Begum (FC) (Appellant) v. London Borough of Tower Hamlets (Respondents)
28. I therefore return to the other two issues in dispute. But before looking at them in any detail, it is necessary to notice how they are related to each other. The dissenting opinion in Feldbrugge v The Netherlands (1986) 8 EHRR 425, 444 explains persuasively, by reference to the travaux préparatoires and other background to the Convention, that the term "civil rights and obligations" was originally intended to mean those rights and obligations which, in continental European systems of law, were adjudicated upon by the civil courts. These were, essentially, rights and obligations in private law. The term was not intended to cover administrative decisions which were conventionally subject to review (if at all) by administrative courts. It was not that the draftsmen of the Convention did not think it desirable that administrative decisions should be subject to the rule of law. But administrative decision-making raised special problems which meant that it could not be lumped in with the adjudication of private law rights and made subject to the same judicial requirements of independence, publicity and so forth. So the judicial control of administrative action was left for future consideration.
29. In fact there has been no addition to the Convention to deal with administrative decisions and the Strasbourg court has been left to develop the law. It has done so in two ways. First, it has been concerned to ensure that state parties do not exploit the gap left in article 6 by changing their law so as to convert a question which would ordinarily be regarded as appropriate for civil adjudication into an administrative decision outside the reach of the article. It has done this by treating "civil rights and obligations" as an autonomous concept, not dependent upon the domestic law classification of the right or obligation, which a citizen should have access to a court to determine. Otherwise, as the court said in Golder v United Kingdom (1975) 1 EHRR 524, 536, para 35:
30. The second development has been the doctrine, starting with Ringeisen v Austria (No 1) (1971) 1 EHRR 455, by which the Strasbourg court has extended article 6 to cover a wide range of administrative decision-making on the ground that the decision determines or decisively affects rights or obligations in private law. I traced some of the history of this doctrine in my speech in Alconbury, at pp 1413-1416, paras 77-88, and need not cover the same ground. More recently the scope of article 6 has also been extended to public law rights, such as entitlement to social security or welfare benefits under publicly funded statutory schemes, on the ground that they closely resemble rights in private law: Salesi v Italy (1993) 26 EHRR 187.
31. I shall have more to say about these extensions of article 6 when I come to deal with the first issue, but for the moment it is sufficient to note that from an early stage the Strasbourg court has recognised that the extension of article 6 into administrative decision-making has required what I called in Alconbury, at p 1415, para 84, "substantial modification of the full judicial model". The most explicit recognition of the problem was by the Commission in Kaplan v United Kingdom (1980) 4 EHRR 64, 90, para 161, where, after noting the limited scope of judicial review in many contracting states and in the law of the European Union, it said:
32. The Commission in Kaplan offered what would seem to an English lawyer an elegant solution, which was not to classify the administrative decision as a determination of civil rights or obligations, requiring compliance with article 6, but to treat a dispute on arguable grounds over whether the administrator had acted lawfully as concerned with civil rights and obligations, in respect of which the citizen was entitled to access to a fully independent and impartial tribunal. By this means a state party could be prevented from excluding any judicial review of administrative action (as in the Swedish cases which I have mentioned) but the review could be confined to an examination of the legality rather than the merits of the decision.
33. The Strasbourg court, however, has preferred to approach the matter in a different way. It has said, first, that an administrative decision within the extended scope of article 6 is a determination of civil rights and obligations and therefore prima facie has to be made by an independent tribunal. But, secondly, if the administrator is not independent (as will virtually by definition be the case) it is permissible to consider whether the composite procedure of administrative decision together with a right of appeal to a court is sufficient. Thirdly, it will be sufficient if the appellate (or reviewing) court has "full jurisdiction" over the administrative decision. And fourthly, as established in the landmark case of Bryan v United Kingdom (1995) 21 EHRR 342, "full jurisdiction" does not necessarily mean jurisdiction to re-examine the merits of the case but, as I said in Alconbury, at p 1416, para 87, "jurisdiction to deal with the case as the nature of the decision requires."
