AS TO THE ADMISSIBILITY OF

                      Application No. 28530/95

                      by X.

                      against the United Kingdom

     The European Commission of Human Rights sitting in private on

19 January 1998, the following members being present:

           Mr   J.-C. GEUS, Acting President

           MM   E. BUSUTTIL

                J.-C. SOYER

                H. DANELIUS

                F. MARTINEZ

                C.L. ROZAKIS

           Mrs  J. LIDDY

           MM   B. MARXER

                I. CABRAL BARRETO

                B. CONFORTI

                N. BRATZA

                D. SVÁBY

                C. BÎRSAN

                K. HERNDL

                E. BIELIUNAS

                E.A. ALKEMA

                M. VILA AMIGÓ

           Mrs  M. HION

           MM   R. NICOLINI

                A. ARABADJIEV

           Mr   M. de SALVIA, 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 16 May 1995 by X.

against the United Kingdom and registered on 13 September 1995 under

file No. 28530/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     30 January 1997 and the observations in reply submitted by the

     applicant on 29 April 1997;

-    the parties' oral submissions at the hearing on 19 January 1998;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a United Kingdom citizen born in 1944.  He lives

in Edinburgh and is represented before the Commission by

Mr H.R. Donald, solicitor, of Messrs Shepherd & Wedderburn, Edinburgh.

The facts of the application may be summarised as follows.

The particular circumstances of the case

     The applicant was formerly the managing director of an insurance

company, regulated by  the Insurance Companies Act 1982. This insurance

company ("the former company") was sold in October 1993 by the

shareholder and the applicant left the company.  He was subsequently

offered a position as chief executive of a different insurance company

("the company"), also regulated by the Insurance Companies Act 1982.

On 14 February 1994 the Secretary of State for Trade and Industry ("the

Secretary of State") served on the applicant a preliminary notice under

Section 60(3) of the Insurance Companies Act 1982 ("the 1982 Act").

It stated that the Secretary of State was considering the service of

a notice of objection, on the ground that the applicant was not a fit

and proper person to be a chief executive of the company.

     In a covering letter the applicant was informed that the main

reason for the service of the notice was:

     "that it appears to the Secretary of State that, in your capacity

     as the managing director of [the former company], you pursued a

     policy of developing sales in a manner which was detrimental to

     the prudential interest of that company, and failed to alert the

     Department promptly to its deteriorating financial position.  In

     particular it appears that

     (a)   you ignored and overruled the advice of [the former

           company's] compliance department in the recruitment of

           company representatives;

     (b)   you overruled actuarial advice in the matter of

           underwriting procedures, placing [the former company] at

           risk;

     (c)   you brought pressure to bear to stop the appointed actuary

           from alerting the Department to the deteriorating financial

           situation in [the former company]."

     The applicant was invited to make any written or oral

representations he wished, and on 7 March 1994 he submitted, via his

solicitors, a 14 page paper in which he set out the history of his

involvement with the former company, and his plans and development

there.  At pages 12 to 14 of the paper the applicant gave his comments

on the letter of 14 February from the Department of Trade and Industry

("the DTI") .  As to point (a), the applicant explained that sales

directors had been involved in recruiting because no-one else at the

company had appropriate recruiting experience.  He also referred to a

survey which the company's compliance department had prepared as to

recruitees' competence, and a further investigation by Lautro (the Life

Assurance and Unit Trust Regulatory Organisation) into staff.

     As to point (b), the applicant based his comments on three

headings, which had been given to him by the DTI.  As to the second

heading, that the applicant had waived personal medical attendance for

some 20 people, the applicant stated "At no time did I waive any PMAs

and am confused as to what this particular comment is about".  In

connection with the third heading, that the applicant had overruled the

underwriting in the specific case of a large life policy for

£1 million, the applicant accepted that he had tried to speed up the

process, but stated that at no time did he give instructions to accept

the case without all necessary procedures being adopted.

     As to the final point in the DTI's letter of 14 February,

point (c), the applicant agreed that he had suggested that the

appointed actuary should await the outcome of certain internal

deliberations between the shareholder and board before contacting the

DTI on an earlier valuation of the company.  He justified this approach

by reference to the standing of the shareholder.

     On 15 March 1994, a hearing was held in London before four civil

servants.  Three were from the DTI and one was from the Government's

Actuary's Department.  The applicant attended with his representative.

