Lord Justice Laws :
- The principal question in these linked cases is whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any form of appeal. The relevant decisions of SIAC are the revocation of bail which had earlier been granted to the claimant U and the refusal of bail to the claimant XC. The decision of the UT which is in issue is the UT's refusal of permission to appeal to itself, on a particular ground, against a decision of the First-tier Tribunal (FTT) relating to child maintenance payable by the claimant Mr Cart.
- S.1(3) of the Special Immigration Appeals Commission Act 1997 (SIACA) provides:
"[SIAC] shall be a superior court of record."
S.3(5) of the Tribunals, Courts and Enforcement Act 2007 (TCEA) provides:
"[UT] is to be a superior court of record."
- The claimants seek to challenge the legal merits of the impugned decisions by way of judicial review. The Secretary of State for the Home Department, the Secretary of State for Justice, and the Child Maintenance and Enforcement Commission (to whom I will refer collectively as the defendants, although in fact they are named in the proceedings as Interested Parties) respectively contend that by force of the provisions I have just set out SIAC and UT are immune from judicial review. They submit in the alternative that the judicial review jurisdiction is only exercisable vis-à-vis SIAC and UT in rare and exceptional cases, which do not include those before the court. These questions as to the reach of the High Court's jurisdiction have been directed to be heard together as a preliminary issue in all three judicial review claims. I will refer to them compendiously as "the jurisdiction issue". I should add that the claimants are generally supported by Mr Fordham QC for the Public Law Project, which intervened in the proceedings with my permission.
- There is a separate question arising only in the cases of U and XC, the SIAC claimants. It is whether the decisions by SIAC to revoke bail (U) and to refuse bail (XC) violated the claimants' rights guaranteed by Article 5(4) of the European Convention on Human Rights (ECHR), on the ground that they were taken solely in reliance on closed material the gist of which had not been disclosed to the claimants. I will call this "the Article 5(4) issue". It only arises if U and XC are successful on the jurisdiction issue.
II: THE STATUTES
The Special Immigration Appeals Commission Act 1997
- SIACA was amended by the Anti-Terrorism Crime and Security Act 2001 (the 2001 Act), and as I shall show some of the amendments are important for the purposes of this case. As originally enacted SIACA s.1 provided:
"(1) There shall be a commission, known as the Special Immigration Appeals Commission, for the purpose of exercising the jurisdiction conferred by this Act.
(2) Schedule 1 to this Act shall have effect in relation to the Commission."
Schedule 1 contains these provisions:
"5 The Commission shall be deemed to be duly constituted if it consists of three members of whom—
(a) at least one holds or has held high judicial office (within the meaning of the Appellate Jurisdiction Act 1876), and
(b) at least one is or has been—
(i) appointed as chief adjudicator under paragraph 1 of Schedule 5 to the Immigration Act 1971, or
(ii) a member of the Immigration Appeal Tribunal qualified as mentioned in paragraph 7 of that Schedule.
6 The chairman or, in his absence, such other member of the Commission as he may nominate, shall preside at sittings of the Commission and report its decisions."
- S.2 defines SIAC's jurisdiction. S.2(1) and (2) confer rights of appeal to SIAC in a series of defined circumstances. It is unnecessary to set them all out, but the general effect of s.2(1) in particular is of the first importance. It re-routes the right of appeal from the Asylum and Immigration Tribunal (AIT) to SIAC in cases where the appellant's departure from the United Kingdom is deemed by the Secretary of State to be conducive to the public good. Thus in very many instances – appeals against refusal of leave to enter, or against variation of limited leave or any refusal to vary it, or against a decision to make a deportation order are prime examples – the jurisdiction of the AIT and SIAC is identical, save that the appellant is a suspected terrorist. The orders which SIAC may make on appeal are articulated in the same language as that originally used in s.19 of the Immigration Act 1971 dealing with appeals to the Adjudicator. Thus SIACA s.4(1) provides:
"(1) The Special Immigration Appeals Commission on an appeal to it under this Act—
(a) shall allow the appeal if it considers—
(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or
(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, and
(b) in any other case, shall dismiss the appeal."
The process of a SIAC appeal, however, was and is very distinct. Rules of procedure facilitate the scrutiny of confidential material on an appellant's behalf by a special advocate, even though for security reasons the material cannot be disclosed to the appellant himself. This signal feature is the substantial justification for the establishment of SIAC and for its jurisdiction in security cases to hear appeals whose analogues in non-security cases are routinely heard by the AIT.
- SIAC's bail jurisdiction, given by SIACA s.3, applies the bail provisions of Schedule 2 to the Immigration Act 1971 (the 1971 Act) to a person to whom SIACA s.3(2) applies, that is (in summary) a person detained on national security grounds. S.3 thus transfers to SIAC the power given by Schedule 2 paragraph 22(1) of the 1971 Act to admit to bail a person detained pending examination of his case and his potential removal. It also transfers the further power conferred by paragraph 24(3), so that in the case of a person arrested on suspicion (on reasonable grounds) of having broken or being likely to break the conditions of his bail, SIAC –
"(a) if of the opinion that that person has broken or is likely to break any condition on which he was released, may either -
(i) direct that he be detained under the authority of the person by whom he was arrested ; or
(ii) release him, on his original recognizance or on a new recognizance, with or without sureties…; and
(b) if not of that opinion, shall release him on his original recognizance or bail."
SIAC's Procedure Rules (paragraph 5) allow for applications relating to bail to be heard by a single member, who must be legally qualified but need not be a serving or retired High Court Judge.
- Some alterations were made to SIAC's appeal jurisdiction by amendments introduced by the 2001 Act. I need not take time with those. However the amendments also included the insertion of s.1(3). S.35 of the 2001 Act amended SIACA s.1 so as to include these new subsections:
"(3) The Commission shall be a superior court of record.
(4) A decision of the Commission shall be questioned in legal proceedings only in accordance with—
(a) section 7, or
(b) section 30(5)(a) of the Anti-terrorism, Crime and Security Act 2001 (derogation)."
S.30(5)(a) concerned derogations by the United Kingdom from ECHR Article 5(1). SIACA s.7 provides in part:
"(1) Where the Special Immigration Appeals Commission has made a final determination of an appeal, any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination.
(2) An appeal under this section may be brought only with the leave of the Commission or, if such leave is refused, with the leave of the appropriate appeal court.
(3) In this section 'the appropriate appeal court' means—
(a) in relation to a determination made by the Commission in England and Wales, the Court of Appeal..."
It is common ground that a decision of SIAC to refuse or revoke bail is not an appealable decision within the meaning of s.7. It follows that if judicial review is not available, there is no further recourse to any court of the United Kingdom against such a decision.
The Tribunals, Courts and Enforcement Act 2007
- Following Sir Andrew Leggatt's report "Tribunals for Users – One System, One Service" published on 16 August 2001, TCEA was enacted to gather into a unified structure the disparate jurisdictions previously exercised by a great variety of statutory tribunals. It provides for a comprehensive two-tier structure. By s.3:
"(1) There is to be a tribunal, known as the First-tier Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act.
(2) There is to be a tribunal, known as the Upper Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act.
(3) Each of the First-tier Tribunal, and the Upper Tribunal, is to consist of its judges and other members.
(4) The Senior President of Tribunals is to preside over both of the First-tier Tribunal and the Upper Tribunal.