34. It may be that the effect of Bryan is that the Strasbourg court has arrived by the scenic route at the same solution as the Commission advocated in Kaplan, namely that administrative action falling within article 6 (and a good deal of administrative action still does not) should be subject to an examination of its legality rather than its merits by an independent and impartial tribunal. Perhaps that is a larger generalisation than the present state of the law will allow. But, looking at the matter as an English lawyer, it seems to me (as it did to the Commission in Kaplan) that an extension of the scope of article 6 into administrative decision-making must be linked to a willingness to accept by way of compliance something less than a full review of the administrator's decision.
35. In this way the first and third issues are connected with each other. An English lawyer can view with equanimity the extension of the scope of article 6 because the English conception of the rule of law requires the legality of virtually all governmental decisions affecting the individual to be subject to the scrutiny of the ordinary courts. As Laws LJ pointed out in the Court of Appeal  1 WLR, 2491, 2500, para 14, all that matters is that the applicant should have a sufficient interest. But this breadth of scope is accompanied by an approach to the grounds of review which requires that regard be had to democratic accountability, efficient administration and the sovereignty of Parliament. As will appear, I think that the Strasbourg jurisprudence gives adequate recognition to all three of these factors.
36. With that introduction, I turn to the two issues. I propose to take the third issue first. Assuming that the duty owed by the council to Runa Begum under section 193 was a "civil right", does the right of appeal on law under section 204 enable it to be determined by an independent and impartial tribunal?
37. This resolves itself, following the Strasbourg reasoning which I have described, into the question of whether the county court had jurisdiction to deal with the case as the nature of the decision required. Mr Morgan said that Bryan and Alconbury showed that when a decision turns upon questions of policy or "expediency", it is not necessary for the appellate court to be able to substitute its own opinion for that of the decision maker. That would be contrary to the principle of democratic accountability. But, when, as in this case, the decision turns upon a question of contested fact, it is necessary either that the appellate court have full jurisdiction to review the facts or that the primary decision-making process be attended with sufficient safeguards as to make it virtually judicial.38.
Bryan, said Mr Morgan, fell into the second of these categories. The court drew attention, at pp 360-361, para 46, to the
39. In the present case, while Mrs Hayes was no doubt an experienced local government officer and statutory procedures existed to ensure basic fairness, there was nothing like the panoply of quasi-judicial safeguards which attend a planning inquiry. It follows that nothing less than a full appeal on the facts will do. Mr Morgan relied, entirely reasonably, upon a dictum of my own in Alconbury, at p 1424, para 117:
40. I have to confess that I think that was an incautious remark. The question in Alconbury was whether the appellate tribunal had to be able to review the Secretary of State's decisions based on policy. The extent to which it had to be able to review questions of fact did not arise. To decide that question, it is necessary to have another look at Bryan.41.
Bryan was certainly a case about the application of article 6 to decisions on fact. In that respect it was distinguishable from Alconbury. But when one comes to consider what Bryan decided, it is important to notice not only what the question was (whether buildings were designed for the purposes of agriculture) but also the context in which it arose, namely, as a ground of appeal against an enforcement notice. The inspector's decision that Bryan had acted in breach of planning control was binding upon him in any subsequent criminal proceedings for failing to comply with the notice: R v Wicks  AC 92. This part of the appeal against the enforcement notice was closely analogous to a criminal trial and, as I noted in Alconbury, at pp 1416-1419, paras 89-97, used to come before the magistrates.
42. A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions (such as licensing or granting planning permission) or administering schemes of social welfare such as Part VII. The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government. This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators. Nor is the possibility of an appeal sufficient to compensate for lack of independence and impartiality on the part of the primary decision maker: see De Cubber v Belgium (1984) 7 EHRR 236.
