(Admissibility) The Secretary of State had, after preliminary procedures, served notices on an insurance company disallowing it from writing any new business, because its managing director the applicant, had been found not to be a fit and proper person to be a controller of the company. He had misstated the value of the company’s assets. The director claimed that the matters in issue should, under Article 6(1) of the Convention, have been decided by a court, and not by the Secretary of State. The respondent said that the action was inadmissible, the applicant not yet having exhausted his court remedies.
Held: The application was admissible. The jurisdiction of the courts cannot be removed altogether or limited beyond a certain point, but administrative decisions do not generally attract the full judicial model type of review: ‘an interpretation of Article 6(1) under which it was held to provide a right to a full appeal on the merits of every administrative decision . . would therefore lead to a result which was inconsistent with the existing and longstanding legal position in most of the Contracting States.
To avoid that consequence, the principle that has evolved in the Strasbourg Court is that decision-making in administrative cases according to the strict judicial model is not required in all cases. This has been achieved in several ways, and the path to a settled position is still being trod.’ and
‘it is a feature of the administrative law of all the contracting states that in numerous different fields public authorities are empowered by law to take various forms of action impinging on the private rights of citizens.’
‘It is plain from the text of Article 6(1) that it does not directly protect the individual’s ‘civil rights’ as such against acts or decisions which modify, annul or otherwise interfere with them. In many circumstances the private rights of an individual are liable to be affected not only by the lawful acts of public authorities but also by those of other individuals or entities exercising counter-vailing private rights of their own, and indeed by circumstances of a purely factual nature such as the effluxion of time. The mere fact that an individual’s private rights are adversely affected by the acts of another party, whether a public authority or not, does not therefore involve a violation of Article 6(1).
. . The Commission has held that where Article 6(1) applies to an administrative process, it may be sufficient that a court procedure is available at some stage after the initial administration decision. It has left open the question whether Article 6(1) would apply both to the administrative and the judicial part of restitution proceedings in the Federal Republic of Germany, or whether it covers only the proceedings in court. It recalls that it is also held that proceedings concerning the registration of patients fall outside the scope of Article 6(1) on the ground that this is an ‘essentially administrative’ matter.
154. In the Commission’s view the essential role of Article 6(1) in this sphere is to lay down guarantees concerning the mode in which claims or disputes concerning legal rights and obligations (of a ‘civil’ character) are to be resolved. A distinction must be drawn between the acts of a body which is engaged in the resolution of such a claim or dispute and the acts of an administrative or other body purporting merely to exercise or apply a legal power vested in it and not to resolve a legal claim or dispute. Article 6(1) would not, in the Commission’s opinion apply, to the acts of the latter even if they do affect ‘civil rights’. It could not be considered as being engaged in a process of ‘determination’ of civil rights and obligations. Its function would not be to decide (‘decidera’) on a claim, dispute or ‘contestation’. Its acts may, on the other hand, give rise to a claim, dispute or ‘contestation’ and Article 6 may come into play in that way.
155. As to the present case, the Commission notes that the Secretary of State was not engaged in the resolution of a dispute between parties concerning civil rights. He proposed to take action affecting (as the Commission has found) the company’s private rights. He considered the objections put forward and then acted. He took action in the exercise of his legal powers which affected ‘civil rights’ but was not engaged in the ‘determination’ of a dispute or a ‘contestation’ concerning civil rights and obligations. In the Commission’s opinion, the procedures leading to the finding of unfitness against the applicant and the imposition of restrictions on IGA did not therefore themselves have to comply with Article 6(1). The fact that the relevant decisions were not taken by a tribunal after a fair and public hearing does not therefore involve a breach of this provision.’
(1980) 4 EHRR 64, 7598/76
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – O’Sullivan, Re Application for Judicial Review QBNI 4-May-2001
Cited – Foster, Re Application for Judicial Review QBNI 9-Jan-2004
Cited – Runa Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
Cited – K, Regina (on the application of) v Secretary of State for Work and Pensions Admn 16-May-2003
Cited – Hallam, Re Petition for Judicial Review OHCS 15-Jul-2005
Lists of cited by and citing cases may be incomplete.
Human Rights, Administrative
Updated: 15 May 2022; Ref: scu.447482