Planning Powers (Hansard, 19 December 2000)

§ Mr. Raynsford

On Wednesday 13 December the Divisional Court gave judgment on four test cases brought in relation to the compatibility of certain aspects of domestic legislation with Article 6(1) of the European Convention on Human Rights (ECHR) concerning the right to a fair hearing before an independent and impartial tribunal. The Convention right was incorporated into UK legislation in the Human Rights Act 1998, which became operative in England and Wales on 2 October this year.

The legal challenges related to cases involving the Secretary of State's ability under the Town and Country Planning Act 1990 to call in and determine applications for planning permission and to recover and determine appeals, the confirmation by him of Compulsory Purchase Orders and related Orders under the Highways Act 1980 made by one of his departmental agencies and the making of orders under the Transport and Works Act 1992.

The Court concluded that the processes involved in each of the cases were not compatible with Article 6(1) of the ECHR. In particular, the Court concluded that: The Secretary of State for the Environment, Transport and the Regions is not 'an independent and impartial tribunal' for the purposes of Article 6(1), but is a judge in his own cause as both policy maker and decision taker; Judicial Review is not sufficient to remedy the defects in the Secretary of State for the Environment, Transport and the Regions' decision-making role—the scope of Judicial Review is not sufficiently wide and the Court is not prepared to enlarge its power of review.

However, the Court held that the Secretary of State could not have acted in any other manner and will not act unlawfully in processing the cases that are the subject of the proceedings, because section 6(2) of the Human Rights Act applies.

Application was made, and the Court granted, leave for appeal to the Court of Appeal. The question whether an application can be made for the cases to be referred direct to the House of Lords is still under consideration by the Court. If the cases can be referred direct to the Lords, an application will be made for expedition.

The Court will make a "declaration of incompatibility" under section 4 of the Human Rights Act that the provisions of the relevant primary legislation are not compatible with a Convention right. However, such a declaration does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given (section 4 (6) HRA). If the decision of the High Court is upheld on appeal, the Government will have to decide how to deal with this incompatibility. In the meantime, the existing primary legislation continues to apply and the Secretary of State has a duty to continue determining cases which have been called-in and appeals that have been recovered, and to fulfil his statutory functions in relation to orders made, for example, under the Transport and Works and Highways Acts and under Compulsory Purchase legislation. He will 120W continue to exercise his discretion—for example, as to whether to call in planning applications—as before. In all cases, he will proceed in accordance with his usual practice. Pending final decisions on the appeals, in deciding whether to call-in or recover cases for his own decision, he will take account of the fact that call-in and recovery, although lawful, have been declared incompatible with the Convention by the Divisional Court.