Human Rights Act Defence & Independent & Impartial Tribunal

Author:Mr Andrew Lidbetter
Profession:Herbert Smith
 
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Introduction

In R(Bono) v Harlow District Council [2002] 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

Rights Act.

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

[2001] 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

d...

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