. The Divisional

Court held that the Secretary of State could not both create the policy and decide cases concerning

that policy as it violated the right to an “independent and impartial tribunal” enshrined in Art. 6 of

the ECHR. The House of Lords overturned the decision. It held that the position of the minister

required his intervention and that there were enough controls by way of judicial review to keep in

check any abuse.

The arguments in support of the contention that Alconbury 'resolves all problems' are offered below
and are best outlined by analyzing the approach taken towards the two main issues that underlay the

reasoning of the Law Lords in Alconbury itself.

First, Lord Nolan1 noted that a political element in the decision making process is necessary as

“decisions made by the Secretary of State will often have acute social, economic and environmental

implications”. Moreover, substituting the minister with an independent body would be “profoundly

undemocratic” because, as Lord Clyde made explicit, once the decision is made to have a national

planning policy under central supervision, it is consistent with the democratic principle that the

work should lie with a minister answerable to parliament. Lord Hoffman held that the question

whether the Minster could be the judge of his own policy did not apply because he shouldn't be

viewed as 'judge' in the first place – his role was to formulate and apply governmental policy. After

all “the Human Rights Act 1998 was no doubt intended to strengthen the rule of law, but not to

inaugurate the rule of lawyers”.2

Secondly, the Divisional court held that restricted review was an insufficient safeguard precluding

the entire decision making process of being Article 6 compatible. Contrariwise, Lord Slynn

highlighted the extremely detailed procedure a minister must go through when 'calling in' an

application, including, for instance, allowing the persons entitled to appear before the inquiry, offer

their reasons, and make a written statement. Lord Hoffman went slightly further yet. He held that

when dealing with policy questions, safeguards are immaterial because no body expects an

inspector to be impartial. His lordship went on to say that when it comes to questions of fact,

safeguards are “essential”. By using that word, however, as his lordship himself later confessed 3, he

came dangerously close to forthwith burden routine administrative decisions with an unattainable

benchmark.

1 At para 60
2 At para 91
3 In Rena Begum
As Juss notes, the House of Lords seemed particularly impressed with the idea that in planning

questions of state policy, the decision be made by democratically accountable decision makers, and,

as emerges from Lord Hoffman's judgment, it attempted to guard the administrative process from

the 'vagaries of a more context specific structural procedural form of review.' 4 Cane argues that this

semi-entrenchment of judicial review in administrative decisions is to be welcomed, and that

Alconbury exemplifies how the courts seek to prevent important areas of public decision making to

be subsumed by the procedural demands of Art 6. Absent the reasoning of Alconbury and Runa

Begum, so the argument runs, very few efficacious decisions could be made.

II

By considering the above arguments, a few cracks in the 'Alconbury armour' already become clear.

In dealing the final blow, the discussion now turns to firmly rejecting the notion that Alconbury

'solves all problems'. Six main reasons support this assertion.

First, it is submitted that the claim that a 'democratically accountable' minister ought to make

decisions on statute-based policy is barely short of wishful thinking. Most administrative decisions,

particularly in matters of planning permission or social welfare, are far too frequently made and far

too low-level as to ever make contact with the legislative branch, let alone hold themselves

accountable before it.

Secondly, what if a decision rests not with a planning inspector but with the local planning

authority, as was the case in Kathro. Richards J therein noted that in Alconbury (it is submitted that

Richards J ought to have excluded Lord Hoffmann), finding the decision making process

compatible with Art. 6 was largely based on the fact-finding roles of the inspector with its attendant

procedural safeguards. However, there were no such safeguards in Kathro, nothing like a public

4 Rawlings
inquiry, no opportunity for cross examination, and no structured procedure for assessing evidence.

Thirdly, believing Alconbury solves all problems belies the text of Art. 6. Contrary to the suggestion

of the ratio in Alconbury, the article does not say “a tribunal ultimately reviewable by an

independent and impartial court”. The predicament is self-evident: the Article presupposes a clear

separation of powers which the English administrative system simply does not evince, and one

should not pretend like it does. Viewing the matter in a wider context it becomes increasingly clear

from the very words of that Art. 6 that it was designed to deal with judicial but not administrative

decisions. --- Dicussion of Ali!!

Fourthly, while the wish not to over-judicialize the administrative system is praiseworthy, Cane

points out that juxtaposing such an approach with cases like Runa Begum highlights the problem

that it is far from clear where the dividing line between private rights and social regulatory schemes

is. This in turn throws up unanswered (and perhaps unanswerable) normative questions such as

what type of procedural protection ought to apply in each case.

Fifthly, it is submitted that there is something generally and deeply unsettling in the post-

Alconbury impression that applicant's must 'chase' their (professedly autonomous) Art. 6 rights

down, because, in the first place, the further one moves away from the protection of Art. 6 the more

difficult its application becomes.

Finally, and closely connected to the fifth point, it is submitted that there is no strength in the 'the

entire process is Art. 6 compliant' argument simply because a court of full jurisdiction may review

points of law. This is because in most cases (e.g Runa Begum), it is not a point of law, but a simple

question of fact, on which the applicant and decision maker disagree. Space precludes a detailed

analysis, but it suffices to point out that drawing the fact/law distinction in the first place is a
notoriously complex matter.

III

Perhaps it will be Strasbourg - once more - to guide the way. The recent case of Tsfayo v UK is a

prime candidate. The key outcome for the present discussion is that in contrast to previous English

authority where the first decision “required a measure of professional knowledge or experience and

the exercise of an administrative discretion pursuant to wider policy aims” 5, in the present case, the

decision turned on the interpretation of the phrase “good cause”, which, according to Strasbourg,

was a simple question of fact, answerable without any measure of professional knowledge.

As Forsyth points out, the Human Rights Court was careful to finely distinguish Alconbury and

Runa Begum. Be that as it may, Tsfayo is incompatible with both cases. If Alconbury was the post-

HRA 1998 case waiting to happen, Tsfayo was the post-Alconbury case waiting to happen. Its effect,

as pointed out by Dyson LJ in Wright6, may well be that one must have regard to the nature of the

earlier breach in deciding whether judicial review could exert its curative effect. The more serious

the failure to accord a hearing by an independent tribunal, the less likely it was that this could be

cured via judicial review. Time will tell how accurate Dyson LJ's prediction is. Yet, if we want to

stop the chain of waiting cases, we must admit that Alconbury does not solve all problems,

recognize the inherent limits of Art 6, and take a step back to ask whether Art 6 and routine

ministerial decisions should be forced bedfellows in the first place.

Supervisor's Comments: “This is excellent – a first class essay. The structure is very useful, and

your arguments are interesting and often compelling.”

5 At para 46
6 At para 105