UK: Human Rights Act Defence & Independent & Impartial Tribunal

Introduction

In R(Bono) v Harlow District Council [2002] EWHC 423 (Admin)(15th March 2002), Richards J had to consider two important issues concerning the effect of the Human Rights Act 1998 – the requirement of an independent and impartial tribunal in Article 6 of the European Convention on Human Rights (the Convention) and the defence to what would otherwise be an unlawful act by a public authority under section 6 of the Human Rights Act.

The claimants applied for housing benefit but the benefit was refused by the defendant Council which was not satisfied with the claimants' evidence of income. The claimants succeeded in a procedural challenge before a Review Board under the Housing Benefit (General) Regulations 1987 (made under the Social Security Contributions and Benefits Act 1992) but a newly-constituted Review Board upheld the original decision. Regulation 81 and schedule 7 provided that the Review Board was to be comprised of Councillors of the authority.

The claimants sought judicial review of the Review Board’s decision. They submitted that there had been a breach of their rights under Article 6 of the Convention since under the Regulations the Board was constituted of councillors of the defendant and was therefore not independent and impartial. It was also submitted that the Board had incorrectly applied the Regulations because they had omitted to consider the claimants’ attempts to submit a notebook detailing their income.

Article 6 of the Convention

The defendant Council argued that the availability of judicial review provided sufficient control to remedy any lack of independence or impartiality by the Council itself and hence the system complied with Article 6. Richards J referred to R(Bewry) v Norwich City Council [2001] EWHC Admin 657, where Moses J held that “This court cannot cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence…The level of review this court can exercise does not replenish the want of independence on the Review Board, caused by its connection to a party to a dispute” (paras 64 and 65). Richards J held that since the question whether the Board was in breach of Article 6 of the Convention involved the determination of issues of primary fact, judicial review could not provide sufficient control to remedy that deficiency.

Richards J felt that in view of the substance of his decision it was felt unnecessary to consider the recent decision in Tower Hamlets LBC v Begum [2002] EWCA Civ 239, in which the Court of Appeal suggested circumstances where judicial review is sufficient to secure compliance with Article 6.

The Defence in Section 6 of the Human Rights Act 1998

Section 6 of the 1998 Act provides that it is unlawful for a public authority to act incompatibly with a Convention right (here the right to an independent and impartial tribunal in Article 6 of the Convention). However, subsection (2) states that the foregoing does not apply to an act which, as the result of primary legislation, means the authority could not act differently (section 6(2)(a)); or, in the case of provisions made under primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority acted only so as to give effect to those provisions (section 6(2)(b)). The defendant Council sought to rely on section 6(2)(b) in the light of the 1987 Regulations.

Richards J held that a defence was available only if the local authority could show that it was constrained by primary incompatible legislation (here the Social Security Contributions and Benefits Act 1992) to constitute the Review Board as it had. Section 6(2)(b) did not protect in relation to subordinate legislation that was incompatible but not inevitably incompatible. Since section 63(3) of the 1992 Act was in very general terms and did not require the Regulations to provide for the constitution of a Board lacking in the attributes of independence and impartiality, section 6(2)(b) could not provide a defence to the council. In the Judge’s view “Where enabling primary legislation can be interpreted compatibly with Convention rights, incompatible subordinate legislation made under it cannot provide a lawful justification for acts incompatible with Convention rights” (para 33).

Richards J added that the intention of the 1998 Act was to preserve the invalidity of incompatible primary legislation and of inevitably incompatible subordinate legislation, but not to preserve the validity of incompatible subordinate legislation where the incompatibility was avoidable.

Misapplication of the Regulations

In the instant case the court had the ability to exercise sufficient judicial control to remedy the lack of independence and impartiality of the Review Board. This was because the Review Board failed properly to consider evidence before it (the notebook), and to consider the discretionary element of the Regulations. That omission meant that the Board had failed to take into account a material consideration and thus misapplied the Regulations. For that reason the Board's decision had to be quashed and overall compliance with Article 6 was achieved, since the breach could be cured.

Practical application

Bono raises two practical issues for a defendant public authority. First, it continues the debate as to when judicial review is an adequate way of complying with Article 6 of the Convention. Although some of the cases are hard to reconcile and it appears that a slightly different line is being taken in different contexts, the distinction appears to be between cases where the reviewing court is being asked to look at a public authority’s exercise of judgment where judicial review is an adequate control to remedy any lack of independence and impartiality at the administrative level and cases concerning an allegation that the authority has made an error in respect of primary facts where judicial review, because of its limited nature, is not an adequate control.

Secondly, Bono considers the position of an authority where secondary legislation requires it to act in a way which is incompatible with a Convention right. If the primary legislation is drafted widely such that the secondary legislation need not have been drafted in such a way as to lead to acts which are incompatible, authorities have a difficulty. On the one hand they must follow secondary legislation which applies to them. On the other they must not breach Convention rights. As Richards J noted in Bono there are conceptual difficulties in relation to whether the Council would have been able to appoint a Review Board other than in accordance with the Regulations to secure compliance with Article 6 and the Council’s scope for acting outside the Regulations was `not obvious’. The dilemma between following incompatible secondary legislation and complying with Convention rights has yet to be resolved and any authority placed in this situation will need to take great care when deciding how to proceed.