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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bank Mellat v HM Treasury [2011] EWCA Civ 1 (13 January 2011) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2011/1.html Cite as: [2011] 2 All ER 802, [2012] QB 101, [2011] EWCA Civ 1, [2011] Lloyd's Rep FC 168, [2011] 3 WLR 714, [2011] UKHRR 208, [2011] HRLR 13 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION,
ADMIN COURT, (MITTING J)
REF NO: PTA57/2009
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ELIAS
and
LORD JUSTICE PITCHFORD
____________________
BANK MELLAT |
Appellant |
|
- and - |
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HM TREASURY |
Respondent |
____________________
Mr Jonathan Swift QC and Mr Robert Wastell (instructed by the Treasury Solicitor) for the Respondent
Mr Martin Chamberlain and Miss Melanie Plimmer (instructed by the Special Advocates Support Office) Special Advocates
Hearing dates : 11, 12 October 2010
____________________
Crown Copyright ©
Lord Justice Maurice Kay :
The statutory provisions
"The third condition is that the Treasury reasonably believe that
(a) the development or production of nuclear, radiological, biological or chemical weapons in the country, or
(b) the doing in the country of anything that facilitates the development or production of any such weapons,
poses a significant risk to the national interests of the United Kingdom."
"3(1) A direction under this Schedule may be given to
(a) a particular person operating in the financial sector,
(b) any description of persons operating in that sector, or
(c) all persons operating in that sector
(2) In this Schedule 'relevant person', in relation to a direction, means any of the persons to whom the direction is given
4(1) Any reference in this Schedule to a person operating in the financial sector is to a credit or financial institution that
(a) is a United Kingdom person, or
(b) is acting in the course of a business carried on by it in the United Kingdom."
"(1) A direction under this Schedule may impose requirements in relation to transactions or business relationships with
(a) a person carrying on business in the country;
(b) the government of the country;
(c) a person resident or incorporated in the country.
(2) The direction may impose requirements in relation to
(a) a particular person within sub-paragraph (1),
(b) any description of persons within that sub-paragraph, or
(c) all persons within that sub-paragraph.
(3) In this Schedule 'designated person', in relation to a direction, means any of the persons in relation to whom the direction is given."
"A direction may require a relevant person not to enter into or continue to participate in
(a) a specified transaction or business relationship with a designated person,
(b) a specified description of transactions in business relationships with a designated person, or
(c) any transaction or business relationship with a designated person."
Whichever kind of requirement is imposed, paragraph 9(6) provides a proportionality criterion. In the present context, it states:
"The requirements imposed by a direction must be proportionate having regard to the risk mentioned in paragraph 1(4) to the national interests of the United Kingdom."
This provision lies at the heart of the substantive issues raised on this appeal.
"if not approved by a resolution of each House of Parliament before the end of 28 days beginning with the day on which it is made, it ceases to have effect at the end of that period."
The less stringent orders attract the negative resolution procedure.
The Order
"The Treasury direct that a relevant person must not
(a) enter into, or
(b) continue to participate in, any transaction or business relationship with a designated person."
The contemporaneous documents
""[BM] has provided banking services to a UN listed organisation connected to Iran's proliferation sensitive activities, and been involved in transactions related to financing Iran's nuclear and ballistic missile programme.
The direction to cease business will therefore reduce the risk of the UK financial sector being used, unknowingly or otherwise, to facilitate Iran's proliferation sensitive activities."
"These restrictions are being imposed in respect of these entities because of their provision of services for Iran's ballistic missile and nuclear programmes. It is considered that a direction to cease business with these entities will contribute to addressing the risk to the UK national interests posed by Iran's proliferation sensitive activities. The Treasury has considered whether any of the other kinds of direction permitted by Schedule 7 would be sufficient and concluded that a direction to cease business is necessary."
"Iran's continued nuclear and ballistic missile proliferation-sensitive activity, in defiance of international efforts to control proliferation, poses a significant risk to the national interests of the UK. [BM] has been involved in transactions related to financing Iran's nuclear and ballistic missile programme and [IRISL] has transported goods for both programmes and are contributing to this risk. Government intervention is necessary to address the risks posed by Iranian proliferation in the UK's national interests."
