Monday, 13 May 2019

Notable cases (2) - Anisminic

Dark forest to sunrise
It is just over 50 years since the seminal House of Lords decision in Anisminic v Foreign Compensation Commission which brought about a major change in the approach to statutory provisions seeking to protect decision-making bodies (mainly tribunals) from judicial review.  Many such bodies have a specialist remit but nevertheless one that is limited by the relevant legislation.  In very simplistic terms, a tribunal given power to make decisions about apples is not empowered to make decisions about oranges.  Of course, such bodies have to decide whether a particular matter comes within their remit.  The question arises - What is the effect if the body makes a legally wrong decision?  Should such a decision be capable of 'immunisation' from judicial review?

History - Judicial Review:

The first common law court was the Norman Curia Regis at the time of William I (1066 - 1087).  After the Norman conquest
the King's court began to impose its law across the country. Its jurisdiction gradually superseded the plethora of local jurisdictions which had hitherto governed or regulated the lives of the people. And so the common law of England began to grow and spread its influence.

At length the single court which had originally followed the King was divided into two. The Common Bench or Court of Common Pleas, as it came to be called, heard private claims. The other court became known as the King's Bench. It continued to follow the King. It heard cases concerning the King; and its jurisdiction developed so that it came to correct and supervise the decisions of all other courts and judges. The King's Bench and the Common Pleas were clearly established by the end of the thirteenth century. They remained at the centre of the English judicial system until their powers were transferred to the newly created High Court in 1873.

Other courts included the Court of Exchequer, described by Blackstone as inferior to both the Common Pleas and the King's Bench. Its principal purpose was to order the revenues of the Crown and recover the King's debts and duties. The Court of Chancery was the last court to develop from the Curia regis. In or by the late 15th century there developed in that court an independent equitable jurisdiction which was exercised over cases falling outside the common law, and where the common law could not provide a remedy or provided an unjust remedy.

These four courts, King's Bench, Common Pleas, Exchequer and Chancery, each exercised an original jurisdiction; but the King's Bench also enjoyed a general supervisory jurisdiction and an appellate jurisdiction – "in error".

Writing in 1768 Blackstone described the King's Bench as "the supreme court of common law in the kingdom". He said - "The jurisdiction of this court is very high and transcendent. It keeps inferior jurisdictions within the bounds of their authority."   Similar statements are to be found in early case law.

The means by which the King's Bench kept other courts "within the bounds of their authority" (and also required them to exercise that authority) were the prerogative writs, of which of course certiorari was one.

The King's Bench, then, was a common law court of unlimited jurisdiction which had developed a general power by means of the prerogative writs to supervise other courts – courts of limited jurisdiction – to ensure that the limitations were respected. These powers devolved to the High Court upon the coming into effect of the Judicature Act 1873.  They have in practice been exercised since then by the Queen's Bench Division, and in recent years more particularly by the nominated judges of the Crown Office List, now the Administrative Court.

The above paragraphs are based on the judgment of Laws LJ in R (Cart) v Upper Tribunal and SIAC [2009] EWHC 3052 (Admin).

The modern system of Judicial Review has developed from the supervisory jurisdiction.  The modern system of judicial review has a statutory basis in the Supreme Courts Act 1981 s.31 (later renamed Senior Courts Act) and also note the Civil Procedure Rules.

One benefit of judicial review is that there is an impartial authoritative judicial source of statutory interpretation, independent both of the legislature and of the persons involved in particular cases.

Attempts to prevent judicial review:

From time to time, Parliament has sought to either limit or exclude judicial review.  It has done this in a considerable array of contexts and for a variety of reasons.  An attempt, in 2003, to remove judicial review in Asylum and Immigration cases did not proceed - see The Guardian 11 December 2003.

The courts have taken a restrictive approach to statutory provisions aimed at excluding judicial review - referred to as "ouster clauses."  For example, the courts have traditionally required very clear wording in the relevant legislation.  The court's ingrained reluctance to countenance the statutory exclusion of judicial review has its genesis in the fact that judicial review is a principal engine of the rule of law.  The term "rule of law" is used here in the sense that statute law has to be mediated by an authoritative judicial source, independent both of the legislature which made the statute, the executive government which (in the usual case) procured its making, and the public body by which the statute is administered.  The paradigm for such an authoritative source is the High Court, which is independent of the legislature, the executive, and any other decision-makers acting under the law; and is the principal constitutional guardian of the rule of law.

The courts developed a distinction in the case law between decisions that went to jurisdiction and errors of law that did not.

The Anisminic case:

Anisminic v Foreign Compensation Commission [1969] 2 AC 147 was a 3 to 2 majority decision of
Lord Reid in 1941
the House of Lords in 1968 - Lords Reid, Morris, Pearce, Wilberforce and Pearson.    The case arose following the Suez crisis of 1956.