     In the course of the hearing on 15 March 1994 the applicant read

out a prepared statement and answered questions from the civil

servants.  The hearing took the form of an informal questioning of the

applicant by the civil servants, with no evidence being called by

either party.  The questions dealt with, inter alia, procedures for

ensuring compliance with the relevant regulations, and the role of the

"Compliance Department", the policy pursued by the applicant in

recruiting new staff and the relationship between sales staff and

compliance staff.  Questions also went to the priorities set by the

applicant in building up the business, and a dispute with the parent

company.  It became apparent in the course of the discussion that the

applicant and the appointed actuary in the former company did not

always agree over work and that it was the appointed actuary who had

contacted the Secretary of State to raise objections to the applicant's

appointment as chief executive of the company.

     In reply to a comment by the applicant's representative that the

applicant was not aware of the particular allegation, the official

charing the meeting immediately replied that the information had come

from the appointed actuary.  Further discussion turned on the

applicant's relationship with the underwriting department, and the

specific contract for an alleged £1 million was referred to.  The

applicant accepted that he had given instructions to speed up the

financial underwriting concerning this case, but denied that he had

suggested that the proper checks and medical reports could be dispensed

with.  He stated that the amount eventually paid out was considerably

less than £1 million.

     Another area of discussion concerned the relationship between the

applicant and the appointed actuary, who was responsible for compliance

with regulations, and was under a duty, in certain circumstances, to

liaise with the DTI.  The applicant agreed that, when the actuary had

proposed that the DTI should be informed of the deteriorating financial

position of the former company, he had told the actuary to consider

where his loyalties lay.  Further discussion turned on the position

when the DTI was eventually informed of the problems in the company,

and why the applicant had not approached the DTI at an earlier stage.

     After a short break there was a discussion about the applicant's

perceived role as chief executive at the company.

     The transcript of the hearing runs to 46 pages.

     On 31 March 1994 the Secretary of State issued a formal notice

of objection under Section 60(1) of the 1982 Act.  In a letter the

applicant was informed that the Secretary of State had taken into

account his written and oral representations, and also accepted that

the applicant did not wilfully intend the former company to break any

regulatory rules, and that the applicant did not give any direct

instructions that underwriting procedures should be waived.  The letter

continued:

     "However the Secretary of State has had regard to your previous

     experience (which was almost entirely in sales and marketing) and

     to your performance as chief executive of [the former company],

     in particular the attitude you took towards concerns raised by

     the Compliance Department and the appointed actuary, and the

     pressure you exerted on the underwriting department.  Taking all

     these facts into account, the Secretary of State believes that

     your appointment as chief executive of [the company] would

     encourage a corporate climate in which sales would be pursued

     without sufficient regard being paid to compliance and prudential

     considerations."

     There is no statutory appeal against the issuing of a notice of

objection.  The applicant therefore applied for judicial review of the

Secretary of State's decision complaining principally that the notice

of objection was irregular, unfair and contrary to the principles of

natural justice.  The case came before Lord Osborne in the Outer House

of the Court of Session and the hearing was completed on

28 October 1994.

     Lord Osborne issued a judgment of the Outer House of the Court

of Session on 27 January 1995.  Lord Osborne rehearsed the background

and the facts, and summarised the arguments by the parties.  He

continued:

     "a prominent part of the [applicant's] case was the contention

     that the [Secretary of State's] conduct of the proceedings under

     Section 60 of the Act of 1982 was, in all the circumstances,

     unfair.  The background to that contention was unanimity between

     the parties on the point that, in operating the procedures set

     out in Section 60, the [Secretary of State] had a duty to act

     fairly."

     The applicant's complained in particular that precise allegations

were never put to him and that he was merely faced with broad imprecise

charges.

     Lord Osborne considered the effect of Section 60 (4) of the 1982

Act which states:

     "The Secretary of State shall not be obliged to disclose to the

     company or to the person proposed to be appointed any particulars

     of the ground on which he is considering the service on the

     company of a notice of objection."

     Lord Osborne referred to Parliamentary papers, as was permitted

under domestic law, in order to seek assistance as to the intention

behind the 1982 Act and Section 60 (4) in particular.  He referred to

the speech of the Earl of Limerick, a minister who was in practical

terms a promoter of the Bill which became the 1982 Act, and who had

commented as follows during the Parliamentary debate:

     "'But the really difficult case is where the man's previous

     activities have left such doubts as to either his competence or

     his honesty as would lead any prospective employer to eliminate

     him from his shortlist of candidates but which would be extremely

     difficult to substantiate to the satisfaction of any judicial

     tribunal.  Moreover, such information may reach us from sources

     well placed to judge and to advise, but which are willing to

     assist us in this way only on the assurance that the source will

     not be revealed.  Often the nature of the information is such

     that its disclosure would almost certainly permit identification

     of the source and the consequence would be the loss of that

     assistance in the future'".

