R (Al-Hassan) v Secretary of State for the Home Department

JurisdictionUK Non-devolved
Judgment Date16 February 2005
Neutral Citation[2005] UKHL 13
CourtHouse of Lords
Date16 February 2005
Secretary of State for the Home Department

ex parte

Al-Hasan (FC)
Secretary of State for the Home Department

ex parte

Carroll (FC)
(Appellant) (Conjoined Appeals)

[2005] UKHL 13

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood



My Lords,


I have had the benefit of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I am in full agreement with it, and for the reasons which he gives I would allow both appeals and make the orders which he proposes.


My Lords,


I have had the privilege of considering in draft the speech which is to be delivered by my noble and learned friend, Lord Brown of Eaton-under-Heywood. Like him, I have not found this an easy case but, for the reasons he gives, I have come to the view that the appeal should be allowed.


In the hearing before the House the focus came to be, not on any background knowledge which Mr Copple would have had about the search, but on his presence when the governor approved the general order for a squat search. For that reason, while the Human Rights Act 1998 does not apply to this case, the decisions of the European Court of Human Rights, on the significance of an adjudicator's prior involvement in the subject of the dispute which he has to decide, may be helpful in formulating the approach of the common law in a case like the present.


As Lord Brown notes, in Pabla Ky v Finland, 22 June 2004, the complaint about the adjudicator's prior involvement was thin indeed and the application was rejected. The decision is worth noting, however, because, at para 29, the European Court emphasised, by reference inter alia to its decision in McGonnell v United Kingdom (2000) 30 EHRR 289, 307, para 51, that article 6(1) does not require that a member state should comply with any theoretical constitutional concepts as such. The question is always simply whether the requirements of the Convention are met in the particular case. Similarly, in a domestic law context, the question will turn, not on theoretical administrative or other concepts as such, but on whether the tribunal can be regarded as impartial and independent in the particular circumstances.


In McGonnell v United Kingdom the applicant owned land in the parish of St Martin's in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a draft Detailed Development Plan for the island was under consideration and, at the public inquiry, the applicant made representations to the effect that construction of a residential building on his land should be permitted. The inspector rejected that contention and supported the proposal in the draft development plan for the land to be zoned as an area reserved for agricultural purposes and in which development was generally prohibited. In 1990 the States of Deliberation, presided over by the Deputy Bailiff, Mr Graham Dorey, debated and adopted the development plan. Three years later the applicant made a formal application for a change of use for his land. The relevant planning committee rejected the application and the applicant appealed to the Royal Court, comprising the Bailiff, Sir Graham Dorey, and seven Jurats. The applicant's representative accepted that the written statement in the development plan provided for no development other than Developed Glasshouse, but he submitted that there were none the less reasons to permit a change of use in the particular case. The Royal Court dismissed the appeal.


The European Court of Human Rights held that there had been a violation of the applicant's article 6(1) right to have his civil rights determined by an independent and impartial tribunal. The European Court took the view that the fact that the Bailiff had, in his former capacity, presided over the States of Deliberation when it adopted the development plan, was capable of casting doubt on his impartiality when, as the sole judge of law, he subsequently determined the applicant's planning appeal in the Royal Court. It is important to notice the way that the court identified the issue, at para 55:

"With particular respect to his presiding, as Deputy Bailiff, over the States of Deliberation in 1990, the Court considers that any direct involvement in the passage of legislation, or of executive rules, is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue" (emphasis added).

In the eyes of the European Court, the potential difficulty arose because the Royal Court, including the Bailiff, was not simply having to interpret and apply the development plan: it was being asked to permit a departure from the plan, whose provisions the Bailiff might be supposed, by reason of presiding over the States of Deliberation, to have supported.


In Davidson v Scottish Ministers 2004 SLT 895 an Extra Division of the Court of Session had to decide whether, having regard to section 21 of the Crown Proceedings Act 1947, it could grant an order for specific performance against the Scottish Ministers. One of the judges in the Extra Division had been Lord Advocate at the time when the Scotland Act 1998 was passing through your Lordships' House in its legislative capacity. During the passage of the Bill, the Lord Advocate resisted a proposed amendment, on the ground that it was unnecessary, because the Scottish Ministers were protected by the provisions of the Crown Proceedings Act 1947 which at present ensured that the Crown could not be subject to orders for specific performance. On that basis the proposed amendment was not pressed to a vote.


In those circumstances, the House held that, in his judicial capacity as a member of the Extra Division, the former Lord Advocate could not be seen to be impartial when deciding whether an order for specific performance against the Scottish Ministers was competent. In the words of Lord Hope of Craighead, at p 907, para 56, as Lord Advocate, he had

"committed himself to the view, which in the Extra Division the Scottish Ministers too were advocating, that the effect of section 21 was that they were subject only to orders which were declaratory of the parties' rights."

Similarly, for Lord Cullen of Whitekirk, what was crucial was that, as a government minister, the Lord Advocate had been promoting the protection of the Scottish Ministers from judicial review. It was the exercise of that role, rather than any mere expression of view about the effect of section 21, that persuaded Lord Cullen that the judge was disqualified from sitting as a member of the Extra Division. Again, the decision in Davidson v Scottish Ministers rests on its own very particular circumstances which bring it within the general scope of the reasoning of the European Court in McConnell v United Kingdom.


As the facts of the present case demonstrate, however, people who are called on to adjudicate will often have substantial experience in the relevant field and will therefore be familiar with the background issues which they may have encountered previously in various roles. Indeed, the individuals concerned will often be particularly suited to adjudicate on the matter precisely because of the experience and wisdom on the topic which they have accumulated in those other roles. In many continental systems, at various stages of their careers judges spend time as legal civil servants in ministries, drafting and advising on legislation. Undoubtedly, when they return to the bench, it is expected that they will use their experience to enrich their work. Today, British judges draw on their previous work, whether as advocates, legal civil servants or academic lawyers. Therefore, they may well have to decide a point which they had argued as counsel, or on which they had written an article - or, even, which they had decided in a previous case. In various political or other contexts, judges may have publicly advocated or welcomed the passing of the legislation which they later have to apply. Judges who have served in some capacity in the Law Commissions may have to interpret legislation which they helped to draft or about which they helped to write a report. The knowledge and expertise developed in these ways can only help, not hinder, their judicial work.


It would be absurd, then, to suggest that in such situations their previous activities precluded the judges from reaching an independent and impartial judgment, when occasion demanded. The authoritative decision in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 is a resounding rejection of any such approach. In any event, if proof were needed, experience confirms that judges are quite capable of acting impartially in such cases. Judges have not infrequently been party to decisions overruling their own previous decisions. Similarly, in The "Rafaela S" [2003] 2 Lloyd's Rep 113, 145, para 158, sitting in the Court of Appeal, Peter Gibson LJ freely admitted that he had taken a different view from the one adopted in a report which he had previously subscribed as Chairman of the Law Commission. In In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, Lord Mackay of Clashfern took part in a decision in which the House struck down a system adopted by a local authority for "starring" the essential milestones of their care plan adopted under the Children Act 1989. The...

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