Scottish High Court of Justiciary Decisons

COUNTY PROPERTIES LIMITED v. THE SCOTTISH MINISTERS FOR JUDICIAL REVIEW [2001] ScotHC 87 (16th August, 2001)

[1] Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides, inter alia, that

This petition for judicial review raises a number of issues as to the applicability and effect of Article 6(1) in relation to planning law. The matter came before the Lord Ordinary at First Hearing, and by interlocutor of 25 July 2000 he found and declared

He accordingly granted decree of reduction in respect of the decision to call in the application and the appointment of the Reporter. The Scottish Ministers reclaimed, seeking dismissal of the petition. By the same interlocutor, the Lord Ordinary disposed of a number of other issues which had been the subject of argument before him, but it is not now necessary to refer to these matters.

[2] In November 2000, the Advocate General was sisted as a party to the proceedings, and after a number of procedural steps, including the lodging of certain affidavits, the case appeared on the Summar Roll on 22 January 2001. By that date, it was known that the appeals from the Divisional Court in England in the case of Regina v. Secretary of State for the Environment, Transport and the Regions, on the application of Alconbury Developments Limited, and two other cases, (now reported at [2001] 2 WLR 1389) would go directly to the House of Lords, in terms of section 12 of the Administration of Justice Act 1969. Those cases raised questions as to whether certain powers of the Secretary of State in relation to planning and other matters were compatible with Article 6(1) of the Convention. It was apparent on 22 January 2001 that the decision of the House of Lords upon these questions would have a bearing upon, and might effectively determine, some of the questions arising in the present reclaiming motion. There were, however, further questions raised in the reclaiming motion as to whether, at the stage which the planning procedures in this case had reached, there was any "contestation" of the type to which Article 6(1) could apply, and whether these procedures were part of a determination of the petitioners' civil rights, bringing that Article into play. It appeared that these further questions might not be raised in what we shall refer to as the Alconbury appeals. In the circumstances, and having regard to the fact that five days (and no more) were available for the Summar Roll hearing, we decided that it would be prudent to hear the submissions of parties in relation to the applicability of Article 6(1) (concerning "contestation" and the determination of civil rights), but that we should neither determine those matters nor hear submissions upon other matters until the outcome of the Alconbury appeals was known.

[3] In the event, the Lord Advocate intervened in the Alconbury appeals, supporting reversal of the Divisional Court's decisions, on the basis that Article 6(1) did not apply to the decision-making processes there under review, and also on the basis that those processes were not in any event incompatible with any Convention right. Following upon issue of the decision of the House of Lords in those appeals, when the Summar Roll hearing in the present reclaiming motion was resumed on 31 May 2001, senior counsel on behalf of the Scottish Ministers informed us (somewhat wistfully) that he was no longer insisting in those grounds of appeal which raised the issue of "contestation" and the applicability of Article 6(1) to the planning procedures which were in issue in this case. Senior counsel for the Advocate General likewise intimated that he was no longer insisting in any argument to the effect that Article 6(1) was not applicable in the circumstances. That being so, it is unnecessary for us to refer further to the submissions upon these matters which we heard in January. And while it is clear that the decision not to insist in these grounds of appeal results from what was said by their Lordships of the House of Lords in disposing of the Alconbury appeals, it is unnecessary for us to relate the present case to those English cases in this respect: the contention that Article 6(1) is inapplicable is quite simply no longer advanced, and we proceed upon the basis that the Article applied to the procedures which are here in question.

[4] It is, moreover, a matter of concession by the Scottish Ministers that neither they nor the Reporter appointed by them in the present case would constitute "an independent and impartial tribunal" for the purposes of the procedures in question. Counsel for the Advocate General adopted the same position. On behalf of both the Scottish Ministers and the Advocate General, the submission, put shortly, was that the process for determination of the petitioners' application for listed building consent must be looked at as a whole, including not merely the steps taken by the Scottish Ministers or the Reporter, but also the right of appeal under section 58 of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997. Having regard to the whole process, including that right of appeal, it was submitted that the process was compatible with the requirements of Article 6(1). The Lord Ordinary had erred in the manner in which he distinguished Bryan v. United Kingdom (1995) 21 E.H.R.R. 342. And when the Summar Roll hearing was resumed, it was further submitted by counsel for both the Scottish Ministers and the Advocate General that the matter was now determined by the decision of the House of Lords in the Alconbury appeals. In relation to the statutory procedures which were in issue in those appeals, it had been held that there was no violation of rights under Article 6 of the Convention, and that the scope of review in each instance was sufficient to comply with the standards set by the European Court of Human Rights. It was submitted that the present case was not distinguishable from the Alconbury appeals in that respect. Upon that basis, the Lord Ordinary's interlocutor was unsound and should be recalled. The reclaiming motion should be allowed and the petition should be dismissed.

