R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents)

Easter Term

[2019] UKSC 22

On appeal from: [2017] EWCA Civ 1868

R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents)

before

Lady Hale, President

JUDGMENT GIVEN ON

15 May 2019

Heard on 3 and 4 December 2018

Appellant

Respondent

Dinah Rose QC

Ben Jaffey QC

Tom Cleaver

Gayatri Sarathy

(Instructed by Bhatt	(Instructed by The
Murphy Solicitors)	Government Legal

Department)

Interested Parties

Sir James Eadie QC

Kate Grange QC

Catherine Dobson

James Bradford

(Instructed by The Government Legal

Department)

(Intervener - Liberty)

Martin Chamberlain QC

David Heaton

(Instructed by Liberty)

Respondent:

Interested Parties:

LORD CARNWATH: (with whom Lady Hale and Lord Kerr agree)

The issue

1. The Investigatory Powers Tribunal (“IPT”) is a special tribunal established

under the Regulation of Investigatory Powers Act 2000 (“RIPA”) with jurisdiction

to examine, among other things, the conduct of the Security Service, the Secret

Intelligence Service and the Government Communications Headquarters (“the

intelligence services”). Section 67(8) provides:

“Except to such extent as the Secretary of State may by order

otherwise provide, 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 genesis of this subsection can be traced back to the Interception of Communications Act 1985. Section 7(8) provided in relation to the tribunal established by that Act (the predecessor of the IPT):

“The decisions of the Tribunal (including any decisions as to

their jurisdiction) shall not be subject to appeal or liable to be

questioned in any court.”

1. There is an obvious parallel with the “ouster clause” considered by the House

of Lords in the seminal case of Anisminic Ltd v Foreign Compensation Commission

[1969] 2 AC 147 (“Anisminic”). Section 4(4) of the Foreign Compensation Act 1950

provided:

“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 decided by a majority that these words were not effective to

exclude review by the courts of the legal basis of the Commission’s decision. In

summary they held (in the words of the headnote):

“… that the word ‘determination’ in section 4(4) of the Act of

1950 should not be construed as including everything which purported to be a determination but was not in fact a determination because the commission had misconstrued the provision of the Order defining their jurisdiction. Accordingly, the court was not precluded from inquiring whether or not the

order of the commission was a nullity.”

It will be necessary later to examine in more detail the reasoning in Anisminic, and its treatment in later cases, culminating in the major reappraisal of the relationship of courts and tribunals by the Supreme Court in R (Cart) v Upper Tribunal (Public

Law Project intervening) [2012] 1 AC 663 (“Cart”).

3.         Reduced to its core the central issue in the present case is: what if any material

difference to the court’s approach is made by any differences in context or wording,

and more particularly the inclusion, in the parenthesis to section 67(8), of a specific

reference to decisions relating to “jurisdiction”?

The statutory provisions

4. The legislative scheme established by RIPA replaced three earlier statutes dealing with the oversight of the security services. Its enactment was closely linked

to that of the Human Rights Act 1998 (“HRA”), which was brought into force at the

same time. The Explanatory Notes stated (paras 3-4):

“The main purpose of the Act is to ensure that the relevant

investigatory powers are used in accordance with human rights.

These powers are:

	the interception of communications;
	the acquisition of communications data (eg

billing data);

	intrusive surveillance (on residential premises/in

private vehicles);

	covert surveillance in the course of specific

operations;

 the use of covert human intelligence sources (agents, informants, undercover officers);

	access to encrypted data.”

For each of these powers, it was said, the Act would ensure that the law would clearly cover the purposes for which they could be used, by whom and with whose

authority, the use that could be made of the material gained, and also “independent

judicial oversight”, and means of redress for individuals.

5. The statutory provisions governing the composition, jurisdiction and procedures of the IPT are complex. There is a comprehensive account in the judgment of Sir Brian Leveson P in the Divisional Court (paras 5 to 15) ([2017] EWHC 114 (Admin)). For present purposes it is enough to note the principal features. Section 65(1) and Schedule 3 deal with its composition. The number of members is set by Her Majesty by Letters Patent (section 65(1)). The President must have held high judicial office, and the other members must have held high judicial office or meet specified legal qualifications. In the present case the tribunal consisted of five members presided over by Burton J (President) and Mitting J (Vice- President), the others all being leading counsel.

6.         As to its jurisdiction section 65(2) provides:

“(2)	The jurisdiction of the tribunal shall be -
(a) to be the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;
(b) to consider and determine any complaints made to them which, in accordance with subsection (4), are complaints for which the tribunal is the appropriate forum;
(c) to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of section 17, on his relying in, or for the purposes of, any civil proceedings on any matter; and
(d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of
State by order.”

7. The remainder of section 65 provides further details of these four categories of jurisdiction, which are not material in the present case. It is to be noted that the jurisdiction of the IPT may depend on uncertain issues of law or fact. For example, in C v The Police IPT/03/32/H the IPT considered a complaint by a retired police officer alleging that there had been unlawful covert surveillance in breach of article

8 of the European Convention on Human Rights (“the Convention”) by his former

police force. The essential facts were agreed, but the IPT held that it had no

jurisdiction to consider his complaint because there was no “directed surveillance”

which satisfied the definition of conduct to which Chapter II of Part I of RIPA applied (see para 74 of the determination; RIPA section 65(3)(d), (5)(c)). In some cases the jurisdiction of the IPT may overlap with that of the ordinary courts: see, for example, AKJ v Comr of Police of the Metropolis [2014] 1 WLR 285 (parallel claims under HRA section 7, and in tort, in respect of damage suffered as a result of the actions of two undercover police officers).

1. Section 67 is headed “Exercise of the Tribunal’s jurisdiction”. Subsection (1)

provides that it shall be the duty of the Tribunal to hear and determine proceedings, or to consider and determine complaints or references, brought before it under section 65(2). Subsections (2) and (3) provide, among other things, that the tribunal

shall apply “the same principles as would be applied by a court on an application for

judicial review”. Subsections (4)-(6) make provision in relation to frivolous and

vexatious claims, limitation, and the power to make interim orders. Subsection (7)

sets out the powers of the tribunal “on determining any proceedings, complaint or reference” to make “any such award of compensation or other order as they think

fit”. It also gives examples of such orders, including (a) “an order quashing or

cancelling any warrant or authorisation”, and (b) “an order requiring the destruction

of any records of information which (i) has been obtained in exercise of any power conferred by a warrant or authorisation; or (ii) is held by any public authority in

relation to any person”.

9. Subsection (8) has been set out above (para 1). As there seen, it allowed for an appeal to be provided for by order of the Secretary of State, but that power has

never been exercised. Subsection (9) goes further, imposing a “duty” on the

Secretary of State to secure an order allowing for an appeal to a court against any exercise by the tribunal of their jurisdiction under section 65(2)(c) or (d); but that subsection has not been brought into force. Subsections (10)-(12) make provision as to the contents of, and procedure for making, such an order were the power ever to be exercised. After the commencement of these proceedings there was enacted (by section 242 of the Investigatory Powers Act 2016) a new section 67A providing for an appeal on a point of law to the Court of Appeal or Court of Sessions against certain decisions of the tribunal. That was brought into force on 31 December 2018 by regulation 2 of the Investigatory Powers Act 2016 (Commencement No 10 and Transitional Provision) Regulations 2018/1397, but it does not apply to any decision or determination of the IPT made before this date. It is therefore not material to the present appeal.

10. Until 31 December 2018, when they were replaced by the Investigatory Powers Tribunal Rules 2018 (SI 2018/1334), the procedure before the IPT was governed by the Investigatory Powers Tribunal Rules 2000 (SI 2000/2665) (made under section 69(1)). Notable are the power to conduct proceedings in private and at certain stages in the absence of the complaining party (rule 9), and the duty under rule 6(1):

“The Tribunal shall carry out their functions in such a way as

to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence

services.”

The European Court of Human Rights has held that the Act and the rules provide an effective and compliant remedy for complaints in respect of interception with communications, for the purposes of article 13 of the Convention (Kennedy v United Kingdom (2011) 52 EHRR 4).

The proceedings below

11. The background of the present proceedings was described in the judgment of

the IPT dated 12 February 2016. It was a hearing of preliminary issues of law, whose
purpose was to establish:

“whether, if the Second Respondent (‘GCHQ’) carries on the

activity which is described as CNE (Computer Network Exploitation), which may have affected the claimants, it has

been lawful.”

The Tribunal described the “now well-established procedure” for it to make

assumptions as to the significant facts in favour of claimants and reach conclusions on that basis, and thereafter, if the assumed facts were held to render the

respondents’ conduct unlawful, to consider the position in closed session. This

procedure, it was said, had enabled the tribunal on a number of occasions:

“to hold open inter partes hearings, without possible damage to

national security, while preserving, where appropriate, the

respondents’ proper position of Neither Confirmed Nor Denied

(‘NCND’).”

12.       The issue arises under section 5 of the Intelligence Services Act 1994 which

empowers the Secretary of State to issue a warrant “authorising the taking of such

action as is specified in the warrant in respect of any property so specified” if he

considers, among other things, that such action is necessary for the purpose of assisting the intelligence services in carrying out their functions. According to the

appellant’s case, the significance of that provision became apparent when the

Intelligence Services Commissioner (Sir Mark Waller) disclosed in his 2014 Report that the intelligence services were using it to authorise CNE activity, and expressed concern that this interpretation of the section might arguably be too broad. Their case before the tribunal was that section 5 did not permit the issue of so-called

“thematic” warrants authorising activity in respect of a broad class of property. They

argued, inter alia, that the section needed to be construed against the background of the long-established aversion of the common law to general warrants, recognised in cases going back to Entick v Carrington (1765) 2 Wils KB 275.

13. The tribunal heard inter partes oral argument at a public hearing in early December 2015, and gave judgment on 12 February 2016 dismissing the claim (Privacy International v SSFCA [2016] UKIP Trib 14_85-CH). Their discussion of the interpretation of section 5 comes at paras 31 to 47 of the judgment. In relation to the argument based on general warrants they said:

“… 18th century abhorrence of general warrants issued without

express statutory sanction is not in our judgment a useful or permissible aid to construction of an express statutory power given to a Service, one of whose principal functions is to further the interests of UK national security, with particular reference to defence and foreign policy.

