Case Nos: 3062/2000, 3606/2000
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 13 December 2000
LORD JUSTICE TUCKEY
MR. JUSTICE HARRISON
ON THE APPLICATION OF HOLDING AND BARNES PLC
THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND REGIONS
ON THE APPLICATION OF PREMIER LEISURE UK LIMITED
THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND REGIONS
ON THE APPLICATION OF ALCONBURY DEVELOPMENTS LIMITED
THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND REGIONS
THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND REGIONS
LEGAL AND GENERAL ASSURANCE SOCIETY LIMITED
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Secretary of State for the Environment, Transport and the Regions
Holding and Barnes plc & ors.
Names of Counsel :-
Those submitting non-compatibility with HRA-:
Holding and Barnes Plc - Stephen Hockman, QC., Kevin Leigh and Gordon Nardell.
Instructed by Jennings Son and Ash.
Premier Leisure (UK) Lts. - Kevin Leigh.
Instructed by Denton Wilde Sapte.
Huntingdon District Council - Martin Kingston, QC., and Peter Goatley.
Instructed by Colin Meadowcroft.
Nene Valley Residents Association & HUNTSNAP - Paul Stanley and Tim Eicke.
Instructed by David Barney & Co.
Legal & General Assurance Society Ltd.-as Amici John Howell, QC,, Rabinder Singh.
Instructed by the Treasury Solicitor.
Those submitting compatibility with HRA :-
SSETR - David Elvin, QC., Philip Sales, James Maurici.
Instructed by The Treasury Solicitors.
Alconbury Developments Ltd. - Keith Lindblom, QC., Craig Howell Williams, and Hereward Phillpot
Instructed by Marrons.
Cambridgeshire County Council - Gregory Jones and Darren Abrahams.
Instructed by Richard Braun.
Highways Agency - Jonathan Karas and John Litton.
Instructed by the Treasury Solicitors.
Crown Copyright ©
This is the judgment of the court.:
1. These four applications raise the very important question whether the processes by which the Secretary of State for the Environment Transport and the Regions (SSETR) makes decisions under the Town and Country Planning Act 1990 (TCPA) and orders under the Transport and Works Act 1992 (TWA), the Highways Act 1980 (HA) and the Acquisition of Land Act 1981 (ALA) are compatible with Article 6 (1) of the European Convention on Human Rights. This Article says :
In the determination of his civil rights and obligations ........ everyone is entitled to a fair and public hearing ........ by an independent and impartial tribunal established by law."
2. It is common ground that such decisions and orders do affect civil rights and obligations. In the present cases the SSETR does not argue that he is himself an independent and impartial tribunal but contends that the decision making process as a whole including the right of appeal to and the reviewing role of the High Court does comply with Article 6. Whether he is right about this is the central question we have to decide. If he is not, the SSETR's alternative submission is that this court should expand its role to review his decisions consistently with Sections 3 and 6 of The Human Rights Act 1998 (HRA) so as to make the processes compliant. These sections say :
3. (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
6. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if :-
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "Public Authority" includes -
(a) a court ........
If the processes are not compliant and cannot be made so, the SSETR contends that Section 6 (2) HRA applies to them so Section 6 (1), which would otherwise make his acts unlawful, does not apply. Such a finding would enable us to make declarations of incompatibility under Section 4 HRA which says :
4. (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
3. Two of the cases, (R -v- SSETR ex p. Holding and Barnes PLC (HB) and R -v- SSETR ex p. Premier Leisure (PL) ) involve decisions by the SSETR to call in their applications for planning permission under Section 77 TCPA. As well as the Article 6 challenge to the process as a whole HB contends that the decision to call in should be quashed on conventional judicial review grounds. The third case (Alconbury Developments Ltd. (ADL) -v- SSETR) involves "recovered" appeals against refusals of planning permission under Sections 78 and 79 TCPA and proposed orders under Section 1 TWA relating to the construction and operation of a railway in connection with the proposed re-development of RAF Alconbury. The fourth case (SSETR -v- Legal and General (LG)) involves proposed highway orders and related compulsory purchase orders (CPO) in connection with a scheme to improve the A34/M4 junction. It is the SSETR's acts in calling in or recovering planning decisions and proposing to make TWA, HA or CPO orders which are alleged to be unlawful under Section 6 (1) HRA because they do not comply with Article 6.
4. In the PL case a public inquiry has been held but no decision has yet been made. In the ADL and LG cases public inquiries have started but are now adjourned to await the decision of this court. We have been told that a number of other important public inquiries have been adjourned for the same reason. For these reasons the hearing before us was arranged at short notice and we are extremely grateful to all involved for the huge amount of work which has gone into its preparation and the presentation of the argument. In the interests of producing a judgment quickly we intend to summarise the material put before us (about 2,500 pages of evidence, 200 authorities and nearly 5 days of submissions from 10 counsel) as shortly as possible.
5. In view of the fact that the SSETR does not argue that he is an independent and impartial tribunal it may be thought that it is unnecessary to consider the way in which he acts in any detail and that the focus of our enquiry should be upon the effectiveness of the High Court's powers. But this is incorrect. We shall come to the decisions of the European Court of Human Rights (ECtHR) in due course. But they make it clear that in considering whether determinations made in the field of administrative law comply with Article 6 the whole process must be looked at. Put shortly there would be nothing objectionable about the SSETR acting as he does, providing his decisions were subject to control by a judicial body which has "full jurisdiction". What is meant by "full jurisdiction" will be affected by the extent to which the statutory process is quasi judicial in character and contains safeguards of the kind required by Article 6. So the involvement of the SSETR and the way in which he comes to make his decisions does have to be considered.
6. What we propose to do first is to amplify the facts of the four cases, set out the relevant primary and secondary legislation and summarise the evidence about the involvement of the executive and the decision making process filed on behalf of the SSETR. We shall then turn to the central and other issues to which we have already briefly referred.
7. HB is engaged in motor vehicle salvage on behalf of contracted insurance companies. It is presently based at Charfleet Industrial Estate on Canvey Island where it operates pursuant to a planning permission which was granted on appeal by an inspector in March 1997. On that occasion the SSETR did not recover jurisdiction from his inspector, nor did he direct a call-in.
8. HB wishes to relocate its operation to Haven Road on Canvey Island, and the local planning authority, Castle Point Borough Council, accept there would be benefits for the area if that were to happen. In November 1999 HB made an application for planning permission for the use of land at Haven Road, Canvey Island for the parking and storage of damaged cars and their sale by auction, and for the retention of the surfacing and bund walls.
9. The Health and Safety Executive (HSE) was consulted on the application by the local planning authority. It advised in principle against allowing the development due to the proximity of gas storage on some neighbouring sites. However, it indicated that it would be prepared to withdraw its objection if the application were modified to keep members of the public out of the new site. HB agreed to restrict entry to the site to trade members for the purposes of attending auctions. The HSE made it clear, however, that it intended to attend the enquiry and to submit evidence in support of its objection unless directed to the contrary by the SSETR.
10. On 2 May 2000 the local planning authority resolved that it was minded to approve the planning application subject to completion of a section 106 agreement, the Director of Development having advised that he did not consider the proposal to be a major departure from the development plan warranting referral to the SSETR for his determination. Before the local planning authority could finally determine the application, the local Member of Parliament requested the SSETR to call in the application, drawing attention to concerns about the safety of local residents in the vicinity of the application site and the effect of the proposed development on the highway network.
11. On 25 July the SSETR made a direction under section 77 TCPA that the application should be referred to him instead of being dealt with by the Council. In other words, he called in the application for his own decision. He gave three reasons for doing so - 1) the nature of the proposed use, 2) the impact it could have on the future economic prosperity of Canvey Island and 3) the site's location close to hazardous installations.
12. In his call in letter the SSETR specified five matters about which he particularly wished to be informed. They were - 1) the extent to which the proposal accords with the policies in the adopted and emerging structure plan and the adopted local plan, 2) the suitability of the site for the proposed use given its proximity to two hazardous installations and its location within the cordon sanitaire, and the extent of any threat to public safety arising therefrom, 3) the effect of the proposal on the surrounding road network and the amenity of local residents, and its impact on the appearance and character of the area, 4) bearing in mind the inclusion of Castle Point in the extended Thames Gateway in the draft Regional Planning Guidance, the effect of the proposal on the prospect of enhancing the environment of the area and attracting new investment and job-creating development to Canvey Island and 5) the extent and value of any planning gain, particularly any benefit for the Charfleet Industrial estate and the provision of the Roscommon Way extension.
13. HB now seek judicial review of the SSETR's decision to call in their application on the grounds that it is contrary to Article 6 and on domestic law grounds as well.
14. On 4 February 2000 PL applied to the local planning authority, Castle Point Borough Council, for planning permission for a health and fitness centre at 200 Rayleigh Road, Thundersley, Essex. The site lies in the Green Belt. On 3 March the local Member of Parliament wrote to the local planning authority and to the SSETR objecting on behalf of some third parties. On 4 April the local planning authority resolved conditionally to approve the planning application subject to the completion of a section 106 agreement. On 22 May 2000 the SSETR decided to call in the application for his determination. The reason that he gave for doing so was "because of the possible conflict with national policy guidance contained in Planning Policy Guidance Note No. 2 (PPG2) on `Green Belts' relating to inappropriate development in the Metropolitan Green Belt". In the letter of 22 May he set out the matters about which he particularly wanted to be informed. They included such matters as compatibility with Green Belt policies in the development plan, whether there were very special circumstances to outweigh the inappropriateness of the development in the Green Belt, the impact on residential amenity, landscape and wildlife, consistency with PPG17 on `Sport and Recreation' and consistency with PPG13 dealing with the need to reduce travel by private car.
15. A local public inquiry into the proposal was held between 10-13 October, and the SSETR's decision following the inquiry is awaited. However, in these proceedings PL seek judicial review of the SSETR's decision to call in the application on the ground that it is contrary to Article 6.
16. In making their application, PL point to the planning history of the site. In 1983 outline planning permission was granted on appeal by the SSETR for a sports and leisure complex on the site. In granting that permission the SSETR considered that there were circumstances justifying an exception to Green Belt policies. That consent subsequently lapsed.
17. In 1988 there was a similar application which was granted permission on appeal by an inspector appointed by the SSETR on the ground that there were very special circumstances justifying an exception to Green Belt policy. That consent was implemented to the extent of site clearance, the construction of drainage and site access and a car park. However, the development has never been completed, although it could be. In 1995 the SSETR determined an application for a sports and leisure complex on the site, including a tenpin bowling alley, which he had called in for his own decision. Although he concluded that the 1988 consent was a very special circumstance and that the proposed leisure and sports facility did not constitute a greater threat to the Green Belt than the 1988 consent, he refused the application on the ground that the tenpin bowling alley would harm residential amenity.
18. All of those matters were no doubt relied upon by PL at the recent public enquiry but, as we have said, they are also relied upon by PL in these proceedings.
19. Alconbury Airfield is a redundant airfield which was vacated by the United States Air Force in 1995. It covers an area in excess of 1000 acres and is owned by the Ministry of Defence. It is located about 5 kilometres to the north west of Huntingdon. It lies close to the A1 and the A14 trunk roads with direct access via slip roads to both those trunk roads. The east coast main line railway from London to Edinburgh lies about 500 metres to the east of the site.
20. ADL wish to develop the site into a distribution centre of national significance consisting of up to 650,300 square metres of warehousing and distribution floorspace. They have entered into a development agreement with the Ministry of Defence whereby the Ministry of Defence will receive a pecuniary benefit from ADL if planning permission is granted for development, together with a profit sharing agreement thereafter if the land is developed.
21. In October 1997 ADL made a number of planning applications to Huntingdon District Council (HDC), which is the local planning authority. There was one overarching outline application for warehousing, with ancillary offices and additional floorspace, leisure and administrative facilities with access and landscaping, plus approach infrastructure including road and rail sidings. There were also a number of individual outline applications for the separate components of the scheme. There was an individual outline application for a commercial airfreight operation which proved to be very controversial. A local residents group called Huntsnap (Huntingdon Says No to Alconbury Proposals) was formed to object to the proposals. The application for the air freight operation was withdrawn in March 1998. There was also an application for planning permission made to Cambridgeshire County Council (CCC), as the waste disposal authority, for a temporary recycling depot on part of the site. Later, in December 1999, ADL applied to the SSETR for an order under section 1 TWA which, if made, would confer powers on ADL for the construction and use of a rail connection between the airfield and the east coast main line. It involves proposed compulsory purchase powers for the land required for the works and it includes a request to the SSETR for a direction deeming the grant of planning permission for the construction of the railway connection and accommodation works, together with the construction of railway sidings within the airfield in order to provide the railfreight facilities.
22. On 4 August 1998 the SSETR refused a request to call in the planning applications. On 17 February 1999 HDC resolved to refuse the overarching outline application. On 1 April 1999 ADL lodged an appeal against HDC's refusal of the overarching outline application and they also lodged an appeal against the failure of CCC to determine the application relating to the recycling depot within the requisite period. On 11 May 1999 the SSETR directed, in exercise of his powers under paragraph 3 of Schedule 6 TCPA, that the appeals would be determined by him instead of by his inspector. In other words, he recovered jurisdiction for both of the planning appeals. The reason that he gave for doing so was because "the appeals relate to proposals for development of major importance having more than local significance." An inspector, Mr Boyland, was appointed to hold the inquiry which was adjourned on a number of occasions for various reasons, one of them being the decision of the SSETR to hold a concurrent inquiry into ADL's TWA application. Amongst the objectors to ADL's proposals are Huntsnap, the Nene Valley Association, which is an association of residents in the Nene Valley in East Northamptonshire, and Abbots Ripton Parish Council.
23. The Highways Agency, which is an executive agency of the SSETR, does not object to the proposed development provided that specific conditions are imposed on any planning permission that may be granted in order to protect the trunk road network. English Nature, which is a statutory body funded by the Department of the Environment , Transport and the Regions (DETR), object to the proposal due to the impact of the rail link to the east coast main line which affects a Site of Special Scientific Interest.
24. On 3 October 2000 the inspector opened the inquiry, whereupon submissions, which were handed to the inspector in written form, were made on behalf of HUNTSNAP and the Nene Valley Association to the effect that the proceedings were contrary to Article 6. As a result of those submissions, ADL decided to apply to this Court for a number of declarations to resolve the position. The inquiry was formally adjourned on 7 November to await the outcome of these proceedings. ADL seek a number of declarations to the effect that the SSETR's decisions to entertain and retain jurisdiction over the planning appeals and the TWA application, and to appoint the inspector to hold the public inquiry into them, are lawful and not in breach of, or incompatible with, the HRA. Their application is supported by CCC but opposed by HDC, both of whom were represented by the counsel at the hearing before us.
SSETR'S Application : A34/M4 Junction Improvement Scheme
25. The SSETR made this application at the invitation of the defendant LG. Subsequently, LG decided not to be legally represented. The Attorney General therefore appointed Mr John Howell QC together with Mr Rabinder Singh as amici curiae. The application relates to the A34/M4 Junction 13 improvement scheme. Under that scheme, the SSETR proposes to provide a dual two lane carriageway all purpose road for A34 through traffic under the M4 about 100 metres to the west of the existing Junction 13. New slip roads would link the A34 to Junction 13. Access to a service area, a hotel and the local road network south of Junction 13 would be provided by two new linked roundabouts connected by new slip roads to the A34 slip roads. North of Junction 13, new connecting side roads would replace the existing roads and Graces Lane south facing slip roads.
26. This is a scheme which has a history. Put briefly, the relevant orders were first published back in 1992. An inquiry into objections was held during that year. Following the inquiry, the orders were confirmed and made in August 1993. However, one of the objectors, Mr Ian Ellison, successfully applied to the Court to quash part of a Side Road Order. Subsequently, the Government reviewed the scheme as part of its Roads Review. Mr Ellison's suggested alternative slip road proposal was considered by the Minister responsible for Trunk Roads, but it was not adopted.
27. On 17 February 2000 various new draft orders were published to replace that part of the previous order that had been quashed and to vary other orders which had been made, in order to take account of the newly constructed Newbury by-pass and alterations that had been made to the Junction 13 roundabout since 1992. In addition to those HA orders, a draft CPO for the whole scheme was published on 24 February.
28. A number of objections to the draft orders were received, including an objection from Mr Ellison and an objection from LG who own land which is the subject of the draft CPO. The SSETR decided to hold a public inquiry into the draft orders. On 29 June the SSETR appointed an inspector to hold the public inquiry into the draft orders. On 26 July there was a pre-inquiry meeting at which the inspector identified the matters which were outside the scope of the inquiry. They included government policy, including methodologies and design standards adopted by the government, nationally determined economic assumptions and forecasts of traffic growth to the extent that they had been adopted by the SSETR. The inspector, however, accepted that the application of national forecasts to local situations did come within the scope of the inquiry.
29. The public inquiry commenced on 19 September and sat for 11 days, after which it was adjourned until 23 October. Before the resumption of the inquiry, solicitors acting for LG wrote to the SSETR inviting him to seek declarations from the court to determine the compatibility of the proceedings with the Convention. On 23 October, at the request of the SSETR, the inspector adjourned the inquiry for 6 months to enable the SSETR to seek declarations from the court. By these proceedings the SSETR seeks a number of declarations to the effect that his decisions to hold a public inquiry into the draft orders and to appoint the inspector to hold the inquiry were lawful and not in breach of, or incompatible with, HRA.