(5) The Upper Tribunal is to be a superior court of record."
- Subject to certain conditions, FTT may (on its own initiative or on application) review its own decisions (s.9). So may UT (s.10) (but not in relation to "an excluded decision" within the meaning of s.13(1): see below).
- The first of UT's principal functions is to determine appeals on points of law from FTT (TCEA ss.11 – 12). The right of appeal may be exercised only with permission (s.11(3)), which may be given either by FTT or UT (s.11(4)). By s.13 there is a right of appeal, again only with permission, to (in England and Wales) the Court of Appeal against any decision of UT except "an excluded decision" (s.13(1)). By s.13(8)(c) a decision of UT on an application made to it for permission to appeal against a decision of FTT is an excluded decision. Hence there is no recourse to the Court of Appeal against the decision complained of in the present case.
- The scope and variety of the appeals that come before UT obviously depend upon the scope and variety of FTT's jurisdiction. Both FTT and UT comprise a series of chambers established pursuant to TCEA s.7, ss.(1) of which provides:
"The Lord Chancellor may, with the concurrence of the Senior President of Tribunals, by order make provision for the organisation of each of the First-tier Tribunal and the Upper Tribunal into a number of chambers."
This is the mechanism by which the previously disparate tribunal jurisdictions have been (or are being) organised into a single juridical structure. FTT has six chambers: the War Pensions and Armed Forces Compensation Chamber, the Health, Education and Social Care Chamber, the General Regulatory Chamber, the Tax Chamber, the Social Entitlement Chamber and the Immigration and Asylum Chamber (this is still forthcoming: it is expected to be established in February 2010). But this short list conceals the great range of tribunals existing pre-TCEA whose jurisdiction has been transferred to FTT by orders made by the Lord Chancellor under TCEA s.30. Though the War Pensions and Armed Forces Compensation Chamber succeeds only to the jurisdiction of the Pension Appeals Tribunal (England and Wales), the Health, Education and Social Care Chamber succeeds to the jurisdiction of thirteen previous tribunals (six of them effective from January 2010). They include tribunals which dealt with mental health, estate agents, charities and transport. The Tax Chamber takes over from the General and Special Commissioners of Income Tax and the VAT & Duties Tribunal. The Social Entitlement Chamber succeeds to the Social Security and Child Support Appeal Tribunals, the Criminal Injuries Compensation Panel, and the Asylum Support Tribunal. The Immigration and Asylum Chamber will take over from the AIT.
- Before TCEA there were not merely many different tribunals. There was no single mechanism for appealing against their decisions. Appeal rights differed from tribunal to tribunal, across a range of four possibilities, as follows:
- Cases where there was a right of appeal to another tribunal (eg from the Social Security Appeals Tribunal to the Social Security Commissioners). Here a further right of appeal would generally lie to the Court of Appeal, not the High Court.
- Cases where there was a right of appeal to the High Court (eg from the VAT & Duties Tribunal and the Special Commissioners). Here also there was generally a further right of appeal to the Court of Appeal.
- Cases where there was a right of appeal to the Court of Appeal direct (eg the Financial Services and Markets Tribunal).
- Cases where there was no right of appeal at all (eg the Criminal Injuries Compensation Appeal Panel), in which case judicial review would generally be available of the tribunal's decision.
Now there is a unified appeal structure. It is not yet complete. As I have indicated, some transfers to FTT are scheduled for 2010. In due course further chambers may be established. We are for instance told that a FTT Lands Chamber is in contemplation. But in any event it is clear that the appeal provisions of TCEA give effect to a strategic reorganisation of the law administered by statutory tribunals.
- UT has a further principal function. It is to exercise what the Act calls a "judicial review" jurisdiction (TCEA ss.15 – 21). S.15(1) empowers UT to grant any of the forms of relief available in the High Court on judicial review, subject to certain conditions (s.15(2)). If it proposes to do so, it must apply the same principles as the High Court would apply in a judicial review case (s.15(4) and (5)). Permission is required (s.16). By s.15(3), relief granted by UT under s.15(1) "has the same effect as the corresponding relief granted by the High Court on an application for judicial review" and "is enforceable as if it were relief granted by the High Court on an application for judicial review". The conditions on which the jurisdiction may be exercised are given by s.18. Thus s.18(5) provides that the application must not "call into question anything done by the Crown Court". And by s.18(6) the application must fall "within a class specified for the purposes of this subsection in a direction given [sc. by the Lord Chief Justice] (with agreement of the Lord Chancellor)in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005".
- TCEA s.19(1) inserts a new s.31A into the Supreme Court Act 1981, by which judicial review applications commenced in the High Court are to be transferred to UT if four conditions are met. Conditions (1), (2) and (4) are negative or restrictive. Thus condition (2) repeats s.18(5) relating to the Crown Court (see s.19(5)), and condition (4) (s.19(7)) requires that the application should not call into question any decision made (I summarise) under the immigration and nationality legislation. Condition (3) (s.19(6)) is positive: it repeats the requirement of s.18(6), that the application must fall within a class specified for the purposes of s.18(6) in a direction given by the Lord Chief Justice (with agreement of the Lord Chancellor). If condition (3) is not met but the other three are, the High Court enjoys a discretion whether to transfer the case (s.31A(3)).
Members of the Upper Tribunal
- I shall come later to the significance of these innovations, both in relation to appeals and "judicial review". Before leaving TCEA I should refer briefly to some of its provisions dealing with the constitution of UT. Schedule 3 contains provisions for the appointment of persons to be judges (including deputy judges), or other members, of UT. S.6 provides that (in England and Wales) Lords Justices, High Court judges, circuit judges and district judges are ex officio judges both of FTT and UT. By Schedule 1 paragraph 2 the Senior President is appointed pursuant to a consultation process between the Lord Chancellor, the Lord Chief Justice both here and in Northern Ireland and the Lord President of the Court of Session, provided that they are agreed as to the person to be recommended and that person is a judge of the Court of Appeal here or in Northern Ireland or a judge of the Inner House of the Court of Session. If those conditions are not fulfilled the Judicial Appointments Commission (JAC) will select the person to be recommended (Schedule 1 paragraph 2(5)), who must in that case satisfy minimum eligibility criteria as to his professional standing (paragraph 3). Schedule 1 paragraph 4 inserts new sections (75A – 75G) into the Constitutional Reform Act 2005 which provide for the establishment, constitution and procedure of a selection panel for the purposes of making the JAC's recommendation, and also for the functions of the Lord Chancellor when the panel has made its selection.
III: THE FACTS
- U is an Algerian national born on 8 February 1963. He came to the United Kingdom in November 1994 and claimed asylum. At the end of 1996 he travelled to Afghanistan. He returned to the UK in March 1999. On 27 June 2000 his asylum application was refused. In March 2001 he was arrested and remanded in custody on criminal charges, but they were dropped on 16 May 2001. However he was detained at HMP Belmarsh by the Secretary of State under paragraph 16 of Schedule 2 to the 1971 Act on the grounds that he had breached the conditions of his temporary admission. There ensued a long and complex history whose upshot is that, save for a period from July 2008 until February 2009 when he was on bail, U has been continuously in custody since March 2001. His confinement has been justified from time to time as a prisoner on remand, or under the administrative powers given by the 1971 Act, or at one stage as a fugitive whose extradition was sought to the United States.