The issue as to whether the specification is sufficient in any particular case will be dependent on the particular facts of that

case ...” (paras 37-38)

They concluded on this aspect:

“In our judgment what is required is for the warrant to be as

specific as possible in relation to the property to be covered by the warrant, both to enable the Secretary of State to be satisfied as to legality, necessity and proportionality and to assist those executing the warrant, so that the property to be covered is

objectively ascertainable.” (para 47)

14. Sales LJ in the Court of Appeal [2017] EWCA Civ 1868; [2018] 1 WLR 2572 commented on the significance of this question:

“This is potentially of legal significance in two ways. First, if

action of GCHQ to interfere with property is not protected by a warrant issued under section 5, it is likely that GCHQ would commit torts of interference with that property which would sound in damages. Secondly, if GCHQ takes such action to hack computers in circumstances where it is not protected by a warrant, it is likely that it would be liable in law for breaches of its obligation under section 6 of the Human Rights Act 1998 to act compatibly with Convention rights, since it would not be able to show that any interferences with rights to respect for the home, correspondence and private life were in accordance with the law, as required by article 8(2) of the European Convention on Human Rights (as scheduled to the Human Rights Act as a

Convention right).” (para 16)

This passage again highlights the extent to which issues arising before the IPT may overlap with the common law or human rights jurisdictions of the ordinary courts.

15. On 17 June 2016 Lang J granted the appellant permission to apply for judicial review, while expressing doubts whether the High Court had jurisdiction to determine the substantive claim. She directed that the issue of jurisdiction should be heard as a preliminary issue. On 2 February 2017 the Divisional Court gave judgment answering that question in the negative for reasons given by the President. He held that section 67(8) prohibited judicial review of the decision. Since (by contrast with Anisminic) the tribunal was already exercising a supervisory jurisdiction over the actions of public authorities and exercising powers of judicial review, he saw no compelling reasons for insisting that a decision of the tribunal is not immune from challenge (para 42). Further, the legislation authorised the Secretary of State to create a right of appeal (albeit that the power had never been

exercised), so that the presumption that Parliament “could not have intended to make a statutory tribunal wholly immune from judicial oversight” was not engaged (paras

43, 45).

1. Leggatt J, while not formally dissenting, was “inclined” to a different view.

He thought that the case was governed by the reasoning in Anisminic:

“The only potentially relevant difference in the wording of

section 67(8) is that it contains the words in brackets

‘(including as to whether they have jurisdiction)’. But I find it

hard to see how these words can make a critical difference in the light of Anisminic. It seems to me that on a realistic interpretation that case did not decide that every time a tribunal makes an error of law the tribunal makes an error about the scope of its jurisdiction. Rather, it decided that any determination based on an error of law, whether going to the

jurisdiction of the tribunal or not, was not a ‘determination’

within the meaning of the statutory provision. That reasoning, and the underlying presumption that Parliament does not intend to prevent review of a decision which is unlawful, is just as applicable in the present case and is not answered by pointing

to the words in brackets.” (para 55)

17. The Court of Appeal gave judgment on 23 November 2017 dismissing the appeal. Sales LJ (with whom Floyd and Flaux LJJ agreed) considered that both the language and the context were materially different from Anisminic. As to the language he said:

“… 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. In

section 67(8), the word ‘decision’ is stated to include a decision

which (if judicial review or an appeal were available) might be found to have been made without jurisdiction because of an error of law on the part of the IPT - that is to say, if one wants

to use this phrase, a purported decision.” (para 34)

1. In support of this view, he noted the “very high quality” of the IPT in terms

of judicial expertise and independence (para 38), and the statutory context:

“It is clear that Parliament’s intention in establishing the IPT

and in laying down a framework for the special procedural rules which it should follow, including the Rules, was to set up a tribunal capable of considering claims and complaints against the intelligence services under closed conditions which provided complete assurance that there would not be disclosure

of sensitive confidential information about their activities.”

(para 42)

19. Finally he relied by analogy on the decisions of the Court of Appeal and Supreme Court in R (A) v Director of Establishments of the Security Service [2009]

EWCA Civ 24; [2009] UKSC 12; [2010] 2 AC 1 (“R (A)”). It was held that section

65 of RIPA conferred on the IPT exclusive jurisdiction to hear claims under section 7 of the HRA against any of the intelligence services. In the Court of Appeal Dyson

LJ noted that the rules were carefully drafted to achieve “a balance between fairness

to a complainant and the need to safeguard the relevant security interests”; he thought it “inherently unlikely” that Parliament, having provided for such an

elaborate set of rules to govern proceedings against an intelligence service, “yet

contemplated that such proceedings might be brought before the courts without any

rules” (para 48). That approach was approved in the Supreme Court. Although the

effect of section 67(8) was not in issue, Lord Brown, giving the leading judgment,

in the course of a review of this part of the Act, spoke of it as “an unambiguous

ouster” of the court’s jurisdiction.

20.       While accepting that this expression of view was obiter Sales LJ considered

it to fit closely with Lord Brown’s analysis of the regime. He added:

“Unless section 67(8) is interpreted as Lord Brown indicated,

it would permit the special procedural regime established for the IPT to be bypassed at the stage when judicial review proceedings in respect of its decisions are brought in the High Court, as explained above. That would undermine the

coherence of Lord Brown’s reasoning at para 14 of his

judgment. In my view, Lord Brown’s view at para 23 about the

proper interpretation and effect of section 67(8) is of powerful

persuasive authority. I agree with it.” (para 48)

The submissions in this court

21.       Two issues are identified in the agreed statement:

i) whether section 67(8) of RIPA 2000 “ousts” the supervisory

jurisdiction of the High Court to quash a judgment of the Investigatory Powers Tribunal for error of law?

ii) whether, and, if so, in accordance with what principles, Parliament

may by statute “oust” the supervisory jurisdiction of the High Court to quash

the decision of an inferior court or tribunal of limited statutory jurisdiction?

22. On the first issue, counsel for the appellant led by Dinah Rose QC (with Professor Sir Jeffrey Jowell QC) rely principally on the long-established principle that a statute should not be interpreted as ousting judicial review of a statutory tribunal of limited jurisdiction if there is a tenable construction which would preserve the supervisory jurisdiction of the High Court. In the present case, the formula used in section 67(8) is not materially different from that which the House of Lords held not to oust judicial review in Anisminic, and must be taken to have the like effect. Lord Brown’s comment in R (A) was obiter, against the background of a

concession by the appellant that judicial review was not available (R (A) at p 23D).

1. This did not mean that the reference in parenthesis to “jurisdiction” was

without effect. Ms Rose refers for example to the distinction drawn in the cases depending on whether the legislature has or has not entrusted to the tribunal the

power to determine the existence of “the preliminary state of facts” necessary to its

jurisdiction (see R v Comrs for Special Purposes of the Income Tax (1888) 21 QBD 313, 319, per Lord Esher MR). At the time of the drafting of what became the 1985 Act, the difference between issues of fact and law in the context of jurisdiction had been highlighted by the House of Lords in R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74. It was held that the power of the Home

Office to remove an “illegal entrant” did not depend simply on the reasonable belief

of the immigration officer that the person was an illegal entrant. As Lord Scarman

said (at p 110):

“… where the exercise of executive power depends upon the

precedent establishment of an objective fact, the courts will

decide whether the requirement has been satisfied.”

The words in parenthesis in section 67(8), it is submitted, can be read as designed, as respects the IPT, to put such decisions on issues of fact going to jurisdiction beyond the scope of review, but not issues of law.

24.       She submits that the Court of Appeal’s reliance on the security and

intelligence context to support their view was mistaken. The High Court has ample powers on judicial review to ensure that sensitive information is protected (see now R (Haralambous) v Crown Court at St Albans [2018] UKSC 1; [2018] AC 236). Similar concerns might have been said to arise in respect of the Special Immigration Appeals Commission (SIAC), but neither that factor, nor the relatively high status of the judges of that Commission, was held sufficient to oust judicial review (R (U) v SIAC [2011] QB 120 DC, paras 82-86 per Laws LJ).

25.       Furthermore, the tribunal’s jurisdiction is not limited to sensitive claims

against the intelligence services. Ms Rose gives as examples such issues as the use by local authorities of CCTV and checks by directed surveillance on whether a child lives in the catchment area of a local school. She also points out that the issue can work both ways. For example, if the Tribunal were unlawfully to order the security and intelligence services to disclose material (such as the identity of an agent) which would risk harming national security, they would have no remedy. More generally, it cannot have been intended that the IPT should be immune from challenge even where it blatantly disregarded limits to its powers: for example, if it decided not to follow a binding decision of the Supreme Court on the interpretation of the RIPA, or if it purported to determine a claim for unfair dismissal allocated by statute exclusively to the Employment Tribunal.

26. These submissions were supported by Mr Chamberlain QC (with Mr Heaton), appearing for the intervener Liberty. He emphasised the very broad jurisdiction of the IPT, not limited to reviewing the conduct of the intelligence services, but extending to surveillance and other activities undertaken for policing, economic and other purposes by a range of public authorities. It is, he submitted, objectionable in principle, and inimical to the rule of law, that a body with such broad jurisdiction should be entirely immune from challenge, save only in the Strasbourg court in respect of compliance with the Convention. He also pointed to the considerable overlap between the jurisdiction of the IPT and that of the ordinary

courts. As he submits it could be “a question of happenstance” whether a

determination on a particular issue is immune from review by the UK courts, if determined by the IPT, or subject to appeal through the appellate courts, if determined by the ordinary courts.

27. Counsel for the interested parties, led by Sir James Eadie QC, generally supported the reasoning of the Court of Appeal. In agreement with Sales LJ, he submitted that the language of section 67(8), by the words in parenthesis, and in contrast to the section under consideration in Anisminic, was designed in terms to address the possibility of the IPT making an error of law going to its jurisdiction or power to act. He drew attention to particular features of the statutory context, including the special allocation of judicial responsibility to the IPT in the national security context under a single legislative regime together with the HRA; the

“bespoke” nature of the IPT system set up by RIPA, with provision to make its own

rules and procedures, allowing the IPT to deal with sensitive national security matters through closed material procedures not available at common law; the placing of the IPT on equal footing with the High Court in respect of judicial review; and the provision for the possibility of a right of appeal from IPT decisions in specified cases. The fact that the latter provisions had not been brought into effect did not detract from their relevance to the presumed intention of Parliament at the time of enactment (see Bennion on Statutory Interpretation (6th ed), p 654).

