In R(Bono) v Harlow District Council  EWHC 423
(Admin)(15th March 2002), Richards J had to consider two important issues
concerning the effect of the Human Rights Act 1998 - the requirement of an
independent and impartial tribunal in Article 6 of the European Convention
on Human Rights (the Convention) and the defence to what would otherwise
be an unlawful act by a public authority under section 6 of the Human
The claimants applied for housing benefit but the benefit was refused
by the defendant Council which was not satisfied with the claimants'
evidence of income. The claimants succeeded in a procedural challenge
before a Review Board under the Housing Benefit (General) Regulations 1987
(made under the Social Security Contributions and Benefits Act 1992) but a
newly-constituted Review Board upheld the original decision. Regulation 81
and schedule 7 provided that the Review Board was to be comprised of
Councillors of the authority.
The claimants sought judicial review of the Review Board's decision.
They submitted that there had been a breach of their rights under Article
6 of the Convention since under the Regulations the Board was constituted
of councillors of the defendant and was therefore not independent and
impartial. It was also submitted that the Board had incorrectly applied
the Regulations because they had omitted to consider the claimants'
attempts to submit a notebook detailing their income.
Article 6 of the Convention
The defendant Council argued that the availability of judicial review
provided sufficient control to remedy any lack of independence or
impartiality by the Council itself and hence the system complied with
Article 6. Richards J referred to R(Bewry) v Norwich City Council
 EWHC Admin 657, where Moses J held that ìThis court cannot cure the
often imperceptible effects of the influence of the connection between the
fact finding body and a party to the dispute since it has no jurisdiction
to reach its own conclusion on the primary facts; still less any power to
weigh the evidenceÖThe level of review this court can exercise does not
replenish the want of independence on the Review Board, caused by its
connection to a party to a disputeî (paras 64 and 65). Richards J held
that since the question whether the Board was in breach of Article 6 of
the Convention involved the determination of issues of primary fact,
judicial review could not provide sufficient control to remedy that