43. But utilitarian considerations have their place when it comes to setting up, for example, schemes of regulation or social welfare. I said earlier that in determining the appropriate scope of judicial review of administrative action, regard must be had to democratic accountability, efficient administration and the sovereignty of Parliament. This case raises no question of democratic accountability. As Hale LJ said in Adan's case  1 WLR 2120, 2138, para 57:
44. On the other hand, efficient administration and the sovereignty of Parliament are very relevant. Parliament is entitled to take the view that it is not in the public interest that an excessive proportion of the funds available for a welfare scheme should be consumed in administration and legal disputes. The following passage from the joint dissenting opinion in Feldbrugge v The Netherlands (1986) 8 EHRR 425, 443 did not persuade the majority to restrict the application of article 6 but nevertheless seems to me highly material when one comes to consider the procedures which will comply with it:
45. In similar vein, Justice Powell, delivering the opinion of the United States Supreme Court in Matthews v Eldridge (1976) 424 US 319, 347 commented on the requirements of "due process" in the administration of a disability benefit scheme:
In Adan's case, counsel for Newham London Borough Council told the Court of Appeal that the housing department received 3,000 applications a year under Part VII, of which 500 went on to a review:  1 WLR 2120, 2126, para 10. This is of course only a part of the duties of the housing department and, by contrast with this experience of a single London borough, the number of appeals received by the Planning Inspectorate for the whole of England in the year 2001-2002 was 16,776 (www.planning-inspectorate.gov.uk/forms/report_statistical_2001_2002
.pdf). In most cases there will probably also be more urgency about a decision on homelessness than a planning appeal.
46. It therefore seems to me that it would be inappropriate to require that findings of fact for the purposes of administering the homelessness scheme in Part VII should be made by a person or body independent of the authority which has been entrusted with its administration. I certainly see nothing to recommend the recourse to contracting out which was suggested by the majority in Adan's case. Some of the arguments against it are well made by Hale LJ at p 2144, paras 77-78 of her judgment. Four points seem to me important. First, if contracting out is not adopted across the board, it would be bound to generate disputes about whether the factual questions which had to be decided by the housing officer were sufficiently material to require contracting out. Secondly, if it were adopted in every case, it would add significantly to the cost and delay. Thirdly, it would mean that the housing officer, instead of being able to exercise his discretionary powers, such as whether he considered accommodation suitable for the applicant, on a first-hand assessment of the situation, would be bound by a written report from the independent fact finder. Fourthly, I am by no means confident that Strasbourg would regard a contracted fact finder, whose services could be dispensed with, as more independent than an established local government employee. In Adan's case, at pp 2134-2135, para 44, Brooke LJ declined to become involved in "the practical difficulties that may arise when trying to ensure that the third party has the requisite independence" but they are worth thinking about.
47. Although I do not think that the exercise of administrative functions requires a mechanism for independent findings of fact or a full appeal, it does need to be lawful and fair. It is at this point that the arguments which Mr Underwood urged about the impartiality of Mrs Hayes and the regulations for the conduct of reviews become relevant. To these safeguards one adds the supervisory powers of the judge on an appeal under section 204 to quash the decision for procedural impropriety or irrationality. In any case, the gap between judicial review and a full right of appeal is seldom in practice very wide. Even with a full right of appeal it is not easy for an appellate tribunal which has not itself seen the witnesses to differ from the decision-maker on questions of primary fact and, more especially relevant to this case, on questions of credibility.
48. Mr Sales drew attention to the expanding scope of judicial review which, he said, may, in a suitable case allow a court to quash a decision on the grounds of misunderstanding or ignorance of an established and relevant fact: see the views of Lord Slynn of Hadley in R v Criminal Injuries Compensation Board, Ex p A  2 AC 330, 344-345 and in the Alconbury case  2 WLR 1389, 1407, para 53 or, at least in cases in which Convention rights were engaged, on the ground of lack of proportionality: R (Daly) v Secretary of State for the Home Department  2 AC 532. He said that this should be taken into account in deciding whether the jurisdiction of the county court was adequate.
49. I do not think that it is necessary to discuss the implications of these developments. No doubt it is open to a court exercising the review jurisdiction under section 204 to adopt a more intensive scrutiny of the rationality of the reviewing officer's conclusions of fact but this is not the occasion to enter into the question of when it should do so. When one is dealing with a welfare scheme which, in the particular case, does not engage human rights (does not, for example, require consideration of article 8) then the intensity of review must depend upon what one considers to be most consistent with the statutory scheme. In this case, Laws LJ  1 WLR 2491, 2513, para 44, said that the county court judge was entitled to subject Mrs Hayes's decision to "a close and rigorous analysis". On the other hand 17 years ago Lord Brightman, speaking for a unanimous Appellate Committee in R v Hillingdon London Borough Council, Ex p Puhlhofer  AC 484, 518, made it clear that their Lordships contemplated a fairly low level of judicial interventionism:
50. All that we are concerned with in this appeal is the requirements of article 6, which I do not think mandates a more intensive approach to judicial review of questions of fact. These nuances are well within the margin of appreciation which the Convention allows to contracting states and which, in a case like this, the courts should concede to Parliament. So I do not propose to say anything about whether a review of fact going beyond conventional principles of judicial review would be either permissible or appropriate. It seems to me sufficient to say that in the case of the normal Part VII decision, engaging no human rights other than article 6, conventional judicial review such as the Strasbourg court considered in the Bryan case (1995) 21 EHRR 342 is sufficient.