28. He relied also on the continuing endorsement of the IPT by the Strasbourg court, most recently in Big Brother Watch v United Kingdom (2018) (Application Nos 58170/13, 62322/14 and 24960/15), in which the court commented for example on the special role of the IPT as -

“… the sole body capable of elucidating the general operation

of a surveillance regime … (and) the sole body capable of determining whether that regime requires further elucidation.”

(para 255)

29. More generally he submitted that there was nothing constitutionally offensive about legislative arrangements whereby Parliament reallocates the High Court’s

judicial review jurisdiction to a judicial body that is both independent of the

Executive and capable of providing an authoritative interpretation of the law.

Judicial supervision of inferior courts and tribunals

The authorities

30. Before considering these submissions, it is necessary to set them in the context of the historical development through the authorities of the relationship between the High Court and other adjudicative bodies, culminating for present purposes in the Supreme Court judgments in Cart.

The King’s (or Queen’s) Bench

1. The supervisory role of the King’s court (curia regis), or the King’s or

Queen’s Bench Division of the High Court as it became, has a long history. A

scholarly account, tracing it back to the time of William I, is given in the judgment of Laws LJ in the Divisional Court in Cart ([2011] QB 120, paras 44ff). As he says

(para 45) the King’s Bench was established by the end of the 13th century, and

remained at the centre of the English judicial system until its powers were
transferred to the High Court in 1873.

32. As to its status, he cites, for example (paras 48-49), Groenwelt v Burnell (1700) 1 Salk 144, 90 ER 1000 per Holt CJ:

“… no court can be intended exempt from the superintendency

of the King in this Court of King’s Bench. It is a consequence

of every inferior jurisdiction of record, that their proceedings be removable into this court, to inspect the record, and see whether they keep themselves within the limits of their

jurisdiction;”

To similar effect he quotes Blackstone’s Commentaries on the Laws of England book III, Chapter 4, p 41-2 (written in 1768), describing the King’s Bench as “the supreme court of common law in the kingdom”, and as keeping “all inferior

jurisdictions within the bounds of their authority”. It is of interest to note also a later

passage (op cit p 112), in which Blackstone discussed the writ of prohibition, including its use to ensure general conformity with the law of the land. He described

the wide variety of courts subject to this supervision (ranging from “inferior courts of common law”, to “the courts Christian or the university courts, the court of

chivalry, or the court of admiralty”) and its application:

“where they concern themselves with any matter not within

their jurisdiction … or if in handling matters clearly within

their cognizance they transgress the bounds prescribed to them

by the laws of England … else the same question might be

determined different ways, according to the court in which the suit is depending: an impropriety which no wise government can or ought to endure, and which is, therefore, a ground of

prohibition.”

33.       That supervisory role was preserved by section 16 of the Judicature Act 1873

which vested the common law powers of the Queen’s Bench in the newly created
High Court. Those powers were in turn preserved by section 19 of the Senior Courts

Act 1981.

Ouster clauses

34. Authorities dating back at least to the 17th century (see eg Smith, Lluellyn v Comrs of Sewers (1669) 1 Mod 44, 86 ER 719) leave no doubt as to the hostile attitude of the High Court to attempts by statute to restrict its supervisory role. In such cases, conventional principles of statutory interpretation, based on the ordinary meaning of the words used by Parliament, have yielded to a more fundamental principle that no inferior tribunal or authority can conclusively determine the limits of its own jurisdiction.

35. It is difficult, for example, to think of a statutory ouster clause in clearer terms than that considered in R v Cheltenham Comrs (1841) 1 QB 467, 113 ER 1211. The case concerned a challenge to a decision of the Quarter Sessions on an appeal against

a rate set by the respondent Commissioners. The Commissioners’ objection to the

admission of certain evidence had been rejected by a majority of 11 magistrates to eight. The decision was challenged on the grounds of apparent bias (in modern terms), in that three of the 11 magistrates were partners in a company which owned a property affected by the rate. The statute provided -

“That no order, verdict, rate, assessment, judgment, conviction,

or other proceeding touching or concerning any of the matters aforesaid, or touching or concerning any offence against this Act, or any by-law or order to be made in pursuance thereof, shall be quashed or vacated for want of form only, or be removed or removable by certiorari, or any other writ or

process whatsoever, into any of His Majesty’s Courts of

Record at Westminster; any law or statute to the contrary

thereof in anywise notwithstanding.”

Upholding the challenge, Lord Denman CJ said of the ouster clause:

“… the clause which takes away the certiorari does not

preclude our exercising a superintendence over the proceedings, so far as to see that what is done shall be in pursuance of the statute. The statute cannot affect our right and duty to see justice executed: and, here, I am clearly of opinion

that justice has not been executed.” (p 1214)

36. A possible justification of that principle was given by Farwell LJ in R v Shoreditch Assessment Committee, Ex p Morgan [1910] 2 KB 859, 880:

“Subjection ... to the High Court is a necessary and inseparable

incident to all tribunals of limited jurisdiction; for the existence of the limit necessitates an authority to determine and enforce it: it is a contradiction in terms to create a tribunal with limited

jurisdiction and unlimited power to determine such limit at its

own will and pleasure - such a tribunal would be autocratic, not limited - and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non-

existence of its own jurisdiction is founded on law or fact …”

(Emphasis added)

This passage was cited with approval in Anisminic itself by both Lord Pearce ([1969] 2 AC 147, 197), and Lord Wilberforce (ibid pp 208-209), the latter describing it (perhaps somewhat grudgingly) as -

“… language which, though perhaps vulnerable to logical

analysis, has proved its value as guidance to the courts, …”

He put the same idea in his own words:

“The courts, when they decide that a ‘decision’ is a ‘nullity’,

are not disregarding the preclusive clause. For, just as it is their duty to attribute autonomy of decision of action to the tribunal within the designated area, so, as the counterpart of this autonomy, they must ensure that the limits of that area which have been laid down are observed ... In each task they are carrying out the intention of the legislature, and it would be misdescription to state it in terms of a struggle between the courts and the executive. What would be the purpose of

defining by statute the limit of a tribunal’s powers if, by means

of a clause inserted in the instrument of definition, those limits

could safely be passed?” (p 208B)

37. More recent authority has affirmed the continuing relevance of this strong interpretative presumption against the exclusion of judicial review, other than by “the most clear and explicit words” (Cart [2011] QB 120, para 31, per Laws LJ;

citing Denning LJ in R v Medical Appeal Tribunal, Ex p Gilmore [1957] 1 QB 574, 583, and Lord Phillips MR in R (Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475, para 44). As those cases show, this presumption has been applied without distinction to decisions of inferior courts (such as the County Court)

and of tribunals, even if designated as “superior courts of record” (like the Upper

Tribunal).

Errors of law

38. In so far as those authorities were concerned with errors going to jurisdiction in the traditional sense, they were relatively uncontroversial. The review of errors of law was more problematic. Professor Paul Craig (Administrative Law 8th ed (2016), para 16-001) identifies three phases in the extension of the inherent powers of the High Court to review of decisions for error of law:

“The courts from the 16th to the 20th century used either the

collateral fact doctrine or the theory of limited review to determine the extent of control. Both theories were premised on a distinction between jurisdictional and non-jurisdictional issues, although they drew the divide differently. The assumption was that a jurisdictional error of law was reviewable, but a non-jurisdictional error of law was not, unless the error of law was on the face of the record. The divide between jurisdictional and non-jurisdictional error was,

however, always fraught with difficulty …

The modern approach, which dates from the latter part of the 20th century, rejected the jurisdictional/non-jurisdictional divide. The starting assumption is that all errors of law are subject to judicial review and that the reviewing court will substitute judgment for that of the primary decision-maker on such issues.

This approach avoids the difficulties of the jurisdictional/non- jurisdictional divide. There are, however, difficulties with the modern approach. It is based on the twin assumptions that reviewing courts should substitute judgment on all such legal issues and that this is the only way to maintain control over the organs of the administrative state.

The courts have more recently signalled variation in the test for

review primarily in the context of decisions made by tribunals.”

The first phase is now of no more than historical interest. The second refers to the major change brought about by Anisminic itself, as interpreted in later cases. The last sentence, as I understand it, refers to the evolution of a more nuanced approach

exemplified by the Supreme Court’s decision in Cart. I will consider them in turn in

the next sections of this judgment.

39. Before doing so, I should note the important difference between control respectively of administrative action and of the functions of lower courts or

tribunals. As Robert Craig points out in an article in Public Law (“Ouster clauses,

separation of powers and the intention of Parliament” [2018] PL 570, 572),

separation of powers dictates that administrative bodies should not be determining

“the answers to questions of law that frame their decision-making process”. He cites

the succinct statement of the “proper constitutional relationship of the executive with

the courts” by Nolan LJ in M v Home Office [1992] QB 270, 314H-315A:

“… the courts will respect all acts of the executive within its

lawful province, and … the executive will respect all decisions
of the courts as to what its lawful province is.”

That simple contrast cannot readily be applied to control of courts or tribunals. Craig distinguishes:

“… the conceptually different question of what the attitude of

the courts is and should be, to the entirely separate category of cases where there are ouster clauses protecting the exercise of

judicial functions.”

40. Accordingly, where an ouster clause can be interpreted as not excluding judicial supervision but reallocating its exercise to a different form of court or tribunal, a different constitutional analysis may be required. That indeed was the view taken of RIPA section 65(2)(a) (in relation to claims under the HRA) by Lord Brown in R (A) para 23, when dismissing a suggested parallel with Anisminic:

“Nor does Anisminic assist A. The ouster clause there under

consideration purported to remove any judicial supervision of a determination by an inferior tribunal as to its own jurisdiction. Section 65(2)(a) does no such thing. Parliament has not ousted judicial scrutiny of the acts of the intelligence services; it has simply allocated that scrutiny (as to section 7(1)(a) HRA

proceedings) to the IPT ...”