     Having referred to this material Lord Osborne went on in his

judgment to state:

     "Consideration of this material confirms me strongly in the view

     which, prior to its consideration, I had tentatively adopted that

     the word 'particulars' in Section 60(4) was intended to cover any

     material of any kind whatsoever placed before the Minister

     relevant to the ground mentioned above, including evidence of

     primary fact.  Thus, the conclusion which I reach on the

     interpretation of Section 60(4) is that the contention of the

     [Secretary of State] in this regard is correct.  The Minister is

     under no obligation therefore to disclose any detailed

     information relating to the ground on which he is considering the

     service of a notice of objection.

     In my opinion, however, it does not follow from the adoption of

     that view that, in a case such as the present, a Minister would,

     in all circumstances, be entitled to refrain from disclosing to

     a person who is the subject of inquiry anything at all relating

     to the information placed before him.  It may well be that, to

     revert to the words of Lord Mustill, 'fairness will very often

     require that he is informed of the gist of the case which he has

     to answer'.  It appears to me that there may be cases in which

     this can be done without the disclosure of the source of the

     information concerned.

     Alternatively, it may be that the disclosure of the source of the

     information concerned in a particular case would not prejudice

     the availability of information to the Minister in future.  With

     my conclusion as to the proper interpretation of Section 60(4)

     and all of this in mind, I now turn to consider what was done in

     this particular case by way of disclosure.

     Having considered the terms of the letter of 14 February 1994 and

     those passages in the transcript of the oral representations, in

     which those acting for the respondent supplemented the material

     in that letter, it appears to me that, in this case, there was,

     prima facie, an extensive disclosure of the gist of the case

     which the petitioner had to answer.  Indeed, that disclosure went

     so far as to indicate to the petitioner the source of the

     information which had come into the possession of the respondent,

     namely [the appointed actuary], although the precise terms of the

     information supplied by him may not themselves have been

     disclosed.

     At various stages of the petitioner's submissions, it was said

     that detail of this or that matter had not been disclosed.  It

     appears to me that whether that amounts to a criticism of the

     fairness of the respondent's handling of the matter or not must

     depend on, among other things, whether the respondent was in fact

     in a position to disclose more detail than he did.  As regards

     that, as was pointed out for the respondent, the Court has no

     means of reaching a conclusion.  Since I am not in the position

     of knowing precisely what information was laid before the

     respondent regarding the matters concerned, I consider that I am

     unable to say that the respondent acted in a manner which was

     unfair as regards the extent of the disclosure which he made.

     If it had been the case that, in his explanation of his decision

     to serve a notice of objection, the respondent had relied on

     material which had not, at least in outline, been put to the

     petitioner for his response, then the position would, in my

     opinion, have been quite different.  However, looking at the

     respondent's letter of 31 March 1994 and comparing it with the

     letter of 14 February 1994 and the transcript of the proceedings

     at the hearing of the oral representations, it appears to me that

     no material was relied upon by the respondent in his decision

     which had not be canvassed in one way or another with the

     petitioner.

     In all of these circumstances, in my judgment, the broadly based

     attack on the handling by the respondent of the matter as regards

     disclosure must fail. ...

     I pass now to consider those arguments of the petitioner which

     were based upon the fact that, without express notice having been

     given in the letter of 14 February 1994, at the hearing of oral

     representations, the petitioner was questioned at some length as

     to how he perceived his role at [the company].  It has to be

     recognised at the outset that there is no specific warning in the

     letter of 14 February 1994 that it was intended by the respondent

     to explore that particular matter.  Equally however it has to be

     recognised, in my opinion, that it is made clear in that letter

     that the nature of the whole inquiry which the respondent was

     undertaking was with a view to reaching a conclusion on the

     question of whether or not the petitioner was a fit and proper

     person to be the chief executive of that company.  That being the

     nature of the investigation being conducted, in my opinion, it

     should have been obvious to the petitioner that the respondent

     would have wished to satisfy himself, so far as possible, as to

     exactly what was the nature of the office to which the petitioner

     aspired to be appointed.  Thus, in my opinion, it should have

     come as no surprise to the petitioner that he was asked questions

     relating to that matter.

     ... In the whole circumstances and for the foregoing reasons, I

     have reached the conclusion that the petitioner is not entitled

     to the remedies which he seeks. ..."

     Accordingly the applicant failed to overrule the notice of

objection by means of judicial review.

     The applicant initially appealed against the decision of Lord

Osborne, but withdrew his appeal after receiving legal advice that he

was unlikely to be successful. Counsel's advice was based largely on

the consideration that, given the wording of Section 60 (4) of the 1982

Act and Lord Osborne's interpretation of it, it was not possible to

construe the provision in a way which would permit further disclosure.

The Inner House of the Court of Session formally dismissed the

applicant's appeal from Lord Osborne's decision on 14 July 1995.