Primary and Secondary Legislation
Town and Country Planning
30. The relevant primary legislation is to be found in TCPA. Under section 57 planning permission is required for the carrying out of any development of land. Section 55 defines development of land as being the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change of use of any buildings or other land. Section 54A provides that where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise. Under section 70 a local planning authority can grant planning permission, either unconditionally or subject to such conditions as they think fit, or they can refuse planning permission. In dealing with an application, the authority shall have regard to the development plan, so far as material to the application, and to any other material considerations. Section 78 provides for a right of appeal to the SSETR against a refusal of planning permission, against a conditional grant of permission or against a failure to decide an application within the prescribed period. Section 79 provides that, before determining such an appeal, the SSETR shall, if the appellant or the local planning authority so wish, give them an opportunity of appearing before and being heard by a person appointed by him, following which he can allow or dismiss the appeal.
31. Paragraph 1 of Schedule 6 TCPA empowers the SSETR to prescribe by regulations the classes of appeals under section 78 which may be determined by a person appointed by him rather than by the SSETR himself. Under the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997, save for an exception relating to statutory undertakers, all section 78 appeals are transferred for determination to inspectors appointed by the SSETR. By virtue of paragraph 2 of Schedule 6, where an appeal is determined by an inspector appointed by the SSETR the appellant and the local planning authority must be given an opportunity to appear before and be heard by the inspector if either of them so wish. The procedure before the inspector is governed by the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 which replaced the Town and Country Planning Appeals (Determination by Inspectors) Rules 1992 as from 1 August 2000. Under those Rules the appellant and the local planning authority and certain other bodies have a right to appear at the inquiry and the inspector can permit any other person to appear at the inquiry, such permission not to be unreasonably withheld. The procedure at the public inquiry is determined by the inspector but it involves the calling of witnesses to give oral evidence, cross-examination of witnesses and the making of representations. Following the inquiry the parties are notified of the inspector's decision, and his reasons for it, by being sent a copy of the decision letter.
32. Although the vast majority of section 78 appeals are decided by inspectors pursuant to the 1997 Regulations, paragraph 3(1) of Schedule 6 to TCPA gives the SSETR power to recover jurisdiction in section 78 appeals by directing that an appeal which would otherwise be determined by an inspector appointed by him shall instead be determined by him.. Under paragraph 3(2) of Schedule 6, he must state his reasons for making such a direction.
33. The procedure for a public inquiry on an appeal under section 78 which has been recovered by the SSETR for his determination pursuant to paragraph 3 of Schedule 6 is governed by the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, which replaced the Town and Country Planning (Inquiries Procedure) Rules 1992 as from 1 August 2000. The procedure under the Rules is the same as that for an appeal which is determined by an inspector, save that in this case the inspector makes a written report to the SSETR containing his conclusions and recommendations. Rule 17(5) provides:-
If, after the close of an inquiry, the Secretary of State-
(a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or
(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy),and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the re-opening of the inquiry.
Rule 17(7) provides that the SSETR shall re-open the inquiry in those circumstances if asked to do so by the applicant or the local planning authority, otherwise he has a discretion whether to re-open the inquiry.
34. Besides the ability to determine a section 78 appeal by recovering jurisdiction pursuant to paragraph 3 of Schedule 6, the SSETR is also given the power under section 77 of TCPA to call in an application for his own decision. Section 77(1) and(5) provide:-
(1) The Secretary of State may give directions requiring applications for planning permission...to be referred to him instead of being dealt with by local planning authorities.
(5) Before determining an application referred to him under this section, the Secretary of State shall, if either the applicant or the local planning authority wish, give each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.
The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 also apply to a public inquiry in respect of an application called in by the SSETR for his own determination. The same rules, therefore, apply to the procedure at the inquiry, the inspector's report and the SSETR's consideration of the inspector's report as apply in the case of an appeal recovered by the SSETR for his own determination.
35. The validity of a decision made by the SSETR on a called in application or an appeal recovered by him under paragraph 3 of Schedule 6 can, by virtue of section 284 TCPA only be questioned by an aggrieved person by way of an application to the High Court made under section 288 of the Act. The grounds upon which a person aggrieved by such a decision can apply to the High Court are that it was not within the powers of the Act or that any of the relevant requirements have not been complied with in relation to the decision. Section 288(5) provides that the High Court, if it is satisfied that the decision is not within the powers of the Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash the decision.
36. There is no statutory right of appeal against a decision by the SSETR to call in a planning application for his own decision under section 77 of the Act. Such a decision can only be challenged by judicial review in accordance with the normal principles of administrative law.
Transport and Works
37. TWA provides a mechanism for the SSETR to grant statutory authority, by way of an order, for matters which were previously authorised by the promotion of a private bill in Parliament. The procedure is invoked by an application being made to the SSETR under section 6 for an order under section 1 or 3 of the Act. Section 1 empowers the SSETR to make an order relating to the construction or operation of, inter alia, a railway. By virtue of Schedule 1, such an order can include the power to acquire land compulsorily. An applicant may, when applying for a TWA order, ask the SSETR to direct that planning permission be deemed for all or some of the development covered by the order. Section 16 of the Act inserts a new section 90(2A) into TCPA enabling the SSETR to make such direction. A request for such a direction is considered alongside the application for the TWA order and a decision on both matters is taken at the same time.
38. The procedure for making TWA applications and objections thereto is governed by the Transport and Works (Applications and Objections Procedure) Rules 1992 for applications made before 16 October 2000. For applications made after that date it is governed by the Transport and Works (Applications and Objections Procedure) Rules 2000. Where an objection is made by a statutorily qualified objector (which will include local authorities and landowners whose land would be compulsorily acquired) the SSETR is obliged by section 11 of the Act to hold a public inquiry if the objector so wishes.
39. The rules governing the public inquiry are the Transport and Works (Inquiries Procedure) Rules 1992. The procedure at the inquiry is determined by the inspector but it is much the same as for planning appeals and called-in planning applications. Witnesses are called and cross-examined and representations can be made. Thereafter, the inspector makes a written report to the SSETR containing his conclusions and recommendations. Rule 17(4) contains a similar procedural rule as rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rule 2000.
40. Under section 13 the SSETR can either make the order with or without modifications or not make the order. The validity of an order made by the SSETR can only be questioned by an application under section 22, which is in similar form to section 288 TCPA.
41. Section 23 enables the SSETR to make regulations prescribing the classes of application which are to be dealt with by an inspector rather than by him, but no such regulations have been made by the SSETR. Even if they were made, any such order made by an inspector could not, by virtue of section 23(4), authorise the compulsory acquisition of land or the compulsory creation or extinguishment of rights over land.
42. Finally, where a TWA order is linked or related to a development which does not come within the provision of the 1992 Act, it is usual practice for the inquiries into the TWA order and the planning appeal to be held concurrently before the same inspector so that he can consider all the related issues.
43. The primary legislation governing highways orders is the HA. Under section 1, the SSETR is the highway authority for any highway which is a trunk road. Section 10 places a duty on the SSETR to keep the trunk road network under review and it gives him authority to make orders in relation to existing or proposed highways. Under section 14, provision may be made by an order to authorise a highway authority for a trunk road to improve and stop up highways that may be affected by the construction or improvement of the road and to construct new highways for purposes connected with any such alteration. Such an order may also, by virtue of section 125, deal with the stopping up of, and provision of, new means of access to private premises adjoining the road.
44. Orders under the relevant empowering provisions must be made by the SSETR. The procedure for making the orders is governed by Parts I and III of Schedule 1 to the Act. Paragraph 7 deals with the circumstances in which a local inquiry has to be held.
45. Any such inquiry is governed by the Highways (Inquiries Procedure) Rules 1994. Under rule 2, an inspector is defined as a person appointed by the SSETR to hold an inquiry, although in fact the inspector is nominated by the Lord Chancellor. After the close of the inquiry, the inspector is required by rule 26(1) to make a report in writing to the SSETR which includes his conclusions and recommendations. Rule 26(4) contains a similar procedural rule as in rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000.
46. Having considered the inspector's report, the SSETR is empowered, under paragraph 8 of Schedule 1 to the Act, to make the order either with or without modification. The statutory right under Schedule 2 to the Act to challenge a highways order made by the SSETR is in similar form to that in section 288 TCPA.
47. HA gives the SSETR power to acquire land compulsorily in certain circumstances when exercising his highways powers. Section 239 gives him power to acquire land compulsorily for the construction of a trunk road, for the carrying out of works authorised by an order under section 14 and for improvement to highways which he is authorised by the Act to carry out. He is also empowered under section 246 to acquire land compulsorily for the purpose of mitigating any adverse effect which the existence or use of an existing, improved or proposed highway may have on the surroundings.
48. Section 247 provides that the ALA shall apply to the compulsory acquisition of land under those powers. The ALA sets out the general scheme and procedures for the compulsory acquisition of land. Paragraphs 1 to 3 of Schedule 1 to the Act make provision for the publication of the draft compulsory purchase order and its service on the owner, lessee and occupier of any land comprised in the order. Paragraph 4 of Schedule 1 provides that a public local inquiry shall be held if any objection is duly made by any such owner, lessee or occupier and not withdrawn.
49. The rules governing such an inquiry are the Compulsory Purchase by Ministers (Inquiry Procedure) Rules 1994. Rule 11 provides that the Minister may be legally represented at the inquiry. It also provides that a representative of the Minister shall be available to give evidence and be cross-examined, except on the merits of government policy. Rule 13 provides that every statutory objector is entitled to appear at the inquiry, and the inspector can permit any other person to appear, such permission not to be unreasonably withheld.
50. The procedure at the inquiry is determined by the inspector. Witnesses are called and cross-examined and representations can be made. Rule 17 provides that, after the close of the inquiry, the inspector shall make a written report to the Minister, containing his conclusions and recommendations. Rule 17(4) contains a similar procedural rule as rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000.
51. Under paragraph 4 of Schedule 1 to the 1981 Act the Minister may make the CPO either with or without modification. There is no power for the SSETR to delegate to an inspector the power to make the decision whether or not the CPO should be made. Section 25 of the Act provides that the validity of the order can only be questioned by an application to the High Court under section 23. The grounds on which the validity of the order can be questioned on an application under section 23 are very similar to those under section 288 TCPA..
52. Finally, section 257 of the Act provides that, where a compulsory purchase order is proposed to be made in the exercise of highway acquisition powers for enabling a relevant highways order to be implemented, the proceedings required may be taken concurrently with the proceedings required under the Act.
The SSETR's Evidence.
53. The DETR is one of the largest departments of state. It has over 15,000 staff of which about 4,000 are in its central offices, 10,000 in executive agencies which include the Planning Inspectorate (PINS) and the Highways Agency and 1,000 in Government Offices for the Regions (GOs). Below the Secretary of State in the ministerial team there are four Ministers of State, each with a Parliamentary Under Secretary and different areas of responsibility. Planning and transport are the responsibility of different Ministers of State.
54. One of the most important functions of the DETR is the formulation and promotion of policy. Our planning system is described by Mr. Bowden, the Divisional Manager in charge of the Development Control Division of the DETR, as one of the most sophisticated in the world. This system provides strategic direction for the use of land and control over individual development with the aim of securing the most efficient and effective use of land in the public interest. This is self-evidently reflected in the legislation to which we have already referred. The policy is promoted by national guidance issued centrally and regional guidance issued by the GOs. Local planning authorities are required to work within this wider policy framework when formulating detailed development plans for their areas. Wide requirements of public participation and consultation are built into the system to ensure that the formulation of policy at every level is democratic. The position is similar for transport policy. The Highways Agency has the responsibility for implementing national transport policy in so far as it affects the trunk road and motorway network although it is clear that with major developments such as Alconbury they have an input into the formulation of policy as well.
55. Given the executive's role in making and implementing planning and transport policy it must inevitably have an interest in decisions of the kind with which we are concerned. Thus, in the HB and PL cases its interest is in implementing its policies for a development which may have more than local implications, or is in the green belt. But the interest may be more direct as in the ADL case where, as well as implementing policies for the area, the land in question is owned by the state and the proposed development will produce financial reward for Government if permission is granted. In the LG case, as in all such cases, it is the executive itself which is promoting the HA and CPO orders.
56. So what safeguards are there against the executive acting simply in its own self-interest when making the decisions in question ?
57. Ministerial decisions are made in the name of the SSETR but in practice are often taken by the relevant Minister of State or his or her Under Secretary. Detailed Propriety Guidance is issued to all ministers about their decision making role. Recognising that ministers making decisions on planning and transport matters of the kind with which we are concerned are acting in a quasi judicial role, the Guidance makes it clear that ministers should act and be seen to act fairly and even-handedly by bringing an unbiased, properly directed and independent mind to consideration of the matter. The Guidance recognises the need for natural justice. The Guidance dealing with road proposals is the most detailed. It says :
4. The purpose of the inquiry is to enable the Inspector to advise the Secretary of State on the weight and nature of objections to a road proposal. In essence the Inspector acts as the Secretary of State's " eyes and ears" for hearing evidence and arguments and inspecting the site of the road proposal. The inquiry provides an open public forum for the arguments on both sides to be brought to a head. The Rules ensure that everybody hears everybody else's arguments and has an opportunity to put counter-arguments. Having heard all the arguments the Inspector makes his report to the Secretary of State and recommends whether or not the draft schemes or orders should be made or confirmed.
5. Having received the report the Secretary of State must then decide whether the schemes or orders should be made or confirmed in the light of the Inspector's recommendations. The period between the close of the inquiry and the announcement of the decision is particularly sensitive and Ministers need to avoid even giving the impression that the decision may have been influenced by private representations or factors which were not put before the inquiry.
58. All civil servants, whose task is to serve the duly constituted government of the United Kingdom, are required to follow a Code of Conduct which requires them to do so with integrity, honesty, impartiality and objectivity. They owe their loyalty to the administration in which they serve, whose lawful policies they are obliged to carry out. But their public functions must be performed reasonably and according to law and the advice they give Ministers must be honest, impartial and without fear or favour.
59. One of the obvious safeguards is the public inquiry. We have already referred to the secondary legislation under which such inquiries take place. The appointment of inspectors is the responsibility of PINS. This Agency's 1998 framework document describes its duties as follows :
2.1 The Agency serves the Secretary of State on appeal and other casework under planning, housing, environmental and other allied legislation.
2.2 The Agency's duty is to decide appeals and process casework efficiently and effectively, embracing the principles of openness, fairness and impartiality ........
2.7 The Agency is responsible for the recruitment, training, development and management of a panel of independent Inspectors to hold public inquiries and report on matters on highways, harbours and other transport legislation in England and Wales and to be available for nomination by the Lord Chancellor to conduct enquiries into motorways and trunk roads schemes.
2.8 The processes of decision making on appeals and other casework are governed by common law, acts of parliament and statutory instruments which are interpreted by the court and developed by practice and convention. When inspectors are instructed to hold inquiries on behalf of the Secretary of State or appointed to decide appeals they have the same regard to the Secretary of State's policies as does the Secretary of State.
2.9 The Agency's work is subject to the scrutiny of the courts, the Parliamentary Commission for Administration and the Council on Tribunals. Each inspector must exercise independent judgment and must not be subject to any improper influence, nor must it appear that the inspector may be subject to such influence.
60. Inspectors are recruited by open competition. Most inspectors are employed full time by PINS but the Lord Chancellor maintains a separate panel of inspectors who are employed on a case by case basis to conduct inquiries into motorway and trunk road schemes.
61. To give some indication as to how the system works in practice the planning statistics are as follows. There are about 500,000 planning applications each year of which about 130 are called in. There are about 13,000 appeals to the SSETR of which about 100 are recovered so the vast majority of appeals are decided by inspectors. Of the called in decisions and recovered appeals the SSETR follows the recommendation of the inspector in about 95% of cases.
62. The focus of the submissions of those who criticise the process has been on the time between receipt of the Inspector's report and the SSETR's decision. We have already referred to the rules which require the SSETR to refer back to the parties and reopen the inquiry in certain circumstances. The position is summarised in Mr. Bowden's statement as follows :
7.2.9 At post-report stage in particular, the objective is to ensure that the Secretary of State has possession of all material considerations needed to reach an informed, fair, unbiased and reasonable decision in each case as quickly as practicable in all circumstances. To this end :
* The relevant Government office receives the Inspector's report - which contains conclusions and recommendations;
* Advice is sought by the Government office on particular points of legal or policy elucidation from the appropriate legal or policy officials to put to the Secretary of State with the report;
* The Minister may wish to refer back to the parties in some circumstances (and in other circumstances must do so) - e.g. to seek more information, before a decision is made.
7.2.10 All decisions on called in cases and recovered appeals are taken by Ministers, whether the Secretary of State or, more usually, the Minister of State for Housing, Planning and Construction or the Parliamentary Under Secretary of State, in accordance with the advice contained in the Guidance on Propriety Issues in the handling of planning casework in DETR. Decisions are allocated to Ministers on the basis of responsibility for particular regions. The geographical split is determined so as to avoid Ministers taking decisions in regions where they have a constituency or other interest. In the (ALD) case the decision will be taken by the Parliamentary Under Secretary of State, Beverley Hughes, who has no knowledge of the previous exchanges of correspondence referred to in the witness statement by Caroline Bowdler.