That passage was concerned solely with the allocation of the special jurisdiction under the HRA, and against the background of clear Strasbourg authority that article 6 of the Convention does not guarantee a right of appeal (see Bochan v Ukraine (No 2) (2015) 61 EHRR 14, paras 44-45). It says nothing about the correct approach to

the IPT’s jurisdiction more generally.

From Anisminic to Cart

Anisminic - the decision

41.       The claim in Anisminic arose from the sequestration of the claimants’

property by the Egyptian authorities at the time of the Suez crisis in 1956. Their claim under the relevant Foreign Compensation Order (under the Foreign Compensation Act 1950) was rejected by the Commission on the grounds that they had subsequently sold their property to an Egyptian institution, which was to be

regarded as their “successor in title” within the meaning of the Order. On its face, at

least to modern eyes, that was a straightforward issue of interpretation of the Order.

It was ultimately decided in the claimants’ favour by the House of Lords.

42. However, the process by which the case arrived at that point was far from straightforward. The procedural and legal background is described in an illuminating discussion of the case by Professor Feldman (Anisminic in perspective, in Juss and Sunkin (ed) Landmark cases in public law (Oxford 2017) pp 63ff). He explains in particular (p 70) the significance, in the absence of a reasoned decision by the Commission, of the choice of an action for a declaration, rather than certiorari:

“Anisminic

decided

to

challenge

the

provisional

determinations in an action in the High Court seeking various declarations to the effect that they were erroneous in law and nullities. Unlike an application for certiorari, this did not require the court's leave, which would almost certainly have been refused because Anisminic was unable to point to any evidence that the Commission had erred in law. The action compelled the Commission to plead its defence, which eventually disclosed an error of law.

There were disadvantages to Anisminic in pursuing a declaration rather than certiorari. First, there was no precedent for using a declaration as a remedy in such a case; the Commission argued that allowing declarations to be used in

that way might make certiorari redundant … Secondly, it

forced Anisminic to argue that any unlawfulness the company could assert made the determination void, not merely voidable, as a voidable determination would be effective unless quashed

by certiorari …”

By the time the case came to the courts, as Lord Pearce noted (p 199F), the problem

of showing an error of law “on the record” had been overtaken by the production by

the Commission of a “minute of adjudication” relied in the particulars of the

defence.

43. There were differences of emphasis between the various speeches in the House of Lords. However, for modern purposes they are less important than the interpretation of the decision in later cases. Looked at from that perspective, the case can be taken as confirming or establishing three distinct but related propositions:

i) That there is (at the least) a strong presumption against statutory exclusion of review by the High Court of any decision of an inferior court or

tribunal treated as made without jurisdiction and so a “nullity”.

ii) That for this purpose there is no material distinction between an excess of jurisdiction at the outset, and one occurring in the course of proceedings.

iii) That a decision which is vitiated by error of law (whether or not “on the face of the record”) is, or is to be treated as, made without jurisdiction and

so a nullity.

44. The first proposition, as apparent from the cases referred to above, was little more than a confirmation of well-established principles. The second could be seen as a logical step forward, or at least a clarification of the previous law (see Wade &

Forsyth Administrative Law 11th ed, p 217: “The ‘original jurisdiction’ fallacy”).

45. The third, however, was a much more radical development, in so far as a mere error of law came in due course to be treated as an excess of jurisdiction which

rendered the decision not simply open to legal challenge but “void” or a “nullity”.

Hitherto it had generally been assumed that a mere error of law by a court or tribunal in respect of an issue otherwise falling within its jurisdiction might be subject to correction on appeal, but did not take the decision outside its powers. For example, Lord Reid himself had said in a recent case:

“If a magistrate or any other tribunal has jurisdiction to enter

on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in

fact nor an error in law will destroy his jurisdiction.” (R v

Governor of Brixton Prison, Ex p Armah [1968] AC 192, 234 emphasis added)

In Anisminic (at p 171E-F) he implicitly acknowledged an apparent discrepancy between that statement and the reasoning in instant case, which he sought to explain by reference to differences between narrow and broader meanings of the word

“jurisdiction”.

1. Consideration of Lord Reid’s judgment is best begun by reference to his own

summary of the respective arguments and his response to them (pp 169-170):

“The respondent maintains that these are plain words only

capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute.

The appellants maintain that that is not the meaning of the

words of this provision. They say that ‘determination’ means a

real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if you seek to show that a determination is a nullity you are not questioning the purported determination-you are maintaining that it does not exist as a determination. It is one thing to question a determination which does exist: it is quite another

thing to say that there is nothing to be questioned.”

Lord Reid considered the application of such an ouster provision to the “simple

case” of an order made by someone appointed on the basis of a forged qualification,

and asked whether the court would be required to treat the order as valid. He
continued:

“It is a well established principle that a provision ousting the

ordinary jurisdiction of the court must be construed strictly - meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.

Statutory provisions which seek to limit the ordinary jurisdiction of the court have a long history. No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity. If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any inquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think that it is necessary or even reasonable to construe the word

‘determination’ as including everything which purports to be a

determination but which is in fact no determination at all. And there are no degrees of nullity. There are a number of reasons why the law will hold a purported decision to be a nullity. I do not see how it could be said that such a provision protects some kinds of nullity but not others: if that were intended it would be

easy to say so.”

47. He went on to give a list of examples of the ways in which a decision of a tribunal, acting within its original jurisdiction may be treated as a nullity:

“It has sometimes been said that it is only where a tribunal acts

without jurisdiction that its decision is a nullity. But in such

cases the word ‘jurisdiction’ has been used in a very wide

sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it

rightly …” (p 171B-E)

48. It is noteworthy that the list did not include a simple error of law or misconstruction of the statute. It must have been a misconstruction of the

“provisions giving it power to act”, as a result of which it has “decided some

question which was not remitted to it” or “based its decision on some matter which … it had no right to take into account”. Later in the speech he applied that approach

to the instant case. The Commission had construed the order (wrongly as it was held) as requiring them, having identified the original owner, to inquire whether he had a successor in title. Lord Reid explained how that error of law could render the

decision a “nullity”:

“But if, on a true construction of the Order, a claimant who is

an original owner does not have to prove anything about successors in title, then the commission made an inquiry which the Order did not empower them to make, and they based their decision on a matter which they had no right to take into

account …

… if they reach a wrong conclusion as to the width of their

powers, the court must be able to correct that - not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal.

… they are doing something which they have no right to do

and, if the view which I expressed earlier is right, their decision

is a nullity …” (pp 173H-174E emphasis added)

49.       Lord Pearce adopted a similar approach. As he put it:

“If … the commission by misconstruing the Order in Council

which gave them their jurisdiction and laid down the precise limit of their duty to inquire and determine, exceeded or departed from their mandate, their determination was without

jurisdiction …” (p 201C)

50. Lord Wilberforce, who gave the only other substantive speech on this issue,

also looked for something beyond a simple error of law. This was against the
background that, as he put it:

“In every case, whatever the character of a tribunal, however

wide the range of questions remitted to it, however great the permissible margin of mistake, the essential point remains that the tribunal has a derived authority, derived, that is, from statute: at some point, and to be found from a consideration of the legislation, the field within which it operates is marked out

and limited.”(p 207D)

The error had to be one which took the tribunal outside its “permitted field”, leading

to the decision being a “nullity” (a term which he thought “convenient … as a word

of description rather than as in itself a touchstone”) and so outside the reach of the

ouster clause (p 208A-B). In the instant case the statute had enabled the Order in Council to make provision for defining the persons qualified to make applications for the purpose of establishing claims and prescribing the matters to be established by them. Such definitions and prescribed matters, in his view, would be

“architectural directions binding the commission”, departure from which would

mean that it would be acting beyond its powers (p 211D-G). Having examined the Order in detail, and explained why, on a proper construction, all the relevant conditions had been satisfied, he concluded:

“As … all these conditions were fulfilled to the satisfaction of

the commission, the appellants’ claim was in law established;

the commission by seeking to impose another condition, not warranted by the Order, was acting outside its remitted powers and made no determination of that which alone it could

determine.” (p 214E)

Anisminic - interpretation and comment

51. As Professor Feldman observes (op cit pp 92-93), the significance later attached to the decision in Anisminic, and in particular to the statement in Lord

Reid’s judgment of the matters leading to “nullity”, may not have been apparent at

the time:

“The ratio of the House of Lords decision was relatively narrow

…, but what landmark cases decide and what they are later

regarded as authority for may be very different.”

Lord Reid’s statement had been “particularly influential” as the basis “for extending

the theory and practice of judicial review well beyond anything justified by the

ratio”. He also argues with some force that the passage reflects an uncharacteristic

gap in logic:

“Lord Reid leapt, apparently without noticing, from

uncontroversial general propositions about circumstances in which certiorari would be available to quash a decision in the

absence of any provision excluding the court’s jurisdiction, to

a judgment about the effect of a very particular sort of error (denying eligibility for compensation for failing to comply with a condition which the legislation had not imposed) in a case where, because a declaration rather than certiorari was sought and, because of the effect of section 4(4) of the 1950 Act, it was essential to show that the challenged determination was not

merely erroneous but null.”

52. Whatever doubts there may have been initially or since as to the interpretation or practical implications of Lord Reid’s words, and of the other majority speeches

in Anisminic, such doubts have been dispelled by a series of statements in subsequent cases at the highest level, led by Lord Diplock. Professor Feldman (p

94) notes that at an early stage Lord Diplock’s own views of the case, as expressed

extra-judicially, had progressed from a relatively cautious response in 1971 to a

much more absolute view, as expressed in a 1974 lecture, that the decision had -

“render(ed) obsolete the technical distinction between errors of

law which go to ‘jurisdiction’ and errors of law which do not.”

He also notes the influence of successive Junior Treasury Counsel in “set(ting) the

tone for arguments advanced to the courts on behalf of Government Departments

…” (see also para 80 below). Sir Stephen Sedley has spoken in similar terms of the

contribution of Treasury Counsel, and of the process by which a consensus has
emerged:

“It has come about … neither by legislation nor by precedent

but by an organic process in which the law’s practitioners and

its exponents have agreed on which way the common law should be travelling and have found a serviceable if not

particularly suitable vehicle to transport it.” (Sedley “The lion

behind the throne: the law as history” [2016] JR 289, paras 14,

22)

53.       The problem is that this move outside the limitations carefully set by the

Anisminic speeches may have undermined much of their conceptual basis. I shall return to this problem when addressing the second issue.