- Part of the history concerns deportation proceedings relating to U. On 11 August 2005 the Secretary of State served him with a notice of intention to deport under s.3(5) of the 1971 Act on the ground that his deportation would be conducive to the public good for reasons of national security. Appeal proceedings followed, whose history has itself been complicated. At one stage (7 November 2006), allegedly because of delays in the SIAC appeal process into which it is unnecessary to travel, U waived his right to pursue his appeal against the Secretary of State's decision that he was a risk to national security while making it clear that he did not accept the truth of that finding. The case has been to the Court of Appeal and the House of Lords, and down again.
- U first applied for bail in July 2007. His application was heard in SIAC on 23 August 2007 and was rejected on the basis that the length of time for which he had been detained pending deportation was not yet excessive. However on 27 February 2008 in the course of a bail application made by another Algerian who was also detained pending deportation, SIAC heard argument as to the reasonableness of continued detention given the likely future period of detention if, inter alia, the House of Lords granted U's petition for leave to appeal which was outstanding at that time. SIAC rejected the application for bail but stated:
"If the House of Lords grants permission on the two identified grounds then we would consider it wholly reasonable for any Algerian appellant in detention to make a fresh application for bail which the Commission would attempt to determine at the earliest possible opportunity."
The House of Lords granted leave to appeal to U on 11 March 2008. Together with other Algerians detained pending deportation on national security grounds he applied for bail. The Secretary of State did not oppose the application but sought U's admission to bail at an address in Liverpool on a 22 hour curfew. U proposed an address in Brighton. For reasons not disclosed at the time the Secretary of State objected to the Brighton address. On 30 April 2008 SIAC ordered that U be released on bail to the Brighton address subject to stringent conditions including a 24 hour curfew. On 15 January 2009 a minor relaxation was allowed, permitting U to take twice-weekly accompanied walks of one hour.
- On 18 February 2009 the House of Lords dismissed U's appeal. On the same day the Secretary of State, on notice to U, applied to SIAC to revoke U's bail on the basis of "an increased risk of absconding due to the terms of the judgment". At length the application came before SIAC on 26 February 2009. The Secretary of State indicated that she might be relying on closed material in support of her application. SIAC ruled that if the Secretary of State wished to rely on closed material in relation to any individual she had to disclose to that individual whether it was being relied on. No decision was then made on the application to revoke bail; SIAC adjourned the matter (at U's instance, and that of other bail applicants) to 5 March 2009. The Secretary of State applied for bail to be revoked pending the resumed hearing on that date, but that was refused.
- After the hearing on 26 February U left the hearing centre at approximately 5.30 pm under escort by immigration officers. But he then disappeared. His solicitors were at first unable to establish what had happened to him. At a hearing the following day, 27 February 2009 (arranged because of the statutory requirement that anyone so arrested must be brought before SIAC with 48 hours), it became clear that U had been arrested and detained at HMP Belmarsh. Accordingly, together with the other four appellants detained overnight, U sought his immediate release and made an urgent application for judicial review of the decision to detain him on the grounds that it was an abuse of power. A closed hearing ensued at which the Secretary of State submitted closed evidence. Thereafter U was informed by SIAC that closed evidence had been adduced in relation to him but not the other appellants. The other four were immediately released pending the adjourned hearing of the application to revoke their bail. However SIAC then and there revoked U's bail on a temporary basis (pending the adjourned hearing) on the ground that the closed material indicated an increased risk to national security and of U's absconding. Mitting J, sitting in his capacity as a High Court judge, refused U's application for judicial review.
- On 4 and 5 March 2009 SIAC heard full argument on the Secretary of State's application for revocation of U's bail, including submissions as to the effect of the judgment of the European Court of Human Rights in A and others v United Kingdom (19 February 2009: App. no. 3455/05), to which I must refer further in due course. In reliance on that decision it was submitted for U that sufficient details of any closed material sought to be relied on by the Secretary of State should be disclosed so that effective instructions might be given to U's special advocate. However on 5 March 2009 SIAC rejected that submission without at that stage giving reasons, and proceeded to hear closed evidence adduced by the Secretary of State. On 20 March 2009 SIAC gave judgment rejecting the Secretary of State's application to revoke the bail of the four other appellants, but holding that U's bail should be revoked. They stated (paragraph 44):
"For the reasons which are wholly set out in the closed judgment, we are satisfied that the risk that U will breach his bail conditions has significantly increased."
- It is not disputed that the decision to revoke U's bail was based entirely on closed evidence, and the reasons for it were (as SIAC stated) entirely set out in their closed judgment.
- The facts in this case may be more shortly described. XC is a 23 year old national of Pakistan. Until 8 April 2009 he was living in the United Kingdom having leave to remain as a student. His student visa had been granted on his entry into the United Kingdom on 5 September 2006 and was valid until September 2009. On 8 April 2009 he was arrested along with others upon allegations of involvement in terrorist related activity described as "attack planning and extremist activity". On 21 April 2009 he was released without charge, but was served with a notice of intention to deport and detained under the powers given by paragraph 2(2) of Schedule 3 to the 1971 Act. The notice stated that XC was "judged to be involved in Islamist extremist activity".
- XC applied to SIAC for bail. The application was opposed by the Secretary of State on the ground that XC posed a risk to national security, and there was a risk of his absconding "for a number of reasons", including a fear on his part of a prosecution being brought against him in the future because of continuing investigations and the fact that he was a single man with no community ties. There was a hearing before SIAC on 13 May 2009, at which it was stated that the Secretary of State relied on closed material in support of her case. One letter about XC's attendance at a university in 2006 was disclosed, but at the outset of the hearing it was confirmed that no additional material was provided and none was. On 21 May 2009 SIAC delivered judgment refusing bail, and stating:
"We have taken into account significant closed material which has not been gisted [sic] to the appellant in reaching our decision."
It was made abundantly plain that the basis of the Secretary of State's national security case was entirely to be found in closed evidence.
- Mr Cart was married to his wife on 9 July 1984. They have five children of whom the youngest, Georgia, (born on 16 June 1993) is the only relevant "qualifying" child for the purposes of s.3 of the Child Support Act 1991, which I need not set out. Mr and Mrs Cart separated on 17 March 2000. Mrs Cart went to live with a Mr Terelicki. At first all five children continued to live with their father, but at length the three youngest went to live with their mother and Mr Terelicki. Prolonged ancillary relief proceedings followed the filing of a petition for divorce in 2002. There was a consent order of October 2003 for periodical payments to be made by Mr Cart in respect of the children then living with the mother. Mrs Cart subsequently made an application to the Child Support Agency for child maintenance in October 2004. Mrs Cart came to think that the child maintenance assessment was inadequate and applied to the Child Support Agency for a variation direction in August 2006.
- This application should have been, but was not, notified to Mr Cart by the Secretary of State. Pursuant to the application a variation direction was given on 17 August 2006. At length Mr Cart had notice of the direction, and sought a revision. That was refused. He appealed to what is now the FTT. The appeal was dismissed in October 2007. He sought permission to appeal. UT granted limited permission on three grounds, but refused permission on the fourth, which was a complaint of the Secretary of State's failure to give notice of the variation application. On 30 January 2009 UT (Senior President Carnwath LJ and Judge Jacobs) heard argument on the three grounds for which permission had been given and reserved judgment. They declined permission to re-open the fourth ground on which permission had earlier been refused.