63. Caroline Bowdler is the director of the Planning and Transport Division (PTD) of GO East which is responsible for the ALD, HB and PL cases. She has been particularly involved with Alconbury and the formulation of Regional Planning Guidance which, until recently at least, identified Alconbury as a strategic site for substantial development. For this reason she will not be involved in the decision making process. The evidence shows that after the steps described in para. 7.2.9 of Mr. Bowden's statement "GO draft decision letter and prepare submission to Ministers". This is done by a Decision Officer whose role Mrs. Bowdler describes as follows :
17. PTD also has an Appeals Decision Officer ("the Decision Officer"), an individual senior executive officer grade located (for line management purposes only) in the Bedfordshire, Hertfordshire and Essex casework team. The Decision Officer deals with all recovered appeals under Section 78 of the TCPA and on occasions with other planning decisions within GO East's geographical area. The Decision Officer is usually only involved with called-in applications where work loads or propriety make this necessary. The Decision Officer deals with these matters exclusively and has no other function within PTD, or GO East more generally. In exercising his functions, the Decision Officer -
works separately from the casework team of which he is nominally a part, does not discuss the merits of the planning decisions before him with an individual either within or without GO East, is not copied into or involved in the preparation of the Regional Planning Guidance (RPG) or the exercise of any of the Secretary of State's powers of intervention under the TCPA, and only has before him the information which the Inspector would have had at the inquiry into the particular appeal or called in application, together with any representation made after the close of the inquiries (all relevant parties are given the opportunity to comment on any such representations where they are material or raise new matters).
18. So far as the Alconbury decision is concerned I have made enquiries and confirmed that the Decision Officer has had no involvement with any of my officers who have been involved with Alconbury or with the discussions which have taken place previously with regard to the planning of Alconbury. I can also confirm that it will be the Decision Officer who will write the relevant submission to the Minister and sign the relevant decision letter, subject to the decision of the court.
64. Similar arrangements exist for handling inspector's reports and decision making following inquiries into proposed TWA, HA and CPO orders. These are dealt with by specialist units within DETR central which do not have any conflicting policy responsibilities for promoting or financing the scheme involved.
65. To determine our approach we think it is helpful to start by considering the decision of the ECtHR which is closest to the situation in the cases before us and which both sides say support their arguments. This is Bryan -v- UK  21 EHRR 342. Mr. Bryan was served with an enforcement notice which required him to demolish buildings which he had erected. TCPA (Section 174 (2)) gave him a right of appeal to the SSETR on grounds which included (a) planning permission should be granted (b) no planning permission was required and (g) demolition was unnecessary. The appeal to the SSETR was determined by an Inspector who upheld the enforcement notice. Mr. Bryan appealed to the High Court under Section 289 TCPA which is in broadly similar terms to Section 288 (para.36 above). Ground (b) was not pursued because (according to evidence put before the ECtHR) of the limited jurisdiction of the court. The question was whether the buildings were by their appearance and layout agricultural, in which case permission was not required. But this was a matter of planning judgment based on findings of fact which the court was not able to review. The appeal was however pursued and dismissed on grounds (a) and (g). Mr. Bryan's complaint to the ECtHR was that the process involved a breach of Article 6 (1) because the Inspector was not independent and impartial and the High Court's powers to review his decision were limited. The Commission admitted the complaint but subsequently concluded that there had been no breach of Article 6. In its judgment the court accepted that the proceedings before the Inspector ensured the applicant a fair hearing for the purposes of Article 6 (1) but it still had to consider whether the Inspector was an independent and impartial tribunal. It said :
37. In order to establish whether a body can be considered "independent", regard must be had, inter alia, to the manner of appointment of its members and to their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence.
38. It is true that the Inspector was required to decide the applicant's planning appeal in a quasi-judicial, independent and impartial, as well as fair, manner. However, as pointed out by the Commission in its report, the Secretary of State can at any time, even during the course of proceedings which are in progress, issue a direction to revoke the power of an Inspector to decide an appeal. In the context of planning appeals the very existence of this power available to the Executive whose own policies may be in issue, is enough to deprive the Inspector of the requisite appearance of independence, notwithstanding the limited exercise of the power in practice as described by the Government and irrespective of whether its exercise was or could have been at issue in the present case.
For this reason alone, the review by the Inspector does not of itself satisfy the requirements of Article 6 of the Convention, despite the existence of various safeguards customarily associated with an "independent and impartial tribunal".
It then went on to consider review by the High Court recognising that :
........ even where an adjudicatory body determining disputes over "civil rights and obligations" does not comply with Article 6 (1) in some respect, no violation of the Convention can be found if the proccedings before that body are "subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 (1).
For this proposition it relied on the decision in Albert and Le Comte -v- Belgium  18 EHRR 533. The court's conclusions in Bryan were as follows:
44. The Court notes that the appeal to the High Court, being on "points of law", was not capable of embracing all aspects of the inspector's decision concerning the enforcement notice served on Mr. Bryan. In particular, as is not infrequently the case in relation to administrative law appeals in the Council of Europe Member States, there was no rehearing as such of the original complaints submitted to the inspector, the High Court could not substitute its own decision on the merits for that of the inspector, and its jurisdiction over the facts was limited.
However, apart from the classic grounds of unlawfulness under English law (going to such issues as fairness, procedural propriety, independence and impartiality), the inspector's decision could have been quashed by the High Court if it had been made by reference to irrelevant factors or without regard to relevant factors; or if the evidence relied on by the inspector was not capable of supporting a finding of fact; or if the decision was based on an inference from facts which was perverse or irrational in the sense that no inspector properly directing himself would have drawn such an inference.
45. Furthermore, in assessing the sufficiency of the review available to Mr. Bryan on appeal to the High Court, it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.
46. In this connection the Court would once more refer to uncontested safeguards attending the procedure before the inspector; the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission of the inspectorate to uphold the principles of openness, fairness and impartiality. Further, any alleged shortcoming in relation to these safeguards could have been subject to review by the High Court.
47. In the present case there was no dispute as to the primary facts. Nor was any challenge made at the hearing in the High Court to the factual inferences drawn by the inspector, following the abandonment by the applicant of his objection to the inspector's reasoning under ground (b). The High Court had jurisdiction to entertain the remaining grounds of the applicant's appeal and his submissions were adequately dealt with point by point. These submssions, as the Commission noted, went essentially to questions involving " a panoply of policy matters such as development plans, and the fact that the property was situated in a Green Belt and a Conservation Area."
Furthermore, even if the appplicant had sought to pursue his appeal under ground (b), the Court notes that, while the High Court could not have substituted its own findings of fact for those of the inspector, it would have had the power to satisfy itself that the inspector's findings of fact or the inferences based on them were neither perverse nor irrational.
Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by Article 6 (1). It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe Member States. Indeed, in the instant case, the subject matter of the contested decision by the inspector was a typical example of the exercise of discretionary judgment in the regulation of citizens' conduct in the sphere of town and country planning.
The scope of review of the High Court was therefore sufficient to comply with Article 6 (1).
66. The SSETR submits that the instant cases are within the principles set out in Bryan. The other side say that they are not. In support of this submission they rely on the decision of the Scottish Outer House in County Properties Ltd. -v- Scottish Ministers  SLT 965. That case concerned a called in application for listed building consent under Scottish planning legislation similar to TCPA. The Scottish Ministers admitted that they were not independent and impartial but, relying on Bryan, argued that the process as a whole, which included a public inquiry before an inspector (reporter) and a right of appeal to the High Court, complied with Article 6. The Judge disagreed. He distinguished Bryan because 1) the decision was to be made by the Ministers and not by the Inspector, and 2) involved deciding an issue between the petitioner and Historic Scotland, (who opposed the application), their own executive agency and 3) would depend largely upon matters of aesthetic and planning judgment which could not be challenged on appeal. This decision is being appealed to the Inner House and the SSETR submits that it is wrongly decided.
67. The Court in Bryan and the Judge in County Properties accepted and applied the principle in Albert and Le Compte (para. 29) that :
The Convention calls for one of the two following systems : either the jurisdictional organs themselves comply with the requirements of Article 6 (1), or they do not so comply but are subject to control by a judicial body which has full jurisdiction and does provide the guarantees of Article 6 (1)."
68. This principle was not in issue before us. It was also accepted that the requirement for a judicial body with full jurisdiction did not mean jurisdiction to decide all issues of law and fact whenever the administrative decision maker was not independent and impartial. This is clear from Bryan, particularly the concurring opinion of Mr. Bratza, then a member of the Commission, who said (354) :
It appears to me that the requirement that a court or tribunal should have "full jurisdiction" cannot be mechanically applied with the result that in all circumstances and whatever the subject matter of the dispute, the court or tribunal must have full power to substitute its own findings of fact and its own inferences from those facts, for that of the administrative authority concerned.
He then identified the matters referred to in paragraph 45 of the Court's judgment as being relevant to whether the power of judicial review was sufficiently wide to satisfy the requirements of Article 6.
69. There are other cases which support this view. (See Zumtobel -v- Austria  17 EHRR 116 (paras. 30-32) - expropriation of land; Iskcon -v- UK  76 DR 1990 - another enforcement notice case; Ortenberg -v- Austria  19 EHRR 524 (para. 33) - objection to development plan; Stefan -v- UK  25 EHRR CD 131 (134, 135) - proceedings before GMC; and X -v- UK 25 EHRR CD 88). In the last case which concerned a determination by the Secretary of State that the applicant was not a fit and proper person to be the chief executive of an insurance company, the Commission said (97) :
It is common ground that the power of review of the Court of Session was not capable of embracing all aspects of the decision of the Secretary of State; in particular, as is not infrequently the case in relation to Administrative Law appeals in the Member States of the Council of Europe, the Court of Session could not substitute its own view for that of the Secretary of State as to the fitness of the applicant. On the other hand the Court of Session could have quashed the decision of the Secretary of State if, inter alia, the decision was irrational, in the sense that it was a decision that no reasonable Minister properly directing himself could have reached on the basis of the material before him, or if the decision was reached by reference to irrelevant factors or without regard to relevant factors or in a procedurally unfair manner.
In the case of Bryan, the European Court of Human Rights gave examples of the matters which were relevant to assessing the adequacy of the review on a point of law in that case: the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.
The subject matter of the decision appealed against in the present case was a classic exercise of administrative discretion. The legislature had charged the Secretary of State with the express function of insuring, in the public interest, that only appropriate persons would become chief executive of certain insurance companies and the contested decision in the present case was the exercise of that discretion.
After analysing the manner in which the decision had been reached and the content of the dispute the Commission held that the scope of review of the Court of Session was sufficient to comply with Article 6 (1).
70. Following this analysis the argument before us has been that there is such a lack of independence and impartiality in the processes involved in the instant cases that the limited scope of review by the High Court is insufficient for compliance with Article 6. Consideration of this argument firstly involves looking at what Article 6 requires in terms of independence and impartiality and how the processes involved in the instant cases measure up to these requirements and then in the light of this assessment, whether the powers of review of the High Court are sufficient so that the whole process complies with Article 6. In order to perform the second stage of this exercise we need to consider the extent of the review available in the High Court since it is suggested that it is somewhat wider than the court put it in Bryan (para.44).
Independence and Impartiality.
71. It is common ground that the independence required by Article 6 (1) is independence from the executive and from the parties.
72. The SSETR is part of the executive as are all or any of his ministerial team or the civil servants involved in the decision making process. The contrary is, we think, unarguable which no doubt explains the SSETR's stance in these proceedings. Just how exacting is the requirement for independence from the executive is illustrated by Bryan where the largely theoretical possibility that the inspector's appointment could be revoked by the SSETR meant that he was not an independent tribunal.
73. Impartiality is the same or very similar to independence from the parties. This requires the absence of prejudice or bias. It is tested subjectively and objectively. Subjective personal impartiality is assumed until there is proof to the contrary. This is not alleged in the instant cases. Objectively the question is whether the tribunal offers guarantees sufficient to exclude any legitimate doubts about its impartiality. Whilst appearances are important they are not decisive since misgivings must be capable of being held to be objectively justified (Kraska -v- Sweden  18 EHRR 188 (para. 32) ).
74. So much is common ground but Mr. Elvin QC, for the SSETR, made a number of submissions which are very much in issue.
75. First, Mr. Elvin submitted, that the Court could look beyond the statutory framework when considering whether a person or body could be regarded as impartial in a particular case. It did not matter that the DETR had incompatible functions which would deprive it as a whole of impartiality, provided the individuals involved in discharging such functions are not identical. Since a government department is not a monolithic entity, different individuals could always be found to discharge the incompatible functions and guarantees had been given that this would happen in these cases.
76. Mr. Elvin supported these arguments by reference to domestic law. In this field of administrative law apparent bias cannot be shown unless the individual involved in the decision making process has not kept an open mind. If such bias is shown, the law provides an adequate remedy by way of judicial review. This, he submitted, is the same as the requirement for objective impartiality under Article 6. Further, Mr. Elvin submits that domestic law in this field does not recognise institutional or structural bias because that is built into the legislative scheme and cannot therefore be avoided.
77. These arguments met the objection that the SSETR's policies were involved in the decisions which had to be taken and that he promoted highways and CPO orders. Mr. Elvin admitted, however, that the fact that the MoD had a financial interest in the Alconbury development did not mean that ministers discharging their planning functions in a different department of state should not be regarded as impartial. Niceties of constitutional theory should not come into it. It would be quite unrealistic to imbue the SSETR with the knowledge and predispositions of ministers in other departments and all civil servants. The interest of the MoD was in any event a public as opposed to a private financial interest.
78. Finally, Mr. Elvin submitted, the fact that the HSE supported the objection to permission being granted in the HB case did not affect the SSETR's impartiality. Unlike Historic Scotland, the HSE was not an executive agency but a separate corporate entity.
79. In support of his argument that the Court should look at how and by whom the decisions in these cases will be made, Mr. Elvin referred to a number of Strasbourg cases which he submitted showed that the Court was primarily concerned to see whether individuals were impartial rather than the body as a whole of which they were part. He referred us to Piersack -v- Belgium  5 EHRR 169 - criminal trial presided over by judge who had previously been in charge of department which decided to prosecute the applicant; De Cubber -v- Belgium  7 EHRR 236 - criminal trial presided over by judge who had previously been investigating judge; Procola -v- Luxembourg  22 EHRR 193 - four of the five members of judicial committee of Conseil D'Etat had previously taken part in Conseil D'Etat's advisory opinion on the challenged legislation; McGonnell -v- UK  2 PLR 69 - judge previously presided over legislative body which adopted the challenged legislation.
80. We have considered these and a number of other cases relied on by Mr. Elvin but can find no support in them for the general proposition which he advances. They do show, as one would expect, that the court will look for lack of objective impartiality on the part of individuals who form part of the tribunal in question, but they give no support for the proposition that the Court is not also concerned with institutional or structural impartiality. Indeed, there are a number of cases which suggest that the Court is concerned about this. Thus, in Sramek -v- Austria  7 EHRR 351, one of the parties to a hearing before the Regional Authority deciding whether to approve the applicant's purchase of land was a senior civil servant who was the superior of three civil servants who were members of the Authority. Their independence was guaranteed by statute but the Court held (para. 42):
Where, as in the present cases, a tribunal's members include a person who is in a subordinate position, in terms of his duties in the organisation of his service, viz a viz one of the parties, litigants may entertain a legitimate doubt about that person's independence. Such a situation seriously affects the confidence which the Courts must inspire in a democratic societty.
81. Similarly, in Findlay -v- UK  24 EHRR 221 the Court held that the organisation of a court martial did not offer adequate guarantees of impartiality where the members of the court had been appointed by the convening officer. He played a significant role at the hearing and the members were subordinate in rank to him and fell within his chain of command. In Belilos -v- Switzerland  10 EHRR 466 the applicant complained that the Police Bboard which convicted her of fraud was not impartial. The appointed member to the Board was a municipal servant who was not subject to orders in the exercise of his judicial powers and took a different oath from the one taken by police. However, the Court said (para. 67) :
Nonetheless a number of considerations relating to the functions exercised and to internal organisation are relevant too; even appearances may be important. In Lausanne the member of the Police Board is a senior civil servant who is liable to return to other departmental duties. The ordinary citizen will tend to see him as a member of the police force, subordinate to his superiors and loyal to his colleagues. A situation of this kind may undermine the confidence which must be inspired by the Courts in a democratic society.
In short, the applicant could legitimately have doubts as to the independence and organisational impartiality of the Police Board which accordingly did not satisfy the requirements of Article 6 (1) in this respect.
82. However, we think there are more fundamental objections to this part of Mr. Elvin's argument. Firstly, although the legislation vests all the relevant functions in the SSETR, the argument requires one to assume that there is no one entity involved, only a multiplicity of officials capable of acting, as necessary, independently and impartially of one another. This is not the position under domestic law. In Bushell -v- Environment Secretary  AC 75 ,where the making of certain highway orders was challenged, Lord Diplock said (95) :
What is fair procedure is to be judged not in the light of constitutional fictions as to the relationship between the Minister and the other servants of the Crown who serve in the Government Department of which he is the head, but in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached. To treat the Minister in his decision making capacity as someone separate and distinct from the department of Government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament, is to ignore not only practical realities but also Parliament's intentions.
83. There are also immense practical difficulties in Mr. Elvin's approach. How is one to identify within the department those who are impartial and those who are not ? By definition none of them is independent. How in practice does any individual offer guarantees sufficient to exclude legitimate doubt in this respect when his superiors including the SSETR himself are not impartial ? Ministers and civil servants may change over the period under review. Such a review might require the Court to consider detailed evidence about the workings of the department on a case by case basis. The only sensible conclusion we think is to treat the DETR and the SSETR in the way in which Lord Diplock did in Bushell.
