When the European Convention on Human Rights was introduced as being directly enforceable in the UK, there was considerable speculation about the impact that direct applicability of the Convention would have on UK domestic law. While prior to October 2002 (the date the Human Rights Act became fully operational throughout the UK) recourse could be made to the Convention the procedure was time consuming and cumbersome. The position in Scotland had changed slightly earlier as a result of provisions in the Scotland Act which have more recently proved controversial. That difference however is not overly significant for present purposes.
In fact except in certain areas (notably the area of criminal law) so far as the law of Scotland is concerned in many areas the direct applicability of the Convention has had limited impact to date. Generally speaking where it has been applicable and relied upon is in relation to very personal or individual rights (for example the slopping out cases concerning prisoners).
In some ways this "slow burn" is not surprising. A number of commentators considered that the impact of the Act would grow significantly once judges and lawyers became familiar with the Convention and the rights that it might bring.
In relation to planning there was considerable speculation about whether or not significant aspects of the planning legislation would come under consideration as a result of the Convention being directly applicable. The position came under early review both in the Supreme Court (or House of Lords as it then was) – see Regina v Secretary of State for the Environment, Transport & the Regions on the application of Alconbury Developments Limited (2001) 2W.L.R. 1389 and more directly in Scotland in County Properties Limited v Scottish Ministers an application for judicial review (P430/2000).
By the time County Properties came before the Inner House (on appeal) Alconbury had been decided. Equally a number of issues which were relied upon in the judicial review application before the judge at first instance in the Outer House were not relied upon in the Inner House.
In the County Properties case the Scottish Ministers conceded that neither "they nor the Reporter appointed by them in the present case constitute an independent and impartial tribunal" for the purposes of the issues in question – in effect an appeal under Section 58 of the Planning (Listed Buildings & Conservation Areas) (Scotland) Act 1997. While the County Properties appeal related to a listed building it is likely that the same concession would have been made had the application in question been one for planning permission in relation to the Town & Country Planning (Scotland) Act 1997. That concession having been made however it was argued on behalf of Scottish Ministers that in determining compatibility regard had to be made to the whole process including the right of appeal to the court. That was the position that had been adopted in the Alconbury appeal where the House of Lords had held that there was no violation of Article 6 because of the right to go to the court by way of judicial review.
Article 6 of the Convention provides as follows:- "In the determination of the civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law".
While attempts were made to distinguish the Alconbury decision in Country Properties, those attempts failed. The Inner House of the Court of Session held that they were satisfied that what was said in Alconbury did not "relate merely to the specific facts and procedures which were under scrutiny in those cases". The court held that they were satisfied that given the right of what was termed "contestation" then there was no breach of Article 6. The court added, possibly by way of a gloss, that while the admission had been made that a Reporter was not "an independent and impartial Tribunal" the Reporter was bound by rules of procedure including making findings of fact and summarising the evidence and that his obligations in that regard were subject to control by the court. The Court appear to be suggesting that the concession may not have been correct.
There has been no serious attempt to "revisit" those issues. The planning system has however changed significantly and in particular in relation to local applications there is now no appeal to a Reporter but rather a right to review by a Local Review Body which in effect is a Committee of a Council (Click here to view our article on Hierarchy & Delegated Decisions). There is however a right of appeal to the Court of Session from decisions of a Local Review Body under Section 239 of the Town & Country Planning (Scotland) Act 1997.
It is understood that it was decided in England not to proceed with Local Review Bodies because they were not considered to be "human rights" compliant. It is equally understood that while the position was considered in Scotland the Scottish Government received separate and different advice.
It is yet to be seen whether there will be a challenge to Local Review Bodies and if so on what basis. While there has been much talk of a challenge, none so far have emerged. Possibly in the context of such a challenge there might be an opportunity to revisit the issues addressed in County Properties and/or Alconbury. What is clear is that in some respects Convention rights may be dynamic – see for example the recent furore in Scotland over the intervention by the Supreme Court in the Cadder case. While that case concerned criminal law, in effect what the Supreme Court did was to overturn established procedures of Scots Criminal Law based upon rights which had been fairly recently developed in another jurisdiction under the Convention. The basis upon which the Supreme Court had jurisdiction was in essence the compatibility of actings of the Lord Advocate with the Convention.
Of course if such issues were to come before the Supreme Court on an appeal from Scotland, in all likelihood they would be considered by Lord Reed recently appointed to the Supreme Court Bench and a noted expert on human rights and the application of human rights law.
While there is nothing to suggest that a case is likely to come forward in the immediate future, nor that the outcome would necessarily be any different, this is an area which may yet be of significant interest in the context of planning law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.