IV: THE JURISDICTION ISSUE
(1) Exclusion of Judicial Review by Statute
- The defendants' primary case rests on the proposition that a superior court of record is ipso facto immune from the judicial review jurisdiction; and that is hotly contested. But to my mind there is a prior, and in some ways greater question. Let it be supposed that a review of past cases, and the evolution of our courts since the Curia Regis of King William I, demonstrate that the prerogative writs have not run to superior courts of record and indeed that the expression "superior courts of record" has consistently been used by judges and commentators to refer to courts not amenable to the writs. Does it follow that the bare designation by Parliament of an institution as such a court, as has been done by SIACA s.1(3) and TCEA s.3(5), excludes the judicial review jurisdiction? I think not.
- On the defendants' case (see their composite skeleton argument at paragraph 14(c)) such a designation relieves this court of all power and duty to consider for itself whether the institution so designated is in truth a superior court of record. The supposition of any such power is necessarily inconsistent with the language of the Act. Since the courts cannot strike down an Act of Parliament as unreasonable, it must follow from this that legislation might so designate any institution, whether or not it bears the characteristics which have been objectively recognised as the marks of a superior court of record, and the courts would be obliged to respect the designation. But in that case, judicial review will have been excluded by the application of a formula – "shall be a superior court of record" – which (a) says nothing on its face about judicial review, so that the exclusion is only implicit, and (b) is in the nature of a deeming provision.
- The defendants do not in fact accept that SIACA s.1(3) and TCEA s.3(5) must, on their argument, be characterised as provisions which exclude judicial review. Their skeleton at paragraph 14(e) asserts that their case "does not involve 'ousting' the jurisdiction of the High Court. It is that the High Court does not have supervisory jurisdiction over superior courts of record in the first place". But this is jesuitical. The defendants' very reliance on ss.1(3) and 3(5) proceeds on the premise that absent those provisions SIAC and UT would, or at least might, be subject to the judicial review jurisdiction. They say that ss.1(3) and 3(5) conclude the issue in their favour. That is to assert that the jurisdiction is ousted or excluded by the subsections.
- In my judgment the proposition that judicial review is excluded by ss.1(3) and 3(5) is a constitutional solecism. The supervisory jurisdiction (to the extent that it can be ousted at all: itself a question to which I will return) can only be ousted "by the most clear and explicit words": see per Denning LJ in R v Medical Appeal Tribunal ex p. Gilmore  1 QB 574, 583. The learning discloses a litany of failed attempts to exclude judicial review. In Sivasubramaniam  1 WLR 475, after citing Lord Denning's dictum in Gilmore, Lord Phillips MR giving the judgment of the court continued (paragraph 44):
"All the authorities to which we have been referred indicate that this remains true today. The weight of authority makes it impossible to accept that the jurisdiction to subject a decision to judicial review can be removed by statutory implication."
- I need not multiply citations. A conspicuous case is the seminal authority of Anisminic v Foreign Compensation Commission  2 AC 147 which abolished (for most purposes) the distinction between errors of law within and without jurisdiction, ushering in the modern constitutional rule that any error of law by a public decision-maker is beyond his jurisdiction. Older instances include Cardiffe Bridge 1 Salk 146; Ld. Raym. Rep 580, Berkley v Bragge 1 Keny 80 at 101, R v Cheltenham Commissioners (1841) 1 QB 465, and Ex parte Bradlaugh (1878) 3 QBD 509. More recent instances include R v SSHD ex p. Fayed  1 WLR 763, 771B – 773C. Against this background it cannot be supposed that judicial review may be ousted by an implication, far less one contained in a formula which amounts in effect to a deeming provision. But that is the sum of the defendants' case.
- I would therefore hold that SIACA s.1(3) and TCEA s.3(5) cannot be construed as excluding the judicial review jurisdiction from SIAC and UT respectively, whatever the historic scope of the expression "superior court of record". But I think it unsatisfactory to base this conclusion on the bare proposition (however well established) that judicial review cannot be ousted by a mere implication. Without clear reasons, the proposition is only an article of faith.
- 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:
"Judicial review is the exercise of the court's inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law" (Ex p. Vijayatunga  QB 322 per Simon Brown J as he then was at 343E – F).
- There are many such statements in the books, but they are anodyne unless in turn one understands what is meant by the term, the rule of law. And here there is a difficulty. The rule of law is a Protean conception. Different meanings have been variously ascribed to it. It possesses many different facets, and has generated an enormous literature. Its elusive and multiple nature is well illustrated by Lord Bingham's Sir David Williams lecture, The Rule of Law, delivered on 16 November 2006.
- What is the meaning to be attributed to the rule of law for the purpose of the present case? The context in which it is to be found is the defendants' reliance on SIACA s.1(3) and TCEA s.3(5) as excluding judicial review. If judicial review were so excluded, SIAC and UT – and any other body which might be immunised against judicial review by a like formula – would (in matters not subject to statutory appeal) be the last judges of the law they have to apply. They would not be required to respect any other interpretation but their own. The sense of the rule of law with which we are concerned rests in this principle, 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. There are of course cases where a decision-making body is the last judge of the law it has to apply. But such bodies are always courts. The prime example is the High Court, which is also the paradigm of such an authoritative source of statutory interpretation. We shall have to decide in due course whether SIAC and UT are in the same category.
- The principle I have suggested has its genesis in the self-evident fact that legislation consists in texts. Often – and in every case of dispute or difficulty – the texts cannot speak for themselves. Unless their meaning is mediated to the public, they are only letters on a page. They have to be interpreted. The interpreter's role cannot be filled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail. Nor, generally, can the interpreter be constituted by the public body which has to administer the relevant law: for in that case the decision-makers would write their own laws. The interpreter must be impartial, independent both of the legislature and of the persons affected by the texts' application, and authoritative – accepted as the last word, subject only to any appeal. Only a court can fulfil the role.
- If the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliament's law, requires that none of these things happen. Accordingly, as it seems to me, the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament's sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament's statutes are always effective; that is another.
- As I have said, 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. In section IV(2)(a) below I discuss the historic primacy of the High Court's predecessor, the Court of King's Bench. To offer the same guarantee of properly mediated law, any alternative source must amount to an alter ego of the High Court; and indeed there are instances where the authoritative source is another court, such as the Court-Martial Appeal Court and the Restrictive Practices Court (see the reference at paragraph 71 below to R v Cripps, ex parte Muldoon  1 QB 68). But the general principle is clear. The rule of law requires that statute should be mediated by an authoritative and independent judicial source; and Parliament's sovereignty itself requires that it respect this rule.
- None of this, of course, is to say that Parliament may not modify, sometimes radically, the procedures by which statute law is mediated. It may impose tight time limits within which proceedings must be brought. It may provide a substitute procedure for judicial review, as it has by a regime of statutory appeals in fields such as town and country planning, highways, and compulsory purchase: where, however, the appeal body remains the High Court. It may create new judicial authorities with extensive powers. It may create rights of appeal from specialist tribunals direct to the Court of Appeal. The breadth of its power is subject only to the principle I have stated.