O’Reilly v Mackman and after

54. It was not until 1982 that the broader view was given unambiguous judicial endorsement by the House of Lords, when Lord Diplock summarised the effect of

Anisminic in O’Reilly v Mackman [1983] 2 AC 237, 279) in a speech agreed by the

other members of the House:

“The breakthrough that the Anisminic case made was the

recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie, one into which it was not empowered to inquire and so had no

jurisdiction to determine. Its purported ‘determination’, not

being a ‘determination’ within the meaning of the empowering

legislation, was accordingly a nullity.”

In other words, a determination arrived at on an erroneous view of the relevant law

was not a “determination” within the meaning of an ouster clause such as in

Anisminic. Arguments about differences between jurisdictional and non- jurisdictional errors of law had become redundant.

55. Later cases have confirmed this interpretation. Thus in R v Hull University

Visitor, Ex p Page [1993] AC 682, concerning a challenge to the decision of a
University Visitor, Lord Browne-Wilkinson said (at pp 701-702):

“Anisminic … rendered obsolete the distinction between errors

of law on the face of the record and other errors of law by extending the doctrine of ultra vires. Thenceforward it was to be taken that Parliament had only conferred the decision- making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision

therefore rendered the decision ultra vires.”

56. To similar effect, in Boddington v British Transport Commission [1999] 2 AC 143, 158D-E, which related to the validity of a by-law, Lord Irvine LC said:

“The Anisminic decision established, contrary to previous

thinking that there might be error of law within jurisdiction, that there was a single category of errors of law, all of which rendered a decision ultra vires. No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law. An ultra vires act or subordinate legislation is unlawful simpliciter and, if the presumption in favour of its legality is overcome by a litigant before a court of

competent jurisdiction, is of no legal effect whatsoever.”

Lord Browne-Wilkinson agreed (p 164), subject to reservations as to the legal

consequences of such an ultra vires act “during the period between the doing of that

act and the recognition of its invalidity by the court” (as to which see De Smith’s Judicial Review 8th ed (2018), paras 4-067ff: “The effect of a judgment that a decision is unlawful”).

57. More recently, Lord Irvine’s words were in turn cited by Lord Dyson (Lumba

v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245,

para 66) to support the statement:

“The importance of Anisminic is that it established that there

was a single category of errors of law, all of which rendered a

decision ultra vires.”

It is right to note the reservations expressed about this simple statement by some other members of the court in Lumba. Thus Lord Walker (para 193), while

acknowledging Anisminic as a “seminal case” in the development of modern public law, observed that “its full implications are still open to debate”. However, his main

concern was the extension of that concept to the “far removed” context of a private

law claim for damages for false imprisonment, as was in issue in Lumba. I do not

read his remarks as throwing doubt on Lord Dyson’s summary, when applied to

review of the legality of subordinate decisions as in the present case.

58. It must be acknowledged in any event that the Anisminic principle, however defined, has not been treated as necessarily applicable outside its particular context. An example is In re McC [1985] AC 528. The issue was whether the justices, in deciding to detain a juvenile without first informing him of his right to legal aid, had

acted “without jurisdiction or in excess of jurisdiction” within the meaning of

section 15 of the Magistrates’ Courts (Northern Ireland) Act 1964, so as to remove

their immunity from civil liability for false imprisonment. Although this question was answered in the affirmative on the facts of the case, this did not depend on any

application of Anisminic. Lord Bridge commented on the “many different shades of meaning in different contexts” acquired by the word “jurisdiction”, noting “at one

end of the spectrum” the majority decision in Anisminic (p 536B-H). He regarded it

as irrelevant to the section before him, however valuable it might be in ensuring that

“the supervisory jurisdiction of the superior courts over inferior tribunals is effective

to secure compliance with the law …” (p 546G).

The evolving role of the High Court

59. In considering the development of the law since Anisminic it is necessary to take account both of the major changes in the supervisory role of the High Court as respects public bodies of all kinds (both administrative and judicial or quasi- judicial), including the 1979 reforms which established judicial review in its modern form; and also of the changes in the relationship between the traditional courts and specialist tribunals.

60. The development in this period of judicial review is well described in De Smith op cit para 4-006-7:

“Over the last 40 years its scope has developed dramatically. It

has grown from being little more than a method of correcting the errors of law of inferior courts to its present eminence as the remedy for protecting individuals against unlawful action by the Government and other public bodies.

In the early 1970s this was the staple diet of the Divisional Court of the Bench Division of the High Court. This Court alone had the power to grant the prerogative remedies of certiorari, mandamus and prohibition. The importance attached to this power was demonstrated by the fact that the Divisional Court was usually presided over by the Lord Chief Justice of the day sitting with two other High Court Judges. The Court had direct historical links to the role of the High Court Judges

of the Queen’s Bench Division who, from the Middle Ages,

exercised the authority of the monarch to keep the peace and uphold law and order. The prerogative writs together with inherent jurisdiction derived from their association with the monarch gave them wide discretionary powers. Those powers still play a role in claims for judicial review today.

As a result of reforms in 1979, in addition to the prerogative orders being available to the judges of the new Court, the

judges hearing cases on the ‘Crown Office List’ (the progenitor

of the Administrative Court created in 2000) were also able to grant the declarations and injunctions which were the tools used by the judges of the Chancery Division when supervising the activities of public bodies. Declarations and injunctions, like the prerogative orders, were discretionary remedies. The powers to provide both sets of remedies meant that judicial review became a very effective method of upholding the rights of the individual against public bodies. This also meant that the technicalities relating to the grant of the prerogative remedies

receded in importance.”

61. Anisminic also proceeded against the background of a reasonably clear division in the legal hierarchy between, on the one hand, the unlimited supervisory jurisdiction of the High Court, exercised by the Divisional Court usually presided over by the Lord Chief Justice, and, on the other, the limited jurisdictions of inferior courts or tribunals (or other adjudicative bodies, such as the Foreign Compensation Commission). For this purpose, no distinction was drawn in the authorities between the different forms of limited jurisdiction, or in particular between courts below the High Court and statutory tribunals. However, the period between Anisminic and the decision of the Supreme Court in Cart saw major changes in this traditional relationship between the High Court and other adjudicative bodies.

Racal Communications

62.       It is convenient at this point to refer to the decision of the House of Lords in

In re Racal Communications Ltd [1981] AC 374 (“Racal”), to which Lord Sumption

attaches some importance. As I understand it, he sees it and related cases as

illustrating the proposition, which he derives from Lord Wilberforce’s speech in

Anisminic (at p 207), that the key issue when considering the scope of an ouster

clause is to define the “the permitted field” of the relevant adjudicative body, that

being identified by a careful analysis of the interpretative power conferred by the
enabling Act.

63. Racal itself concerned a challenge to the decision of a High Court judge exercising a statutory jurisdiction (under the Companies Act 1948 section 441) to authorise inspection by the Director of Public Prosecutions of company books for the purpose of investigating a suspected offence. Section 441(3) provided that the

decision of the High Court judge on such an application “shall not be appealable”.

The judge had dismissed an application by the Director on legal grounds, but the Court of Appeal had reversed his decision holding that it was entitled to do so because he had made an error of law which went to his jurisdiction. The House of

Lords allowed the company’s appeal.

64. The case has attracted some attention for the distinction drawn by Lord Diplock in the context of ouster clauses between, on the one hand, “administrative tribunals and authorities” and, on the other, “courts of law”. Having confirmed that

as respects the former the decision in Anisminic had effectively abolished “the old

distinction between errors of law that went to jurisdiction and errors of law that did

not”, he continued:

“But there is no similar presumption that where a decision-

making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by

any such presumption …” (p 383)

He went on to refer more specifically to the position of the High Court, as in the instant case. There was an obvious distinction between such a jurisdiction conferred

by statute on a court of law of limited jurisdiction, and one conferred “on the High

Court or a judge of the High Court acting in his judicial capacity”:

“The High Court is not a court of limited jurisdiction and its

constitutional role includes the interpretation of written laws.

… Judicial review is available as a remedy for mistakes of law

made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the

judge’s decision shall not be appealable, they cannot be

corrected at all.” (p 384)

65. As I see it, this distinction is of no assistance to the case of the Interested Parties, since there is nothing to suggest that Lord Diplock would have regarded the IPT, notwithstanding its distinguished composition, as anything more than an

“administrative tribunal” within his classification. On that assumption Lord

Diplock’s speech supports the widest reading of the Anisminic decision as later

confirmed in O’Reilly v Mackman. In any event I do not see that part of his reasoning

as having majority support. As I read the speeches overall, it was the latter point, turning on the position of the High Court, rather than of courts more generally,

which provided the ratio of the House’s decision. Although Lord Keith agreed without qualification with Lord Diplock’s reasoning, his suggested distinction

between courts in general and tribunals was not expressly endorsed by the other members of the House. Lord Edmund-Davies made no specific reference to this

point. Lord Salmon spoke of the decision in Anisminic as confined to “decisions made by commissioners, tribunals or inferior courts”, drawing no distinction

between them. He based his decision on the fact that the jurisdiction of the Court of

Appeal was defined by statute, which gave it “no jurisdiction to make a judicial

review of a decision of the High Court” (p 386). To similar effect, Lord Scarman (at

p 393) relied on the fact that the Court of Appeal’s jurisdiction over the High Court

was “the creature of statute”, and in no way analogous to the supervisory jurisdiction

of the High Court over inferior tribunals.

1. Ms Rose goes as far as to submit that this part of the speech was “not only

obiter but per incuriam”. There is force in this submission. As far as appears from

the Appeal Cases report, the suggested distinction between courts and tribunals was not raised in argument and no relevant authorities were referred to in support, either by counsel or by Lord Diplock. His approach seems out of line with the long series of authorities cited by Laws LJ in his historical review in Cart, where it was

emphasised that the jurisdiction of the King’s Bench Division extended to all

inferior jurisdictions without distinction, including courts: a view well illustrated by

Blackstone’s description of the range of courts within the scope of the writ of

prohibition (paras 31-32 above). As Laws LJ said (commenting in terms on the

speeches in Racal):

“The true contrast is between the High Court of the one hand

and courts of limited jurisdiction on the other …” (Cart [2010]

2 WLR 1012 at para 68)

On this approach no principled distinction can be drawn between the Foreign Compensation Commission and the IPT, or indeed the Upper Tribunal in Cart. All were or are inferior jurisdictions, equally subject to the supervision of the High Court.