The relevant domestic law

     Section 60 of the Insurance Companies Act 1982

"(1) No insurance company ... shall appoint a person as ... chief

executive of the company unless-

     (a)   the company has served on the Secretary of State a written

           notice stating that it proposes to appoint that person to

           that position ...; and

     (b)   either the Secretary of State has, before the expiration of

           the period of three months beginning with the date of

           service of that notice, notified the company in writing

           that there is no objection to that person being appointed

           to that position or that period has elapsed without the

           Secretary of State having served on the company a written

           notice of objection.

           ...

(3)  The Secretary of State may serve a notice of objection under

subsection (1) above on the ground that it appears to him that the

person proposed to be appointed is not a fit and proper person to be

appointed to the position in question, but before serving such a notice

the Secretary of State shall serve on the company and on that person

a preliminary written notice stating-

     (a)   that the Secretary of State is considering the service on

           the company of a notice of objection on that ground; and

     (b)   that the company and that person may, within the period of

           one month from the date of service of the preliminary

           notice, make written representations to the Secretary of

           State and, if the company or that person so requests, oral

           representations to an officer of the Department of Trade

           appointed for the purpose by the Secretary of State.

(4)  The Secretary of State shall not be obliged to disclose to the

     company or to the person proposed to be appointed any particulars

     of the ground on which he is considering the service on the

     company of a notice of objection.

(5)  Where representations are made in accordance with this Section

     the Secretary of State shall take them into consideration before

     serving the notice of objection."

COMPLAINTS

     The applicant alleges a violation of Article 6 of the Convention.

He claims that the finding by the Secretary of State that he was not

a "fit and proper person" effectively determined his civil right to

take up his position with the company, and that he should therefore

have been entitled to a fair hearing in that determination.

     The applicant considers that the proceedings before the four

civil servants were neither judicial nor fair, and that the scope of

review of the Secretary of State's decision by the Court of Session was

insufficient to comply with the requirements of Article 6.

     With specific reference to the case of Bryan v. the United

Kingdom (Eur. Court HR, judgment of 22 November 1995, Series A no. 335-

A) the applicant points out, inter alia:

-    that the civil servants who heard him did not give full

     disclosure of the allegations against him;

-    that they were not an "independent tribunal";

-    that the Court of Session was precluded from considering the

     fairness of the notice given to him of the allegations against

     him because of Section 60 (4) of the 1982 Act;

-    that the Secretary of State's decision (the letter of

     31 May 1994) was not carefully reasoned, unlike the Inspector's

     decision in the Bryan case;

-    that it was not even clear in the present case what were the

     findings of fact of the DTI officials or the Secretary of State;

-    that the provisions of Section 60 of the 1982 Act contrast

     starkly with the Company Directors Disqualification Act 1986, by

     which the Secretary of State may make an application to a court

     for disqualification: in such a case the Secretary of State has

     to set out the conduct which made the person unfit to be a

     director, and that statement is subjected to proper judicial

     control.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 16 May 1995 and registered on

13 September 1995.

     On 16 October 1996 the Commission (First Chamber) decided to

communicate the application to the respondent Government.

     The Government's written observations were submitted on

30 January 1997, after an extension of the time-limit fixed for that

purpose.  The applicant replied on 29 April 1997, also after an

extension of the time-limit.

     On 23 October 1997 the Commission (First Chamber) decided to

refer the case to the Plenary Commission.

     On 27 October 1997 the Commission decided to hold a hearing on

the admissibility and merits of the application.  The hearing was held

on 19 January 1998, when the parties were represented as follows:

The Government:

     Ms Sally LANGRISH, Agent

     Mr Peter DUFFY, QC, Counsel

     Mr Alan DEWAR, Counsel

     Mr Hussein KAYA, Adviser, Department of Trade and Industry

     Mr Roger ALLEN, Adviser, Department of Trade and Industry

The applicant:

     Mr Colin W. INNES, Solicitor

     Mr James DRUMMOND YOUNG, QC, Counsel

     The applicant also attended the hearing.

THE LAW

     The applicant alleges a violation of Article 6 (Art. 6) of the

Convention.  He claims that, although he was able to make

representations to the Secretary of State's civil servants, he was

never made aware of the precise nature of the source of the specific

allegations made against him, and in particular, that the court review

which was open to him was not of sufficient scope to comply with

Article 6 (Art. 6).

     Article 6 para. 1 (Art. 6-1) of the Convention provides, so far

as relevant:

     "In the determination of his civil rights and obligations ...,

     everyone is entitled to a fair and public hearing ... by an

     independent and impartial tribunal ..."