- These considerations underline my conclusion that SIACA s.1(3) and TCEA s.3(5) cannot be construed as excluding the judicial review jurisdiction from SIAC and UT respectively, whatever the historic scope of the expression "superior court of record". In the circumstances, the careful and scholarly arguments of the parties in which that issue has been thoroughly considered are moot. Nevertheless, out of respect for counsel's submissions and because of itself it possesses some general importance, I think we should address the contention that a superior court of record is ipso facto immune from the judicial review jurisdiction and I propose to do so. Some of the materials which are relevant to this contention, moreover, will serve to demonstrate that the incapacity of ss.1(3) and 3(5) to exclude the supervisory jurisdiction does not deprive those subsections of content, because on any view the expression "superior court of record" denotes characteristics, quite apart from any question of immunity from review, which Parliament by means of ss.1(3) and 3(5) may be taken to have attributed to SIAC and UT.
- Consideration of the historic scope of the expression "superior court of record" has a further utility. The incapacity of ss.1(3) and 3(5) to exclude the supervisory jurisdiction is by no means the end of the debate in these appeals. There remains a question, which I have foreshadowed in passing at paragraph 36 and which I address at section IV(3) below, whether by force of the common law the jurisdiction will run to SIAC and UT, or not at all, or only to an attenuated extent. The presence or absence in any given case of an authoritative and independent judicial source of statutory interpretation is an issue in the keeping of the courts. This court must therefore decide whether SIAC or UT can be said to fill that role in the statutory worlds they occupy. Should we conclude that either of them is for present purposes an alter ego of the High Court? We may be assisted in finding an answer by counsel's contentions on the question, what is meant by the term "superior court of record", to which I turn next.
(2) Superior Court of Record
- Because I have concluded that SIACA s.1(3) and TCEA s.3(5) are in any event inapt to exclude the judicial review jurisdiction whatever the historic scope of the expression "superior court of record", I may deal with this part of the case more shortly than would otherwise have been necessary. What follows is therefore superficial and incomplete. That is assuredly no criticism of counsel's skeleton arguments, on which I have drawn, as will be apparent to their authors; indeed I should pay tribute to their scholarship. They acknowledge in turn their reliance on the principal academic texts such as JH Baker An Introduction to English Legal History (4th edition), Holdsworth A History of English Law vol 1, Halsbury's Laws vol 10 (Reissue) and of course Blackstone's Commentaries on the Law of England (Book III).
(a) Primacy of the King's Bench
- The first common law court was the King's court, curia regis or aula regis, in the time of King 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, which Blackstone (Book III, Chapter 4, pages 43-45) describes 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 aula 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". Later there developed two superior courts whose jurisdiction was only in error or appeal: the Court of Exchequer Chamber (which from the 14th century heard writs of error from the Court of Exchequer and from the 16th century writs of error from the King's Bench); and the House of Lords (which heard appeals from the Chancery Court (from the 17th century) and writs of error from the Court of Exchequer Chamber and the King's Bench.
- In very general terms that is the background. Before turning to the use and significance of the expression "superior court of record" it is helpful to consider the particular status of the King's Bench as it was perceived and applied over the centuries. Writing in 1768 Blackstone described the King's Bench (Commentaries Book III, Ch 4, p.41) as "the supreme court of common law in the kingdom". He said (p.42):
"The jurisdiction of this court is very high and transcendent. It keeps inferior jurisdictions within the bounds of their authority."
Holdsworth (History of English Law vol 1, p.212), referring to Coke's Fourth Institute, described the supremacy of the King's Bench over other courts as follows:
"It has jurisdiction 'to examine and correct all and all manner of errors in fact and in law of all the judges and justices of the realm in their judgments, process, and proceedings in courts of record, and not only in pleas of the crown, but in all pleas, real, personal and mixt, the court of Exchequer excepted as hereafter shall appear.'"
- There are very many cases. In Cummins v Massam (1643) March 196 Heath J stated:
"[T]here is no Court whatsoever but is to be corrected by this Court [sc. the King's Bench]."
Later, in Groenwelt v Burwell (1695) 1 Salk 144, a case concerning the application of the writ of certiorari to a judgment of the censors of the College of Physicians relating to an allegation of malpractice, Holt CJ stated:
"[N]o Court can be intended exempt from the superintendency of the King in this Court of [Banco Regis]. It is a consequence of every inferior jurisdiction of record, that their proceedings be removeable into this Court, to inspect the record, and see whether they keep themselves within the limits of their jurisdiction."
- 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 others were habeas corpus, prohibition and mandamus. (For present purposes we may disregard habeas corpus, notwithstanding its magisterial place in the common law.) Prohibition was the oldest. The writs had different origins and were used in different ways (see the account given by Wrottesley LJ in R v Chancellor of St Edmundsbury and Ipswich Diocese ex parte White  1 KB 195, 208-9). Although at various times some of the writs were issued out of the Court of Common Pleas and the Chancery, they were pre-eminently issued out of the King's Bench exercising its supervisory jurisdiction. In Warner v Suckerman (1615) 3 Bulst 119 Lord Coke CJ said this of the King's Bench and the writ of prohibition:
"We here in this Court may prohibit any Court whatsoever, if they transgress and exceed their jurisdiction. And there is not any Court in Westminster-Hall but may be by us here prohibited, if they do exceed their jurisdictions, and all this is clear and without any question."
Compare James' Case (1631) Hob 17 and Case of the Company of Horners in London (1642) 2 Roll. R 471.
- 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 (which also abolished proceedings in error from decisions of the High Court and created the Court of Appeal). 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.
- Cases decided since the Judicature Act reflect the earlier primacy of the King's Bench but tend to speak of "inferior courts" as being the proper subject of the prerogative writs. Mr Eadie naturally relies on this, as tending to show that "superior courts" were not amenable to the supervision of the King's Bench. I give two examples. In R (on the Prosecution of the Penarth Local Board) v The Local Government Board (1882) 10 QBD 309 Brett LJ stated (321):
"I think I am entitled to say this, that my view of the power of prohibition at the present day is that the Court should not be chary of exercising it, and that wherever the legislature entrusts to any body of persons other than to the superior Courts the power of imposing an obligation upon individuals, the Courts ought to exercise as widely as they can the power of controlling those bodies of persons if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament."
Then in R v Justices of the Central Criminal Court, ex parte London County Council  2 KB 43, where the question was whether the High Court had jurisdiction to issue a writ of certiorari for the purpose of removing into that Court an order of the Central Criminal Court with a view to it being quashed, Lord Hewart CJ sitting in this court said after reviewing the authorities:
"To put these judgments together and to consider them in the light of s16 of the Judicature Act 1873 (36 & 37 Vict c66), one may express the conclusion which they support in this way: judges of assize exercise powers upon the same plane with the powers exercised by judges of the High Court in that Court; the Central Criminal Court is a Court of not less authority than a Court of assize; the Central Criminal Court is, therefore, a superior Court, and a writ of certiorari from the King's Bench Division does not lie to it for the purpose of quashing its order." (see also Avory J at 61-62)
- These formulations invite attention to the meaning and significance of the distinction between superior and inferior courts, to which I now turn.
(b) Three Distinctions
- In order to set this distinction between superior and inferior courts in its proper context for the purpose of these applications, it is necessary to describe three further distinctions which are to be found in the authorities. The first is between a court which is presumed to act within its powers until the contrary is shown and a court which enjoys no such presumption and whose proceedings must demonstrate on their face that the case in hand falls within its jurisdiction. The second is between those courts which are amenable to, and those which are immune from, the supervision of the High Court by way of judicial review. The third is between courts of limited, and courts of unlimited jurisdiction. These distinctions are not hermetically sealed each from the others. Between them they provide a framework for a proper understanding of the superior/inferior court dichotomy.