84. There is no dispute about the position under domestic law. It is well stated in passages from Supperstone and Goudie  at para. 9.21 :
In many administrative situations the possibility of bias is built into the system. Proposers of the scheme may have strong and carefully thought out views on the subject, and yet may have to hear and rule on objections to it. Administrators may have guidelines to help them in their day to day application of legislation. In such situations the concept of a fair trial may be impossible and indeed undesirable to achieve. It has been pointed out ....... that the more indifferent to the aim in view the less efficient is the Minister or civil servant likely to be. After all, it is his job to get things done. So while the obvious pre-judgment of an issue is not allowed, a challenge to a decision on the grounds of departmental bias is unlikely to succeed. It is a Minister's job to have a policy and to support it in public.
and De Smith, Woolf and Jowell's Judicial Review of Administrative Action : at paras. 12-042 to 12-050 :
Closely related to the doctrine of necessity is that which permits public officials to exhibit certain kinds of bias in the exercise of their judgment or discretion on matters of public policy ........
The normal standards of impartiality implied in the adjudicative setting cannot meaningfully be applied to a body entitled to initiate a proposal and then to decide whether to proceed with it in the face of objections. What standards should be imposed on the Secretary of State for the Environment when he has to decide whether or not to confirm a compulsory purchase order or clearance order made by a local authority ........ or to allow an appeal against a refusal of planning permission ? It would be inappropriate for the Courts to insist on his maintaining the lofty detachment required of a judicial officer determining a lis inter partes. The Secretary of State's decisions can seldom be wrenched entirely from their context and viewed in isolation from the Governmental responsibilities.
These passages are supported by a number of authorities including R. -v- Hereford and Worcester Council ex. p. Wellington DC  JPL 573, where Harrison J. held that the "Gough" test (real danger of bias) had no application in such a case. All that was required was that the authority did not approach its task with a closed mind.
85. But the question we have to answer is whether the position under domestic law can withstand the unqualified procedural right conferred by Article 6. We do not think it can. The common law approach has inevitably been determined by the constraints imposed by legislation. The logic is that if legislation vests a decision in a person who is biased or provides for a decision to be taken in a manner which is not compatible with the requirements of independence and impartiality, no breach of the requirements of fairness can be found. Such requirements of fairness as there may be must be accommodated to the relevant statutory scheme. But the question now is not how Article 6 can best be accommodated in the interests of fairness given the existing statutory scheme, but rather whether the scheme itself complies with Article 6. To accept that the possibility of common law bias is inherent in the system and mandated by Parliament is merely to admit that the system involves structural bias and requires determinations to be made by a person who is not impartial.
86. It must follow from these conclusions that the Secretary of State is not impartial in the manner required by Article 6 because in each case his policy is in issue. This is not of course to say that there is anything wrong with his role as a policy maker. What is objectionable in terms of Article 6 is that he should be the judge in his own cause where his policy is in play. In other words he cannot be both policy maker and decision taker. In the Alconbury case there is the added factor of the financial interest of the Government. In the LG case, as we think in any case where the SSETR through the Highways Agency promotes HA and CPO orders, it cannot possibly be said that as a decision maker the SSETR is objectively impartial. He is a party to the cause in which he is also the judge. Where the Highways Agency is simply a party at the inquiry as in the Alconbury case the same may also be said. The point has less force in the case of the HSE.
High Court's Powers of Review
87. Earlier in this judgment we identified the grounds of statutory challenge to decisions made under the legislative provisions relevant to these four cases - namely, the grounds under section 288 of TCPA, section 22 of TWA, paragraph 2 of Schedule 2 HA and section 23 ALA. All of those grounds are in broadly similar form. Put shortly, they are that the decision was outside the powers of the relevant Act or that there was a failure to comply with a relevant requirement. Those grounds involve consideration of the same principles of review as are involved in judicial review under what is now CPR Part 54. In other words, the scope of review by the High Court in all these cases involves consideration of the normal principles of judicial review that have now become well established.
88. The conventional grounds of challenge were stated by Lord Denning MR in Ashbridge Investments Ltd v Minister of Housing and Local Government (1965) 1 WLR 1320 at p. 1326 in the following terms:-
...it seems to me that the court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has powers to interfere with the decision of a lower tribunal which has erred in point of law.
89. The courts have made it clear on a number of occasions that they are only concerned with the legality of the decision, not with the merits of the case. The following two examples illustrate the position. Firstly, in Tesco Stores Ltd v Secretary of State for the Environment (1995) 2 PLR 72 Lord Hoffman stated at p.94:-
The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority have regard to all material considerations, they are at liberty (provided that they do not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.
This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.
Secondly, in Reid v Secretary of State for Scotland (1999) 2 AC 512 Lord Clyde put it in this way at p.541:-
Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence.
90. The extent to which the court may have regard to material errors of fact was touched upon by Lord Slynn in R v Criminal Injuries Compensation Board, ex parte A (1999) 2 AC 330 when he said at p.344:-
Your Lordships have been asked to say that there is jurisdiction to quash the board's decision because that decision was reached on a material error of fact. Reference has been made to Wade & Forsyth, Administrative Law, 7th ed. (1994), pp 316-318 in which it is said:
Mere factual mistake has become a ground of judicial review, described as "misunderstanding or ignorance of an established and relevant fact". [Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014, 1030], or acting "upon an incorrect basis of fact"...This ground of review has long been familiar in French law and it has been adopted by statute in Australia. It is no less needed in this country, since decisions based upon wrong facts are a cause of injustice which the courts should be able to remedy. If a "wrong factual basis" doctrine should become established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a misapprehension of law.
De Smith, Woolf and Jowell, Judicial Review of Adminstrative Action, 5th ed. (1995), p. 288:
The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention.
For my part, I would accept that there is jurisdiction to quash on that ground in this case, but I prefer to decide the matter on the alternative basis argued, namely that what happened in these proceedings was a breach of the rules of natural justice and constituted unfairness.
91. So far as planning policy is concerned, the courts have made it clear that, if the determining authority is going to depart from its policy, it has to give its reasons for doing so but that the weight to be attached to the policy is a matter for the determining authority alone (see E.C. Gransden v Secretary of State for the Environment (1986) JPL 519 and Wycombe District Council v Secretary of State for the Environment (1988) JPL 111). As we have already said, the court also has a restricted. power to review decisions on the ground of alleged bias. When exercising its reviewing function the court does have power to hear oral evidence although that power is rarely exercised.
92. The scope of the High Court to review the kind of decisions involved in these four cases is, therefore, restricted in the way we have described above. It is only concerned with the legality of the decision and it is not allowed to examine the evidence to form its own view about the substantial merits of the case. The merits of the case and questions of planning judgment are for the determining authority, not for the court. It seems to us that in para 44 of their judgment in Bryan the ECtHR gave a fair summary of the nature of the scope of the review of the High Court in the kind of cases with which we are concerned.
Are the processes involved in these cases saved by the High Court's powers of review?
93. This is the crucial question which we have to answer having regard to "matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal" (Bryan para. 45 ). We know of course what the subject matter of the decisions in question is (planning permission, TWA, HA and CPO orders) and the manner in which those decisions will be arrived at. We know broadly the content of the dispute in each case. But at this stage we cannot know anything about desired or actual grounds of appeal. This led to the suggestion by Mr. Stanley, for the Nene Valley Association and Huntsnap, that these applications were premature. The same point was made in County Properties. The Judge rejected it saying (975) :
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. As ........ Counsel submitted, it would be unreasonable to require the petitioners to defer their challenge to the validity of the call in decision until after the inquiry process had run its course, a decision had been made, and it was possible to say for certain whether in the circumstances the statutory appeal afforded an adequate review to comply with Article 6 (1). Considerations of both time and expense make that approach unattractive.
We find this reasoning compelling. All other parties to these applications supported it.
94. We have already said why we think the SSETR is not independent or impartial. This must be balanced against the safeguards inherent in the process, the most important of which is the public inquiry. The rules under which such inquiries are held are designed to and do, we think, give the parties a fair and public hearing at which all issues of fact and law can be ventilated. If the decision was for the Inspector we have no doubt, as in Bryan, that this would justify a restricted right of review by the High Court. But that is not the case. The Inspector reaches conclusions and makes recommendations at the end of the inquiry and the SSETR cannot disagree with his material findings of fact without giving the parties the opportunity to make written representations. But having complied with this requirement of natural justice he is free to make his own decision and does so after taking account of internal legal and policy "elucidation" and the recommendation of the Decision Officer (paras. 62, 63 and 64 above) which are not seen by the parties.
95. We do not think this process contains sufficient safeguards to justify the High Court's restricted power of review. In terms of Article 6 the decision on the merits, which usually involves findings of fact and planning judgment, has not been determined by an independent and impartial tribunal or anyone approaching this, but by someone who is obviously not independent and impartial.
96. We have to say that we are not pleased to reach this conclusion which will obviously have far reaching consequencess. The system has generally worked well and we should like to think that it was fair. But Article 6 does require us to think again and we do not think we can avoid the conclusions we have reached. If one asks the question "would those whose civil rights and obligations are at issue in these cases have them determined on the merits by a tribunal which was, or was largely, independent and impartial", the answer must be "no". Our attention has been drawn to the Privy Council's decision in Brown -v- Procurator Fiscal (5th December 2000) where Lord Bingham said (32) :
The general language of the Convention could have led to the formulation of hard edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But that approach has been consistently eschewed by the Human Rights Court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it giving effect to factual differences and recognising differences of degree.
We hope we have recognised this in our judgment. But however flexible and friendly one makes Article 6 (1) we do not think one can escape from the conclusion that the processes in issue in these cases are not compatible with it. To hold otherwise would substantially impair the right.
97. In support of his submissions Mr. Elvin urged that the Convention was concerned to maintain and promote the ideas and values of a democratic society. Planning and transport policy and decisions were often sensitive political issues for which governments are held responsible in democratic societies. Because judges were not accountable in this way, it was desirable for such decisions to be made by government without interference from the courts, provided they were made lawfully.
98. We agree with much of what Mr. Elvin says. It is not for us to decide how the system needs to be changed in the light of our decision, although it is obvious that Government has been considering the options for some time. Our decision should not be interpreted as a bid for more judge power. This is a specialist field in which most judges would be unqualified to make value judgments of the kind which have to be made. Most judges would not want to do so. With PINS the SSETR already has at hand a cadre of sufficiently independent specialists well equipped to make such decisions. As with the decisions they now make, they would be required to have regard to Government policy.
Should the scope of the Court's powers of review be enlarged ?
99. Here the SSETR's argument is that the Court as a public authority must not act in a way which is incompatible with the Convention (Section 6 HRA) and so it must, if it can, read and give effect to the relevant legislation (Section 3 (1) HRA) and/or enlarge its own powers by way of judicial review so as to save the processes in issue. In support of this argument Mr. Elvin obviously contemplated that the Court would undertake a more intensive review of findings of fact, but submitted that it would not be necessary to review matters of planning judgment.
100. There are principled and practical objections to these arguments. The first objection in principle is that it is not possible to read and give effect to the legislation which quite plainly precludes "full" appeals or appeals against findings of fact to accommodate any enlarged power of review and it would not be right to do so by the back door of judicial review. Judicial review is a review and not a full appeal. The Court's powers to review findings of fact are circumscribed by the nature of the process. Secondly, the Court's powers under the legislation and on judicial review are limited to quashing the decision in question. If the Court quashed TWA, HA or CPO orders made in these cases because the process did not comply with Article 6, the cases could only go back for re-decision by the SSETR, so the Court would not have provided an effective remedy. That would be a breach of Article 6 (See Kingsley -v- UK (unreported 07/11/2000) paras. 58 and 59 where the ECtHR held that there was a breach of Article 6 because the English Court could only quash the decision in question which meant that the matter would have to go back for decision by the same authority which was not impartial). The practical objection is that if the Court was to consider extending its powers it should not do so other than on a case by case basis or at least where it had a set of facts to consider. Here, the exercise we are being asked to perform is entirely hypothetical. We decline to do so.
Section 6 HRA.
101. It is common ground that if the TWA, HA and ALA processes do not comply with Article 6 and cannot be made to do so (as we have found), this is because the primary legislation requires the Secretary of State to take the relevant decisions and so he cannot act differently (Section 6 (2)(a)). His acts are not therefore unlawful under Section 6 (1). This enables us to make a declaration of incompatibility under Section 4, but we have said we will hear argument about this and any other relief after handing down this judgment.
102. There are however Section 6 issues about the planning processes. In the call in cases HB and PL argue that Section 6 (2) does not apply because no question arises as to whether Section 77 TCPA can be given effect in a way which is compatible (Section 6 (2)(b) ) with Article 6, alternatively, if such a question does arise, Section 77 can be given such effect. In the case of recovered appeals, ADL, supported by the amicus and others, argue that the relevant provisions can be given effect because they give the SSETR a discretion as to whether to recover the appeal or not. So the provisions can be given effect by choosing not to recover.
103. We deal with Section 77 TCPA first. Mr. Hockman QC, for HB, submitted that the Court was only concerned with the call in decisions in these cases and so it did not need to speculate about whether it was possible for other call ins to be made which would not involve a breach of Article 6. But if one had to speculate, there were cases, such as where a local planning authority had to give itself permission, where there would not be a breach of Article 6 because the local planning authority had no Convention rights. Alternatively, Section 77 could be read down even to the extent that the SSETR could never call in.
104. We do not accept these submissions. It seems to us that where the point is raised (as it is) the Court is bound to consider whether the provision in question can ever be given effect to in a way which is compatible with Convention rights. Once a planning application is called in, the legislation requires the Secretary of State to decide it. As all such cases involve the use of land, in practice there are unlikely to be any cases in which the civil rights or obligations of persons eligible to take proceedings under Section 7 HRA are not affected. The fact that a local planning authority may not be so eligible (Section 7 (7) HRA and Article 34 of the Convention) does not mean that the authority, which is not the Government (i.e. a High Contracting Party), has no rights under Article 6. We do not think it is legitimate to read down a legislative provision so as to extinguish it. It follows that we think Section 6 (2) (b) HRA applies to Section 77 TCPA and so the SSETR's acts are not and will not be unlawful under Section 6 (1) in the HB and PL cases.
105. It is argued that the position is different for recovered appeals. Here, the provisions of the legislation in question (Sections 78 and 79 and paras. 1 and 3 of Schedule 6 TCPA) give the SSETR two powers : a power to delegate his decision to an Inspector and a power to recall a decision to himself. These provisions can be given effect in a way which is compatible with Article 6 by not exercising the power to recover. The fact that this does away with the power to recover and converts the power to delegate into a duty to do so is irrelevant. A public authority does not fail to give effect to a statute if it invariably uses one of two powers conferred on it, if that is the only way of achieving compatibility with the Convention.
106. We have not found this an easy issue to resolve. On analysis we think the answer depends upon what is meant by "one or more provisions" in Section 6 (2) (b). If it refers to the whole statutory scheme by which appeals under Section 78 are to be decided, we think the submissions which we have set out above are correct. On the other hand, if it refers simply to the provision by which the Secretary of State can recover appeals under paragraph 3 of Schedule 6, then we think that Section 6 (2) (b) does apply for the same reasons that it applies to Section 77. In other words this provision cannot be given effect in a way which is compatible with Article 6. On balance we prefer the latter view. Looking at the matter more generally, Sections 78 and 79 cast the primary duty of deciding appeals on the Secretary of State. We have held that he cannot do so in a way which is compatible with Article 6. It would be somewhat anomolous if the case did not fall within Section 6 (2). It follows that we think that Section 6 (2) (b) also applies to recovered appeals and so the Secretary of State's acts are not and will not be unlawful under Section 6 (1) in the ALD case.
Domestic law challenge
107. HB's main complaint is that the SSETR has not given any reasons to make it clear whether he was treating the application as coming within his call-in policy and, if so, why, or whether he was departing from the policy and, if so, why.
108. The SSETR's call-in policy is contained in paragraph D7 of Annex D to Planning Policy Guidance Note (PPG1). It states:-
The Secretary of State may require applications to be referred to him for decision but this call-in power has in recent years only been exercised in around 130 cases each year. The policy of the Secretary of State is to be very selective about calling in planning applications, and such action is generally taken only if planning issues of more than local importance are involved. Examples are applications which raise significant architectural and urban design issues, which could have wide effects beyond their immediate locality, which give rise to substantial national or regional controversy, which may conflict with national policy on important matters, or where the interests of foreign governments may be involved.
109. The site to which HB's application relates lies within an area allocated for oil storage in the local plan. The application therefore involved a departure from the development plan. In his report to the town planning committee, the council's director of planning stated that, for reasons set out in his report, he did not consider the application to be a major departure warranting referral to the SSETR for his determination pursuant to the Town and Country Planning (Development Plans and Consultation) (Departures) Directions 1999.
110. Mr Hockman submitted that there was nothing in the reasons given by the SSETR in his call in letter (in para 11 above) to suggest that the application was of more than local importance so that, under the SSETR's call in policy, it would not normally be called in for his determination. HB's 1997 application for its present site on the Charfleet Industrial Estate, which was ultimately determined by an inspector on appeal, had not been called in, and comparison was made with the Alconbury proposal which was of significantly greater importance but which had not been called in by the SSETR. It was therefore submitted that the SSETR's decision to call in the application was arbitrary as well as inadequately reasoned.
111. In support of his contention of arbitrariness Mr Hockman relied on a passage in the judgment of Sedley LJ in R v Secretary of State for Education and Employment, ex parte Begbie (2000) 1 WLR 1115, which was an education case. When dealing with the principles relating to the exercise of discretion in relation to the policy relevant in that case, Sedley LJ said at p. 1132:-
Thirdly, it must not be exercised arbitrarily or inconsistently, as between one pupil and another....Everything therefore depends upon there being adequate factual reasons for either agreeing or deciding to depart from a policy.
