CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 janvier 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         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