Notes for the Guidance of Inspectors Holding Inquiries into orders and Special Road Schemes.

7. The Inquiry (continued)

The Human Rights Act

7.41 Section 6(1) of the Human Rights Act 1998 (HRA) makes it unlawful for the decision-maker to act in a way which is incompatible with the European Convention on Human Rights. That is, the decision-maker should take into account the possible effect of a scheme on the human rights of individuals likely to be concerned. The Inspector must therefore take note of any claimed infringements of human rights as legal submissions (see paragraphs 7.25-29 above) and report these to the Secretary of State / NAW. The Inspector also has a duty to raise human rights issues if they have not been brought to his/her attention by the participants at the inquiry if he/she considers there to be a real risk of a violation of human rights. It should be borne in mind that potential victims might not be directly involved in the inquiry, or even participating as interested parties, as they may not have expressed an interest or may be unaware of the potential impacts.

7.42 The Convention rights, which are set out in Schedule 1 to the HRA, may be raised in 2 contexts. First, they may be invoked in association with a case. Two of the Convention rights most likely to be relevant are art 8 (Right to respect for private and family life) and art 1 of the First Protocol (Protection of property). Persons invoking their human rights must establish the article under which the alleged interference would take place and show that they pass the victim test (i.e. they would be actually and directly affected). The case law of the European Court of Human Rights (ECtHR) suggests that the courts would find a violation only in cases where the interference is extreme

7.43 The second context in which the Convention rights might be invoked is that of the inquiry procedure. Article 6 provides for a fair hearing:

6(1) "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......"

7.44 The following rights derived from art 6 by the ECtHR are the most likely to be raised in relation to the conduct of the proceedings. They cover not only situations for which the Inspector is directly responsible, but also possible defects in the preceding procedural stages which it may nevertheless be possible for the Inspector to redress:

(1) the right of access to the appeal proceedings including the right to effective access; barriers which are difficult or impossible to surmount must not be imposed. There could be occasions when the rights of parties (including third parties) under art 6 were infringed by time limits which in the circumstances were unreasonable; or by an unsuitably located venue making it extremely difficult for a party to attend.

(2) the principle of "equality of arms" so that every party "shall have a reasonable opportunity of presenting his case to the court under conditions which do not place him at substantial disadvantage vis-à-vis his opponent". Examples of a breach of this principle would be different treatment as regards access to documents or permission to cross-examine.

(3) the right to a hearing within a reasonable time including the right to a decision within a reasonable time. "Reasonable" may be longer for a more complex case, shorter for a simple one. Generally, the Strasbourg case law indicates a period measured in years rather than weeks, but Inspectors should bear this right in mind when considering the possibility of long adjournments or delays in reporting for whatever reason.

( 4) the right to an independent and impartial tribunal might be invoked in allegations of bias e.g. in the appointment - or change in the appointment - of the Inspector ; or in the way the Inspector treats the parties. There must not only be no bias, but no appearance of bias

7.45 It is also possible for the procedural framework established by statute to be challenged. This is much less likely following the House of Lords judgement on Alconbury 7 This dealt with 3 separate appeals including one relating to a road improvement scheme at the interchange between the M4 and A34 at Newbury, promoted by the Highways Agency and which would involve taking the respondent's land.

7.46 If there is a challenge to the legitimacy of the procedure whereby the Secretary of State makes a decision following an inquiry, the Inspector might refer to Alconbury, drawing on the following points (references are to the paragraphs of the judgment):

• The House of Lords found that the SoS procedure is fair and complies with the European Convention on Human Rights.
• The procedure must be taken as a whole, including the inquiry, the SoS's decision and the right to appeal to the High Court on a point of law. It is not necessary for every stage of the procedure to comply with art 6. (152ff.)
• The Inspector is impartial; the inquiry procedure rules and other safeguards (protection from improper influence, Franks principles) support that impartiality. (24,114)
• Except in the requirement to apply the policies of the SoS, the Inspector is also independent (unconnected with the parties and not subject to their influence or control). (108)
• On matters of policy (merits), the SoS is responsible to Parliament, not the Courts. This is essential to democracy.(60,99,129)
• Decision-making by the SoS is subject to important safeguards (including Civil Service and Ministerial Codes, inquiry procedure rules, taking the inquiry into account, must not be arbitrary, decision must be reasoned, no personal or financial interest) (170, 142)
• There is nothing wrong in the Secretary of State seeking or taking into account advice which he may obtain from within his department, where that advice is sought to clarify or elucidate law or policy. Nor is there anything wrong with free communication within the Department in preparing that advice. (170, 126)
• The SoS is responsible to the High Court on matters of law, which include rationality of the decision and fairness of the process.(62)
• Art 6 is not breached by the Government having an interest - only if it is wrongly taken into account, in which case the remedy of judicial review is available. (55, 64, 130, 197)

7.47 If the Inspector is nevertheless asked to adjourn the inquiry on the grounds that the inquiry procedure is incompatible with human rights, he/she should not accede to an adjournment unless there are very strong reasons for doing so. The Inspector has been appointed to hold the inquiry, and in the absence of leave having been granted for judicial review, he or she should continue. An adjournment is only likely to be appropriate if a party indicates a firm intention to apply for judicial review. In that case, the adjournment should be short (normally not more than 4 weeks) and it should be made clear that the inquiry will be resumed unless an application has been made during the adjournment. For as long as the matter is before the court, it will be necessary for the adjournment to be extended.

7, [2001] 2WLR.1389; [2001] 2 All ER 929

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