     The Government make two preliminary objections as to

admissibility. First, the Government claim that the applicant failed

to seek disclosure of information from the Secretary of State and

further failed, albeit on legal advice, to pursue an appeal lodged with

the Inner House, thus failing to exhaust domestic remedies, as required

by Article 26 (Art. 26) of the Convention.  Secondly, the Government

allege that the applicant received sufficient disclosure of the case

against him and thus cannot claim to be a victim under Article 25

(Art. 25).  The Government claim that the applicant's challenge to

Section 60(4) of the 1982 Act, exempting the Secretary of State from

any obligation to disclose particulars of the grounds of objection, is

an "in abstracto" complaint against legislation and accordingly

inadmissible.

     The Government further submit that the proceedings to establish

whether the applicant was a "fit and proper" person to be chief

executive of the company were not determinative of his "civil rights"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

The Government note that the proceedings considered the suitability of

the applicant for one particular post and did not preclude the

applicant from seeking any other posts in the industry and further that

the notice of objection prevented him from entering into a proposed

contract of employment and did not interfere with an already concluded

contract.

     The Government consider that the proceedings as a whole in any

event complied with the requirements of Article 6 para. 1 (Art. 6-1)

and that there is no significant distinction to be made between the

present case and the case of Bryan v. the United Kingdom, judgment of

22 November 1995, Eur. Court HR, Series A no. 335, where no breach of

Article 6 para. 1 (Art. 6-1) was found.

     The applicant replies to the Government's preliminary objections

by stating that no application was made for further disclosure by the

Secretary of State prior to the initial hearing as, due to

Section 60(4) of the 1982 Act, this would have been doomed to fail.

The applicant further states that no appeal was lodged against Lord

Osborne's judgment on the basis of legal advice that Lord Osborne's

interpretation of Section 60(4) of the 1982 Act, to the effect that the

Secretary of State was not obliged to disclose any further information

to the applicant, was correct and an appeal would be doomed to failure.

The applicant also states that his complaint is not a complaint "in

abstracto".  Whilst his failure to obtain full particulars of the

allegations against him necessarily involved a consideration of Section

60(4) of the 1982 Act, the lack of notice went beyond the statute to

the heart of his complaint that the proceedings were not fair and in

breach of Article 6 para. 1 (Art. 6-1) of the Convention.

     The applicant claims that the proceedings and the subsequent

notice of objection, which prevented him from taking up an offered

employment, did amount to a determination of his civil rights under

Article 6 para. 1 (Art. 6-1) of the Convention.  He considers that the

distinction between preventing a proposed contract and interfering with

a concluded contract of employment is a distinction of form not

substance.  He further states that the notice of objection in this case

has in reality also prevented him from being offered other posts in the

industry.

     The applicant complains that Lord Osborne's review of the

fairness of the proceedings before the Secretary of State was limited

by the existence of Section 60(4) of the 1982 act, which provided that

the disclosure of particulars of the grounds of objection was not

required.

     The Commission will first consider the preliminary objections

raised by the Government.

     In connection with the Government's argument that the applicant's

complaints concerning Section 60 (4) of the 1982 Act are abstract

complaints and that the applicant may not claim to be a victim of a

violation of the Convention in this respect, the Commission notes that

a complaint in isolation as to the existence of the provision could not

form the basis of a complaint under the Convention.  However, the

applicant's objections to Section 60 (4) form part of his allegations

of unfairness of the proceedings as a whole, and cannot be separated

from the complaint of unfairness.  The Commission will therefore

consider the operation of Section 60 (4) in the case in the context of

the proceedings as a whole.

     The Government also allege non-exhaustion of domestic remedies

in that the applicant failed to seek specific discovery of any

underlying information from the Secretary of State or the domestic

court, and that he failed to pursue his appeal before the Court of

Session.  The question whether the applicant should have requested

disclosure of further information before the Secretary of State or the

Court of Session is closely connected with the substantive question of

whether the proceedings complied with the requirements of Article 6

para. 1 (Art. 6-1), and the Commission will consider it in that

context.

     As to the applicant's failure to pursue his appeal before the

Court of Session, the Commission notes that counsel advised the

applicant that the Inner House would not construe Section 60 (4) in a

manner favourable to the applicant.  The Commission recalls that under

Article 26 (Art. 26) of the Convention, normal recourse should be had

by an applicant to remedies which are available and sufficient to

afford redress in respect of the breaches alleged (see, for example,

Eur. Court HR, Akdivar and others v. Turkey judgment of 16 September

1996, Judgments 1996-IV, No. 15, p. 1210, para. 26).  In particular,

Article 26 (Art. 26) requires an applicant to put the substance of his

Convention complaints to the domestic courts, in order to give them the

opportunity to redress the complaints (Eur. Court HR, Cardot v. France

judgment of 19 March 1991, Series A no. 200, pp. 18-19, paras. 34-36,

and Ahmet Sadik v. Greece judgment of 15 November 1996,

Reports 1996-V, No. 20, pp. 1653-1655, paras. 30-34).  In the present

case, and unlike the cases of Cardot and Ahmet Sadik, the applicant put

the substance of his Convention complaints to the Court of Session, and

there is no indication that there were any realistic prospects of a

subsequent appeal being successful.  Indeed, the Government accept that

Lord Osborne's interpretation of Section 60 (4) of the 1982 is correct.