- The claimants' case is that this dichotomy reflects the first of these distinctions, or at least that it is as a description of this distinction that the terms superior/inferior court have most consistently been used; so that the name "superior court of record" is nothing to the point as regards the reach of judicial review. The defendants' case is that the dichotomy reflects the second of these distinctions; so that the name "superior court of record" is distinctly given by the law to a court which is immune from judicial review.
- In my judgment the balance of authority (to which I shall come directly) favours the claimants' argument. But the third distinction is also important. It exposes a principled basis for the second distinction; that is, it explains why some courts (conspicuously, the High Court) are immune from judicial review and some are not. This is the context in which the primacy of the King's Bench, which I have described in outline, possesses a special importance. In the result, notwithstanding certain dicta in the cases on which Mr Eadie understandably relies, the name "superior court of record" is not a reliable guide, let alone a definiens, of courts which are so immune.
(b)(1) The First Distinction
- Halsbury's Laws (4th Edition, Butterworths, 2002) vol. 10 paragraph 309 states:
"The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular manner is within the cognisance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of claims, and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular claim. In an inferior court, other than a county court, unless the proceedings show on their face that the cause of action arose within its jurisdiction, the claim cannot be maintained, and even in inferior courts with a local limit of jurisdiction it must appear that such limit is not being exceeded."
- This passage, which in my respectful view is entirely correct, marches with what was said by Wrottesley LJ in R v Chancellor of St. Edmundsbury and Ipswich Diocese, ex p. White  1 KB 195, 205 – 206:
"One of the matters most in controversy, both in the Divisional Court and here, was the question whether the ecclesiastical courts were and are inferior courts. And the more this matter was investigated the clearer it became that the word 'inferior' as applied to courts of law in England had been used with at least two very different meanings. If, as some assert, the question of inferiority is determined by ascertaining whether the court in question can be stopped from exceeding its jurisdiction by a writ of prohibition issuing from the King's Bench, then not only the ecclesiastical courts, but also Palatine courts and Admiralty courts are inferior courts. But there is another test, well recognized by lawyers, by which to distinguish a superior from an inferior court, namely, whether in its proceedings, and in particular in its judgments, it must appear that the court was acting within its jurisdiction. This is the characteristic of an inferior court, whereas in the proceedings of a superior court it will be presumed that it acted within its jurisdiction unless the contrary should appear either on the face of the proceedings or aliunde...
Wrottesley LJ referred to some of the old courts of limited jurisdiction, and continued:
"These are only some of the many courts of limited jurisdiction which existed and sometimes flourished side by side with King's Bench, Common Pleas, Exchequer and later the Chancery Courts: see Holdsworth's History of English law, vol. 1, passim. But all these limited jurisdictions were subject to the jurisdiction of the King's Bench in this respect, that if they transgressed their limits, the writ of prohibition would go to put an end to the proceedings and to prohibit both judges and parties from taking any steps to enforce anything that had been done."
- Ex p. White shows – and there are other sources for this proposition – that the prerogative writs were from time to time in the past directed to some courts designated as superior courts. Moreover the basis of distinction between superior and inferior court emphasised in Halsbury's Laws and by Wrottesley LJ, namely that the former will be presumed to have acted within its powers until the contrary is shown whereas there is no such presumption in favour of the latter (the first of my three distinctions), cannot of itself measure the reach of judicial review: for applying that distinction, a superior court may be as readily amenable to review for error of law as its inferior neighbour once it can be demonstrated that the superior court indeed perpetrated such an error.
- These considerations appear to separate the superior/inferior dichotomy from the issue of subjection to the prerogative writs or judicial review. They therefore tell against the Secretary of State. However, Mr Eadie has more to say. He submits, as I have foreshadowed, that what may be called the first of the three distinctions is not the primary sense in which we ought to understand the dichotomy between superior and inferior courts. The dichotomy should rather be understood as reflecting the second distinction I have described: that between those courts which are amenable to, and those which are immune from, the supervision of the High Court by way of judicial review.
(b)(2) The Second Distinction
- In support of his reliance on the second distinction, Mr Eadie cites dicta from a number of cases seeming to link immunity from review with the status of a superior court of record. Thus in R v Regional Office of the Employment Tribunals (London North), ex parte Toyin Sojirin (unreported, 21 February 2000), 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." Likewise in Chessington World of Adventures v Reed, ex parte News Group Newspapers Ltd  IRLR 56 (EAT) Morison J said: "Because the Employment Appeal Tribunal is a superior court of record, its proceedings and decisions are not susceptible to a challenge by way of judicial review." Then in Director General of Fair Trading v Proprietary Association of Great Britain (unreported, 21 December 2000), Lord Phillips MR as he then was said: "The Restrictive Practices Court is a superior court of record and, in consequence, its decisions are not subject to judicial review by the High Court". In R v Chief Bankruptcy Registrar, ex parte Klibansky (unreported, 25 November 1994), the Court of Appeal held that there was no jurisdiction in relation to a decision of Millett J under the Insolvency Rules confirming a decision of the Chief Bankruptcy Registrar. Morritt LJ as he then was, with whom Peter Gibson and Waite LJJ agreed, stated that "immunity from restraint by the order of any other court … is the hallmark of the superior courts of record whose decisions may be appealed but cannot be reviewed." In DPP v Crown Court at Manchester  1 WLR 1524 at 1527 Lord Browne-Wilkinson stated that "[t]he assize courts, being superior courts of record, were not subject to the prerogative writs."
- These dicta are reflected in text book statements. Thus in de Smith, Judicial Review of Administrative Action (6th ed, 2007), this is stated at paragraph 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."
- It appears from these materials that in recent times some judges and academic writers have assumed that a court having the status of a superior court of record is thereby immune from judicial review. But in my judgment Miss Rose QC for U was surely right to submit in reply that there is no judicial decision in which it has been concluded, after analysis confronting the issue, that such superior courts are ipso facto so immune. No doubt courts which the High Court has accepted are superior courts of record have in fact been generally immune from review. But that is not because the name or status "superior court of record" constitutes a legal condition of such immunity. Rather the immunity has been a condition of the status – at least generally: as Ex p. White shows, the prerogative writs have from time to time been issued to courts acknowledged to be superior. What seems to have happened is that in cases where their immunity from review has not itself been in contention, courts have been referred to as superior courts of record as a form of shorthand.
- In light of that conclusion it is appropriate to consider what in truth is the principle or principles upon which some courts are immune from review and some are not. What was the essential basis on which the prerogative writs (particularly prohibition and certiorari) were issued to other courts, in cases where the King's Bench assumed jurisdiction to do so? This brings me to the third distinction, between courts of limited, and courts of unlimited jurisdiction.
(b)(3) The Third Distinction
- The weight of the learning points to an overriding foundation for the issue of the prerogative writs (now the grant of judicial review) by the High Court: an excess of jurisdiction by the subject court. One may multiply phrases from the short citations I have given from the older authorities: "if they do exceed their jurisdictions" (Warner v Suckerman), "see whether they keep themselves within the limits of their jurisdiction" (Groenwelt v Burwell), "keeps inferior jurisdictions within the bounds of their authority" (Blackstone). It is implicit in these formulations that the jurisdiction of the subject courts is limited; there are bounds which by law they must not transgress. That is the edge kept sharp by the prerogative writs. By contrast the King's Bench, out of which the writs issue, is a court of unlimited jurisdiction and therefore not itself subject to any such supervision.