The undisputed matter
BM
The judgment of Mitting J
The grounds of appeal
1. The substantive grounds
(1)Proportionality
" whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
"On the contrary, when very important public interests are in play, interference in private rights well beyond the minimum necessary to safeguard those interests may be proportionate."
This, coupled with a wide margin of appreciation, is the approach which Mr Jonathan Swift QC seeks to uphold.
"That does not of course mean that in such circumstances any type of interference with the right to property should be tolerated. If it were demonstrated that such interference was wholly unreasonable in the light of the aims which the competent authority sought to achieve, then it would be necessary for this Court to intervene However, in the present case the decision to impound the aircraft cannot be regarded as unreasonable I do not think that the principle of proportionality would be infringed, in view of the importance of the public interest involved." (Emphasis added).
" a judge would be unimaginative indeed if he could not come up with something a little less 'drastic' or a little less 'restrictive' in almost any situation and thereby enable himself to strike legislation down."
"It is obvious that the first two tests are satisfied: the objective of the Order to inhibit the development of nuclear weapons by Iran is sufficiently important to justify interfering with property rights. The measure excluding the bank from the financial sector in the United Kingdom is rationally connected to it. To produce or facilitate the production of nuclear weapons, Iran needs to import uranium, centrifuges and, no doubt, a host of other materials, from abroad. To do so, it must pay for them. To pay for them, it will require, or at least find convenient, to use banking facilities, in particular the issuing and confirmation of letters of credit. An Iranian importer of such material is likely to turn to an Iranian bank with an international presence, to issue letters of credit. Cutting off one such bank from one of the principal financial markets in which such business may be transacted is clearly rationally connected to the inhibition of the development of nuclear weapons. Mr Crow objects that such a conclusion would only be rational if there were evidence that the bank had provided trade finance or banking facilities for an importer of such materials. It is, in fact, common ground that it did: to Novin Energy Company (Novin). Novin was designated by the Security Council under Resolution 1747 adopted on 24 March 2007 as a company which 'operates within AEOI (the Atomic Energy Organisation of Iran) and has transferred funds on behalf of AEOI to entities associated with Iran's nuclear programme'. By reason of the designation and for reasons set out in the closed judgment, I accept that Novin was an AEOI financial conduit and did facilitate Iran's nuclear weapons programme. I accept the evidence of Mr Hormozi and of Hassan Azadi, general manager of the Inspection and Monitoring Department and Compliance Officer of the bank, that once Novin was designated, the bank ran down and eventually ceased its banking relationship with Novin and that it had in place the mechanism, which it operates conscientiously, to ensure that it does not provide banking facilities to Security Council designated entities and individuals. The Treasury's case is not that the bank has knowingly assisted Security Council designated entities after designation, or even that it has knowingly assisted entities liable to be designated, but which have not yet been, by providing banking facilities to them, but that it has the capacity to do so, has in one instance done so and is likely to do so in the future. The fundamental justification for the Order is that, even as an unknowing and unwilling actor, the bank is, by reason of its international reach, well placed to assist entities to facilitate the development of nuclear weapons, by providing them with banking facilities, in particular trade finance. Concealment of the true nature of imported goods paid for by a letter of credit is straight forward: all that an issuing bank sees are documents. On presentation of compliant documents describing innocent goods, the bank must pay, whatever the nature of the goods in fact imported. Access to the international financial system is, as the Financial Action Task Force reported on 18 June 2008, essential for what it describes as 'proliferators'. I accept that Iran's banking system provides many of the financial services which underpin procurement of the raw materials and components needed for its nuclear and ballistic missile programmes."
"A direction to cease business with Bank Mellat would restrict the financial services available to entities involved in Iran's nuclear and ballistic missile programmes by denying them access to the UK financial sector through Bank Mellat. This would have the maximum possible adverse impact on the nuclear and ballistic missile programmes of the measures available under Schedule 7 in relation to Bank Mellat. If Bank Mellat wished to continue its activities in support of those programmes it would need to seek other sources of financial services, assuming such alternatives were actually available to it. There was also the possibility that as a bank subject to restrictions in the United Kingdom, Bank Mellat would not be in a position to access the global financial system as effectively in order to seek substitute arrangements for those no longer available to it in the UK. At the very least, this would impede the Iranian nuclear and ballistic missile programmes by imposing additional costs and delays on the programmes."
