AS TO THE ADMISSIBILITY OF
Application No. 15966/90
by John WINTER and Others
against the United Kingdom
The European Commission of Human Rights sitting in private on
5 April 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRESCHEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 April 1989
by John Winter and Others against the United Kingdom and registered on
11 January 1990 under file No. 15966/90;
Having regard to the report provided for in Rule 40 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, John Winter, is a British citizen. He was
born in 1949, lives in Crook, Country Durham, and is secretary of the
Bishop Auckland District Angling Club. The second applicant, Raymond
Lumb, is also a British citizen. He was born in 1945, also lives in
Crook, and is secretary of the Willington and District Angling Club.
The third applicants, the Church Commissioners for England, are a
statutory corporation by virtue of the Church Commissioners Measure
1947, a United Kingdom Act of Parliament. The fourth applicants are
the trustees of the Lambton Estate, whose application is brought on
their behalf by Robert Kirton-Darling, a lang agent, who lives at
Lambton Park, Chester-le-Street, County Durham. All the applicants are
represented before the Commission by Mrs. E.M. Ashness, Solicitor and
Legal Director to the Wear District Valley Council.
The facts of the application, as submitted by the applicants'
representative, may be summarised as follows.
The applicants own fishing rights appurtenant to land along the
banks of the River Wear in County Durham.
Under the Salmon and Fresh Water Fisheries Act 1975 ("the 1975
Act"), orders can be made by the Ministry of Agriculture, Fisheries and
Food for the regulation of certain fisheries. Paragraph 9 of Schedule
3 to the 1975 Act provides that an order becomes final within the
period (of at least 30 days) stated in the order, unless a memorial is
presented by a water authority, local authority or other person or
association affected by it, requesting that special parliamentary
procedure apply. Paragraph 10 provides that an order may be confirmed
if no memorial has been presented, but that if a memorial is presented,
the order shall be subject to special parliamentary procedure. By
section 6 of the 1975 Act fishing with, among other things, a "T-net"
(a particularly effective form of net for catching migratory trout at
or near estuary mouths) is effectively prohibited, although a valid
order could permit such use.
By the Northumbria Water Authority (T-nets) (Southern Area) Order
1987 ("the 1987 Order") the Minister authorised the use of T-nets in
the mouth of the River Wear, after not having accepted a memorial
submitted by the Wear Valley District Council ("the Council") that the
Order should be subject to special parliamentary procedure. The
Council applied to the High Court for judicial review of the Minister's
refusal to accept the memorial. The Court found, on 3 March 1988, that
the Council, as a riparian owner, could present a valid memorial.
After the judgment, counsel for the Council said: "... the Minister
will now put the order to the parliamentary procedure".
The Order has not presented to Parliament in accordance with the
special procedure .
On 6 July 1989 the Water Act 1989 ("the 1989 Act") came into
force. It amends the 1975 Act by revoking the rights of those affected
by a Minister's order to require an order to be put through the special
parliamentary procedure.
COMPLAINTS
The applicants complain that, if the Order had been put before
a joint committee of both Houses of Parliament, as envisaged by the
special parliamentary procedure, they would have been able, through and
advocate, to challenge evidence brought by the Minister and to argue
their case. The Joint Committee would have given a reasoned judgment.
The applicants complain that, by the operation of the 1989 Act, they
are now prevented from being heard by the special procedure, and
judicial review of any unreasonable wrong decision of the Minister is
now excluded.
The applicants allege a violation of Article 6 of the Convention.
The applicants also request declarations that the respondent
Government should respect their constitutional rights in respect of
their ownership of fishing rights, and that the Government should not
affect their right to a proper determination of any proposed action by
the Government which may adversely affect their rights as riparian
owners over the River Wear.
THE LAW
1. The applicants allege a violation of Article 6 (Art. 6) of the
Convention in that the operation of the 1989 Act deprives them of their
constitutional rights under the former regime.
However, even if it is accepted that there existed in English law
before the passing of the 1989 Act a right for certain statutory
instruments to be subjected, at the request of affected parties, to the
special parliamentary procedure, it cannot be said that that right,
relating as it does exclusively to a review of the legality of
delegated legislation, is "civil" within the meaning of Article 6 para.
1 (Art. 6-1) of the Convention. Legislation removing that right
cannot, therefore, be seen to determine civil rights, as contemplated
by that provision.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. The applicants also request declarations concerning their
constitutional rights and the removal of their "rights" to
consideration by a Joint Committee of both Houses of Parliament of
action which may deleteriously affect their riparian rights.
To the extent that this complaint is not answered by para. 1
above, the Commission has considered it under Article 1 of Protocol No.
1 (P1-1) to the Convention, which guarantees the right to peaceful
enjoyment of possessions. Two areas of complaint must be considered:
a) The applicants complain that their constitutional rights have
been removed in a way which violates Article 1 of Protocol No. 1
(P1-1). However, the "possessions" refereed to in Article 1 of
Protocol No. 1 do not include constitutional rights such as those
removed in the present case. This complaint is therefore incompatible
ratione materia with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
b) To the extent that the applicants complain about a loss of
fish, or of income derived from fishing, the Commission notes that, as
a memorial was presented against the 1987 Order, it will not have
entered into force. The applicants have not submitted that any order
has been made under the 1989 Act, and they cannot therefore be seen to
have suffered any loss either as a result of the 1987 Order or as a
result of the 1989 Act in this respect. This complaint is therefore
also manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President to the Commission
(H.C. KRÜGER) (C.A. NØRGGARD)
Full & Egal Universal Law Academy