UK: Article 6: Administrative Decisions Affecting ‘Civil Rights’ – The Requirement Of An ‘Independent And Impartial Determination’

Last Updated: 18 March 2003
Tower Hamlets LBC v Begum (February 13, 2003) House of Lords

This e-bulletin has previously discussed several cases where the English courts have considered the implications of the requirement of Article 6 of the European Convention on Human Rights ("ECHR") as incorporated into UK law by way of the Human Rights Act 1998. Article 6 requires that the determination of a person's ‘civil rights and obligations' shall be by a ‘fair and public hearing' conducted by an ‘independent and impartial tribunal established by law'. See, for example, the discussions of Preiss (October 2001) and Bono (May 2002).

The European Court of Human Rights has interpreted broadly the concept of 'civil rights'. Decisions taken by ‘officials’ in the exercise of statutory duties or discretionary powers will commonly determine the ‘civil rights’ of persons affected by those decisions, and so make Article 6 applicable.

But here lies a difficulty. Such decisions taken by officials cannot in themselves be regarded as complying with Article 6 - the official is not an ‘independent and impartial' person and his/her decision-making process will ordinarily not have involved a ‘fair and public hearing'.

The Strasbourg court has therefore developed the concept of ‘composite' compliance with Artice 6(1): an initial administrative decision being followed by an independent and impartial judicial appeal or a judicial review process, involving at that second stage an independent body with, in Strasbourg parlance, ‘full jurisdiction’.

In Tower Hamlets LBC v Begum [2003] UKHL 5 (February 13, 2003) the House of Lords considered what ‘full jurisdiction’ may involve.

Although the case was set in the context of local authority duties towards homeless persons the principles apply to regulatory situations generally.

The Background

Runa Begum challenged the statutory procedures for review of a decision that accommodation offered to her was ‘suitable' and was accommodation which it was ‘reasonable’ that she should accept. Regulations provided for the review to be by a more senior council officer who had not been involved in the original decision, and that written representations could be made to the reviewing officer. A further right of appeal to the county court lay on ‘any point of law arising from the decision': so permitting grounds of appeal to include not only complaints of misinterpretation of law, but also broader grounds of administrative illegality - procedural impropriety and irrationality. No appeal lay, however, as regards findings of primary fact (including assessments of the credibility of those who had provided information to the council).

The composite procedure: sufficient to comply with Article 6?

Runa Begum’s main substantive grievance was that that the reviewing officer’s decision was founded on incorrect assessments of primary fact. As a council officer the reviewing officer could not be regarded as an independent and impartial tribunal. Accordingly, the House had to consider whether the composite process in which the independent judicial element did not possess jurisdiction over findings of primary fact, could meet Article 6 requirements.

The House noted the ‘landmark’ case of Bryan v United Kingdom (1995) 21 EHRR 342 in which the Strasbourg court accepted that there could be compliance with Article 6 notwithstanding that the independent judicial body might not have power to review an administrative decision fully ‘on its merits'.

In some contexts this would be essential, in other contexts not. But how to distinguish one situation from the other? One important distinction in this context lay between:

  • determinations involving matters of criminal liability or private law rights (where it was necessary under Article 6 for the primary facts and inferences from primary facts to be fully within the remit of the independent and impartial judicial body); and ·
  • the determination of ‘rights' under schemes of regulation and social welfare (where it was ‘inappropriate' to regard Article 6 as requiring in all cases such a mechanism).

The instant case, their Lordships felt, fell within the second of these categories. As such, and echoing Lord Hoffmann’s words in R(Alconbury) v Secretary of State for the Environment [2001] 2 WLR 1389, ‘full jurisdiction to deal with the case as the nature of the decision requires’ existed within the arrangements laid down in the 1996 Act and accompanying Regulations, and so Article 6 was satisfied. The House referred to Bryan, and also the more recent Strasbourg decision in Kingsley v United Kingdom [2002] 35 EHRR 177, as demonstrating that even where the basis of complaint was, as here, a dispute about findings of primary fact by an official, the Strasbourg court might regard a more 'limited right of review' of that administrative determination as sufficient.

The recent ‘asylum’ case

The issue which arose in Begum was also considered by Collins J in R (on the application of Q and others) v Secretary of State for the Home Department [2003] EWHC 195, Administrative Court, February 19, 2003. This much-publicised decision involved a finding that section 55 of the Nationality, Immigration and Asylum Act 2002 (requiring the Secretary of State not to provide welfare support to any person whom he is not satisfied claimed asylum as soon as reasonably practicable after arrival in the UK) infringes Article 6 of the ECHR.

Collins J held that no right of appeal exists from a determination by the Secretary of State that the requirements of section 55 are satisfied; and High Court judicial review does not allow sufficiently close review of determinations of fact to satisfy Article 6. In the instant case there was no opportunity to challenge before an independent and impartial tribunal the factual basis upon which the Secretary of State may have reached his conclusion that the claim to asylum had been made tardily.

Collins J’s decision was reached without the benefit of a full report of the House of Lords in Begum. He acknowledged that the availability of judicial review might suffice in some circumstances to satisfy Art 6, notwithstanding very limited reviewability of factual findings. In particular this might be the case where there are formal fact finding processes associated with the administrator’s initial decision, and there is a requirement for reasons to be given for the administrator’s decision (which reasons may provide material upon which judicial review may be founded (eg the no-evidence rule)). However, in cases where an administrator was unencumbered by formal fact-finding procedures and under no duty to offer reasons for conclusions reached, the absence of any independent opportunity to challenge the key factual basis of the action taken was according to Collins J, a clear breach of Article 6.

Collins J’s decision in Q will be appealed. One suspects that Begum may not quite be the last word on this matter.

Conclusion

The decision in Begum follows a number of recent Strasbourg cases which suggest that judicial review will provide adequate guarantees of fairness in a sophisticated regulatory context where the regulator’s own procedures are generally fair albeit there may be a lack of structural independence in the administrative decision making process. For example, judicial review was held to be sufficient to ensure compliance with Article 6(1) of the ECHR in the context of an intervention by IMRO in the business of an investment firm (APB Limited v United Kingdom (1998) 25 EHRR 141) and a notice issued by the Secretary of State objecting to the applicant’s appointment as chief executive of an insurance company (X v United Kingdom (1998) 25 EHRR 88). This will only apply, however, where judicial review can indeed remedy any defect (cf Kingsley where the statutory scheme would have envisaged a successful judicial review leading to the case being remitted back to the same decision maker in circumstances where the basis of the judicial review was that the decision was tainted by apparent bias on the part of the decision maker).

However, cases may arise involving situations where the Courts will become more interventionist. Q is a case in point. When looking at a regulatory scheme the Courts will no doubt be influenced by the extent to which the administrative system was largely fair. If the system contained only minor defects a court will be more inclined to find that an appeal or review will cure any remaining Article 6 deficiencies than it would be if there were manifest unfairness at the administrative stage. Regulators should therefore seek to ensure that their regulatory systems are set up in a manner which goes as far as possible towards full compliance with Article 6.

Article by Andrew Lidbetter and Nusrat Zar

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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