51. Is this view consistent with the Strasbourg jurisprudence and with Bryan in particular? I think it is. The great principle which Bryan decided, at p 360, para 45, was that
52. In this case the subject matter of the decision was the suitability of accommodation for occupation by Runa Begum; the kind of decision which the Strasbourg court has on several occasions called a "classic exercise of an administrative discretion". The manner in which the decision was arrived at was by the review process, at a senior level in the authority's administration and subject to rules designed to promote fair decision-making. The content of the dispute is that the authority made its decision on the basis of findings of fact which Runa Begum says were mistaken.
53. In my opinion the Strasbourg court has accepted, on the basis of general state practice and for the reasons of good administration which I have discussed, that in such cases a limited right of review on questions of fact is sufficient. In Bryan , at p 361, para 47, the court said:
54. The word "particularly" indicates that the court did not think that the full range of "safeguards" which exist at a planning inquiry would always be needed and I have already explained why I think that Bryan was an exceptional case in which the court could reasonably have been expected to show some anxiety on the question of safeguards. In the normal case of an administrative decision, however, fairness and rationality should be enough.
55. This interpretation is in my view confirmed by dicta of the court cited with approval by the Grand Chamber in Kingsley v United Kingdom (2002) 35 EHRR 177, 187. That concerned a decision by the Gaming Board as to whether Kingsley was a fit and proper person to hold a management position in the gaming industry. The question turned entirely upon the truth of allegations by the Board that he had been involved in various undesirable practices. After a hearing, the Board decided that the allegations were proved. One of the complaints made by Kingsley and upheld both in the English courts and in Strasbourg was that the chairman of the Board had shown bias by pre-judging his case. But the English courts said that no domestic remedy existed because the Gaming Board, including its chairman, was the only body with statutory power to decide whether he was a fit and proper person or not. The Strasbourg court ((2001) 33 EHRR 288) held that because there was no remedy, English law was in breach of article 6. None of this is relevant to our present concerns. But Kingsley also made a general complaint about the adequacy of the hearing. This the court rejected, at p 302, para 53:
56. The key phrases in the judgments of the Strasbourg court which describe the cases in which a limited review of the facts is sufficient are "specialised areas of the law" (Bryan's case, at p 361, para 47) and "classic exercise of administrative discretion" (Kingsley's case, at p 302, para 53). What kind of decisions are these phrases referring to? I think that one has to take them together. The notion of a specialised area of the law should not be taken too literally. After all, I suppose carriage of goods by sea could be said to be a specialised area of the law, but no one would suggest that shipping disputes should be decided otherwise than by normal judicial methods. It seems to me that what the court had in mind was those areas of the law such as regulatory and welfare schemes in which decision-making is customarily entrusted to administrators. And when the court in Kingsley spoke of the classic exercise of administrative discretion, it was referring to the ultimate decision as to whether Kingsley was a fit and proper person and not to the particular findings of fact which had to be made on the way to arriving at that decision. In the same way, the decision as to whether the accommodation was suitable for Runa Begum was a classic exercise of administrative discretion, even though it involved preliminary findings of fact.
57. National traditions as to which matters are suitable for administrative decision and which require to be decided by the judicial branch of government may differ. To that extent, the Strasbourg court will no doubt allow a margin of appreciation to contracting states. The concern of the court, as it has emphasised since Golder's case (1975) 1 EHRR 524 is to uphold the rule of law and to insist that decisions which on generally accepted principles are appropriate only for judicial decision should be so decided. In the case of decisions appropriate for administrative decision, its concern, again founded on the rule of law, is that there should be the possibility of adequate judicial review. For this purpose, cases like Bryan and Kingsley make it clear that limitations on practical grounds on the right to a review of the findings of fact will be acceptable.