67. It is true that this part of Lord Diplock’s speech has been cited with approval in later cases: see per Lord Browne-Wilkinson in R v Hull University Visitor, Ex p Page [1993] AC 682, 703 (relating to University Visitors), and more recently per Lord Mance in Lee v Ashers Baking Co Ltd [2018] 3 WLR 1294, paras 85-87. But this point was not essential to the reasoning in either case. In Page, Lord Browne

Wilkinson held that the High Court could not review a university visitor’s decision

for a non-jurisdictional error of law. However, he did so on the basis of common law principles that treat the visitor as equivalent to an arbitrator designated by the internal governance arrangements of a university (p 607, citing Holt CJ in Philips v Bury, (1694) Holt 715, 723-726).

68. Lee also was concerned with a quite different issue: that is, the finality of the statutory appellate jurisdiction of the Northern Ireland Court of Appeal on appeal from the County Court. It had nothing to do with the exclusion of the original jurisdiction of the High Court in respect of inferior courts or tribunals. As Lord Mance explained (para 88) it turned on the construction of article 61(1) and (7) of the County Courts (Northern Ireland) Order 1980, which provided for the decision

of the Court of Appeal on a case stated relating to “the correctness of ‘the decision

of a county court judge upon any point of law’” to be final - wording which was

“focused on the decision on the point of law, not on the regularity of the proceedings

leading to it”. He therefore found no difficulty in holding that the exclusion would

not extend to a challenge to the fairness or regularity of the court’s process.

69. Lord Sumption also attaches importance to the fact that in Racal there was majority approval (Lords Diplock, Keith and Edmund-Davies) of the dissenting judgment of Geoffrey Lane LJ in Pearlman v Keepers and Governors of Harrow School [1979] QB 56, 76C-D. The same passage had recently been cited with approval by the Privy Council (including Lord Edmund-Davies) in South East Asia

Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees

Union [1981] AC 363.

70.       In Pearlman the Court of Appeal by a majority allowed an appeal from the

County Court in a case turning on the construction of a particular phrase (“structural

alteration … or addition”) in the Housing Act 1974. This was in the face of a provision of that Act by which the decision of the County Court was to be “final and conclusive”, and a provision (section 107) of the County Courts Act 1959 that -

“no judgment or order of any judge of county courts ... shall be

removed by appeal, motion, certiorari or otherwise into any

other court whatever …”

71. It is a difficult case, not least because the majority judgments seem to have borne little relationship to the arguments as presented. The scope of the argument, as Geoffrey Lane LJ noted, had been constrained by concessions made on either side (without specific reference to Anisminic): on the one hand by counsel for the landlord that the section did not affect the power of the High Court to quash a

decision of the county court made “in excess of jurisdiction”, although it did exclude

the power to quash for errors of law on the record; and on the other by counsel for

the tenant that the particular decision had been made within the judge’s jurisdiction

(see pp 60G, 62D, 74A, 76H). There seems therefore to have been only limited
reference to Anisminic in argument (see p 64G).

72. However, in the leading judgment, Lord Denning MR took his own view of the construction of the no certiorari clause in the County Courts Act, holding that it applied only to decisions under jurisdiction conferred by that Act (p 68H). He also took the opportunity for an extended discussion of the difficulties of interpretation arising from Anisminic, concluding:

“The way to get things right is to hold thus: no court or tribunal

has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes

outside its jurisdiction and certiorari will lie to correct it.” (p

70E)

Eveleigh LJ (pp 76ff) gave a judgment in substance agreeing with Lord Denning MR’s interpretation of Anisminic and of the no certiorari clause in the County Courts

Act.

73. It was in this context (evidently in response to the judgments of his colleagues rather than the arguments of counsel) that Geoffrey Lane LJ reviewed the speeches in Anisminic, and concluded (in the passage later cited with approval by the Privy Council and the House of Lords):

“I am, I fear, unable to see how that determination, assuming it

to be an erroneous determination, can properly be said to be a determination which he was not entitled to make. The judge is considering the words in the Schedule which he ought to consider. He is not embarking on some unauthorised or extraneous or irrelevant exercise. All he has done is to come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a

wrong decision on a point of law.” (p 76C-D)

74. These references do not in my view materially assist the arguments in the present case on either side. All three cases (Pearlman, South East Asia and Racal) were products of their time. They came at a relatively early stage in the evaluation by the courts of the Anisminic principle. They also reflected a degree of tension between different levels of the judiciary as to the way forward. In this respect Lord

Denning’s proposed interpretation seems closer to subsequent authority than that of

the dissenting judgment, although his interpretation of the ouster clause seems more questionable, and the minority view might be supported on other grounds (discussed below, under the second issue).

Specialist tribunals

75. By the time of Racal it was in any event difficult to make a principled distinction between courts and tribunals by reference only to nomenclature. Parliament had already blurred the distinction when establishing in 1975 the Employment Appeal Tribunal presided over by a High Court judge, with a jurisdiction limited to appeals on points of law (Employment Protection Act 1975

sections 87-88). It was designated in terms as “a superior court of record” (Schedule

6 paragraph 10). In this respect as in others it followed the precedent of the National Industrial Relations Court (Industrial Relations Act 1971 Schedule 3 paragraph 13).

76. As is apparent from the authorities cited by Laws LJ in Cart (paras 61-62) the accepted wisdom for many years, indeed until the decision of the Divisional Court in that case, was that such designation as a superior court of record was in itself sufficient to exclude judicial review by the High Court. He cites, for example,

R v Regional Office of the Employment Tribunals (London North), Ex p Sojirin

(unreported) 21 February 2000, in which Sedley LJ (with whom Brooke LJ and Sir

Christopher Staughton agreed) stated:

“So far as the Employment Appeal Tribunal is concerned, it is

a superior court of record against which judicial review simply

does not lie.”

The same thinking was initially assumed to apply to the Upper Tribunal. Laws LJ cited De Smith Judicial Review 6th ed (2007), para 1-093:

“The Administrative Court will have no role at all in relation to

decisions of the Upper Tribunal, which as [a] superior court of

record falls entirely outside the supervisory jurisdiction.”

Indeed, (as Lord Dyson noted in Cart in the Supreme Court - [2012] 1 AC 663 at para 117), Sir Andrew Leggatt in his report Tribunals for Users - One System, One Service (2001) (at para 6.31-34), had identified this as one possible means of excluding judicial review. This was not his preferred solution, principally because

he saw it as “an artificial way of tackling the problem, which would blur the clear

distinction we wish to achieve between the courts and the Tribunals System”. His

preference was for exclusion of judicial review by express statutory provision.

77.       It was not until Cart itself in the Divisional Court that this view of designation

as a “superior court of record” was rejected as “a constitutional solecism”, when set

against the principle that the supervisory jurisdiction of the High Court (if it can be

ousted at all) can only be ousted “by the most clear and explicit words” (para 37 above). Laws LJ did however accept that the Upper Tribunal was “for relevant purposes, an alter ego of the High Court”, and that as such it:

answer to the second question, with a view to answering “no” to the first question

and thus avoiding the need to answer the second question. In my respectful view this is the temptation to which in analogous circumstances in the Anisminic case the appellate committee gave way in 1968. I agree with Sir John Laws - see para 81 above - that the committee there picked a fig-leaf with which it attempted to hide the essence of its reasoning. For proper recourse to the presumed intention of Parliament cannot justify straining the meaning of statutory words too far. The committee thereby set up 50 years of linguistic confusion for all of us who have been heirs to its decision. We should finally dispel that confusion but, in doing so, should, in answer to the first question, strive not to set up other strained meanings productive

of different confusion for those who will wrestle with today’s judgments.

215. Omitting at this stage its strengthening words in parenthesis, section 67(8) says that, save as the Secretary of State may by order otherwise provide, decisions

of the IPT should not be subject to appeal “or be liable to be questioned in any

court”. On the face of it, what could be clearer? The obvious place for them to be

“questioned” is the High Court in the exercise of its jurisdiction to conduct judicial

review. Those words appear to exclude judicial review. Parliament recognised, however, that, contrary to their appearance, they alone were not enough to exclude it.

216.     The problem was the decision in the Anisminic case.

217. Section 4(4) of the Foreign Compensation Act 1950 (“the 1950 Act”)

provided, in terms which were to that extent identical to those in section 67(8), that

“the determination by the [Foreign Compensation Commission] of any application

made to them under this Act shall not be called in question in any court of law”. The

commission had made a determination that the company was not entitled to compensation for the sequestration of its property in Egypt because of its failure to have complied with one of the perceived conditions of entitlement prescribed by an Order in Council. A majority of the appellate committee held that the commission had misconstrued the condition and upheld a declaration that the company was entitled to compensation. With respect to the distinguished members who formed the majority of the committee, I find it impossible to disagree with the dissenting

conclusion of Lord Morris of Borth-y-Gest at p 194 that the commission’s error, albeit one of law, was not in excess of its “jurisdiction” - as properly understood. In

what follows it will be convenient to describe that sort of error as an ordinary error
of law.

218.     The majority, however, held otherwise. Relying heavily on the policy reasons

in favour of judicial supervision of some of the commission’s determinations, they

worked backwards to the meaning of the word “determination” in section 4(4). As

Lord Carnwath, borrowing a point made by Professor Feldman, observes in para 42

above, the company’s claim was only for a declaration rather than for an order of certiorari to quash the commission’s determination; so, if the claim was to prevail,

the majority needed to conclude that the determination was a nullity and could thus

be so declared. At all events they held that the word “determination” in the

subsection did not include a mere purported determination. In describing it they deployed different terms which in my view amount to the same thing. Lord Reid at

pp 170, 174 and 175 preferred to describe it as a “nullity”. He observed at p 171 that

it was preferable not to use the word “jurisdiction” except in the narrow sense of a

disentitlement to embark on the inquiry but then at p 174 he used that word in the wide sense in holding that the commission had exceeded it. Lord Pearce described it at pp 195 and 201 as a determination made in excess of jurisdiction, as did Lord

Pearson at p 215. Lord Wilberforce suggested at p 207 that the words “jurisdiction”,

“error” and “nullity” created problems and at p 208 he expressed a preference for

describing it as “a decision made outside the permitted field”.

