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"Alconbury resolves all the problems of ministers making decisions which are nevertheless compatible with Art 6 ECHR."
"Alconbury was the post-HRA planning case waiting to happen". This paper seeks to demonstrate that while the Alconbury fact situation was certainly waiting to happen, the case does not, as suggested, resolve all problems of ministers making decisions which are nevertheless compatible with Art 6 of the European Convention on Human Rights ("ECHR"). On the contrary, Alconbury brings to the fore unresolved problems as well as the inherent inadequacy of Art 6 to regulate ministerial decision making. The discussion will begin by assessing the arguments in favour of the contention that Alconbury 'resolves all problems', then move to critically reject said contention, and conclude by offering an avenue the exploration of which may serve to illuminate, if not resolve, the discussion and help pave the way for greater clarity and certainty in this area.
I Alconbury concerned a minister, empowered by statute, who 'called in' both an application for planning permission and an appeal against refusal of planning permission he felt he ought to hear. The former is usually the domain of the local council, the latter that of an inspector. The Divisional Court held that the Secretary of State could not both create the policy and decide cases concerning that policy as it violated the right to an "independent and impartial tribunal" enshrined in Art. 6 of the ECHR. The House of Lords overturned the decision. It held that the position of the minister required his intervention and that there were enough controls by way of judicial review to keep in check any abuse.
The arguments in support of the contention that Alconbury 'resolves all problems' are offered below
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