[5] In submitting that the Lord Ordinary's interlocutor should be upheld, senior counsel for the petitioners and respondents observed that with the "contestation" argument having been abandoned, the issue for us was essentially the issue which had faced the Lord Ordinary. The petitioners were entitled to procedures which were compatible with Article 6(1). It was clear, and conceded, that compatibility was not achieved within the procedures which were in the hands of the Scottish Ministers and the Reporter. It was of course legitimate, in considering whether there was overall compatibility, to have regard to the scope and nature of any rights of appeal to the courts. And it was clear from Bryan, and now from Alconbury, that in relation to certain administrative procedures which were not in themselves compatible, that defect might be overcome by appropriate rights of review or appeal. But it would always be necessary to look at the particular procedures and the particular rights of appeal. It was submitted that there were significant differences between the present case and the Alconbury appeals and that, notwithstanding the finding of compatibility in those appeals, the Lord Ordinary's finding, that the Scottish Ministers' decision and appointment of the Reporter were acts incompatible with the petitioners' rights under Article 6, was sound and should stand.

[6] The context of the decision and appointment which were reduced by the Lord Ordinary is quite complicated; but for present purposes it is not necessary to go into much detail. In March 1999, Glasgow City Council had sought the informal views of Historic Scotland on the petitioners' application for listed building consent. Historic Scotland replied in April, expressing certain views. In July, the Council gave notice of its intention to grant consent to the application. The "call-in", and the appointment of the Reporter, were against that background; but it is also to be noted that the petitioners hold a 1997 permission and listed building consent for demolition of the building and erection of a replacement building. When the matter was before the Lord Ordinary, and notwithstanding the concession that neither the Scottish Ministers nor their Reporter constituted a "independent and impartial tribunal", counsel for the petitioners drew attention to some of the circumstances which resulted in that concession. These are set out in paragraph 13 of the Lord Ordinary's opinion and we do not repeat them here.

[7] In distinguishing the circumstances of the present case from those giving rise to the Alconbury appeals, counsel for the petitioners again laid emphasis upon a number of matters relating to the Reporter or to Historic Scotland. As regards the Reporter, it was to be noted that he was not merely appointed, paid and subject to assessment by the respondents but that he served on a part-time basis, with no safeguards in respect of his employment. As regards Historic Scotland, it was an executive agency of the Scottish Ministers, and in the present case it had actively opposed the grant of listed building consent which Glasgow City Council had intended to grant. It had been involved in the call-in; and it would take an active part, in opposition to the application, in the inquiry proceedings, which the Reporter would conduct and which would lead to a decision by the respondents.

[8] Counsel for the petitioners went into some detail as to the structures and procedures which exist in England and regulate the use of Inspectors. He placed emphasis on certain features which were evidently designed to distance an Inspector from the Secretary of State and to ensure independence. Our attention was drawn to paragraph 24 of the speech of Lord Slynn of Hadley in the Alconbury appeals. It was submitted that having regard to the position of a Reporter in Scotland, and the relationship of Historic Scotland to the Scottish Ministers, the lack of independence and impartiality was different and more fundamental in Scotland, and was so in this particular case. The essential problem in Alconbury was that of a "policy-maker" being the decision-maker in a particular case. That was not the essential complaint in the present case. The lack of independence of a part-time Reporter lay at the heart of the petitioners' submissions, as did the "executive agency" status of Historic Scotland. The problem was what the Lord Ordinary had described in paragraph 25 of his opinion as "the fact that the respondents will be deciding an issue between the petitioners and their own executive agency, Historic Scotland - they will be judex in sua causa". That was very different from the situation, at the administrative stage, in the Alconbury appeals. With the degree of independence which an Inspector was acknowledged to have in England, it might be that the powers of the courts were sufficient to render the whole proceedings compatible with Article 6(1). It did not follow that the whole proceedings in the present case, taking into consideration the role played by Historic Scotland and the Reporter's relationship with the Scottish Ministers, could be said to have such in-built safeguards as would render the whole proceedings compatible.