- This position is vouchsafed among the modern authorities by the decision of the House of Lords in Racal Communications  AC 374. For his part Mr Eadie would have us treat this case as supporting him – as deciding, in effect, that superior courts of record are generally not amenable to judicial review. He relies in particular on these passages:
"… 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." (384, per Lord Diplock)
"… the High Court is not an inferior tribunal. It is one of Her Majesty's courts of law. It is a superior court of record. It was not, in the past, subject to control by prerogative writ or order, nor today is it subject to the judicial review which has taken their place." (392, per Lord Scarman)
- It is important, however, to understand what was the issue for decision in Racal. The question was whether the Court of Appeal had been right to entertain a challenge by the Director of Public Prosecutions to the refusal of a High Court judge to grant an application under s.441 of the Companies Act 1948 for the inspection or production of documents. S.441(3) provided that a decision on such an application "shall not be appealable". The Court of Appeal had assumed jurisdiction to entertain the challenge notwithstanding the wording of s.441(3), relying on Anisminic. This was, in effect, an assumption of a judicial review jurisdiction by the Court of Appeal over the High Court, and the House of Lords held it to be illegitimate: the Court of Appeal enjoyed no original judicial review jurisdiction, and the High Court was in any event immune from judicial review. For present purposes it is only necessary to cite two passages. The first is from the speech of Lord Diplock at 384:
"There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealably, and a similar jurisdiction 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. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. 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."
Then at p.386A-B Lord Salmon stated:
"The Court of Appeal… relied strongly on the decision of your Lordships' House in Anisminic Ltd. v Foreign Compensation Commission  2 AC 147. That decision, however, was not, in my respectful view, in any way relevant to the present appeal. It has no application to any decision or order made at first instance in the High Court of Justice. It is confined to decisions made by commissioners, tribunals or inferior courts which can now be reviewed by the High Court of Justice - just as the decisions of inferior courts used to be reviewed by the old court of King's Bench under the prerogative writs. If and when any such review is made by the High Court, it can be appealed to the Court of Appeal and thence, by leave, to your Lordships' House.
The jurisdiction of the Court of Appeal is defined by statute. It has no jurisdiction to make a judicial review of a decision of the High Court."
- It can be seen that the focus was not on any general contrast between superior courts of record and inferior courts. None of their Lordships articulated the broad proposition that any superior court of record is immune from judicial review. The true contrast is between the High Court on the one hand and courts of limited jurisdiction on the other, and it is clear to my mind that the references (of which there are several) to "inferior courts" means, simply, courts of limited jurisdiction. This, then, is the third distinction. The High Court as a court of unlimited jurisdiction cannot be subjected to review. On the other hand courts whose jurisdiction is limited will generally be so subject: they will be amenable to higher judicial authority – the High Court – to fix the limits of their authority.
- Before leaving the third distinction I should cite R v Cripps, ex parte Muldoon  1 QB 68, in which the Divisional Court had to decide whether an election court was a superior court of record and not amenable to judicial review, or an inferior court. Goff LJ as he then was, giving the judgment of the court, reviewed the authorities and stated at 86 – 87:
"From these cases, it is difficult to extract any precise principle. The most that can be said is that it is necessary to look at all the relevant features of the tribunal in question including its constitution, jurisdiction and powers and its relationship with the High Court in order to decide whether the tribunal should properly be regarded as inferior to the High Court, so that its activities may appropriately be the subject of judicial review by the High Court. As we have already indicated, in considering that question the fact (if it be the case) that the tribunal is presided over by a High Court judge is a relevant factor, though not conclusive against the tribunal being classified as an inferior court; just as relevant are the powers of the tribunal and its relationship with the High Court which can ordinarily be ascertained from the statute under which the tribunal is set up. But, as is demonstrated in particular by the approach adopted by the Court of Appeal in R v Chancellor of St Edmundsbury and Ipswich Diocese, ex parte White  1 KB 195, and by the Privy Council in Colonial Bank of Australasia v Willan, LR 5 PC 417 (following and adopting the view of Lord Holt in R v Inhabitants of Glamorganshire, 1 Ld Raym 580), there is an underlying policy in the case of tribunals of limited jurisdiction, whether limited by area, subject matter or otherwise, that unless the tribunal in question should properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate, it is in the public interest that remedies by way of judicial review by the High Court should be available to persons aggrieved; though in some cases there may be special reasons why such remedy should be available only to curb an excess of jurisdiction but not to review and correct an error of law committed within the jurisdiction."
- This citation prompts a number of points. First, the second sentence might suggest that Goff LJ implicitly accepts what is Mr Eadie's argument in this case, namely that the label, superior/inferior, drives the conclusion as to whether or not the court in question is reviewable ("whether the tribunal should properly be regarded as inferior to the High Court, so that its activities may appropriately be the subject of judicial review"). But I think that would to misread the judgment. It is clear to my mind that the approach being commended is to examine all the characteristics of the court in question in order, not to dignify it with a name or status, but to ascertain whether in substance it should be subject to the judicial review jurisdiction of the High Court. In the fulfilment of that task various factors may be relevant; the nearest one gets to a general principle is the "underlying policy" to which Goff LJ refers, namely that tribunals (and the context shows that courts are included) of limited jurisdiction should generally be subject to judicial review.
- There is another point to be taken from Ex p. Muldoon. In a passage I need not set out Goff LJ observed that the Court-Martial Appeal Court and the Restrictive Practices Court were simple examples of courts which were not inferior for the purposes of judicial review. If that is right, as with respect I am clear that it is (although Miss Rose points out in her written reply submissions, paragraph 42(5), that there had been no argument on the point), it shows that the High Court is not uniquely beyond judicial review. However since the Judicature Act 1873 the High Court has included the great majority of the earlier superior courts of record, and is the only court whose jurisdiction is truly unlimited. Other courts not subject to review (leaving aside, of course, the Court of Appeal and the Supreme Court) are exceptional cases whose immunity is justified by reason of their "having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate". While the two courts referred to by Goff LJ were designated superior courts of record by the relevant statutes, in substance it is their possession of this status, their proximity in kind to the High Court, that confers their immunity. In deciding (section IV(3) below) whether by force of the common law the judicial review jurisdiction will or will not run to SIAC and UT, I shall have to consider whether the same applies to those bodies.
- I conclude that the third distinction constitutes the principal explanation of the second. Some courts are liable to judicial review and some are not, in most cases because some courts possess only a limited jurisdiction and some do not. Unreviewable courts of limited jurisdiction are exceptional. It is true that beneath this apparently simple position there lie some taxing complexities; however the considerations I have here set out are sufficient to refute the defendants' reliance on SIACA s.1(3) and TCEA s.3(5) as excluding the judicial review jurisdiction by force of the legislation's reference to "superior court of record". The books demonstrate that despite the usage in some of the cases, this expression cannot be taken to delineate, in principle, those courts which are immune from judicial review.