In support of his reasons challenge, Mr Hockman relied on E.C. Gransden & Co Ltd v Secretary of State for the Environment (1986) JPL 519 where Woolf J., as he then was, said that if a body is going to depart from its policy it had to give clear reasons for doing so.
112. In our view, it is important to bear in mind that, under section 77 TCPA, the Secretary of State is given a very wide discretion whether or not to call in an application for his own decision. Furthermore, there is no statutory requirement for him to give reasons for his decision whether or not to call in an application. In fact, he has given his reasons in this case although he was not statutorily obliged to do so. Those reasons are now relied on by HB as giving rise to the need for further reasons as to whether or not he has treated the application as coming within his policy. In our judgment, it was not incumbent on the SSETR to give the further reasons suggested. The call in policy contained in paragraph D7 of Annex D of PPG1 is not an exclusive policy as is made clear by the word "generally" in the policy. The SSETR was not, in our view, under any duty to explain whether or not he considered the application to come within the generality of the policy in the sense of involving issues of more than local importance. He gave clear reasons why he had decided to call in the application and there was no need for him to go any further than that.
113. Whilst we can understand HB's disappointment in having their application called in, the SSETR has a wide discretion whether or not to call in an application which he has to exercise on a case by case basis. We do not consider that it can be said that his decision to call in HB's application was arbitrary, nor can it be said to be perverse or irrational. In those circumstances, we do not accept the submission that the decision should be quashed on domestic law grounds.
114. The processes involved in these four cases are not compatible with Article 6 (1) of the Convention, but the SSETR has not and will not act unlawfully under Section 6 (1) HRA because Section 6 (2) applies. We will hear argument whether we should make declarations of incompatibility in respect of these processes.
115. HB's domestic law challenge fails.
LORD JUSTICE TUCKEY: First of all, may I apologise to everyone for the fact that the judgment which we are about to hand down was not available until yesterday morning. Firstly, we had hoped to get it out on Monday afternoon, but a series of technical hitches intervened to prevent that from happening. Secondly, for arranging today's hearing at such short notice. I know that lots of people have been inconvenienced by it. I took the somewhat cavalier view that if we tried to accommodate everyone's convenience the likelihood is that we would not be able to fix a hearing this side of Easter and that therefore, since it was an important matter, the sooner we handed down our judgment the better and that is what we do.
Therefore, coming to that, for the reasons set out in the written judgment which we hand down, we find that the processes involved in these four cases are not compatible with Article 6(1) of the European Convention on Human Rights, but for the reasons which we explain the Secretary of State has not and will not act unlawfully under section 6(1) of the Human Rights Act 1998 because section 2 of that Act applies.
We also find that the domestic law challenge to the Secretary of State's decision to call in in the Holding and Barnes case fails. As we indicate in our judgment, the purpose of today's hearing is to hand down a judgment and to hear argument as to what the consequences of those decisions are and to make it clear to everyone that if there was any doubt about it we are sitting in the Queen's Bench Division of the Court and therefore as a Court of First Instance of review, not in the Court of Appeal.
Secondly, that in the course of the last 24 hours the written judgment has undergone some very minor changes. The press have been handed the latest version; counsel have a slightly earlier version, but I hope one page which contains the only amendment of any substance which has been made which has thrown out the paragraph numbering, but you will be aware of what I have and I am aware of what you have, so we ought not to be at cross purposes about what we have said.
Because of the time constraints we have not had from everyone the usual typos, corrections and anything else that anyone suggests. Could I ask for those by close of business this evening, 6 o'clock this evening, on the fax that you all have. We already have some and for which, our thanks.
Where are we going to go from there?
MR SALES: My Lord, I appear for the Secretary of State. It may be of assistance to the court if I indicate the position that the Secretary of State adopts in relation to consequential matters.
LORD JUSTICE TUCKEY: I think that would be helpful because obviously the ball is in your court, so to speak.
MR SALES: May I make two apologies, first of all for Mr Elvin and Mr Maurici who cannot be here today, and for myself for not being here previously but I am in at the death, as they say.
LORD JUSTICE TUCKEY: We saw your name and you were here in spirit at least. I think I even asked you a question.
MR SALES: My Lord, the second apology is that I am sitting here in this row in your Lordship's court, but it is pressure of space.
LORD JUSTICE TUCKEY: I think it is wholly appropriate, Mr Sales, thank you.
MR SALES: The matters that require to be dealt with by your Lordships today are, first of all, should declarations of incompatibility be granted? In relation to that the Secretary of State accepts that declarations of incompatibility should be granted.
LORD JUSTICE TUCKEY: I am quite keen that they should be very carefully granted.
MR SALES: Yes. That was the next thing I was to say. Subject to your Lordship, I was not proposing to seek to draft on my feet or to propose --
LORD JUSTICE TUCKEY: I was not going to invite you to. I am sure that, speaking for myself, we would like to look at it very carefully before we go on.
MR SALES: I was going to suggest that overall -- after we have had the hearing before your Lordships today -- a minute of order be drawn up, hopefully consented to by all the parties, and put before the court for consideration. This is the first occasion when such a declaration has been granted.
LORD JUSTICE TUCKEY: It is not actually. Some other division of the Court of Appeal has made one recently but of a fairly unsensational kind.
MR SALES: Forgive me. At any rate, we do agree with your Lordship that some care will need to be taken and that is how we propose to deal with it.
LORD JUSTICE TUCKEY: Yes. I think it is very important, for example, that very specific reference is made to those legislative provisions which are (inaudible) because one can easily take one's eye off that ball.
MR SALES: I respectfully agree with that observation, my Lord. So I simply indicate now that there is no dispute of principle but that such a declaration should be made.
The second matter that arises is costs --
LORD JUSTICE TUCKEY: Yes.
MR SALES: -- in relation to costs the Secretary of State accepts that he has in substance lost on what formed the bulk of the argument before this court. He does not seek to salami slice around the edges, if I can put it that way. He accepts that he should pay the parties' costs of these proceedings.
LORD JUSTICE TUCKEY: All right.
MR SALES: The third matter that arises is that the Secretary of State would respectfully ask the court to issue a certificate under section 12 of the Administration of Justice Act 1969 so as to operate the leapfrog procedure to the House of Lords. I will come back to that.
LORD JUSTICE TUCKEY: Yes.
MR SALES: I will need to take your Lordships through that.
The last point that specifically needs to be addressed is, in any event whatever your Lordships decide in relation to a certificate under section 12, the Secretary of State would ask for permission to go to the Court of Appeal.
LORD JUSTICE TUCKEY: That does not surprise me.
MR SALES: The leapfrog procedure, as your Lordships will appreciate, is simply permission to petition the House of Lords. It does not actually guarantee that there will be such an appeal. So, in any event, as a back stop --
LORD JUSTICE TUCKEY: You would need a back stop. Yes.
MR SALES: There is one other matter before coming to deal in detail with the section 12 point which I should draw to the Court's attention. It is really to register a protest. There was a press release last night by Huntsnap, one the parties, which was issued revealing the substance of your Lordship's decision in breach of the embargo. I simply register the protest. The Secretary of State was, of course, not able to consider the matter until this morning because we respected the embargo. It is a matter we felt ought to be drawn to the Court's attention.
LORD JUSTICE TUCKEY: I will see what we ought to do about that because the terms of the judgment made it perfectly clear that it was confidential. This is an important matter and I am for the moment not minded to let it rest there.
MR SALES: If your Lordship's need a copy of the press release, I have one.
LORD JUSTICE TUCKEY: I would like to see that before we adjourn.
MR SALES: I will hand it to the Associate and copies can be made.
So, my Lords, the main outstanding matters are in relation to appeal. Can I deal first of all with the leapfrog procedure? The relevant provision is section 12 of the Administration of Justice Act 1969. It is at volume 2 of The White Book, page 1584.
LORD JUSTICE TUCKEY: We have every criminal appeal report in the entire world but we do not have The White Book I am afraid.
MR SALES: My learned friend has offered up a copy.
LORD JUSTICE TUCKEY: That is very noble of him.
MR SALES: I do not know whether there is another. I am very grateful to my learned friends.
LORD JUSTICE TUCKEY: Another technical hitch.
MR SALES: Section 12 of the Administration of Justice Act 1969 page 1584. The appeal from the High Court to House of Lords granted certificate by trial judge:
"Where on the application of any of the parties to any proceedings to which this section applies the judge is satisfied
(a) that the relevant conditions are fulfilled in relation to his decision in those proceedings and
(b) it is a sufficient case for an appeal to the House of Lords and this part of this Act has been made out to justify an application for leave to bring such an appeal and
(c) that all the parties to the proceedings consent to the grant of a certificate under this section the judge, subject to the ... (Reading to the words) ... this part of this Act may grant a certificate to that effect.
The section applies to any civil proceedings in the High Court which are .."
It includes proceedings before the Divisional Court. Then:
"For the purposes of this section the relevant conditions in relation to the decision ... (Reading to the words) ... is that a point of law of general public importance is involved in that decision. That that point of law either
(b) it is one in respect of which the judge is bound by ..."
It is (a):
"Any application for a certificate under this section shall be made to the judge immediately after it he gives judgment in the proceedings ... (Reading to the words) ... beginning with the date on which that judgment is given or such other period which may be proscribed by rules of the court."
My Lords, my understanding of the position -- and I will be corrected if I am wrong because there has been a limited period of time in which to gather in all the consents -- is that consents have come in from all the parties who appeared before the court save for Legal and General.
The position in relation to Legal and General, your Lordships may recall, was that they had originally proposed being a party -- indeed are formally a party -- in the proceedings but then chose not to appear by counsel before your Lordships. That place was in effect taken by my learned friend, Mr Howell, as amicus. We have not in the short time available been able to confirm with Legal and General's legal representatives that they consent. So, in relation to the Legal and General --
LORD JUSTICE TUCKEY: Heads they win, tails you lose, is it not, so far as they are concerned?
MR SALES: That is the first matter that I draw to your Lordship's attention. The consent of all the parties in three of the cases before you. The consent of the parties in the fourth case, subject to Legal and General. That is the relevance for present purposes of that proviso to section 12.
MR EIKE: My Lord, I apologise. I have not had any communication about consent and I should mark at this stage that Huntsnap and Nenevalley Association are in the position that --
LORD JUSTICE TUCKEY: You may be facing proceedings for contempt of court -- your organisation -- so you may have more pressing concerns. But you are an interested parties: are you a party to the proceedings?
MR EIKE: My Lord, effectively, we acted -- although as an interested party -- as the claimants for the purposes of these proceedings because the respondent and the claimant -- or defendant and claimant -- were effectively seeking the same relief. On that basis --
LORD JUSTICE TUCKEY: Anyway, you have not yet consented is what you are saying.
MR EIKE: No, my Lord, the position is that in principal there is consent, subject to one caveat. That is the caveat that the protection in relation to costs against us that was extended in front of Scott Baker J previously be extended to any proceedings that go further. My clients are very concerned about the protection being extended. Subject to that my clients will give their consent.
MR SALES: I have instructions that the costs arrangement would, in relation to them, remain the same.
LORD JUSTICE TUCKEY: So there is not a problem any more on that front. We will return to consider the position of your clients though at the end of this hearing because, as I have said Mr Eike, I am extremely concerned about what happened.
MR EIKE: It is the first time I have heard about it and I share your Lordship's concern.
LORD JUSTICE TUCKEY: Someone, somehow has got this information to whoever Mr Doug Ash is without telling him -- or if they did tell him he has ignored it -- that there was an embargo on this judgment. It may be your instructing solicitor would be usefully employed in discovering at least in some preliminary way what has happened, because I am very annoyed about it.
MR EIKE: Yes, my Lord.
MR SALES: Would your Lordship just allow me one minute?
LORD JUSTICE TUCKEY: Yes.
Can I just get this clear, Mr Eike, with the assurance on costs your instructions are to consent?
MR EIKE: My Lord, yes. Subject to that also being confirmed by ADL who are obviously the other parties in these proceedings.
LORD JUSTICE TUCKEY: In what sense?
MR EIKE: They gave an undertaking before Scott Baker J that their undertaking not to seek an order for costs against us also be extended to the House of Lords. I am grateful for my learned friend for the Secretary of State for their rapid assurance. We would seek the same assurance from ADL.
MR HOWELL WILLIAMS: My Lords, I appear on behalf of ADL. I am instructed to give that same assurance that we would not apply for costs on the basis that we were successful.
LORD JUSTICE TUCKEY: Thank you, Mr Howell Williams.
MR SALES: So, so far as the parties who appeared before the court are concerned who were specifically joined to the proceedings -- with Legal and General who were a party in the strict sense -- it is just Legal and General whose consent remains outstanding. What we submit would be --
LORD JUSTICE TUCKEY: Can I just ask you this: County Properties which raises one of the points which arise in this case is at the moment proceeding from the Inner to the Outer house; or is the other way around?
MR SALES: The other way around.
LORD JUSTICE TUCKEY: And no attempt was made to take that directly to the House of Lords.
MR SALES: So far as I am aware, no attempt was made to take that to the House of Lords.
LORD JUSTICE TUCKEY: What is the position so far as the appeal hearing in that is concerned?
MR SALES: I think that the position in relation to County Properties may be quite complicated as to whether the appropriate appellate route would be to the House of Lords or to the judicial committee of the Privy Council.
LORD JUSTICE TUCKEY: I think it is the Privy Council, is it not, if it raises a devolution issue?
MR SALES: That would be my initial reaction but I cannot say that I have fully researched that point.
LORD JUSTICE TUCKEY: The other human rights cases which have come from Scotland have gone to the Human Rights Council and I see there is quite a lot of argument about whether they do --
MR SALES: It is fair to observe that those ones so far are criminal cases where, of course, there is not an appeal from the High Court of Judiciary in the criminal matters to the House of Lords, so such appeals have depended critically upon the devolution issue being raised. Whether that same position applies to what would then be an appeal from the Court of Inner Session in Scotland, I am not in a position to give your Lordships a definitive answer, I am afraid.
LORD JUSTICE TUCKEY: You see the purpose of my question: if that is on its way to the House of Lords then --
MR SALES: The position at the moment is that my understanding is that it is not. It is on its way to the Inner House, the Court of Session, and my understanding that that is not a hearing which is anticipated to take place in the very immediate future. In other words, the courts this side of the border have moved considerably more speedily to sort the matter out. But I know that the Scottish advisors are taking a very great interest in what has happened here obviously.
LORD JUSTICE TUCKEY: If this one got to the House of Lords it would decide the point in that case as well.
MR SALES: There is no relevant point of distinction.
LORD JUSTICE TUCKEY: No.
MR SALES: In relation to the application under section 12, we do stay that it is completely clear that this is a point of general public importance and that it is --
LORD JUSTICE TUCKEY: Have the House of Lords laid down any protection for themselves from courts at this stage certifying under 12? Is there a statement of principle which we should be looking at which says "please do not do it".
MR SALES: My Lords, the protection for the House of Lords is that they consider the petition. This is just the mechanics for enabling parties to proceed in that way. So I would respectfully submit that whilst your Lordship is quite right to be concerned that this court does not burden the House of Lords with something which it says it ought not to hear, but that protection for the House of Lords is built into the procedure that exists.
My Lords, there is another matter in relation to consent that I should mention. As I say, it is clear in our submission that the other conditions are satisfied. My learned friend, Mr Howell Williams this morning drew to my attention section 151(1) of the Supreme Court Act 1981. That is at page 1477 in this volume.
LORD JUSTICE TUCKEY: Yes.
MR SALES: My Lords, section 151(1) of the Supreme Court Act 1981:
"In this Act unless the context otherwise requires ...
Party. In relation to any proceedings includes by person ... (Reading to the words) ... has been served with notice or has intervened in those proceedings."
LORD JUSTICE TUCKEY: That would include Huntsnap obviously.
MR SALES: Yes. But my understanding is -- you will have to forgive me but I came in rather late before this court -- but a number of other parties who chose not to appear before the court were -- at least in two of the cases -- were served as well, as persons affected by the proceedings. So the position is that such persons -- Huntsnap, I accept, were served and chose to appear. There were other persons who were served and chose not to appear. The question which my learned friend seeks to have drawn to the court attention -- because it is a jurisdictional matter -- is the interaction of section 151(1) of the 1981 Act with section 12(1)(c) of the 1969 Act.
LORD JUSTICE TUCKEY: Yes.
MR SALES: Now, my Lord, because I did not have notice of this point until very shortly before I came into court -- no criticism of my learned friends, people have been looking at this within a short space of time -- I have not had the opportunity to go back to the predecessors of the Supreme Court Act 1981. There is an incident of the extent to which one may in the event have regard to a definition in the 1981 Act for the purposes of construing the 1969 Act. That is one point which arises.
In the event, we would submit that in the context of section 12 of the 1969 Act, that the parties to the proceedings should be construed as the parties before the court, in the sense of the parties who chose to appear before the court or were formal parties which would cover Legal and General but should not be extended more widely. We say that that is the appropriate instruction because that is the construction which in our respectful submission best promotes the ordinary administration of justice.
In effect, the wide range of parties who have been given notice of the proceedings in relation to two of the cases, have had their opportunity of coming to court and of making submissions to the court but for whatever reason chose not to do that.