     It follows that the applicant had normal recourse to remedies

which were available and sufficient in respect of the breaches alleged,

and that he has not failed to exhaust domestic remedies.

     As to the substance of the applicant's complaint, the Commission

must first ascertain whether Article 6 (Art. 6) is applicable to the

proceedings in the present case, that is, whether the proceedings

determined the applicant's "civil rights and obligations" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.  The

Commission recalls in this connection the case of Kaplan v. the United

Kingdom (Comm. Rep. 17.7.80, D.R. 21, p. 5) which concerned a decision

of the Secretary of State to impose restrictions on the business of an

insurance company controlled by the applicant on the grounds that the

applicant was not a "fit and proper person" to be a controller of an

insurance company for the purposes of the Insurance Companies Act 1974.

The Commission considered that the decision of the Secretary of State,

following administrative procedures which similarly entitled the

applicant to make written and oral representations to officers of the

DTI as to the grounds of objection specified in a preliminary notice,

had a direct effect on the civil rights of the company of which the

applicant was the controller.  The Commission found that the decision

did not affect the existing contractual rights and obligations of the

company which remained in being for the duration of the relevant

contracts.  However, the direct legal effect of the Secretary of

State's action was that the existing "right" of the company to conduct

insurance business was restricted, in that the company was effectively

prohibited from entering into new business.

     The Commission, however, drew a distinction between the acts of

a body which is engaged in the resolution of a dispute ("contestation")

and the acts of an administrative or other body purporting merely to

exercise or apply a legal power vested in it and not to resolve a legal

claim or dispute.  Article 6 para. 1 (Art. 6-1) was held to apply to

the acts of the former but not to acts of the latter even if they

affected civil rights.  The Commission found that, in taking his

decision, the Secretary of State had exercised legal powers which

affected civil rights but was not engaged in the determination of a

dispute or "contestation" concerning civil rights and obligations.

     The Commission considers that the civil rights of the present

applicant were similarly affected by the decision of the Secretary of

State.  The applicant had been offered the post of chief executive of

the company on terms which had been agreed between him and the company.

The effect of the decision was to prevent him from taking up that post

and had clear pecuniary implications for the applicant.  It is true

that any agreement could only become operative once notice had been

served on the Secretary of State and the Secretary of State had either

stated that he had no objection to the appointment or had failed to

serve a notice of objection.  Thus, the Secretary of State's decision

did not as such directly affect any existing right of the applicant to

conduct the business of the company as its chief executive.  However,

the fact that the applicant's contractual right to occupy the post of

chief executive was made subject to there being no objection from the

Secretary of State did not in the view of the Commission alter its

character as a civil right for the purposes of Article 6 para. 1

(Art. 6-1) of the Convention.  Further, the decision of the Secretary

of State directly affected the exercise of that right, even though the

applicant had not yet taken up the post as chief executive.

     The Commission is further unable to accept the Government's

argument that the Secretary of State's decision did not affect the

civil rights of the applicant, first, because the decision only related

to his ability to take up a specific post and not his right to be

employed in the insurance industry generally and, secondly, because

during his interview with the officials of the DTI, the applicant

indicated that he would probably not have taken up the post in the

company in any event.  The undisputed effect of the decision of the

Secretary of State was to deprive him of the opportunity of accepting

a specific post which had been offered on terms which had been agreed.

In the view of the Commission the applicant's civil rights were

affected by the decision, irrespective of whether the decision had

wider ramifications for the employment prospects of the applicant in

the insurance industry and irrespective of whether, in the result, he

would have declined the particular post in question.

     The Commission further considers that the procedure by which the

Secretary of State actively intervened to prevent the appointment of

the applicant to the post which he had been offered amounted to a

"determination of [the] civil rights" of the applicant for the purpose

of Article 6 para. 1 (Art. 6-1).  In the view of the Commission a

dispute or "contestation" arose from the moment when the Secretary of

State indicated that he was considering issuing a notice on the ground

that the applicant was not a fit and proper person and that preliminary

view was contested by the applicant.  This dispute was determined in

the proceedings which followed, culminating in the decision of the

Secretary of State that the applicant was not a fit and proper person,

with the consequence that the applicant was precluded from taking up

the post offered to him.  The proceedings therefore determined the

applicant's "civil rights and obligations" (see Eur. Court HR, Le

Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981,

Series A no. 43, pp. 20-22, paras. 44-50).

