Moore v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) – The Structural Impact of Human Rights

Analysing this case provides an opportunity also to give some information on one of my on-going areas of research – the imposition of human rights onto property law structures, when property law is conceived of as being both a private law and public law phenomenon. I will be discussing this at the ALPS conference in Athens, Georgia, USA, in May 2015 (http://www.law.uga.edu/association-law-property-society-alps). In my paper, entitled ‘Human Rights and European Property Law: Integration or Imposition’, I will be considering whether it is possible to integrate human rights into the structures of property law, or, whether, they must be imposed on top of such structures. In part, the answer to this depends upon whether we can see property as a construct of state/ citizen relationship, and thus whether we can talk of an administrative property law.

It is therefore interesting to consider the “human rights question” in relation to planning law, as the High Court was required to do in Moore. The case required examination of DCLG policy in relation to pitches for caravans within the Greenbelt for the traveller community, and in particular, the policy of the Secretary of State to recover all such applications to himself, thus causing significant delays. There were numerous grounds of complaints, not least that the SSCLG was acting irrationally and in contravention of the  Equality Act 2010 – the judgment is commensurately lengthy - but for the purposes of this note, I am going to focus on the discussion of articles 6 and 8.

Commencing with article 6, the requirement of this article is that determination of civil rights be made by an independent and impartial tribunal. 

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
— European Convention on Human Rights, article 6(1)

The allegation lodged at the SSCLG was that by calling the applications to himself, the applicants were denied a hearing in front of an impartial inspector and also that significant delays had resulted. In so-arguing, some challenge was posed to the leading decision in R (Alconbury Developments) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 where the House of Lords had concluded that determination by the Secretary of State was compliant with article 6 thanks to the availability of judicial review. After citation of the arguments given in Alconbury itself, and consideration of subsequent case law concerning the meaning of “independent” (including R (Anderson) v Secretary of State for Home Department [2002] UKHL 46). The judge concluded that he could not depart from Alconbury, and also held that the SSCLG had not shown any lack of impartiality in making his decisions. However, the court went on to hold that the decisions had not been made in a reasonable time, and that the delay was not, as a result, proportionate. It is worth citing his response to this issue in full since it is instructive:

Here I consider that the claimants are on strong ground. To anyone with experience of development control and planning inquiries, it is remarkable that cases involving a modest amount of evidence, and typically taking two days at most, could then require consideration for in excess of 6 months, let alone the 10 months that has elapsed in Mrs Coates’ case. I recognise that Mrs Moore’s case has involved some complexities, but there is no evidence at all that it was anything but atypical. But as Mr Watson’s evidence showed with clarity, it is the effect of the recovering of all cases which was expected to, and has, caused significant delays in determination. It was not the issues raised by any of the cases which caused the delays but the Ministerial decision to recover them all for determination. No evidence has been put forward by the SSCLG to show that the delays were necessary in travellers’ cases, and it must again be observed that although WMS 1 sought to stress the same substantive policy message for cases in the Green Belt relating both to travellers’ housing and “conventional” housing, yet appeals of the latter kind have not been delayed whereas appeals of the former kind have been delayed, and considerably so. The pitches concerned (and certainly so in the Claimants’ cases) contain their homes where they live, or wish to live, with their children. The SSCLG has failed to show that the delays caused to the determination of the appeals was a proportionate response to the issue of giving the policy “steer.” It follows that the appeals have not been determined within a reasonable time.
— Moore v Secretary of State for Communities and Local Government, [150]

Having reached this conclusion, the judge then held that article 8 did not add anything to the matter before him: 

As to Article 8, I do not consider it adds anything to the discussion as such, save only that it confirms (should confirmation be required) that the effect on the home lives of the Claimants (and of other travellers affected) is part of the context for giving weight to the importance of determining appeals as promptly as one can.
— Moore v Secretary of State for Communities and Local Government, [151]

In considering article 8 in this way, the judge sees the delay as relevant not only to article 6, but also as an aspect of protection of the substantive right to a private life.

Finally, in relation to article 6, the judge commented that: 

In the context of delay, Article 6 of the ECHR does no more than encapsulate the long standing principle of the common law that justice should not be unreasonably delayed, as it was and has been here.
— Moore v Secretary of State for Communities and Local Government, [173]

This in itself is a significant comment, demonstrating, as other judges have in other contexts, that the protection afforded by the ECHR is nothing more than an explicit statement as to what the common law already requires, and as such, adds nothing to those foundational principles of the common law system – rule of law, and equality before the law. As a matter of historical fact this may be untrue, but it is perhaps worth noting the rhetoric in terms of proposals to reform human rights protection in the UK.

In the other elements of the case, the court held that the SSCLG was also in breach of the Equality Act 2010 for failing to follow the correct statutory procedures, and was therefore in breach of section 19 and section 149 of that Act.

Further guidance was then given by the court as to what should happen next: 

I have no doubt that the Secretary of State and his Ministers will not seek to carry on a practice which this Court has ruled unlawful. But equally, the Court does not wish to prevent the Secretary of State and his Ministers from being able to exercise their discretion to recover jurisdiction over such appeals as require it. It follows from the terms of this judgment that in the absence of the exercise required by ss 19 and 149 of the 2010 Act, a policy of recovery of all or some other arbitrary percentage is unlawful. But recovery of individual cases on their merits is not unlawful, and as indicated earlier, a properly considered decision within the parameters of the 2010 Act to recover a number of appeals would also not be unlawful.
— Moore v Secretary of State for Communities and Local Government, [181]

Thus, the outcome of the case for DCLG was that they would be unable to recover for determination all planning permission applications involvement pitches for caravans in the Greenbelt as this was a breach of their equality duties, and also, given the sheer number of decisions required as a result, a breach of article 6 ECHR due to delay. Whilst it is possible, and no doubt useful, to think of the outcomes of this decision in terms of planning law, and in terms of equality in relation, in particular, to traveller communities, it is also possible to turn the decision on its head and think of this in terms of an owner of land applying for a planning permission. It tells us not only how such decisions should be made where there is a potential for unlawful discrimination, but in cases where there is no such potential.

Delay, is itself, a disproportionate interference with human rights when deciding questions of land use. This fact is one which should be of note in general to planning authorities, and to housing authorities in relation to decisions made in relation to housing. The discussion of article 8 in this case confirms this. We can therefore draw a parallel between the attitude of the courts to planning appeals, and to decision-making in relation to the allocation of local authority housing stock. Drawing this kind of link in terms of the effect of human rights on the public elements of property entitlements, is crucial, and something which is underplayed by taking a narrow approach, focusing on the public on the one hand, the private on the other.

This decision is therefore highly significant in terms of planning law, and for the DCLG in terms of its policy. But it is also significant in terms of the structural impacts of human rights on the way in which decisions about proprietary entitlements are made. It is this aspect of the legal system which I will be considering in my paper at ALPS, and which has the potential to have long-reaching (but perhaps hidden) effects within the common law.