In those circumstances, we say that the most sensible interpretation of section 12 of the 1969 Act would be to consider (inaudible) to the proceedings in the manner that I have indicated since such a construction in effect presents, we would submit, the best of both worlds. Still the wide notice provisions which are -- if one can put it this way -- in the spirit of generosity not taking fine points because of fears of consequential impact of serving people. So that there is a maximum distribution and notice given of proceedings on foot, but at the same time if one gets to a section 12 situation the orderly administration of justice and the taking of appropriate cases to the House of Lords is not impeded by that generosity at an earlier stage.
My Lords, so far as that point is concerned, we would submit that your Lordships are in a position today to proceed upon that basis, to determine that issue of construction and proceed upon that basis. If your Lordships remained in doubt about it then we would respectfully ask that your Lordships reserve a decision in relation to the operation of section 12, always assuming that your Lordships were at least open minded as to whether it should be operated --
LORD JUSTICE TUCKEY: We thought we could not escape getting the consent of the other parties. We could say that we would give you a certificate subject to the consent of the other parties who have been served and have not participated --
MR SALES: That would be a long stop position that, if your Lordships were against me on the matter of construction we would respectfully ask for, but our primary position would be as a matter of construction that one is not driven to that.
LORD JUSTICE TUCKEY: I follow that.
MR SALES: As I say, on the matter of construction there would be additional research that if your Lordships were in doubt on the points that I have already made I would like to put before the court in order to address the points. If your Lordships remain in that state of mind that you cannot be sure, then I submit that the parties be given a short period of time in which to apply back for an order under section 12 -- a certificate under section 12 -- so that people can gather their thoughts on the subject and put more detailed arguments to you. For today, my primary submission is that your Lordships can proceed with reasonable clarity as to what the meaning of section 12 is.
So we say that your Lordships should grant that certificate. In relation to the Legal and General case, we would respectfully ask for an order which reserves liberty to apply to the Secretary of State, in the hope -- and indeed we say expectation -- that when we manage to speak to the legal representatives for Legal and General it is unlikely that they would withhold consent. Even if they did withhold consent, that would simply mean that one of the four cases could not proceed to the House of Lords.
LORD JUSTICE TUCKEY: That would be unfortunate because I would have thought that case has the most far reaching consequences for the Secretary of State, since it presumably relates to all compulsory purchase orders not only those made in the context of Highways Orders.
MR SALES: I do not seek to conceal from your Lordships that if Legal and General refused to give their consent that would be unfortunate in the view of the Secretary of State as much as your Lordship. But there are very big issues at stake across the board in this case. We would respectfully submit that even if it were the position that Legal and General would not give their consent, it would be appropriate to grant it in relation to the other three cases where the parties have done.
So that is the section 12 point. The final point is an application in any event for permission to appeal to the Court of Appeal.
LORD JUSTICE TUCKEY: We will hear what the other parties have to say about that.
MR SALES: Can I simply mention that if your Lordships were minded to grant us such a permission we would seek a direction under CPR Rule 52.4(2)(a) that the time for filing the appellants' notice be extended to seven days after of the determination by the House of Lords of the leapfrog application under section 13 of the 1969 Act. That is obviously dependent upon your Lordships being minded to grant us such a certificate.
The reason for proceedings in that way is that under section 13.2(a)(iv) of the 1969 Act, if permission to leapfrog is given no decision --
LORD JUSTICE TUCKEY: So you cannot --
MR SALES: It has to be sorted out under one appeal route or the other. The purpose of this direction would simply be to make it clear that we only have to go about by the appeal itself if it becomes clear that the House of Lords route is closed to us.
My Lords, those were the matters on which I thought it might be helpful to indicate the Secretary of State's position.
LORD JUSTICE TUCKEY: Thank you very much. Who is first? We might as well deal with it in the way that we dealt with it before, from the left hand side of the court first. Mr Howell Williams, what do you want to say?
MR HOWELL WILLIAMS: My Lords, on behalf of ADL taking the matters in the order in which Mr Sales has presented them to your Lordships --
LORD JUSTICE TUCKEY: Yes.
MR HOWELL WILLIAMS: May we formally record our consent to the leapfrog procedure and, insofar as it is or becomes necessary to seek leave to the Court of Appeal, we do so. So far as Mr Sales' present submissions on the operation of legislation, I unfortunately was not given the opportunity to consider this matter either and I have also not got volume two of The White Book any more --
LORD JUSTICE TUCKEY: Because you have handed it up.
MR HOWELL WILLIAMS: Unfortunately I cannot take the matter very much further forward, but suffice it to draw your Lordship's attention to ADL's claim form so that your Lordships do note the number of other interested parties who were served in the ADL case. It is page 33 of the bundle.
LORD JUSTICE TUCKEY: Just tell us how many there are.
MR HOWELL WILLIAMS: My Lord, 18.
LORD JUSTICE TUCKEY: I see. So if it may not be quite --
MR HOWELL WILLIAMS: It appears to present a practical problem and it does, of course, give rise to at least the potential for some frustration of what, I think, all parties at least in this court believe to be the best way forward in terms of expedition of the case.
LORD JUSTICE TUCKEY: I follow that.
MR HOWELL WILLIAMS: The only other matter to note following Mr Sales' opening remarks is that I have assumed, on behalf of ADL, that the intention to assist your Lordships on the drafting of the declarations outside of the court in the first instance should also take into account and deal with the drafting of the case specific declarations such as those in the ADL case.
LORD JUSTICE TUCKEY: No-one has asked yet for a case specific direction and at the moment I have an open mind as to whether they are appropriate at all for anyone. We have been talking only about the section 4.2 declaration which is, it seems to me, specifically not case specific. It is legislation specific but not case specific.
MR HOWELL WILLIAMS: I understand that my Lord, but I hope your Lordships will recall that in ADL's claim form the primary purpose was to seek certainty through the court on the basis of specific declarations applicable to the particular circumstances of the ADL case. It has to be noted that I believe, at least at this stage, that the so called "case specific declarations" which we seek would flow easily from the judgment insofar as it relates to the section 4 declarations. In other words where there is a decision of the Secretary of State to recover jurisdiction or retain jurisdiction on the ADL's appeals, it, we would say, would follow that a declaration of compatibility cannot be given but a declaration of lawfulness can be given and should be given.
LORD JUSTICE TUCKEY: That is the issue. So you are asking for that?
MR HOWELL WILLIAMS: My Lord, we are. The declarations, for your Lordship's note, are set out on pages 34 and 35 of the claim form. I would invite your Lordships to ask the parties to seek to agree the form of words when they undertake to do the same in the minute of order for the declarations of incompatibility under section 4.
LORD JUSTICE TUCKEY: We will have to give some thought to that but I understand your position.
MR SALES: My Lords, I wanted if I could -- just before the court moves on from Mr Howell Williams -- to clarify one point I made in relation to costs. The Secretary of State is prepared to pay the cost of those parties who came to court to oppose him. I make it clear that he is not prepared to pay the cost of those parties who argued to the same ends as he did and likewise failed --
LORD JUSTICE TUCKEY: I do not think we thought that was what you were offering.
MR SALES: Just to be clear, it is not ADL or Cambridgeshire. It is everyone else.
LORD JUSTICE TUCKEY: I did not ask the Highways Agency. Do either of you want to say anything about anything?
MR LYTTON: My Lord, Mr Caris is not here. You may recall he was case specific in ADL and I am case specific in Legal and General. We do not propose to add anything to what my learned friend Mr Sales has said.
LORD JUSTICE TUCKEY: Mr Jones is here. Yes?
MR JONES: Insofar as I did ask for clarification on the costs position, can I say this shortly so far as Cambridgeshire County Council is concerned: we, like Huntingdon District Council and Huntsnap, were an interested party. It was not our application. We are not the Secretary of State. We came to the court for the purpose, I hope, of assisting the court and putting the local planning authority's position -- we were the county planning authority -- and the wider planning context.
With respect, we were the only party that in the circumstances could come and give that perspective to your Lordships. I realise, of course, that Huntingdon District Council are a planning authority but their perspective in the Alconbury position is, if I may say, a little more partisan in the issues between themselves and the Secretary of State. It was us, certainly in representations -- I hope your Lordships will agree -- that sought to put the wider context which, as your Lordship indicated, was important.
The position was -- and we did make endeavours to do it -- that if circumstances of the litigation could come on in the normal case, we would (and we were in the process of doing so) be seeking, as is common in these cases of great importance to local planning authorities, get a fighting fund, or something from other local authorities as well, in order to pay for our representations because of the wide public interest to planning authorities.
Obviously, given the circumstances of the proceedings -- obviously they had to come on very speedily -- that was not possible. We started the process but it was not possible. My Lord, I would ask for our modest costs either to be paid for by the Secretary of State or indeed to be one of the exceptional cases where it be awarded out of central funds, which your Lordships have the power to do, for the reason that this is a case of great constitutional importance. Although the central issue on the facts that your Lordships were grappling with was the impact of the Secretary of State's decision-making process, as your Lordships I trust will agree, the consequences of the issues raised has wider ramifications. We were able to -- and I think we were the only party -- draw to your Lordships attention in detail to various decision-making processes which would be affected.
For those exceptional reasons, my Lord, I would ask that the cost not fall on Cambridgeshire County Council, on the ratepayers. We were coming here very much in a wider public interest to make submissions.
LORD JUSTICE TUCKEY: Yes.
MR JONES: My Lord whilst the Secretary of State may balk at contributing to our costs because he sees it he will not pay our costs because we were supporting him, but he will pay the costs of people who were not supporting him, from our point of view it matters not whether it is central funds or the Secretary of State who pay our costs but it is something -- we came here in the wider interest and so I would ask for our costs and they are fairly modest costs.
LORD JUSTICE TUCKEY: Yes.
MR JONES: I have some other points on the other issues but they are very short.
LORD JUSTICE TUCKEY: Let us have them now.
MR JONES: So far as the leapfrog is concerned, we do not oppose it. I have taken instructions and we would support, in the interests of certainty, the litigation to be arrived at. I endorse the concerns that Mr Howell Williams has identified in respect of the question of having to notify all the interest parties that were served, and I would respectfully endorse the submission of Mr Sales and Mr Howell Williams on this point.
So far as permission to the Secretary of State to appeal to the Court of Appeal, in my submission it goes without saying that this is an appropriate case. We are particularly concerned --
LORD JUSTICE TUCKEY: I need not trouble you for the moment about that.
MR JONES: Very briefly: obviously one key element which obviously we are concerned about as well is your Lordship's finding at paragraph 87, which is that the policy-maker cannot be a decision-taker. That is the key aspect of the case which concerned us very much and which obviously is of huge importance not only in the planning field but to all policy-makers and decision-takers.
LORD JUSTICE TUCKEY: Yes. Turning to the other side, following the order we have adopted before: Mr Leigh, on behalf of Holding and Barnes and Premier Leisure, thank you for your fax, in which presumably Mr Sales has seen?
MR SALES: I may have. I am not sure.
LORD JUSTICE TUCKEY: You sent a draft order --
MR LEIGH: Yes. It was sent to all counsel for the Secretary of State and I have circulated it among counsel on this side.
LORD JUSTICE TUCKEY: This raises the issue of making case specific declarations obviously. Our decision makes it clear, does it not, that the processes which include the call in process which are the processes involved in your two cases are incompatible with Article 6.
MR LEIGH: Yes.
LORD JUSTICE TUCKEY: Now that will be reflected if we are going to make that -- and there does not seem to be any challenge to this -- in the general declaration that we make under section 4. So we need not be concerned about that. But what else should we be doing, if anything?
MR LEIGH: My Lords, can I deal with it in this way: my learned friend, the Secretary of State, itemised four matters to you and, in addition, there seems to be a fifth matter which I believe would deal with the point raised by your Lordship. So point one raised by Mr Sales concerned the declaration and clearly there is no dispute as to the need for one. We drafted on behalf of Holding and Barnes, and separately on behalf of Premier Leisure, and suggested a draft declaration. It is case specific to use that terminology, and the reason is because clearly, so far as those two cases are concerned, being called in cases, their ambit is rather confined.
The ramifications, the consequences, of the decision your Lordships have given may go beyond called in cases but --
LORD JUSTICE TUCKEY: The declaration of incompatibility would obviously mention section 77 and that would -- by definition -- therefore cover your cases. So I do not see any need for saying: "and what is more the call in decision, the call in process in these two cases is also incompatible" --
MR LEIGH: If the position is in effect to draw a line between section 77, rewrite it or not deal with it in some way, that may be one position. But the reason we have drafted the declaration in this way is so that one can particularise -- the compatibility problems -- with section 77 because it may be that in trying to solve these incompatibility problems that some tweaking of section 77 may occur so far as call ins are concerned. What we have identified is that -- I think this is clear under paragraph 2A and B -- it is the calling in itself which is incompatible, and going on to make a determination thereafter which is also incompatible where the calling in and the determination are by the Secretary of State himself.
For those reasons, we would submit that it would be appropriate to be quite specific in this case because it tells Parliament, in effect, what it is the court has found wrong with section 77. If the court ultimately were to feel that it can right matters stemming from something drafted between counsel -- but if any declarations can be drafted in such a way as to catch these problems plus whatever else needs to be caught, then neither claimant would have a concern.
But having had the judgment yesterday and thought about it, it seemed to us that it would assist the court if at this stage we focused on the particular incompatibility problems if against them one is going to, as it were, strike out parts of section 77 and add in some amendments to try and make it Human Rights compatible.
Clearly at this stage we are shooting in the dark. We do not quite right know what the Secretary of State proposes to do -- that comes on to another matter, interim remedies that I will deal with at the end of my submissions -- but my Lords, it is for those reasons that we put these draft declarations before the court.
LORD JUSTICE TUCKEY: I see the point.
MR LEIGH: Clearly so far as costs are concerned we need to say nothing, save that we are very grateful for those helpful indications from the Secretary of State.
So far as the leapfrog procedure is concerned, again there is little that both Holding and Barnes and Premier Leisure can add to that debate other than to point out that so far as we are concerned the only people who had to be served were the Secretary of State. Although the local authority are aware of these proceedings, they were never formally served and neither were any third party agendas.
LORD JUSTICE TUCKEY: And the long stop Court of Appeal?
MR LEIGH: Before moving to number four could I just say this: could we add a rider that in any certificate that may be granted by this court we would submit that it would be appropriate to make that certificate wide enough to enable not only, as it were, the Secretary of State to put his position on the court's judgment but in addition to encompass our submissions under section 6(1) of the Act.
You will recall Mr Hoffman's submission that, of course, we said one could construe the legislation in a compatible way albeit by exercising discretion. I need not rehearse the arguments at this stage but we would say that if this matter was to leapfrog to their Lordships' house it would be appropriate for at least my clients to be able to take the point -- apart from clearly supporting any argument on section 6(2) -- to say that this could be a section 6(1) case. I can take your Lordships to the passage in your Lordships' judgment where you rule against this, but it does seem to us that any certificate should be wide enough for any, as it were, cross appeals to be encompassed. Is that sufficient for your present purposes, my Lord?
LORD JUSTICE TUCKEY: Yes.
MR LEIGH: Then, if I can turn to the Court of Appeal again, we would add nothing other than this: in relation to Holdings and Barnes, your Lordships ruled against us on the domestic challenge. We would say that there is a point of appeal and would seek permission to appeal the domestic challenge conclusions of your Lordships. Again, if necessary, I can take your Lordships to several of the passages in your Lordships' judgment. But there is this position: if the whole matter goes to the House of Lords, bearing in mind the proportionality principle, it would be sensible for the domestic challenge (assuming we convince your Lordships that we ought to take the point) to go up there as well rather than having duplicated proceedings.
LORD JUSTICE TUCKEY: They would love us for that.
MR LEIGH: Yes. It may be that it is thought to be not of sufficient importance. But it would mean that one could separately deal with the domestic challenge point if one wanted to in the Court of Appeal and therefore -- apart from supporting the general point on appeal the Court of Appeal and seeking permission -- we would say that we would like permission in addition on our domestic challenge. I have not articulated where we say, with respect, your Lordships erred on the domestic side of things --
LORD JUSTICE TUCKEY: We have erred in not accepting Mr Hoffman's arguments.
MR LEIGH: Yes. Very broadly speaking. I have not specifically taken that. But if your Lordships were going to take the view that "we are going to grant Holding and Barnes permission without hearing more argument" so be it; if I need to persuade your Lordships, I will need to address your Lordships on why we say we seek permission to appeal on the domestic point --
LORD JUSTICE TUCKEY: You have three minutes in which to do it because, speaking for myself, I am unpersuaded at the moment.
MR LEIGH: My Lords, the essence of your Lordship's ruling so far as the domestic law challenge begins at page 6 of the judgment that I have. It is in effect to say that the Secretary of State need not give any reasons but he has in this case, but so what because he has a very wide power of discretion. That he has a very wide power of discretion is articulated in the reasons but that does not mean to say that cannot be challenged; it does not seem to us to be perverse and it seems to us to be within the very wide powers he has.
The submission -- bearing in mind the case referred to in the Form 86A, the commercial case, the one I think Matthew Houghton was involved in, one of the called in cases that went to the court -- is this: once the Secretary of State gives reasons we are entitled to look at those reasons and examine those reasons, and it is not enough to say "whatever those reasons are, he has such a wide discretion we are not going to interfere" because, with respect, once the Secretary of State steps over the line and gives his reasons, we are entitled to examine them. If they do not stack up -- and your Lordships, with respect, do not seem to have disagreed with our submission as to the three reasons given not being the ones of more than local importance; your Lordships seem to have decided against us because you said there was a wider discretion. We say that once the Secretary of State gives his reasons, we are allowed to look at them and if they do not, on the face of it look right, bearing in mind what Sedley J said in the authority that we relied on for that, we would say that that is a proper point for appealing.
