3742/2000, 3904/2000 |
QUEEN'S BENCH DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR. JUSTICE HARRISON
____________________
THE QUEEN | ||
ON THE APPLICATION OF HOLDING AND BARNES PLC | ||
-V- | ||
THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND REGIONS | ||
THE QUEEN | ||
ON THE APPLICATION OF PREMIER LEISURE UK LIMITED | ||
-V- | ||
THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND REGIONS | ||
THE QUEEN | ||
ON THE APPLICATION OF ALCONBURY DEVELOPMENTS LIMITED | ||
-V- | ||
THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND REGIONS | ||
THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND REGIONS | ||
-V- | ||
LEGAL AND GENERAL ASSURANCE SOCIETY LIMITED |
____________________
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)
-v-
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.:
Introduction.
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."
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.
The Facts
HB's application..
PL's application
ADL's application
SSETR'S Application : A34/M4 Junction Improvement Scheme
Primary and Secondary Legislation
Town and Country Planning
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.
(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.
Transport and Works
Highways orders
Compulsory purchase
The SSETR's Evidence.
The Inquiry
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.
The Decision.
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.
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.
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.
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.
Approach.
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 [1983] 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).
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)."
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.
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).
Independence and Impartiality.
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.
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.
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.
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 [1995]: 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 [1996] 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.
High Court's Powers of Review
...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.
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.
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 [1977] 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.
Are the processes involved in these cases saved by the High Court's powers of review?
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.
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.
Should the scope of the Court's powers of review be enlarged ?
Section 6 HRA.
Domestic law challenge
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.
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.
Conclusions.
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.PRIVATE
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
(a) ...
(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.
(Short adjournment)
(12.15pm)
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.