"A direction would also serve a further important practical purpose in that it would increase pressure on the Iranian government to comply fully and transparently with its international obligations ie the IAEA requirements and the terms of UN Security Council Resolutions designed to prevent it taking actions that could facilitate the development of a nuclear weapon. Applying such a restriction to one of Iran's largest banks would reduce the financial services available to the government of Iran for procuring the material needed to support the nuclear and ballistic missile programmes."
"I give great weight to the views of the Treasury, endorsed by Parliament, about the risk to the national interest of the United Kingdom identified above, as I am required to do, by very close analogy, by the observations of the House of Lords in relation to national security in Secretary of State for the Home Department v Rehman [2003] 1 AC 153. By analogy with the margin of appreciation afforded by the Strasbourg courts to national political authorities, I must also give great weight to the judgment of the Treasury, affirmed by Parliament, that the national interests of the United Kingdom require that the bank be excluded from the UK financial sector. Ultimately, however, I must reach my own decision about that issue. I agree with the Treasury's judgment. In my opinion, the risk of very great harm to vital national interests justifies the imposition of a severe and costly inhibition on the business of the bank which will entail long term damage to its goodwill in the United Kingdom. However, the test is phrased fair balance, reasonable relationship of proportionality, justified or not manifestly unreasonable I am satisfied that it is fulfilled. Even if the stricter test propounded by Lord Clyde applies, I am also satisfied that it is fulfilled. For the reasons explained above, there really is no other reasonably practicable means of ensuring reliably that the facilities of an Iranian bank with international reach will not be used for the purpose of facilitating the development of nuclear weapons by Iran."
(a) Rational connection
(b) "Unduly draconian"
" it is not enough to assert that the decision that was taken was a reasonable one. A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them."
"It was concluded that a less intrusive measure would not be effective in addressing the risk posed to the UK by Iran's nuclear programme. Companies and entities in the United Kingdom's financial sector are already required to comply with the requirements of Regulation 423/2007 as amended by Regulation 1110/2008, including exercising continuous vigilance over account activity in their activities with credit and financial institutions domiciled in Iran, and reporting to SOCA suspicions that funds are related to proliferation financing. In addition, the Money Laundering Regulations 2007 require the UK financial sector to apply enhanced customer due diligence and enhanced ongoing monitoring in any situation which by its nature can present a higher risk of money laundering or terrorist financing.
The UK financial sector is accordingly already applying enhanced due diligence and enhanced ongoing monitoring to its transactions and business relationships with all Iranian banks. Such measures, however, rely on the UK financial institutions having sufficient knowledge of the transactions they are involved in to enable them to identify and deal with suspicious elements. Since Iran lacks a functioning regime to combat money laundering and terrorist financing, it is not possible for UK financial institutions to rely on such due diligence checks having taken place in Iran.
Further, the Iranian banks and other entities that are known to have provided support to Iran's nuclear and ballistic missile programmes have frequently done so by obscuring the identities of parties involved in transactions. Although there is no evidence that any companies in the United Kingdom financial sector have been knowingly complicit in transactions related to Iran's nuclear and ballistic missile programmes, there is a risk that they will be unknowingly involved. It is assessed that financial institutions in the UK, even with due diligence, are exposed to some risk of providing services to companies and individuals wittingly or unwittingly engaged in proliferation-related trade with Iran.
Moreover systematic reporting measures would do no more than require United Kingdom financial institutions to submit reports on all their transactions with Bank Mellat. While this would permit the relevant authorities to scrutinise those reports for evidence of transactions of concern after the event, it would not provide any mechanism for stopping those transactions since they would already have taken place. Systematic reporting measures would also place significant additional costs and administrative requirements on the UK financial sector.