     The Commission recalls that even where an adjudicatory body

determining disputes over "civil rights and obligations" does not

comply with Article 6 para. 1 (Art. 6-1) in some respect, no violation

of the Convention can be found if the proceedings before that body are

"subject to subsequent control by a judicial body that has full

jurisdiction and does provide the guarantees of Article 6 para. 1

(Art. 6-1)" (Eur. Court HR, Albert and Le Compte v. Belgium judgment

of 10 February 1983, Series A no. 58, p. 16, para. 29, referred to in

Eur. Court HR, Bryan v. the United Kingdom judgment of

22 November 1995, Series A no. 335-A, p. 16, para. 40).

     It has not been suggested in the present case that the

proceedings before the Secretary of State's representatives complied

with Article 6 para. 1 (Art. 6-1) of the Convention, and the Commission

accepts that they did not.

     The question is therefore whether the Court of Session satisfied

the requirements of Article 6 para. 1 (Art. 6-1) as far as the scope

of its jurisdiction is concerned, and whether the proceedings complied

with the "fairness" requirement of that provision.

     It is common ground that the power of review of the Court of

Session was not capable of embracing all aspects of the decision of the

Secretary of State.  In particular, as is not infrequently the case in

relation to administrative law appeals in the Member States of the

Council of Europe, the Court of Session could not substitute its own

view for that of the Secretary of State as to the fitness of the

applicant.  On the other hand, the Court of Session could have quashed

the decision of the Secretary of State if, inter alia, the decision was

irrational, in the sense that it was a decision which no reasonable

minister properly directing himself could have reached on the basis of

the material before him, or if the decision was reached by reference

to irrelevant factors or without regard to relevant factors or in a

procedurally unfair manner.

     In the case of Bryan, the European Court of Human Rights gave

examples of the matters which were relevant to assessing the adequacy

of the review on a point of law in that case: "the subject-matter of

the decision appealed against, the manner in which that decision was

arrived at, and the content of the dispute, including the desired and

actual grounds of appeal" (above-mentioned Bryan judgment, p. 17,

para. 45).

     The subject-matter of the decision appealed against in the

present case was a classic exercise of administrative discretion.  The

legislature had charged the Secretary of State with the express

function of ensuring, in the public interest, that only appropriate

persons would become chief executive of certain insurance companies,

and the contested decision in the present case was the exercise of that

discretion.

     The manner in which the decision was arrived at is a matter of

particular concern to the applicant, as much of his argument is based

on the premise that the Secretary of State's decision was flawed by the

way in which the decision was reached: he claims that he was not given

full disclosure of the allegations against him, that the Secretary of

State's decision was not carefully reasoned, and that it was not even

clear what were the findings of fact of the DTI officials.

     The content of the dispute is closely linked to the way in which

the decision was arrived at.  Thus in his application for judicial

review, the applicant complained that the Secretary of State's

officials, in breach of their duty to act in accordance with the

principles of natural justice, had failed to give adequate information

to the applicant about the allegations which had been made against him.

In this connection the applicant makes particular complaint of the

provisions of Section 60 (4) of the 1982 Act which, he claims, hinders

discovery and hence disclosure of relevant information as to the

grounds of objection.

     The Commission recalls that the Convention organs should confine

themselves as far as possible to examining the questions raised by the

case before them (see, in the context of administrative proceedings,

Eur. Court HR, Zumtobel v. Austria judgment of 21 September 1993,

Series A no. 268-A, p. 14, para. 32).  Questions of the implications

of Section 60 (4) of the 1982 Act for other cases do not therefore fall

to be determined: the Commission must assess whether in the case before

it the applicant was given insufficient information as to the case he

had to answer to enable him to defend himself and whether, having

regard to Section 60 (4), the scope of review available to the

applicant was sufficient to enable him adequately to ventilate his

complaint about the administrative proceedings.

     The Commission recalls that in the initial written statement

which accompanied his letter of 7 March 1994, the applicant set out his

comments on the three points raised by the Secretary of State in his

preliminary notice of 14 February.  The Commission notes that, although

the covering letter stated that the allegations were "fairly general",

in his specific comments on the points, the applicant replied in some

detail to the points raised.  The applicant's comments on point (b)

(that he had overruled actuarial advice in underwriting procedures)

were set out under the three headings, specified by the DTI.  The

applicant knew nothing of an allegation that he had waived requirements

for personal medical attendance reports, but he replied to the other

allegations.