[9] Counsel for the Scottish Ministers took issue with a number of the submissions which had been made by counsel for the petitioners in relation to the position of Inspectors in England. We do not need to go into these matters in detail. We shall return to the decision in the Alconbury appeals, but at this stage it is sufficient to note that (no doubt for reasons such as those identified by counsel for the petitioners) it is conceded that the Reporter, like the Scottish Ministers, is not an independent and impartial tribunal. Even if the Reporter had been full-time, or if he had been, say, a Queen's Counsel appointed ad hoc with no aspirations to further employment as a Reporter, his functions and powers would have to be looked at along with those of the Scottish Ministers. The position would remain one in which there would not be compatibility with Article 6(1), apart from such safeguards as could be identified in the powers of the courts, in relation to the administrative process as a whole. The sufficiency of such safeguards must of course be considered in the context of the procedures which require safeguards. But we are not persuaded that anything turns upon such differences as there may be between English Inspectors and Scottish Reporters, or between part-time and other Reporters in cases where the decision is to be taken by the Scottish Ministers - who do not themselves constitute an independent and impartial tribunal. In England, Inspectors are appointed by the Secretary of State, who either delegates or takes the final decision. Likewise in Scotland, Reporters are appointed by the Scottish Ministers, who either delegate or take the final decision.

[10] Counsel for the petitioners drew our attention to a number of features in the present case which were said to demonstrate that either the Reporter or the Scottish Ministers would finally determine important issues in such a way that it would be beyond the powers of the court to review or correct what had been done. In these respects, the petitioners could thus never obtain a determination of their rights by an independent and impartial tribunal. There were factual issues which the Reporter would determine. It was to be noted that he would do so upon the basis of evidence presented by, among others, Historic Scotland. The fact that there was some scope for the Scottish Ministers bringing about a review of these facts, or considering new facts, was not a safeguard, since the Scottish Ministers themselves were not independent. In addition to issues of fact, there were issues of policy and its application. Whether through Historic Scotland before the Reporter, or in the exercise of the Scottish Ministers' powers thereafter, both the determination of policy and its application to the facts were matters which the court would be unable to review or correct. There was also the element of evaluation of facts, including aesthetic evaluations and the assessment of architectural significance and engineering practicability, which would again be determined by the non-independent Reporter or Scottish Ministers, without any meaningful scope for review or correction by the court. In principle, some safeguards could be built in, so that at least the Reporter's conclusions might be distanced from the wishes of Historic Scotland or the Scottish Ministers, despite his own involvement with them in terms of appointment and the like. But in the present case, far from standing aside and letting the Reporter fulfil his function without intrusion from the Scottish Ministers, it appeared that Historic Scotland, who could not realistically be separated from the Scottish Ministers, were going to make every effort to obtain from the Reporter the findings, evaluations, assessments and conclusions which they themselves would eventually wish to make. The power of the court to review or correct what had been done would in these respects give the petitioners no real safeguard or protection in relation to the decision made by what was ex hypothesi a non-independent tribunal.

[11] In addition to these features of the present case, our attention was drawn to material not available when the Lord Ordinary considered the matter. This material indicated how a Reporter's performance of his duties was subject to "monitoring" and possible intervention from the Inquiry Reporters Unit at the Scottish Executive. We do not see it as necessary or appropriate to consider the nature or degree of monitoring and intervention further, although we have misgivings as to whether, at least in theory, inappropriate and undesirable intervention or influence might be possible as a consequence of existing practice. If it were being contended by the Scottish Ministers or the Advocate General that the Reporter was independent, it would be appropriate to consider not merely his overall independence, in terms of any possible deference to Scottish Ministers because of a wish for future work, but also his specific independence, in terms of being allowed to conduct and report upon a particular Inquiry, without interference. But given the fundamental concession that neither the Reporter nor the Scottish Ministers constitute an independent and impartial tribunal, we do not see it as necessary to pursue this matter further. The essence of the matter relates to the overall nature of what is being done by the Reporter and the Scottish Ministers, and the inter-relation between what is done by them and what can be done by the courts.