It is also suggested that the decision taken was disproportionate because (a) the Treasury did not exercise its power under paragraph 9(5) so as to limit the extent of the prohibition contained in the Order to particular descriptions of transactions or business relationships, or to transactions or business relationships with some but not others of [BM's] branch offices; and/or (b) because it identified as relevant persons, all persons operating in the financial sector. In relation to (a) the risk posed was considered to be such that it was appropriate to make a direction in respect of all transactions and business relationships with [BM], regardless of the nature of those transactions or the branch involved. The Treasury is not in a position to know in advance which transactions might be of proliferation concern, so the only effective means of guarding against the risk that the UK financial sector becomes involved in such transactions is to impose restrictions in respect of all transactions and business relationships with [BM]. Further, if only certain branches of [BM were subject to restrictions, it would be a simple matter for [BM] to avoid the effects of the restrictions by diverting transactions through a branch which was not subject to restrictions. In respect of (b) the aim of the measures contained in the Order is to prevent the use of the entirety of the UK financial sector by [BM], so it would not have been appropriate or effective to issue a direction to only certain parts of the sector. It is also the case that it is open to [BM] to apply to the Treasury for a licence in order to carry out transactions which would otherwise be prohibited by the Order."
" there really is no other reasonably practicable means of ensuring reliably that the facilities of an Iranian bank with international reach will not be used for the purpose of facilitating the development of nuclear weapons by Iran."
(c) Procedural deficiencies
"192. It is apparent that the contested regulation was adopted without furnishing any real safeguard enabling the applicant to put his case to the competent authorities, in a situation in which the restriction of his property rights must be regarded as significant, having regard to the general application and duration of the freezing measures to which he is subject
193. It must therefore be held that, in the circumstances of the case, the imposition on the applicant of the restrictive measures constitutes an unjustified restriction on his right to property
194. The applicant's claim that the infringement of his fundamental right to respect for property entails a breach of the principle of proportionality is therefore well-founded."
(2) Irrelevant considerations
(3) Article 14 ECHR: Discrimination
"The fundamental justification for the Order is that, even as an unknowing and unwilling actor, [BM] is, by reason of its international reach, well placed to assist entities to facilitate the development of nuclear weapons, by providing them with banking facilities, in particular trade finance."
2. The procedural grounds
(1) Natural justice at common law
"If the Board were bound to disclose every detail, that might itself give the informer away and put him in peril. But, without disclosing every detail, I should have thought that the Board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. And the Board must at all costs be fair. If they are not these courts will not hesitate to interfere."
" the procedure for making the Order is laid down by the 2008 Act and contains no provision for the opportunity for affected persons to make representations before it is made. It is readily understandable that no such provision was made. Although in this case, I am only concerned with a direction made in the circumstances set out in paragraph 1(4) of Schedule 7 in respect of a bank, there are many other circumstances in which directions could be made when Parliament cannot have intended that there should be an opportunity for affected persons to make representations In BAPIO v Secretary of State for the Home Department [2007] EWCA Civ 1139 [it was held] that where Parliament has conferred a rule-making power on the executive, subject to Parliamentary control, it was not generally for the courts to superimpose additional procedural safeguards There can be no difference in principle between such a power and an executive Order such as the Order in issue here. For that reason, I reject Mr Crow's proposition and conclude that, under domestic law, the only procedural requirements which must have been satisfied for the Order to have effect and to remain effective were those prescribed in Schedule 7. The bank's right to make representations, somewhat theoretical though it may have been, was indirect and was at that stage at which Parliament considered whether or not to affirm the Order."
In taking issue with this analysis, Mr Crow emphasises the immediate, severe and long-term damage to BM as a result of the Order.
" I doubt that, as a matter of principle, a duty to consult can generally be superimposed on a statutory rulemaking procedure which requires the intended rules to be laid before Parliament and subjected to the negative resolution procedure. I tend to the view that, in these circumstances, primary legislation has prescribed a well-worn, albeit often criticised procedure and I attach some significance to the fact that it has not provided an express duty of prior consultation, as it has on many other occasions."
(2) The procedural requirement of A1P1
"Although Article 1 of Protocol No 1 contains no explicit procedural requirements, the proceedings at issue must also afford the individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied a comprehensive view must be taken of the applicable procedures."
(3) Article 6
"In the determination of his 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."
" the right to remain in employment or to be able to engage in a particular employment sector was a civil right within Article 6(1) of the Convention; since the provisional listing of a care worker under the 2000 Act could result in irreparable damage to the person's employment or prospects of employment in the Care Sector, it amounted to a determination of a civil right within Article 6(1) notwithstanding that it was only an interim measure; given the possibility of such damage, it was necessary for the procedure of provisional listing to be fair, whereas the denial of an opportunity for care workers to answer allegations before being listed made [it] procedurally unfair and contrary to Article 6(1)."