219.     There is no difficulty in understanding the decision of the majority in the

Anisminic case that, by section 4(4), Parliament had not precluded review of determinations which were truly nullities, in excess of jurisdiction or outside the permitted field. They might well have reached that conclusion irrespective of the meaning of the words in the subsection: see para 236 below. Had they studied in greater detail the institutional features of the commission, they might also have held that, again irrespective of the meaning of the subsection, Parliament had not even precluded review of its ordinary errors of law, such as the one before them: see paras 237 to 252 below. The problems arise from the fact that they chose to reach their

decision by construction of the word “determination” in the subsection; and from

the way in which they strained the meaning of the words “null”, “in excess of

jurisdiction” and “outside the permitted field” so as to extend them to ordinary errors

of law which, on no previous understanding of those words, would have fallen within them. Lord Pearce at p 195 gave examples of lack of jurisdiction which demonstrate the strain:

“… or it may ask itself the wrong questions; or it may take into

account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction [and] would cause

its purported decision to be a nullity.”

Some have welcomed the extended meaning. I deprecate it.

220. On 25 November 1982 the appellate committee decided the appeals in

O’Reilly v Mackman [1983] 2 AC 237. For present purposes the facts are irrelevant.

The relevance of the decision lies in the part of the speech of Lord Diplock quoted in para 54 above. The decision in the Anisminic case, he said, was that, if a statutory

tribunal made an error of law, it must have asked itself the wrong question, “ie one … which it … had no jurisdiction to determine”. I, for my part, do not regard Lord

Diplock as having there significantly misconstrued or oversimplified that decision. He praised it. No doubt in one sense anything which enables a judicial system to overcome obstacles to its elimination of legal error deserves praise. And he evidently saw no reason to temper his praise by reference to the confusing use of language in which the decision in the Anisminic case had been cast.

221. On 14 February 1985 the Bill which became the Interception of

Communications Act 1985 (“the 1985 Act”) was published. By section 7,

Parliament established a tribunal to investigate complaints that a communication sent to or by a complainant had been unlawfully intercepted. There was an ouster of

judicial supervision of the tribunal’s decisions but in terms more comprehensive

than those in section 4(4) of the 1950 Act which had failed to exclude the supervision that the majority in the Anisminic case had held to have survived. For section 7(8) provided:

“The decisions of the Tribunal (including any decisions as to

their jurisdiction) shall not be subject to appeal or liable to be

questioned in any court.”

The IPT has replaced the tribunal set up by the 1985 Act; but, subject to the exception added to the beginning of it, section 67(8) of the 2000 Act is in terms which, for practical purposes, are identical to those of section 7(8) of its predecessor.

222.     We can now address the specific question central to the overall answer to the

first question: what is the meaning of the words “including decisions as to whether

they have jurisdiction”, written in parenthesis in section 67(8), in effect by way of

repetition of words introduced by Parliament in an analogous provision in 1985?

223. I, for my part, am in no doubt about the answer to the specific question. In 1985 Parliament, including its drafter of the 1985 Act, was aware that its attempted ouster of judicial oversight in section 4(4) of the 1950 Act had failed. In the Anisminic case the majority of the appellate committee had used different terms to describe the sort of decisions of which judicial oversight survived the ouster. But

they had been collected by Lord Diplock in the O’Reilly case into one word, namely

decisions made without “jurisdiction”. Lord Diplock had delivered his speech less

than three years prior to publication of the bill which became the 1985 Act.

224. Necessarily considered in their context, the meaning of the words in parenthesis in section 7(8) of the 1985 Act, now replicated in section 67(8) of the 2000 Act, is surely to encompass within the exclusion of judicial supervision all the

decisions of the IPT in relation to its “jurisdiction”; and to ascribe to that word the

strained extension of its effect adopted in the Anisminic case so as to cover ordinary errors of law as well, of course, as errors in the proper sense of it. The initial presumption that Parliament did not intend such an exclusion and the need in consequence for a strict construction of the subsection have to yield to what I consider to be the only reasonable meaning of its words, which is to the contrary.

225. Support for the above comes from a distinguished source. At the time of the

passing of the 1985 Act Professor David Foulkes wrote the notes to it for Current
Law Statutes. Of section 7(8), he wrote:

“This subsection will be of interest. It is intended to and

appears to be effective in making the Tribunal decisions wholly

judge-proof. The reference to ‘jurisdiction’ excludes even the
Anisminic line of argument.”

226. It follows that, with regret, I cannot subscribe to the interpretation of the

words in parenthesis in section 67(8) favoured by Lord Carnwath. His argument is
in the alternative.

227.     His first argument, set out in para 108 above, is predicated on what I have

described as the proper sense of the word “jurisdiction” in the words in parenthesis.

He says correctly that the appellant’s contention is that the IPT made an ordinary

error of law. So, he says, it escapes the exclusion of decisions in relation to jurisdiction provided by the words in parenthesis. But why would it escape the exclusion in the earlier words of the subsection? Where would be the logic in excluding from judicial oversight errors of jurisdiction in the proper sense, but not ordinary errors of law?

1. Lord Carnwath’s alternative argument, set out in para 109 above, with which

Lord Lloyd-Jones agrees in para 165 above, is predicated on the extended sense

ascribed to the word “jurisdiction” in the Anisminic case. Here his argument is that decisions made without “jurisdiction” in that extended sense are not decisions at all

so are not excluded from judicial oversight by a subsection which refers both inside

and outside the parenthesis only to “decisions”. In my opinion the argument is

characteristically ingenious but too strained. It also proves too much, as becomes clear when in para 110 above Lord Carnwath seeks to ascribe some meaning to the words in parenthesis. He cites a decision of the IPT, namely C v The Police IPT/03/32/H in which, as I agree, the applicant failed because he failed to establish

a fact upon which the existence of its jurisdiction depended (“a jurisdictional fact”).

Lord Carnwath suggests that the words in parenthesis might exclude judicial

oversight of the IPT’s determination of the absence (or presence?) of a jurisdictional

fact. But why would that not be a decision made without “jurisdiction” in the

extended sense of that word, as well of course as in its proper sense? In any event I see no basis for confining the wide words in parenthesis to that narrow area of the

IPT’s decision-making. Indeed why should such a determination have been singled

out as fit for exclusion from any judicial inquiry into the existence of evidence which
entitled the IPT to make it?

229. Then, in para 111 above, Lord Carnwath observes that, irrespective of whether either of his constructions of section 67(8) is correct or whether the words in parenthesis are redundant, the words of the subsection are insufficiently clear to

exclude judicial review of the IPT’s errors of law; and his observation echoes his

earlier suggestion in paras 107 and 108 above that the only clear exclusion achieved by the subsection is of legally valid determinations. With respect, I consider the words of the subsection to be totally clear in excluding judicial review of all the

IPT’s decisions; and an exclusion of judicial review in relation only to legally valid

determinations seems to me to make no sense.

230. It also follows that, with equal regret, I cannot subscribe to the interpretation

of the words in parenthesis in section 67(8) favoured by Lord Sumption in para 201
above, which he had foreshadowed in para 172 above.

1. The effect of Lord Sumption’s interpretation is in my view further to extend

the meaning of the word “jurisdiction” beyond that favoured in the Anisminic case.

The effect of that case had been to draw into the concept of an absence of jurisdiction ordinary errors of law as well, of course, as errors of jurisdiction in the proper sense.

Lord Sumption interprets the word “jurisdiction” in the words in parenthesis so as

to relate only to ordinary errors of law and so as no longer to include errors of jurisdiction in the proper sense. His argument depends upon the words which

immediately follow the parenthesis, namely the words “shall not be subject to

appeal”. He observes that ordinary errors of law could in principle be the subject of

an appeal and, by some alchemy if I may respectfully say so, he reasons that these words which exclude an appeal therefore limit the meaning of the word

“jurisdiction” in the parenthesis to ordinary errors of law. In my opinion the

argument is again characteristically ingenious but too strained. Had Parliament’s

intention been to allow judicial review of the IPT’s errors of jurisdiction in the

proper sense, it would not have borrowed from the 1985 Act words in parenthesis which, on any conventional construction of them, so obviously appear to exclude it.

232. It is worth noting that the exclusion of an appeal achieved by the words upon which Lord Sumption relies is subject to the exception in the opening words of

section 67(8), namely the words “Except to such extent as the Secretary of State may

by order otherwise provide …”. It is significant that, even prior to its recent insertion

into the 2000 Act of section 67A, Parliament considered that there should be, or at least could properly be, a facility for appeal against the decisions of the IPT, including no doubt against its jurisdictional decisions as well as its ordinary decisions of law. Parliament recognised however that any facility for appeal required the establishment of a confined structure apt to the sensitivity of the subject-matter

of the IPT’s decisions. It thus provided in section 67(10) that any order made by the

Secretary of State pursuant to the opening words of section 67(8) might include various types of provision. These include provisions at (a) for establishing a body to hear such appeals or at (c) for conferring jurisdiction to hear them on an existing court or tribunal and, in either event, at (d) for making rules in relation to the conduct of the appeals corresponding to the rules of the IPT. At that time, however, Parliament decided, as the opening words make plain, to confer upon the Secretary of State a discretion whether to establish the structure which would have enabled the appeals to be brought; and, for reasons unexplained, he has never exercised his discretion to do so. Nevertheless, for the drafter of section 67(8), it was important not to permit an appeal from the IPT to be brought outside the confined structure which Parliament envisaged. So it was essential first to retain the general exclusion of an appeal which had been provided in section 7(8) of the 1985 Act and then to subject it to the limited exception reflected in the opening words of the subsection. I find it hard to imagine that Parliament countenanced the facility for some other review of the decisions of the IPT outside the confined structure for which it was making provision.

233.     Driven, as I am, to the view there is no defensible escape from giving to the

first question the answer “yes”, I am required to proceed to address the second

question; and, in doing so I must exercise a degree of caution apt to its constitutional
delicacy.

234. At this stage, however, it is crucial to bear in mind that the complaint of which the appellant seeks judicial review is that the IPT made an ordinary error of law.