     Save as regards the matter of the personal medical attendance

reports, the Commission finds no indication in the applicant's written

statement which accompanied his letter of 7 March 1994 that he was in

any way embarrassed or put at a disadvantage by an absence of

information as to the sources or further details of the complaints

against him.

     As to the hearing before the DTI officials on 15 March 1994, the

Commission recalls that the applicant made a statement concerning his

former company and its financial position over the years when he was

involved with it, and his role in ensuring compliance with statutory

requirements.  There followed a discussion of the applicant's role in

the former company during a period of financial difficulties, and then

the discussion turned to the applicant's relationship with the

underwriting department.  The applicant repeated that he knew nothing

of any suggestion that medical reports should be waived, and saw no

problem with a company policy of increasing what was called "free

cover".  At one point, the applicant's solicitor intervened to state

that the applicant was not aware of the allegation against him.  The

official charing the meeting immediately replied that the information

had come from the appointed actuary, and continued to give details of

a policy for £1 million which had been granted in unusual

circumstances.  The applicant accepted that he had tried to speed up

the procedures, but denied that he had circumvented any of the

procedures.

     The final part of the interview dealt with the applicant's

relationship with the appointed actuary at the former company.  It was

put to the applicant that he had, at least, discouraged the appointed

actuary from fulfilling his responsibilities to the DTI in late 1992.

The applicant, after explaining the financial problems, accepted that

he had encouraged the actuary to await a response on one point from the

shareholder before contacting the DTI over the company's solvency

problems, and also accepted that he had suggested that the actuary

should consider where his loyalties lay, but he was emphatic that he

never prohibited the actuary from contacting the DTI.

     Having examined the applicant's written statement which

accompanied his solicitors' letter of 7 March 1994 and the transcript

of the hearing of 15 March 1994 the Commission thus finds that there

were no areas of substance in which the applicant was disadvantaged by

not knowing further details of the allegations against him.  He had

evidently been in contact with the DTI before the statement which

accompanied the letter of 7 March, as he expressly stated that the "DTI

[had] advised that there [were] three headings to this category".  It

is true that the applicant denied all knowledge of anybody having

waived personal medical attendance reports, and was given no further

details, but that matter was not pursued and does not appear to have

been considered relevant for the final decision.  In the only passage

in the interview where the applicant, through his representative,

stated that he did not know of the allegations which were being made,

the official chairing the meeting immediately informed the applicant

that the evidence had come from the company's actuary.  The applicant

made no further request about the source or content of the allegations.

     The alleged inadequacy of the disclosure of the case against him

formed the principal ground of challenge in the applicant's proceedings

for judicial review of the Secretary of State's decision.

     In his judgment Lord Osborne concluded that no material had been

relied on by the Secretary of State which had not been canvassed in one

way or another with the applicant.  He further found that there had

been, prima facie, an extensive disclosure of the gist of the case

which the applicant had to answer: that disclosure went so far as to

indicate to the petitioner the source of the information which had come

into the possession of the Secretary of State, although the precise

terms of the information supplied by the source may not themselves have

been disclosed.

     While it is true, as pointed out by the applicant, that Lord

Osborne also found that by virtue of Section 60 (4) of the 1982 Act

there was no obligation on the Secretary of State to disclose more

information, the Commission notes that the applicant has not

convincingly shown what further disclosure he required in order to

enable him adequately to meet the case against him.  Moreover, as is

correctly pointed out by the Government, Section 60 (4) does not

preclude the giving of further particulars of the grounds of objection

by the Secretary of State, but merely provides that the Secretary of

State cannot be obliged to provide such particulars.  The applicant

does not appear to have requested any further particulars from the

Secretary of State and, had he done so, there is nothing to suggest

that disclosure would have been refused.  In this connection, the

Commission notes that on the sole occasion when the applicant's

representatives stated that the applicant was unaware of a specific

allegation, the source of the information was promptly given, and no

further inquiry was made.

     The Commission accordingly considers that in the circumstances

of the present case the scope of review of the Court of Session was

sufficient to comply with Article 6 para. 1 (Art. 6-1).

     Finally, the Commission notes that the applicant complains that

the decision of the Secretary of State was not fully reasoned and,

indeed, that it was not clear what was the factual basis for the final

notice of 31 March 1994.  The Commission considers that this complaint,

too, is unsubstantiated.  The applicant was first put on notice of the

matters which were felt to render him not a "fit and proper person" by

the letter of 14 February 1994, and those grounds were modified by the

final notice of 31 March 1994.  The Commission considers that, taking

the contents of the two letters together with the contents of the

discussions on 15 March 1994, it must have been quite apparent to the

applicant on what basis the decision of 15 March 1994 had been taken.

     It follows that the application must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

        M. de SALVIA                        J.-C. GEUS

         Secretary                       Acting President

      to the Commission                  of the Commission