"Some interim measures have such a clear and decisive impact upon the exercise of a civil right that Article 6(1) does apply if Article 6 applies to the suspension of a doctor from medical practice (as in Le Compte), it must apply to the permanent separation of a person from her current employment."
" the scheme as enacted in the Care Standards Act 2000 does not comply with Article 6(1) the process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her before imposing upon her possibly irreparable damage to her employment or prospects of employment."
"The Court reiterates that for Article 6(1) in its 'civil limb' to be applicable, there must be a dispute over a 'civil right' which can be said, at least on arguable grounds, to be recognised under domestic law "
" the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised."
"It is one thing temporarily to freeze a person's assets, so that he cannot divest himself of them before an issue is tried; it is another thing to deprive someone of their employment by operation of law."
"If that analysis is wrong, the decision to make and affirm the Order must be part of the process of determination of the bank's civil rights of the kind analysed by Lord Clyde in R(Alconbury) Ltd v Secretary of State for the Environment [2003] 2 AC 295 in paragraphs 145-160. For present purposes, the conclusion to be drawn from his reasoning is that a hybrid procedure involving executive decision-making can be compatible with Article 6(1). On that analysis, the procedure for determining [BM's] civil rights in this case is hybrid: an executive decision affirmed by Parliament, subject to later challenge before a court. The procedure laid down in CPR Part 79, adapted to accommodate [BM's] rights under Article 6(1) is adequate to give effect to those rights. Even if, exceptionally, the impact of the Order was such as to cause irreparable damage to [BM], unless its challenge to the Order was determined more quickly than the procedure set out in Part 79 permitted, it could apply for judicial review. By close analogy with the control order regime, judicial review is not excluded: BX v Secretary of State for the Home Department [2010] EWCA Civ 481, at paragraphs 24-27. An interim injunction or mandatory or prohibitory order could be obtained in such proceedings."
(4) Reasons
"The written Ministerial Statement of 12 October 2009 gave an adequate summary of the reasons, which was repeated by Ministerial Statements to both Houses of Parliament. Expanded reasons have been given in the statement of Mr Robertson. The principal purposes of giving reasons to explain why a decision was made and to permit it to be challenged have been amply fulfilled."
Conclusion
Lord Justice Elias:
Fairness at common law.
"Although in this case, I am only concerned with a direction made in the circumstances set out in paragraph 1(4) of Schedule 7 in respect of a bank, there are many other circumstances in which directions could be made when Parliament cannot have intended that there should be an opportunity for affected persons to make representations. They include individuals engaged in terrorist financing or money laundering activities (paragraphs 1(3)(c) and 9(1)(c)); and governments reasonably believed to be engaged in the development or production of nuclear etc weapons (paragraphs 1(4)(a) and 9(1)(b)); and the manifold persons in the UK financial sector to whom the direction is given (paragraph 3(1)). As Mr Crow acknowledges, a duty to permit prior representations to be made could only arise in particular circumstances for example, when there was no reason to believe that avoiding action would be taken by an affected person. Such an exception would be judge-made. In BAPIO v Secretary of State for the Home Department [2007] EWCA Civ 1139, Sedley LJ pointed out the difficulties in introducing a judge-made exception in paragraphs 44-47 of his judgment. His reasoning, shared by Maurice Kay and Rimer LJJ, led them to hold that where Parliament has conferred a rule making power on the executive, subject to Parliamentary control, it was not generally for the courts to superimpose additional procedural safeguards: paragraphs 58 and 65. Their observations form part of the ratio decidendi and would bind me in relation to a rule making power. There can be no difference in principle between such a power and an executive Order, such as the Order in issue here."
"43. The real obstacle which I think stands in the appellants' way is the difficulty of propounding a principle which reconciles fairness to an adversely affected class with the principles of public administration that are also part of the common law. These are not based on administrative convenience or potential embarrassment. They arise from the separation of powers and the entitlement of executive government to formulate and reformulate policy, albeit subject to such constraints as the law places upon the process and the product .. It is not unthinkable that the common law could recognise a general duty of consultation in relation to proposed measures which are going to adversely affect an identifiable interest group or sector of society.