In other words, your Lordships were wrong, with respect, to say that just because we submit that you do not need to have your hands tied by those reasons, you can take into account the fact that he can do almost anything. With respect he can, but he cannot act perversely and he cannot act arbitrarily. Given the planning history of this case, the previous planning decision and the fact was not all in all jurisdiction in this case, we say given the three reasons which on the face of things no-one seems to have disputed go beyond local importance.
Your Lordship will recall there was no evidence put in by the Secretary of State saying these are reasons --
LORD JUSTICE TUCKEY: All these points were taken by Mr Hoffman and we have considered them. I think we have on board your criticism.
MR LEIGH: For those reasons therefore I say --
LORD JUSTICE TUCKEY: Thank you very much, Mr Leigh.
MR LEIGH: My Lords I have not quite finished yet. That leaves number 4. There is a fifth point which I want to add, and it is interim matters. Because at the moment the court can only make a declaration of incompatibility the question arises in relation to Holding and Barnes and Premier as what happens in the meantime.
With respect, there seem to be two possibilities: so far it may be that the Secretary of State has in effect taken a practical approach not to progress any matters. In Premier the enquiries have been held and finished but there has been no report so far as we are aware and there has been no decision.
So far as Holding and Barnes is concerned, there has been no enquiry or pre-enquiry meeting. It could be the Secretary of State is prepared to give an undertaking not to progress either of those cases --
LORD JUSTICE TUCKEY: If he does not, what are you asking us to do?
MR LEIGH: We are inviting the court under its powers -- again I can take your Lordships to the relevant provisions -- the interim powers, to stay or give any interim relief --
LORD JUSTICE TUCKEY: Let us start with the statute, shall we, because whether we have interim powers or not must -- section 4.6 is what we need to look at. This is the point at which, is it not, the court has done its bit and defers to the executive. It has said these procedures are incompatible and in its discretion made the declaration of incompatibility, but the court is told by subsection 6 that that does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given, and it is not binding on parties in the proceedings.
MR LEIGH: Yes. That may be, with respect, what the Act says to enable the sovereignty of Parliament --
LORD JUSTICE TUCKEY: It is what the Act says. It is not may be.
MR LEIGH: But one must read that in relation to the very wide powers which the court retains under the proceedings before it. With respect, in relation to the Holdings and Barnes case one has to look at the matter because permission was granted before 2nd October --
LORD JUSTICE TUCKEY: Do not worry, we are fully familiar with the court's powers. The court's powers have to be exercised within the context of some wider legal framework. If the legal framework is such that the court has gone as far as it can go by making a declaration of incompatibility then it cannot give itself inherent powers to go further than that, which is effectively what you are saying.
MR LEIGH: It may be helpful to look at it in this way: what section 6 does not allow the court to do is to say "not only are you incompatible but you are also unlawful".
LORD JUSTICE TUCKEY: Then you would be in a stronger position.
MR LEIGH: In this way, because if the court were to grant some kind of interim measure restraining the Secretary of State from acting in an incompatible way, that is not saying the Secretary of State is acting unlawfully. It is simply preventing him from acting incompatibly.
LORD JUSTICE TUCKEY: Which the legislation allows him to do.
MR LEIGH: Well, the Human Rights Act itself --
LORD JUSTICE TUCKEY: Allows him to do it. You would not be here if it was not for the Human Rights Act.
MR LEIGH: No. With respect the Human Rights Act allows the court to say it is incompatible, but in these circumstances it is does not allow him to say that it is unlawful. With respect that does not allow the court, while these proceedings are going on, to nevertheless prevent the Secretary of State in the meantime from acting incompatibly. It is not the same as saying "we are also saying he is acting unlawfully". What the court would be saying on interim measures is the Secretary of State is acting incompatibly and it can restrain him from doing so bearing in mind that the Secretary of State himself is going to take this matter on appeal so the matter with respect could still be in the air so far as the practical point is concerned. Until now the Secretary of State has not purported to act on his powers even though he could very properly have done so. Bearing in mind the overriding principle that now operates within the whole of the court system, in my submission it is perfectly proper for the court to say we are not saying it is unlawful because we cannot do so but nevertheless we can in the meantime, if you are not willing to give an undertaking, grant such orders as are necessary to stop you from acting incompatibly in those cases where --
LORD JUSTICE TUCKEY: You have made that point, Mr Leigh. Thank you very much. Is there anything more you want to add on interim relief?
MR LEIGH: My Lords, other than this, if the point becomes of particular importance and, of course, depending on what the Secretary of State says in due course, it may be that your Lordships ought to put this matter back for more detailed argument and both sides can consider the point more fully. We will know exactly what the Secretary of State -- maybe instructions will have to be taken, we do not know, but there is an awful lot of importance. Holding and Barnes, as I say, have not yet got to enquiry but Premier Leisure are awaiting a decision and it is of great concern to my clients on that side what might happen lest anything be rushed through. Perhaps we could have liberty to apply on this point were your Lordships either not to rule in my favour or the Secretary of State not give any undertaking.
LORD JUSTICE TUCKEY: Thank you very much. Mr Kingston?
MR KINGSTON: I deal with the matters in the order in which they are raised by my learned friend on behalf of the Secretary of State. With regard to the declaration of incompatibility, we would respectfully agree that some care is required in the drafting. We do not think it should be done now. As to whether or not they should be case specific, although there are some instances in which the ADL declarations which were sought appear to be case specific, on analysis virtually all of the points raised -- I say virtually, there is some doubt perhaps about one or two -- would be covered by the generality of a certificate of the kind your Lordship was indicating --
LORD JUSTICE TUCKEY: That is rather what I thought.
MR KINGSTON: The query perhaps arises with regard to the position of an inspector who has been appointed and whose position is that of reporter, and as to how that might then be dealt with. But I raise that simply as a query at the moment that I am not sure would be fully addressed by the judgment of the certificate that your Lordships are evidently thinking of at the moment. But I do not think it is suitable to debate it now.
LORD JUSTICE TUCKEY: We are looking at the statutory machinery.
MR KINGSTON: Yes.
LORD JUSTICE TUCKEY: The report by the inspector is part and parcel of that machinery and we are looking at the machinery as a whole. By identifying those statutory provisions which set it up and produce a process which we have found to be incompatible, one encompasses the whole process, does one not?
MR KINGSTON: Yes, I think so. I say I think so only for this reason specifically in relation to ADL: the ADL declarations which were sought name the inspector.
LORD JUSTICE TUCKEY: I do not see that is necessary.
MR KINGSTON: It may not necessarily make any difference. I make it clear that in the time that the judgment has been available I have not reached a firm conclusion on it. But in respect of ADL a large number of case specific declarations were sought and it is necessary in the light of the specific wording of them, I think, to consider the respects in which they would be embraced by, in effect, a general declaration. So a matter to be returned to.
With regard to the costs, in effect, we simply say thank you.
LORD JUSTICE TUCKEY: Yes.
MR KINGSTON: So far as the certificate under section 12 is concerned, we consent so far as the district council is concerned but we are exercised by the fact that the details of the other interested parties who were served do number 18, and the ADL claim form at paragraph 55 dealing with service says:
"This application for permission to apply for judicial review has been served on each of the rule 6 parties to the enquiry and on the inspector, all of whom it is accepted would have sufficient interest in this application to appear and make representations when it is heard by the court."
Now that may have been a generous view to have taken, but that view have been taken, in terms of the wording then of section 12, the wording is that "all parties to the proceedings consent to the grant", not "all parties to the proceedings who appear before the court consent to the grant". Again, with respect, there is an issue there which would perhaps bear closer examination than we have been able to give it in the time that is available, bearing in mind that it is a jurisdictional issue and that there may be -- and some might think it perverse -- but there may be some parties who not having hitherto been interested, when they see the judgment which your Lordship has handed down this morning, may well be interested then to pursue matters either in the Court of Appeal or before their Lordships in the House of Lords.
So, with respect, I do not think it is so easy as to say "well it really just should be the parties". That might be a sensible view but, at least on the wording used in section 12 and the breadth of the admission made in the claim form, there are serious issues there to be considered. I know my learned friend Mr Howell has considered that further and for our part we simply say that further argument and consideration there might be useful.
The back stop, leave to the Court of Appeal: we seek leave in respect to section 6, the matters for the cross appeal. I assume there will be difficulty about that in the light of the matters which your Lordships have referred to in dealing with the issue in the judgment.
As far as the comments made by the county council in relation to their position and costs, that is a matter entirely for them. I should just make it clear that the district council's position might be described as partisan but in relation to these proceedings it is no different to the position adopted by county council. One has only to read the county council's evidence properly, in the context of the enquiry and put before the court here, see how firmly they were behind ADL in their endeavours to obtain planning permission.
The final point, with regard to interim relief, with due respect to Mr Leigh looking at section 4(6) in the scheme of the Act, it seems to have been quite clear that Parliament's intention was that the court should be able to say what was wrong but not then --
LORD JUSTICE TUCKEY: I do not think we need to trouble you on that.
MR KINGSTON: Unless there is any other matter that we can assist with at this stage?
LORD JUSTICE TUCKEY: Thank you.
MR LEIGH: My Lord, can I just make it clear -- if I have not already -- that so far as leave to appeal to the Court of Appeal is concerned, putting aside my domestic point, clearly we add in our section 6(1) point.
LORD JUSTICE TUCKEY: I understood that. Obviously any appeal will encompass the section 6 point.
MR SALES: I was going to rise to my feet to say that of course that point --
MR LEIGH: I just wanted to make it absolutely clear.
My Lords, there is one thing (inaudible) it may well be that the Court has rather indicated which way the wind is blowing -- in relation to the call ins, the interim relief point, Article 14 directions were given in both cases which your Lordships will recall is the power that the Secretary of State has to say to the local authority "you cannot determine this matter while I determine whether I am going to call it in", and of course he did call it in. But those are Article 14 directions, as far as we are aware, are still running certainly in relation to Premier and I believe they are running in relation to Holding and Barnes. That means that unless and until this whole matter is resolved, depending on the terms of the Article 14, no similar applications, possibly no applications on those sites can be entertained by the local authority. With a view to the making of a decision the Secretary of State says "all this must come back to me".
It may be that your Lordships say, "sorry we cannot deal with that" but I raise it for your Lordships' attention because it has important consequences. What it could do is, while this legal scenario rumbles along, as it were, the land and the owners of the land are going to find themselves in difficulty doing anything with the land because of the Article 14 direction.
I should have mentioned that point because your Lordships do decide not to look at the point of interim relief, we have to address of the Article 14 directions which are extant at the moment.
LORD JUSTICE TUCKEY: Thank you. Mr Eike?
MR EIKE: Just briefly dealing with the declarations of incompatibility, I agree with the majority of my learned friends about the point that care does not have to be applied. There is one point I think I ought to make in relation to the application by ADL: we would urge the court to resist the invitation to make a declaration of lawfulness. The substance of the argument was successful and it was -- if I can put it like that -- saved by the mechanism of the declaration of incompatibility which, by its very nature, carries with it a declaration that despite the fact that it is incompatible it remains lawful. That is the scheme of the Act and we would ask you to resist the invitation because it would appear, in my submission, as an active, a positive endorsement of what is in terms of prevention the unlawfulness you have found. In relation to costs I can only join my learned friends and say thank you.
LORD JUSTICE TUCKEY: Yes.
MR EIKE: Apart from that, taking your Lordships' indication that any appeal would encompass the section 6(2) issue, those are the only submissions that at this stage I wish to make. I appreciate that.
LORD JUSTICE TUCKEY: Can I make sure that we have your position clear? With the assurances from ADL and the Secretary of State, you are instructed to consent to section 12.
MR EIKE: Yes, my Lord. That caveat on costs, if I can put it like that, applies to both the Court of Appeal appeal or a section 12. But you have our consent subject to those two undertakings given in front of you.
LORD JUSTICE TUCKEY: We do not need your consent to go to the Court of Appeal.
MR EIKE: I appreciate that and I apologise.
LORD JUSTICE TUCKEY: Mr Howell?
MR HOWELL: May I say something about the declaration and about leapfrogging? So far as the declaration is concerned, although no declaration of incompatibility was, understandably, sought at the outset by the Secretary of State in the Legal and General case because he was seeking something else, it would in my submission be appropriate to grant such a declaration.
LORD JUSTICE TUCKEY: I do not think there is any procedural problem about that.
MR HOWELL: May I say that the declaration to be granted should be a declaration to specify that certain provisions of the primary legislation are incompatible with Convention rights.
LORD JUSTICE TUCKEY: That is what I have been trying to say.
MR HOWELL: And that those provisions are those which either permit or require the Secretary of State to take decisions on proposals in question.
LORD JUSTICE TUCKEY: Exactly. I think there is some consensus. There may be some differences between you -- or between those who lie between you and Mr Sales.
MR HOWELL: Mr Sales and I sound as if we are agreed on that. So far as any other declaration is concerned that would, in my submission, be inappropriate. Your Lordship will recall in our original submissions, page 12 and 13, in which we said why those should be granted, if someone seeks a declaration of lawfulness or compatibility at this stage -- which we have not yet seen -- the difficulty for your Lordships is to exclude any possibility of other unlawfulness or other incompatibility.
With respect, the court should not embark on a hypothetical exercise of excluding possibilities which have not yet been canvassed and, in my submission, it is quite sufficient for present purposes that there be a declaration of incompatibility about the primary legislation.
So far as interim relief is concerned, given that your Lordships have found matters not unlawful, your Lordships have no power to stop something which is lawful proceeding.
LORD JUSTICE TUCKEY: That is what I was trying to point out.
MR HOWELL: I come to the leapfrog submission: before dealing with the point about parties, could I just indicate that my understanding of the position under section 12 of the 1969 Act is that your Lordships do not, in fact, certify a particular question. You just give a certificate. So it would not be for your Lordships to say "this is a question for their Lordships' house".
LORD JUSTICE TUCKEY: Let me have a look at that again. I thought that we had to. There are different kinds of certificates, are there not, and obviously in the Criminal Appeals you certify a question?
MR HOWELL: Exactly. I do not think that is what this section provides.
LORD JUSTICE TUCKEY: "If the judge is satisfied that the relevant provisions are fulfilled, the judge subject to the following may grant a certificate to that effect ...". In other words, that the conditions are fulfilled.
MR KINGSTON: Exactly so. I do not think it is for your Lordships to formulated a specific question, unlike --
LORD JUSTICE TUCKEY: That is a relief.
MR HOWELL: I thought you might like to know. It follows, if I may say so, that there is then no question of constraining any appeal, if their Lordships were minded to grant leave to any specific question. I do not think this is necessarily a problem at all, but your Lordships should be aware that because leave is required by Secretary of State to go to the Court of Appeal, it is a precondition to issuing a certificate under section 15(3) that the court thinks it would be a proper case for granting leave to go to the Court of Appeal. I do not say that is an inhibition but your Lordships should be aware of that.
LORD JUSTICE TUCKEY: Yes.
MR HOWELL: My Lord, so far as the point about paths is concerned, the reason we raise the point with Mr Sales is not because we do not consider that a leapfrog would be a sensible idea -- that is not the point -- simply because it goes to the jurisdiction of this court; the facts so far as --
LORD JUSTICE TUCKEY: It would go to the jurisdiction of the House of Lords too, I suppose.
MR HOWELL: Yes, it would be. Otherwise it would not have the jurisdiction -- so it is a jurisdictional point which the court needs to address once one realises that there may be a problem about it.
May I say on that matter that if -- we have not, in the short time available since we realised that there was a point, been able to find any case law on the matter. Your Lordships do not need to deal with it today because under subsection 12.4 you have jurisdiction to entertain the matter about certificate for a period of at least 14 days.
LORD JUSTICE TUCKEY: Yes.
MR HOWELL: So I make that point. May I just say this: I fully accept that there is no definition of party given for the purposes of the 1969 Act specifically.
LORD JUSTICE TUCKEY: And that was never the case, was it?
MR HOWELL: I believe not. We would need to check that.
LORD JUSTICE TUCKEY: Not even by reference to any other earlier one?
MR HOWELL: So far as I can see, no. But the problem is, again, that during the time available we have not had an opportunity to check. So I fully accept, first, that there is no specific definition so far as one can see from the 1969 Act. There is a definition which your Lordships have seen for the purposes of the Supreme Court Act. It would be extremely odd if a person was a party to the proceedings for the purposes of the Supreme Court Act but not for the purposes of the Administration of Justice Act, which is plainly referring to proceedings in the Supreme Court.
So far as the construction is concerned, the person who is a party under the 1981 Act -- leaving aside for a moment interveners -- are those who are served pursuant, or by virtue of, the rules of court. At the relevant time the obligation was to serve all parties directly affected by the application for judicial review.
LORD JUSTICE TUCKEY: So they were served by virtue of the rules.
MR HOWELL: If the position was that you were not served by virtue of the rules, but generously given the large amount of paper involved --
LORD JUSTICE TUCKEY: You would not be within the definition.
MR HOWELL: Exactly so. But one needs to bear in mind -- in terms of who is a party directly affected if I can make a point about Legal and General -- that what your Lordship will see --
LORD JUSTICE TUCKEY: You are obviously directly legally affected.
MR HOWELL: The people who were served, as I understand from the Legal and General case -- this is at page 99 of the bundle -- were all the statutory objectors. In the case of a compulsory purchase order that would, for example, include all those people whose land may be taken.
LORD JUSTICE TUCKEY: Quite a few. You would expect that.