In 1965 property in Egypt belonging to an English company (Anisminic) was sequestrated by the Egyptian government and later sold to an Egyptian organisation - TEDO.   Subsequently, a Treaty provided for compensation to be payable in certain circumstances and Anisminic wished to claim.  The Foreign Compensation Commission (FCC), created by the Foreign Compensation Act 1950, ruled that Anisminic did not qualify under the scheme.  The FCC's decision was based on what turned out to be an erroneous interpretation of the relevant legislation.

When Anisminic challenged the FCC decision in the courts they were met with an ouster clause providing that the decisions of the FCC 'shall not be called in question in any court of law.'

The House of Lords held that the jurisdiction of the courts was not ousted. The FCC had acted outside its jurisdiction as a result of misinterpreting the legislation.

There is insufficient space here to look at all the speeches and it is essential to read them in full.

Lord Reid looked at the question whether the ouster clause precluded the courts from considering whether the FCC's determination was a nullity.

The FCC maintained the words had that effect but Anisminic argued 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.

Lord Reid said - 'Let me illustrate the matter by supposing a simple case. A statute provides that a certain order may be made by a person who holds a specified qualification or appointment, and it contains a provision, ...., that such an order made by such a person shall not be called in question in any court of law.  A person aggrieved by an order alleges that it is a forgery or that the person who made the order did not hold that qualification or appointment.  Does such a provision require the court to treat that order as a valid order?' 

He continued - '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.  

Lord Pearce said - ' ... the courts have a general jurisdiction over the administration of justice in this country. From time to time Parliament sets up special tribunals to deal with special matters and gives them jurisdiction to decide these matters without any appeal to the courts. When this happens the courts cannot hear appeals from such a tribunal or substitute their own views on any matters which have been specifically committed by Parliament to the tribunal.

Such tribunals must, however, confine themselves within the powers specially committed to them on a true construction of the relevant Acts of Parliament. It would lead to an absurd situation if a tribunal, having been given a circumscribed area of inquiry, carved out from the general jurisdiction of the courts, were entitled of its own motion to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament.'

Lord Wilberforce succinctly said - '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?'

Anisminic's argument therefore prevailed.  The ouster clause could only protect legally correct “determinations”  and not apparent or purported determinations.  The error of law had, in effect, meant that the FCC acted beyond the jurisdiction granted to it by Parliament.


Lord Diplock
In O'Reilly v Mackman [1983] 2 AC 237, [1983] UKHL 1 - Lord Diplock referred to the ouster clause dealt with by the House of Lords in Anisminic.  The clause stated that - 'the determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.'

Lord Diplock said that - 'It was this provision that provided the occasion for the landmark decision in Anisminic ...., and particularly the leading speech of Lord Reid, which has liberated English public law from the fetters that the courts had theretofore imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned, by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction.  The breakthrough that Anisminic 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, i.e. 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.'

That passage is technically obiter but it was accepted by the House of Lords in O'Reilly and it is how Anisminic has been understood and explained since in many cases.  In argument in Privacy International v Investigatory Powers Tribunal, Dinah Rose QC said that reading O'Reilly was 'like a situation where you have been groping in a dark forest and you come out and suddenly see the sunrise - you see the birth of modern public law.'

Note also the judgments of Lady Hale and Lord Dyson in R (Cart) v Upper Tribunal [2011] UKSC 28.  At [18] Lady Hale said that in Anisminic "the House of Lords effectively removed the distinction between error of law and excess of jurisdiction" and Lord Dyson [111] described the distinction between jurisdictional error and other error as "artificial and technical ..."

Over 50 years have elapsed since Anisminic and we find the Court of Appeal ruling that an ouster  clause in similar terms to that in Anisminic was effective - R (Privacy International) v IPT [2017] EWCA Civ 1868 - Floyd, Sales and Flaux LJJ.    The Court of Appeal's decision is considered in a previous post of  24 November 2017.

An appeal against this judgment has been heard by the Supreme Court and judgment is to be handed down on Wednesday 15 May 2019.

Supreme Court cases referring to Anisminic:
  1. Lee v Ashers Baking Company Ltd and Ors (Northern Ireland) [2018] UKSC 49 (10 October 2018) 
  2. Evans and Anor, R (on the application of) v Attorney General (Rev 1) [2015] UKSC 21 (26 March 2015)
  3. Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015)
  4. Cart v The Upper Tribunal (Rev 1) [2011] UKSC 28 (21 June 2011)
  5. Eba v Advocate General for Scotland (Scotland) [2011] UKSC 29 (21 June 2011)
  6. SK (Zimbabwe) v Secretary of State for the Home Department [2011] UKSC 23 (25 May 2011)
  7. Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011)
  8. A, R (on the application of)v B [2009] UKSC 12 (09 December 2009)

Paul Daly - Administrative Law Matters - Three aspects of Anisminic

Public Law for Everyone - Distinguishing Anisminic - Ouster clauses, parliamentary sovereignty and the Privacy International case

Public Law for Everyone - An introduction to public law by way of the Anisminic case

UK Constitutional Law - Parliamentary intention, Anisminic and the Privacy International case - Part 1  and Part 2

UK Constitutional Law - Mark Elliott and Robert Thomas: Cart and Eba - the new tribunals system and the courts

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