Lexploria

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)

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WINTER AND OTHERS v. THE UNITED KINGDOM

WINTER AND OTHERS v. THE UNITED KINGDOM

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