235. The appellant does not complain that the IPT lacked jurisdiction (in its proper sense) to determine its claim. Nor does it complain that the IPT denied to it the right to a fair hearing. A denial of a fair hearing, in particular of natural justice, is either an example of an absence of jurisdiction (Attorney General v Ryan, cited in para 123 above, p 730) or should at any rate be placed in that class for present purposes (the Cart case, Supreme Court, [2011] UKSC 28, [2012] 1 AC 663, para 38).

236. Had the complaint been one of lack of jurisdiction, it would have been necessary for me to undertake, albeit more slowly, the journey which Lord Carnwath valuably, albeit for his purposes unnecessarily, undertakes in paras 114 to 126 above. The modern signpost most helpful to me would surely have been found in the classic judgment of Laws LJ in the Cart case, Divisional Court, [2009] EWHC 3052 (Admin), [2011] QB 120, in particular in para 38, which Lord Sumption sets out in para 190 above. In section 65(2) of the 2000 Act Parliament has specified the

limits of the IPT’s jurisdiction. So the question would have become whether, when

it chooses to make a law which sets the limits of a jurisdiction, Parliament can elsewhere deprive it of an essential element of a law, namely that observance of its limits will be enforced in the courts. At first sight there is much to be said for Lord

Carnwath’s answer in paras 119 to 126 above that it cannot do so.

237. But in my view such an answer is far less easily given to the second question if recast so as to address only Parliament’s exclusion of judicial review of an

ordinary error of law. In relation to this more limited question Lord Carnwath, albeit

for his purposes again unnecessarily, reasons in para 131 above “that it is ultimately

for the courts, not the legislature, to determine the limits set by the rule of law to the

power to exclude review”; and he observes in para 144 above that it should remain

ultimately a matter for the court to determine the extent to which, in the light of its purpose and context and the nature and importance of the legal issue in question, a statutory ouster of review of an ordinary error of law should be upheld. One

objection to Lord Carnwath’s observation might be that, although constructed upon

the rule of law, it fails to identify any robust criterion by reference to which the

court’s decision in any particular case could be foretold. At all events, for the more

fundamental reasons which follow, I respectfully disagree with it.

238. Every legal system has to identify some end-point beyond which there can be no challenge or further challenge to a judicial decision; and it may well identify different end-points for decisions in different areas of the law and, within any one area of it, perhaps different end-points for challenges to decisions of fact, to decisions allegedly vitiated by an ordinary error of law and to decisions allegedly made in excess of jurisdiction in the proper sense.

239. Our system will usually provide for some, perhaps circumscribed, right to bring an appeal against, or to seek other review of, an initial judicial decision (in other words not one made on appeal or review). But it will not always do so. There is no constitutional requirement that such a right should exist: see Lord Brown of Eaton-under-Heywood in R (A) v Director of Establishments of the Security Service, cited in para 19 above, para 23. Nor is it required as part of the right to a fair trial conferred by article 6 of the European Convention on Human Rights: Delcourt v Belgium (1970) 1 EHRR 355.

240. In In re Racal Communications Ltd, cited in para 62 above, the appellate committee addressed a statute which empowered a judge of the High Court both to authorise inspection and to require production of company books reasonably believed to contain evidence of the commission of a criminal offence. The statute

also provided that the judge’s decision should not be appealable. The complaint was

that the judge had made an ordinary error of law: see the speeches of Lord Diplock at p 384 and of Lord Edmund-Davies at p 388. The committee held that the Court

of Appeal had had no power to reverse the judge’s decision on appeal. Lord Diplock

said at p 384:

“Judicial review is available as a remedy for mistakes of law

made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the

judge’s decision shall not be appealable, they cannot be

corrected at all.”

241. In Pearlman v Keepers and Governors of Harrow School, cited in para 69 above, the Court of Appeal had addressed a statute which empowered a county court judge to determine whether improvements made by a tenant to his leasehold property qualified for adjustment of its rateable value. The statute also provided that the determination should be final and conclusive. The Court of Appeal, by a majority, allowed an appeal by the tenant. But in the Racal case its decision was overruled: see the speeches of Lord Diplock at p 384 and of Lord Edmund-Davies at p 390. In the Pearlman case it is therefore the dissenting judgment of Geoffrey Lane LJ which, so the appellate committee there held, provides the correct analysis of it. He said at p 74:

“… the only circumstances in which the court can correct what

is to my mind the error of the judge is if he was acting in excess of his jurisdiction as opposed to merely making an error of law

in his judgment …”

And he explained at p 76 that the tenant’s complaint was that the county court judge

had made no more than an ordinary error of law.

242. In R v Hull University Visitor, Ex p Page, cited in para 55 above, the appellate committee considered a complaint by a lecturer at Hull University that his dismissal had contravened its statutes and so been unlawful. The Queen, who was the visitor of the university and was acting by the Lord President of the Privy Council, had rejected his complaint. The appellate committee decided by a majority that the

Divisional Court, which had quashed Her Majesty’s decision in the course of

conducting a judicial review, had lacked jurisdiction to entertain it. Lord Browne- Wilkinson, for the majority, explained at p 702 that the university statutes were not the general law of the land. But his conclusion at p 704 remains useful and was as follows:

“Judicial review does not lie to impeach the decisions of a

visitor taken within his jurisdiction (in the narrow sense) on questions of either fact or law. Judicial review does lie to the visitor in cases where he has acted outside his jurisdiction (in the narrow sense) or abused his powers or acted in breach of

the rules of natural justice.”

Lord Griffiths, at pp 693-694, gave a wide interpretation to the decision in the Racal case. He said that it

“shows that Parliament can by the use of appropriate language

provide that a decision on a question of law whether taken by a judge or by some other form of tribunal shall be considered as final and not be subject to challenge either by way of appeal

or judicial review.” [Emphasis supplied]

243. In the Cart case the challenge was to a refusal on the part of the Administrative Appeals Chamber of the Upper Tribunal to grant permission to

appeal to it. Parliament, which had designated the tribunal as “a superior court of

record”, had excluded a right of appeal against its refusal of permission. Could there,

however, be a judicial review of it? Parliament had not expressly excluded it. The complaint was of an ordinary error of law on the part of the tribunal. The Divisional Court, cited in para 116 above, and the Court of Appeal, [2010] EWCA Civ 859; [2011] QB 120, had both held, for slightly different reasons, that the institutional features of the Upper Tribunal were such that its unappealable decisions could be the subject of judicial review when, but only when, they were said to be in excess of jurisdiction. By the time when the case reached the Supreme Court, cited in para 76 above, the government had accepted that analysis: see Lord Dyson, para 108. So by that time the only remaining question was whether judicial review could extend to ordinary errors of law alleged to have been perpetrated by the tribunal in making

unappealable decisions. This court’s answer was that there could be judicial review

of such errors in limited circumstances not present in the case before it. For current purposes the great importance of the decision lies in the observations of Lady Hale, in a judgment with which all the other members of the court agreed, at para 40. Lord Sumption has quoted them in para 211 above. Lady Hale there recognised that, although it had not done so, Parliament might successfully have ousted judicial review of ordinary errors of law made by a tribunal of limited jurisdiction such as the Upper Tribunal.

244. We therefore see that the High Court judge in the Racal case, the county court judge in the Pearlman case and the Upper Tribunal in the Cart case can, in the course of making unappealable decisions, make ordinary errors of law of which Parliament has power to exclude judicial review.

245. Does the IPT stand so differently from them as to mandate a different
conclusion?

246. The answer is to be collected from examination of its institutional features, of which I now offer a brief summary.

247. The President of the IPT must hold or have held high judicial office: the 2000 Act, Schedule 3, paragraph 2(2). At present the incumbent is Singh LJ.

248.     Its other members must either hold or have held high judicial office or must

be UK lawyers of at least seven years’ standing: Schedule 3, paragraph 1(1). At

present the other members are two High Court judges in England and Wales, a

former High Court judge in Northern Ireland, and six other distinguished Queen’s

Counsel including a practitioner in Scotland.

249. In exercising its jurisdiction the IPT is required to apply the principles which a court would apply on an application for judicial review: section 67(2) and (3)(c) of the 2000 Act. So the function of judicial review of the lawfulness of the actions of the intelligence services has therefore been allocated to it and, so this court held in the A case, exclusively so.

250. The need for the allocation reflects the sensitivity of any inquiry into the lawfulness of such actions and therefore the unique raft of provisions devised for the conduct of the IPT, as set out in section 68 of the 2000 Act and in the Investigatory Powers Tribunal Rules, first those dated 2000 (2000 No 2665) and now those dated 2018 (2018 No 1334), made under section 69 of it. These provisions reflect its investigative duty under section 67(3)(a) and (b) and include, by section 68(1), a right, subject to the rules, to determine its own procedure and thus to adopt an inquisitional process and, by rule 13(1) of the current rules, freedom from rules of evidence. Disclosure of the nature of the complaint and of any information or document provided to it from any source is closely circumscribed by what is now rule 7, as is the content of the notification to the complainant of its ultimate determination under section 68(4) and what is now rule 15. In the Big Brother Watch case, cited in para 28 above, the European Court of Human Rights said at para 255:

“… the IPT, as the only tribunal with jurisdiction to obtain and

review ‘below the waterline’ [ie closed] material, is not only

the sole body capable of elucidating the general operation of a surveillance regime: it is also the sole body capable of

determining whether that regime requires further elucidation.”

1. The IPT does not form part of Her Majesty’s Courts and Tribunal Service. In

effect it has total autonomy. In his Report of the Review of Tribunals dated March

2001 Sir Andrew Leggatt said at para 3.11 that the IPT’s concern with security

required it to be separate from all other tribunals and that the Senior President of
Tribunals would not be in a position to take charge of it.

252. Parliament has therefore conferred both independence and authority upon the IPT. In the A case Lord Brown, with whom all other members of the court agreed, endorsed at para 23 the conclusion of Laws LJ in the court below that the IPT was

“a judicial body of like standing and authority to that of the High Court”.

253. In the above circumstances I conclude that Parliament does have power to exclude judicial review of any ordinary errors of law made by the IPT. My answer to the second question posed at the outset of this judgment, if limited to the sort of determination relevant to this case, namely to an ordinary determination of law, is

“yes”.

254.     So I would have dismissed the appeal.