MR HOWELL: One needs to bear in mind, if the parties are directly affected --
LORD JUSTICE TUCKEY: How many were served?
MR HOWELL: I believe it is 11. That is page 99 to 101.
LORD JUSTICE TUCKEY: Yes.
MR HOWELL: I cannot say that they were all landowners. I just say it is one of the possibilities there. What I would say about it is this: when one is considering an appeal directly to the House of Lords, a person who has previously been a party in the sense that they have been served as being directly affected, may be content initially to allow other people to get on with it, colloquially, but were your Lordships to treat them thereafter as not being a party to the proceedings --
LORD JUSTICE TUCKEY: They may not be bound by it.
MR HOWELL: Not merely not be bound by it, because it applies to other cases too: it may be that it would provoke more people in the longer run to turn up to hearings in order to register an interest. Of course, they might then be subsequently shut out and, bearing in mind that whilst I fully understand your Lordships' concern about this particular case, this is a point of jurisdiction which would affect all the those where that might appear happen. We thought it right that we should draw your Lordships' attention to the provision.
LORD JUSTICE TUCKEY: Thank you very much. Now, Mr Sales, can we get a few things out of the way first?
MR SALES: Indeed. Shall I deal with reply in the order that I opened. The first matter was declarations and the issue that has arisen is whether case specific declarations should be made. The Secretary of State is neutral so far as the ADL application is concerned, although for our part we see great force in the point made by my learned friend Mr Howell. So we think we will leave that to the court.
We oppose case specific declarations in the form proposed by Mr Leigh. I have two points to make there: first of all, as to the substance, we say that the substance of the matter will be covered by declarations of incompatibility which will be made. So there is simply no need. But we say further that as to the form of the declaration which my learned friend Mr Leigh now seeks, that it would be positively wrong for the court to grant declarations in that form.
Declarations granted by the courts are declarations of rights of the parties and it is not, with respect, for the court to grant declarations as to human rights in a vacuum. If the human rights do not have a relevant point of application within domestic law, there is no domestic law right that can be declared by the court. That is why there is the remedy of the declaration of incompatibility provided for under section 4 of the Act.
So we say, quite apart from the facts that it is unnecessary for there to be any such declaration, it would actually be wrong for the court to grant a declaration case specifically, saying that particular acts would be incompatible with human rights because those acts are not unlawful under domestic law and what is incompatible for relevant purposes is the statute; that leads to the declaration of incompatibility of the statute.
So my Lords, that is all that I say about the declarations required. As to costs there was just one small point on which I have to reply, namely to Cambridgeshire who say that they should have their costs from the Secretary of State. We say we did not ask them to come along. They came along; they argued their corner; they lost on the substantive point with us, and there is no reason, with respect to my learned friend, why the Secretary of State should pay their costs as well. That is all we say about that.
As to the certificate under section 12, we do not have anything we can add to the points that I made previously. If your Lordships are in doubt about it, we would submit that a short gap of time might be the appropriate way forward for two reasons. First of all to allow all parties to gather their submissions together on the point --
LORD JUSTICE TUCKEY: We do not want a full turnout on this point. Everyone here wants to go to the House of Lords. I should have thought Mr Howell and you ought to be able to argue this out in about quarter of a hour or half a hour, if we could find that time before the end of the term.
MR SALES: I respectfully agree with that. The second reason is, of course, that if there is a gap of time then efforts can be made to seek consent from those other parties. It is conceivable that the point will go away --
LORD JUSTICE TUCKEY: I have that in mind as well.
MR SALES: -- But we think that in relation to the Legal and General case it is not just confined to 11, we think the number is about 30.
LORD JUSTICE TUCKEY: It does begin to look more of an obstacle. I had not attributed so many people --
MR SALES: That is by the by. If Mr Howell has raised a point of principle which is an insuperable impediment, so be it.
LORD JUSTICE TUCKEY: It is a jurisdictional point.
MR SALES: As I acknowledged and I accept that.
LORD JUSTICE TUCKEY: You may be right, but it is quite difficult to say without actually considering it that parties have different meanings in the two statutes.
MR SALES: Yes.
LORD JUSTICE TUCKEY: That would be my first reaction. I hope you are right --
MR SALES: Yes.
LORD JUSTICE TUCKEY: -- but if you are not, we have no jurisdiction to give the certificate and the House of Lords has no jurisdiction to hear it. That would be the worst thing in the world if the House proceeded to hear it and then decided they had no jurisdiction.
MR SALES: Or all the parties got ready for the House of Lords and then the point was taken out. I fully accept that. That being your Lordships' frame of mind, we submit that the appropriate course would be to say another seven days or so for an application to be made back.
The remaining point was permission for the Court of Appeal. As to which I do not say anything further, save to reply to my learned friend Mr Leigh's point that he should have permission either to go to the House of Lords or to go to the Court of Appeal in relation to the domestic law section 77 point. As to which we simply say there is now a considerable body of authority dealing with section 77 cases. The authority speaks with one voice. Your Lordships, as we can see, have had that authority in mind and have applied it, and there is simply not the merit in that part of the appeal to warrant either permission to the Court of Appeal or fortiori coverage in a certificate from the House of Lords. Unless there was any other matter on which I can assist you, I think that is all I needed to say.
LORD JUSTICE TUCKEY: I am trying to think if we can give you enough time to have a cup of coffee, assuming you can get one -- if we come back at quarter past 12, we will deal with as many of these points as we can. We do not propose to give judgment on them but we will deal with those points that we can at quarter past twelve.
MR EIKE: My Lords, may I ask Mr Justice Harrison for my copy of The White Book back in preparation for --
LORD JUSTICE TUCKEY: That request has prompted by mind about the position of your clients. Your solicitors have come back. What is the position?
MR EIKE: The position is this: we, from Chambers, faxed solicitor; he late last night took instructions from his client telling his client that -- and I must make clear this is Huntsnap rather than Nenevalley. I need to draw that distinction.
LORD JUSTICE TUCKEY: Mr Pollock is the chairman of Nenevalley, is that right?
MR EIKE: Yes, my Lord. Telling his client that the judgment was confidential and that it was to be handed down but taking instructions on the questions of relief we were due to debate this morning. From the limited instructions I have been able to take, the chairman immediately --
LORD JUSTICE TUCKEY: Immediately went to the press?
MR EIKE: Not quite, my Lord. The chairman did not appreciate what his solicitor told him and spoke to his press officer. I have not seen the press release, but from what I understand the person who issued it is the press officer for the association rather than the chairman. What I am to say is that they did not realise and they apologise deeply and unreservedly for having communicated the judgment.
LORD JUSTICE TUCKEY: Mr Eike, we are proposing to require the relevant association to give us a full written explanation as to what happened and we will direct that that should be done by close of business on Monday. We will then decide what, if any, further action to take.
MR EIKE: I am grateful, my Lord.
LORD JUSTICE TUCKEY: We will not take that matter further at the moment. We will resume again at quarter past twelve.
LORD JUSTICE TUCKEY: We will make a declaration of incompatibility under section 4.2 of the Human Rights Act 1998. This is to be drafted and agreed, if possible, by all parties by reference to the provisions in the legislation which as a result of our judgment are incompatible with Article 6. We will not make any case specific declarations or declarations of lawfulness or compatibility.
There is no dispute between the parties about costs. The parties are to agree the form of order between themselves; the Cambridgeshire County Council are to pay their own costs. We put on one side for the moment the certificate under section 12 for reasons which we will explore.
We will give permission to appeal to the Court of Appeal, in any event, on all Human Rights Act issues, but not on Holding and Barnes' domestic challenge. We refuse interim relief for the reasons put in argument; section 4(6) makes it clear that it would be inappropriate to do so.
Now, my Lord has raised -- I should have spotted this as well -- a problem about section 12. Can we just look at it again, please? Section 12.1A requires that all the relevant conditions are fulfilled, and 3A -- which is the one we are talking about -- says that if a point of law of general public importance -- and we accept that this is such a point -- is involved in the decision, and that the point of law either (a) relates wholly or mainly to the construction of enactment or of a statutory instrument, and it is that further part this subparagraph (a) which concerns us and can it be said that the point in this case relates wholly or mainly to the construction of an enactment or a statutory instrument? That is the point which we need some assistance on.
MR SALES: Shall I go first, my Lord? In my submission, it does. The costs in the way the human rights point are envisaged should be argued under the Human Rights Act. The typical form in which the argument will take place is for parties to be arguing under section 3(1) of the Human Rights Act the strong argument we had in this case --
LORD JUSTICE TUCKEY: That the (inaudible).
MR SALES: I was going to make the point that there were arguments in this case relating to the construction of the relevant provisions.
LORD JUSTICE TUCKEY: We were told to read it down or sideways.
MR SALES: Precisely so and it is only when the court finds it cannot do that -- it is not possible to do that in a language of section 3.1 -- that it goes into the incompatibility procedure. I make that general point. I also make the point that looking at the arguments of the Secretary of State there were three arguments. The first related to the main provisions against which the Secretary of State faced arguments based on section 3.1, and it was only because those arguments failed that a declaration of incompatibility arose. The second argument was based on the Secretary of State himself saying that section 3.1 of the Human Rights Act should be applied to the remedial statutory provisions governing the way in which judicial review on a statutory application --
LORD JUSTICE TUCKEY: So section 288 should be made up so to speak?
MR SALES: Precisely so and it is only because that argument fails that argument 2 does not succeed. Then on argument 3, that turns necessarily upon the proper construction of section 6.2 of the Human Rights Act and indeed upon the proper construction of the underlying provisions as well. So in my respectful submission, analysing the case through in that way, it is a case where the precondition in section 12.3 A of the Act is satisfied. So that is my submission on that.
LORD JUSTICE TUCKEY: Does anyone -- and I do not want everyone to stand up and say "I agree" -- does anyone have any additional point to make in favour of that submission?
MR NARDELL: May I be cheeky and follow on Mr Leigh without having been led by him in Holding and Barnes? I put the point slightly wider. When one is looking at the Convention and its requirements one is following the incorporation of the Convention into our domestic law and as part of the Human Rights Act --
LORD JUSTICE TUCKEY: It is not a question of construction -- that is the difficult one. It is all about the legislation and so on, but is it construction?
MR NARDELL: My Lord, yes. One gives a wide construction on the expression of all the authorities. Taking it on, the question of requirements of Article 6 are no more than and no less than the court's extended reason on the meaning and effect of Article 6 as a legal proposition and in that wider sense --
LORD JUSTICE TUCKEY: Article 6 is not a statute.
MR NARDELL: But it now forms part of an enactment within the language of the section, so that would be my short submission.
MR SALES: For what it is worth I would associate myself with that submission well. Article 6 for present purposes is not in the Convention; it is Article 6 in the schedule to the Act.
LORD JUSTICE TUCKEY: Yes. So is anyone venturing anything more? Mr Howell, I saw you furrowing your brow. Can we have the benefit of that furrow please?
MR HOWELL: As your Lordship will be aware, the 1998 Act refers to two operations. One is reading the statute and the other is giving effect to it. What your Lordships have effectively found is that subject to the point about the scope of relief, the procedure for challenge, there is no real issue about the construction, for example, of the Highways Act, the Town and Country Planning Act --
LORD JUSTICE TUCKEY: That is the point that concerns us.
MR HOWELL: I thought that might be the point you were concerned with and therefore in one sense what one is saying is that it is incompatible because the statute cannot be given effect compatibily to Article 6 and that might well not be said to be a question of construction. That is the reason for the furrow.
What might be said -- to give you the benefit of a different furrow -- is this: in considering whether the statutory provisions are compatible with Article 6 it may involve a question of the construction of what Article 6 itself involves, which your Lordships have had to think about therefore because Article 6 is now a Convention right and in the schedule to the Act --
LORD JUSTICE TUCKEY: That is the way in, I think.
MR HOWELL: That, I respectfully submit, will be the correct approach. So far as the scope of relief is concerned, if it was limited to that one might be concerned, in the court's position, whether the case was wholly or mainly concerned with construction. So although I am not seeking to suggest that your Lordships --
LORD JUSTICE TUCKEY: The section 6.2 point does raise questions of construction undoubtedly. It was wholly, or mainly, that that was concerning me.
MR HOWELL: I agree that section 6.2 would, but the question is whether or not the case is wholly or mainly concerned with that point.
LORD JUSTICE TUCKEY: It is not wholly or mainly concerned with that and the answer to that is before you get to that you have to consider the scope in effect with Article 6 and that is part of the statute as well.
MR HOWELL: You construed that and that may be the answer to that point.
MR SALES: One word in response to what my learned friend Mr Howell has said: looking at 12.3 it is not that the proceedings are concerned wholly or mainly with the statutory provisions; it is that the proceedings -- there is a point of law involved in that decision and that point of law relates wholly or mainly to the construction of an enactment. So even on the narrow view, since the section 6.2 point on any view relates to that, that is sufficient satisfaction of section 12.3A. I simply point that out.
LORD JUSTICE TUCKEY: Well, we keep our fingers crossed on that one. I think we can cross that bridge in this case but there is still the problem about the consent of all the parties and the different meanings -- as to whether there is a different meaning to the word "parties" in the Administration of Justice Act 1969 and the Supreme Court Act 1981. If there is a different meaning we think we need to be persuaded of that and everyone is agreed that they would like a little more time to think about that, and that is what we will do. I indicated that we strongly urge that that is a short point that can satisfactorily be argued, we think, about the Secretary of State in amicus and that no-one else need incur costs and expense and time in coming to contribute to that particular debate, given that all the parties present before the court want the matter to be dealt with in that way if we can. We indicate now that we will give a certificate if we can. What we propose is to pencil it in subject to confirmation for argument in a week's time on the basis, unless there are problems, that it is also possible -- we suppose that in this time the consent of those parties who are affected could be obtained but that may not be realistic.
MR SALES: I am very grateful, my Lord.
LORD JUSTICE TUCKEY: Next Wednesday is off the top of my head.
MR SALES: Can we check that through the usual channels, but with a strong presumption that it should be that one?
LORD JUSTICE TUCKEY: Does anyone here want to be present for this argument?
MR SALES: Could I say a word on the Secretary of State's position? As I indicated before it seems that this difficulty affects only one or perhaps two of the cases --
LORD JUSTICE TUCKEY: It affects two, does it not?
MR SALES: I need to check the factual position.
LORD JUSTICE TUCKEY: It affects Alconbury because we were told 18 other people have been served and in the L&G case it affects possibly as many as 30. There is the additional point that Mr Howell has made as to whether these people have been served out of bounty or generosity or whether they are served under the rules. It is only those who are served under the rules we need to be concerned with.
MR SALES: That is the factual point that needs to be checked, which we will check. But the reason for me getting to my feet is to indicate that that still leaves two sets of proceedings where this difficulty does not arise. I indicate that I do not propose your Lordships deal with this point now because I think your Lordships will want to see the whole picture before deciding but I make it clear to everyone here today that the Secretary of State's position would be that even if the Secretary of State cannot have jurisdiction with those one and two cases, he would be content that that point is sufficiently important in the other two cases as to warrant a certificate in those two cases.
LORD JUSTICE TUCKEY: Those two cases raise the single call in point, so it is not exactly --
MR SALES: As I say, I am not inviting your Lordships to address that now, but I do make it clear that that will be the position of the Secretary of State.
LORD JUSTICE TUCKEY: Mr Leigh, you have an interest in that. Do you want to -- I am not inviting you to respond to that now, but if you want to be present to hear the outcome of the argument, to make any submission about what your position should be if you are the only one left in the frame so to speak, of course we will hear you. Equally we would be perfectly happy to receive a written submission setting out your position when you have instructions.
MR LEIGH: I am very grateful for that. Your Lordships appreciate I have difficulties next week -- and my leader himself, I am not sure whether he is back in the country by then.
LORD JUSTICE TUCKEY: I think your submissions could be put on one side of A4 paper which we would obviously take into account if we find that there is no way forward as there is no consent.
MR LEIGH: One can see the attraction in my two cases because there are no other parties concerned to fall foul of the difficulties one is facing under the leapfrog procedure.
LORD JUSTICE TUCKEY: There would not be any need, I would have thought, in any event for both cases to be at the House of Lords. I do not think they raise separate points. Not on the human rights issue.
MR LEIGH: The only point is, have we all gone wrong, there is a question of costs --
LORD JUSTICE TUCKEY: That is something which you need to think about. But anyway, we are perfectly happy to receive your submissions about that because I can see it is a different situation than the one you were contemplating this morning and we will take those into account when we decide the point next week.
MR LEIGH: Thank you very much.
LORD JUSTICE TUCKEY: Mr Howell, do you have any difficulties?
MR HOWELL: The only thing I was going to say was that I know that Mr Singh will be available next Wednesday. I am, in fact, in court on another matter on Wednesday. I think your Lordships are envisaging about half an hour. It may be, if Wednesday is the only day, ten o'clock and I will see what I can do about rearranging the other case.
LORD JUSTICE TUCKEY: We will perhaps make contact through the usual channels.
MR SALES: Yes, the usual channels. I am not in a position --
LORD JUSTICE TUCKEY: We will get to this, let us say, tomorrow morning.
The only other thing is that we ought, perhaps, to set a time limit to concentrate the minds on agreeing the declaration of incompatibility. Is it too much to ask you that it should be agreed by close of business on Monday? Failing which, any area of disagreement should be resolved by us on Wednesday.
MR SALES: For our part, we think that is a sensible timetable.
LORD JUSTICE TUCKEY: We do not want this thing to drift on, do we? I hope we have given enough steer to enable any arguments of principle to be avoided.
Thank you very much.