[12] Against the background of Bryan and now the Alconbury appeals, counsel for the petitioners referred to certain other authorities, citing in particular Director General of Fair Trading v. The Proprietary Association of Great Britain and Another - Court of Appeal (Civil Division) 21 December 2000, Scanfuture U.K. Ltd. v. Secretary of State for Trade and Industry - E.A.T. 23 March 2001, and Kingsley v. United Kingdom (E.C.H.R. Application No. 35605/97) 7 November 2000. We do not see these additional authorities as having material significance: the first two authorities were concerned with allegations of bias against the Restrictive Practices Court and an Employment Appeal Tribunal, which are not readily comparable with the Scottish Ministers and their appointed Reporter, while the third authority dealt with the limitations on the power of the court in respect of decisions of the Gaming Board - again a creature of statute very different to the Scottish Ministers. Counsel for the petitioners submitted that whether one was dealing with a power of decision which had been delegated to a Reporter, or with a case where the decision would be made by the Scottish Ministers, the crucial issue was the adequacy of the safeguards for a citizen's interests. That issue could only be judged by looking at the potential threats to those interests, which appeared to arise from the way in which the particular case would be handled by the Reporter and the Scottish Ministers, and the safeguards against such threats, which could be provided by the court. The Alconbury appeals showed that, taken together, the handling of matters at the administrative level and the powers of the court would not inevitably produce incompatibility with Article 6(1), notwithstanding the limitations on what the court could do. But faced with the way in which the present matter was apparently going to be handled by the Reporter, Historic Scotland and the Scottish Ministers, there was a real threat to the interests of the petitioners, which the court would apparently be powerless to avert, with consequences which it would be powerless to change. Notwithstanding the decision in the Alconbury appeals, the Lord Ordinary's conclusion was right, and his interlocutor should stand.

[13] In reply, counsel for the Scottish Ministers and for the Advocate General were at one in contending that the present case could not be distinguished from the Alconbury appeals. In the light of the decision in those appeals, it was evident that the Lord Ordinary had erred in holding that the Scottish Ministers' decision to call-in the petitioners' application, and the appointment of the Reporter, were incompatible with the petitioners' rights under Article 6(1). We do not find it necessary to differentiate between the submissions advanced on behalf of the Scottish Ministers, and those advanced on behalf of the Advocate General: while there were naturally differences of approach, there was no real difference in the substance of the argument.

[14] It was contended that counsel for the petitioners had essentially misunderstood the nature of what was being done by the Reporter and the Scottish Ministers. While it was no longer contended that at that stage there was no contestation, it was still of crucial importance to remember that the decision which would be taken by the Scottish Ministers was an administrative decision and not a judicial one, and that the processes leading up to that decision were correspondingly administrative and not judicial. In the Alconbury appeals, this had been made very clear, in particular by Lord Hoffmann at paragraphs 123-124 and Lord Clyde at paragraphs 139-140. It was submitted that counsel for the petitioners in the present case had made a fundamental error in equiparating this administrative process with litigation, and looking at what required to be done by the Reporter and the Ministers as if they were judges. The fact that the court could not, in various respects, question or overturn the conclusions upon which the decision would be based was thus portrayed as an inadequacy or defect, whereas upon a proper understanding of the nature of administrative decisions it was both inevitable and entirely proper.

[15] The matters upon which the court could not intervene were matters upon which no court should intervene. It was for Ministers, not judges, to decide how policies could and should be applied in particular circumstances. Such an exercise would involve a wide range of assessments and judgments, but the responsibility for making such assessments and judgments was vested in Ministers. In considering the powers of the court to review and perhaps overturn any administrative decision, it would be entirely wrong to expect a transfer of that responsibility to the court. It was acknowledged, as it was in the Alconbury appeals, that in various ways, and in particular in carrying out any fact finding process, the requirements of proper administrative conduct might be much the same as those of proper judicial conduct. If there were objections specific to a particular Reporter, or indeed a particular Minister, on grounds of bias, partiality or the like, the court could of course intervene. But the broader fact that those responsible for making and applying policy were not impartial in relation to that policy and its application was not a taint - it was inevitable. And, correspondingly, it was inevitable, and not a defect, that in considering administrative actions and decisions, the court would not be concerned with the rightness of the decisions. The question for the court was whether, in exercising administrative responsibility, those involved in that process had had a proper regard for the rights and interests of those who were, inevitably, liable in both practical and legal terms to be affected by the eventual exercise of ministerial power. Any procedural flaws, or substantive improprieties, would be subject to review by the court. In considering whether the whole process, including possible appeal or review, was compatible with Article 6(1), the question was really whether there was some reason to fear some conduct on the part of the Ministers which was not inherently within their responsibilities and powers, and yet would not be subject to review by the courts.

