Can you draw a line between this case and Anisminic?

25 November 2017 by David Hart QC

Privacy International v. Investigatory Powers Tribunal [2017] EWHC EWCA Civ 1868, Court of Appeal, 23 November 2017

Introduction

As all lawyers know, the great case about courts confronting a no-go area for them is the late 1960’s case of Anisminic.

A statutory Commission was given the job of deciding whether compensation should be awarded for property sequestrated, in the particular case as a result of the 1956 Suez crisis. The Act empowering it said that the

determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.

The House of Lords, blasting aside arcane distinctions, said that this provision was not enough to oust judicial review for error of law.

Fast forward 50 years, and another Act which says

determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.

The Court of Appeal has just decided that, unlike Anisminic, this Act does exclude any judicial review.

Why?

The background

A bit of context, which as we shall see, proved decisive for the CA.

Various bits of legislation have toiled away to strike a balance between your right to complain about being intruded upon by the Security Services and their ability to do what they do without shedding unnecessary intelligence in response to the complaint. The latest body charged with the tricky task of striking this balance is the Investigatory Powers Tribunal. This Tribunal stands apart from the typical tribunal (think social security or employment) and does things like investigate, hear bits of the case in private, and hear cases on assumed facts (so the Services can seek a decision whilst neither Confirming nor Denying what the complainant says). The IPT is manned by judges and senior lawyers, a fact much relied upon in its support.

Privacy International’s case involved a complaint that there been unlawful computer hacking by GCHQ. One key issue was whether the hacking had been legalised by a broad and generic warrant in favour of GCHQ. The IPT had decided that such warrants were lawful. This depended on whether the IPT was right in its construction of  s.5 of Regulation of Investigatory Powers Act 2000.

So it would be the end of the story for Privacy International’s complaint, even though the IPT’s decision was on a point of law, unless judicial review could be had in the courts. (In 2016 the law was changed, but too late for the claimants).

So the question for the courts was whether the words set out above in my introduction (in section 67(8) of RIPA) prevented any judicial review.

The Divisional Court

In retrospect, it was unfortunate that the case was listed in front of two judges – because they disagreed – judgments here. Sir Brian Leveson found for the IPT. Judicial review was ousted, because the words said so, and it would be unworkable to have judicial review coexisting with the IPT and its various procedural protections (principally for the Security Services). Leggatt J said that it wasn’t ousted. The wording was indistinguishable from Anisminic. Leggatt J did not relish the consequences of this ouster; the FCO

did not shrink from submitting that section 67(8) has the effect of preventing judicial review even of a decision affected by bias or other serious procedural irregularity or made in ignorance of a binding precedent or statutory provision. For my part, I am extremely reluctant to attribute to Parliament an intention to achieve a result which would be so clearly inconsistent with the rule of law.

Upshot. Leggatt J said he would not dissent (and thus would not drive a re-hearing – a score-draw does not work in the courts), because the case was going to go further anyway, and the sooner it got there the better.

The Court of Appeal

The Foreign Office said that the words meant what they said; the IPT had reached a determination, and that determination “shall not be subject to appeal or liable to be questioned in any court.

It submitted that there were different ways in which the principle of the rule of law and the right to have access to a court or tribunal might be brought into question by an ouster clause, depending on the context. If it sought the exclusion of judicial review in relation to an act of the executive, that would impact on the rule of law in an especially intrusive way and the drafting required to achieve that effect would correspondingly need to be especially clear. On the other hand, if ouster was sought in tandem with the grant of a right of access to another court or tribunal, the rule of law would still be capable of being vindicated by such a judicial body, even if not the High Court.  The IPT is an independent and impartial judicial body, presided over by a High Court judge. So the courts should be more ready to find that an ouster provision achieved its objective.

Though the CA, in Sales LJ’s judgment,  accepted the FCO general argument, it acknowledged that it made a substantial inroad upon usual rule of law standards: [25]. It thought that the IPT wording was materially different from that in the Anisiminic Act. In Anisminic, the word “determination” was taken to exclude purported determinations made in excess of jurisdiction, including an error of law by the Commission in arriving at its determination. The distinction relied upon was

… the drafter of section 67(8) has expressly adverted to the possibility of the IPT making an error of law going to its jurisdiction or power to act, by the words in parenthesis in that provision: “including decisions as to whether they have jurisdiction”. Therefore, at least so far as the word “decision” is concerned, it is not tenable to apply the simple distinction relied upon in Anisminic in the context of section 4(4) of the 1950 Act between a “determination” and a purported determination, in the sense of a determination made without jurisdiction.

So the CA said that in section 67(8), the word “decision” included a decision which  might be found to have been made without jurisdiction because of an error of law on the part of the IPT –i.e. it included a purported decision. The House of Lords in Anisminic had decided that the Act there did not oust a purported decision.

The nub of the decision was that

Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it. There is nothing implausible about this. The quality of the membership of the IPT in terms of judicial expertise and independence is very high, as set out in Schedule 3 to RIPA, so it is a fair inference that Parliament did intend that this should be the position. [38]

And the underlying policy justification at [44]:

It is worth emphasising how far the subversion of Parliament’s purpose would go, if the construction urged by the appellant were correct. There is no neat, absolute division between points of law and points of fact in judicial review proceedings. For example, it is open to a claimant who brings such proceedings to allege that a public body has made a decision which is irrational or disproportionate, having regard to all the evidence in the case. It is open to a claimant to allege that a decision has been made which is unsupported by any evidence or which is contradicted by evidence in the case. Such claims may require the reviewing court to examine all the evidence which was before the decision-making body.

And that is where the practical problems come in. The protection of the rules on public interest immunity in court proceedings does not afford the same guarantee of non-disclosure of information damaging to the public interest as under the RIPA Rules. So, said Sales LJ, a judicial review of an IPT decision might bypass such protections.

Comment

The CA’s judgment does not engage fully with all of the concise reasons as to why Leggatt J was inclined not to agree with the FCO below: see [48] of his judgment below. Judicial review maintains the rule of law, whatever the expertise of the tribunal under potential review. A potent example given by Leggatt J was a mistake made where the complainant is not represented and the tribunal’s attention is not drawn to a binding precedent or statutory provision. In such a case, there would be no redress.

But the underlying issue in the case (which is ripe for consideration in the Supreme Court) is whether the practical protections built into RIPA for the benefit of the Security Services should be regarded as overriding the scepticism which the courts have expressed about any attempt to oust their powers. As Leggatt J pointed out after a review of the cases on ouster of judicial review:

it is striking that no language so far used (unless it be that in the present case) has been held to be sufficiently clear to have that effect.

So this case is a first, if the CA is right.

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