44. But what are its implications? The appellants have not been able to propose any limit to the generality of the duty. Their case must hold good for all such measures, of which the state at national and local level introduces certainly hundreds, possibly thousands, every year. If made good, such a duty would bring a host of litigable issues in its train: is the measure one which is actually going to injure particular interests sufficiently for fairness to require consultation? If so, who is entitled to be consulted? Are there interests which ought not to be consulted? How is the exercise to be publicised and conducted? Are the questions fairly framed? Have the responses been conscientiously taken into account? The consequent industry of legal challenges would generate in its turn defensive forms of public administration. All of this, I accept, will have to be lived with if the obligation exists; but it is at least a reason for being cautious."
" I wholly agree with Sedley LJ's reason for concluding that a duty to consult did not arise in this case, namely the non-specific nature of the alleged duty and the lack of clear principle by which to define it. For my part, however, I would not so readily reject one of the alternative submissions made by Ms Laing on behalf of the Home Secretary. Whilst I do agree with Sedley LJ that the Rules are susceptible to judicial review on grounds such as ultra vires or irrationality, I doubt that, as a matter of principle, a duty to consult can generally be superimposed on a statutory rule-making procedure which requires the intended rules to be laid before Parliament and subjected to the negative resolution procedure. I tend to the view that, in these circumstances, primary legislation has prescribed a well-worn, albeit often criticised, procedure and I attach some significance to the fact that it has not provided an express duty of prior consultation, as it has on many other occasions. The negative resolution procedure enables interested parties to press their case through Parliament, although I acknowledge that their prospects of success are historically and realistically low. "
" it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."
The human rights' claims.
Article 6.
"It is the Order which gives rise to the dispute."
Accordingly, the focus of any Article 6 challenge had to be on the statutory appeal to the court, and that was Article 6 compliant.
"In my view, Dyson LJ was entirely correct in his conclusion that the scheme as enacted in the Care Standards Act 2000 does not comply with Article 6(1) for the reasons he gave. The process does not begin fairly, by offering the care worker an opportunity to answer the allegation made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment."
"Conformity with the spirit of the Convention requires that this word should not be construed too technically and that it should be given a substantive, rather than a formal meaning; besides, it has no counterpart in the English text of Article 6 .".
"a dispute over a "civil law right" which can be said, at least on arguable grounds to be recognised under domestic law "
" It is a well-known principle that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises "full jurisdiction": Bryan v United Kingdom (1995) 21 EHRR 342, applied domestically in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 and Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening) [2003] 2 AC 430. What amounts to "full jurisdiction" varies according to the nature of the decision being made. It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject matter of the decision and the quality of the initial decision-making process. If there is a "classic exercise of administrative discretion", even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case. The planning system is a classic example (Alconbury); so too, it has been held, is the allocation of "suitable" housing to the homeless (Runa Begum); but allowing councillors to decide whether there was a good excuse for a late claim to housing benefit was not: Tsfayo v United Kingdom (2006) 48 EHRR 457."
"..Secondly, the nature of the interim measure, its object and purpose, as well as its effect on the right in question, shall be scrutinised. Whenever an interim measure can be considered effectively to determine the rights or obligations at stake, notwithstanding the length of time it is in force, Article 6 will be applicable.
However, the court accepts that in exceptional cases where, for example, the effectiveness and measurement sought, depends on a rapid decision making process it may not be possible immediately to comply with all the requirements of Article 6. Thus, in such specific cases, while the independence and impartiality of the tribunal or the judge concerned is an indispensable and inalienable safeguard in such proceedings, other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue. In any subsequent proceedings before the court, it will fall to the Government to establish that, in view of the purpose of the proceedings at issue in a given case, one or more specific procedural safeguards could not be applied without unduly prejudicing the attainment of the objective sought by the interim measure in question."
Article 1 of Protocol 1.
"Although Article 1 of Protocol No 1 contains no explicit procedural requirements, the proceedings at issue must also afford the individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied a comprehensive view must be taken of the applicable procedures."
Disposal.
Lord Justice Pitchford:
Common Law
Article 6 and Article 1 Protocol 1