[16] In that context, it was submitted that the existence and involvement of Historic Scotland was nothing to the point. In the absence of any individual partiality or bias, the terms and conditions of a Reporter's appointment were nothing to the point. That the Ministers should call in a matter which they considered should be determined by them was nothing to the point. There were many safeguards built into the administrative process itself, in the regulation of how an inquiry must be conducted and in particular in the requirements for findings to be made and reasons to be given. The power of the court to review the propriety of what had been done was of course necessary, in order to ensure that overall there was an independent and impartial tribunal dealing with the petitioners' rights, including the right to fairness and propriety in the exercise of administrative discretion. But the powers of the court were also sufficient to achieve that object.

[17] Turning to the Alconbury appeals, it could be seen that the House of Lords had considered, as a matter of principle, whether the planning or other statutory procedures in question entailed an incompatibility with Article 6(1). Bryan had established, where there was a delegated decision by a Reporter, that there was no such inherent incompatibility. And the Alconbury appeals had established that the fact that the decision was being made by a Minister did not produce a different result. The decision flowed from the nature of the administrative process and not from any particular matter of detail. That being so, this case was not distinguishable. Counsel of course referred us to particular passages in the speeches of their Lordships in the Alconbury appeals, but we do not see it as necessary or appropriate for us to analyse or reformulate or gloss what their Lordships said.

[18] We are satisfied that what was said in the Alconbury appeals did not relate merely to the specific facts and procedures which were under scrutiny in those cases. The crucial questions are issues of principle. We are satisfied that even upon the basis that there is contestation at the administrative stage, the nature of administrative and ministerial responsibilities and functions lies at the heart of any assessment of what is required in terms of Article 6(1). The distinctions drawn between the present case and what was in issue in the Alconbury appeals do not, in our opinion, make this case distinguishable in principle. We are satisfied that, in accordance with the principles identified in those appeals, it cannot be said that there is any inevitable incompatibility with Article 6(1) in the Scottish Ministers' decision to determine the petitioners' application for listed building consent, or in the appointment of a Reporter. The powers of the court to deal with genuinely justiciable issues arising in the administrative procedures are sufficient to ensure compatibility.

[19] We would add that, while the Reporter may not be, on his own, an "independent and impartial tribunal" for the purposes of Article 6(1), it is important to bear in mind that he is bound to conduct the inquiry in accordance with statutory rules designed to give all parties to the inquiry fair notice of matters upon which they may wish to be heard, and a full opportunity to present to the Reporter any relevant evidence or submissions. Moreover, the written report to be prepared by the Reporter will require to contain findings in fact, a summary of the evidence upon which such findings in fact are based, details of the Reporter's assessment of those findings in fact and of the planning issues involved and reasons for the Reporter's recommendation to the Scottish Ministers. The Reporter's compliance with those safeguards is subject to the control of the court. They are as binding on a part-time Reporter as they are on a full-time Reporter. No submission was made as to the existence of any evidence of actual bias on the part of the Reporter, or as to the existence of any matter peculiar to this case, that might tend to dissuade or prevent the Reporter from following the correct procedures and practices. In the whole circumstances, accordingly, we are quite satisfied that the petitioners' Convention rights under Article 6 will not necessarily be breached if the Inquiry proceeds, the Reporter makes his report to the Scottish Ministers and they determine the application for listed building consent.

[20] One other matter requires mention. Counsel for the petitioners drew attention to the passage of time since the petitioners' original application. In particular, he drew attention to certain aspects of the conduct of proceedings, by the Scottish Ministers. In that context, the requirement under Article 6(1), relating to "reasonable time", was invoked. While these are matters which might have a bearing upon questions of expenses, they do not appear to us to have any real bearing upon the question of whether the Lord Ordinary's interlocutor should stand.

[21] In the whole circumstances, we hold the petitioners' averments to be irrelevant, and sustain the respondents' first plea in law. We recall the Lord Ordinary's interlocutor of 25 July 2000 and dismiss the petition.