- Accordingly, even if I were not satisfied (for reasons I have given in section IV(1) of this judgment) that the formulae of ss.1(3) and 3(5) are incapable in principle of negating the power of judicial review over SIAC and UT, I would hold that in the particular case they cannot in any event do so. I should note that Mr Eadie put in a supplementary skeleton argument seeking to rely on certain Parliamentary materials pursuant to the rule in Pepper v Hart  AC 593. I did not find this at all helpful. Ss.1(3) and 3(5) must be shown to be ambiguous for the rule to apply; but if they are, they must be incapable of excluding the judicial review jurisdiction.
- There are two points by way of postscript to this discussion of the superior/inferior dichotomy. First, I have not forgotten the argument advanced by Mr Drabble QC for Mr Cart that the expression "superior court of record" is an English legal term, which has not been recognised by the Scottish courts as having any legal significance. Accordingly the use of the term "superior court of record" in s.3(5) cannot have been intended to exclude the possibility of judicial review in Scotland; and in that case, it cannot have been intended to exclude that possibility in England and Wales, and Northern Ireland, either. I think this argument very doubtful, despite its elegance. It amounts to the assertion that s.3(5) is meaningless in Scotland and must therefore be meaningless altogether. In the debate on the Constitutional Reform Bill in the House of Lords a similar point was taken (in relation to the Supreme Court). The government spokesman observed that, in dealing with UK-wide legislation, "well established legislative drafting practice is not to disapply for one system of law provisions which clearly relate only to another". In view of my other conclusions I do not find it necessary to decide this point raised by Mr Drabble; had it stood alone, however, I think it highly unlikely that it would have carried the day.
- The second postscript recalls my observation (paragraph 41) that the expression "superior court of record" denotes characteristics which Parliament by means of ss.1(3) and 3(5) may be taken to have attributed to SIAC and UT. One such characteristic is that SIAC and UT will be presumed to act within their powers until the contrary is shown (see the discussion above of the first distinction). A second attribute of a superior court of record appears to be that its decisions have effect as precedents for lower tribunals. This is no doubt because of the record it keeps. (Originally, a court of record was one whose acts and proceedings were enrolled in parchment.) Thirdly, such a court has power to punish for contempt: see for example Ex parte Fernandez (1861) 10 CB (NS) 28 per Byles J at 57-58. Thus my conclusion that ss.1(3) and 3(5) do not have effect to exclude the supervisory jurisdiction by no means deprives the subsections of content.
(3) The Common Law
- As I indicated at paragraph 42, my conclusion against the Secretary of State on the effect of ss.1(3) and 3(5) by no means marks the end of the debate in these appeals. There remains a question (which is the High Court's special responsibility to decide) whether by force of the common law the supervisory jurisdiction will run to SIAC and UT, or not at all, or only to an attenuated extent.
- Both institutions possess limited jurisdictions, although in the case of UT, by force in particular of the "judicial review" provisions (TCEA ss.15 – 21), the limits are cast very wide, and I shall have more to say about that. Nevertheless, like SIAC, it owns only the jurisdiction given to it by statute. In my view the issue to be decided for SIAC and UT alike is the Muldoon question: should either institution properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate? Put another way, and to use the language of my earlier discussion of the exclusion of judicial review by statute (above, paragraph 39), does either body constitute in effect an alter ego of the High Court? There has to be an impartial authoritative judicial source of statutory interpretation, independent both of the legislature and of the persons affected by the application in practice of the relevant texts. Such a source is either the High Court or its alter ego.
- The answer to these questions requires a closer look at what I have described as the overriding foundation for the grant of judicial review: an excess of jurisdiction by the subject court. This concept possesses (at least) two different meanings. The first denotes the case where a court travels into territory where it has no business. Thus a court whose jurisdiction is limited to claims of a pleaded value of £5,000 or less would exceed its jurisdiction if it entertained a claim pleaded at £10,000; or if it adjudged a suit arising in Derbyshire though its jurisdiction was limited to County Durham. The second meaning of excess of jurisdiction denotes the case where, acting within the field ascribed to it, the court gets the law wrong. The first of these meanings is almost always unproblematic. The territory of a court's jurisdiction conferred by statute will depend, plainly, on the terms of the statute. (The same is of course true of the reach of executive power conferred by statute on a Minister or other public decision-maker.) The territory's edge will usually be sharp enough.
- But the second meaning of excess of jurisdiction has given rise to more difficulty. A court acts in excess of jurisdiction by getting the law wrong if it is not the final judge (subject to any statutory appeal) of the law it has to apply. If it is not, it exceeds its jurisdiction if it makes a legal error, and in that case the High Court as successor to the King's Bench may issue a certiorari (nowadays, a quashing order) to correct the error. By contrast if the court in question is the last judge of the applicable law (subject as I have said to any right of appeal) it will not exceed its jurisdiction by perpetrating a legal error, and the High Court will have no corrective or supervisory role.
- As regards administrative or executive decision-makers, as opposed to courts, Anisminic v Foreign Compensation Commission  2 AC 147 decides they have no jurisdiction to get the law wrong; every material error of law is an excess of jurisdiction and exposes the decision-maker to judicial review (paragraph 32 above). As regards courts the position is less straightforward, as Lord Diplock's speech in Racal shows. At 383 – 384 he said:
"But there is no similar presumption [sc. to that which applies to administrative decision-makers] 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. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic  2 AC 147; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide."
I should say that I do not, with respect, regard this passage as contradicting my conclusion (paragraphs 36 and 38) that the rule of law requires that statute should be mediated by an authoritative and independent judicial source; and Parliament's sovereignty requires that it respect this rule. Lord Diplock was not in Racal considering the force or effect of any ouster clause, and as I have shown (paragraph 67) the issue in the case was, in effect, whether the Court of Appeal had the power to entertain a form of judicial review over the High Court.
- We may see, then, that the question whether SIAC or UT is amenable to the judicial review jurisdiction has more than one layer. (1) Is either body reviewable for excess of jurisdiction in the first sense of the term (transgression beyond the boundaries of its permitted subject-matter)? (2) Is either reviewable for excess of jurisdiction in the second sense, as being liable to correction for error of law, albeit committed within those proper boundaries? Or is it a court possessing the final power (subject to appeal) to interpret for itself the law it must apply?
- I can deal with the question shortly so far as it relates to SIAC. Plainly it is reviewable for excess of jurisdiction in the first sense. As for the second it is clear, and I think uncontested, that SIAC was generally amenable to the judicial review jurisdiction before the 2001 Act inserted s.1(3) into SIACA. It was in the same position as the AIT, which was certainly reviewable. We have seen (paragraph 6) that in many classes of case the jurisdiction of the AIT and SIAC is identical, save that in SIAC cases the appellant is a suspected terrorist. SIAC was accordingly subject to judicial review for excess of jurisdiction in the second sense I have described, and in my judgment remains so. The fact that it is chaired by a High Court judge is nothing to the point. It is true that Goff LJ in Muldoon opined that "the fact (if it be the case) that the tribunal is presided over by a High Court judge is a relevant factor"; but it is to be noted that in In re Smalley  AC 622, one of a clutch of cases to reach the House of Lords concerning judicial review of the Crown Court and the proper construction of s.29(3) of the Supreme Court Act 1981 (DPP v Crown Court at Manchester  1 WLR 1524, to which I referred at paragraph 61, is another), Lord Bridge at 641H considered that the rank of the presiding judge was essentially immaterial to the reach of judicial review. In any event bail applications in SIAC are not required to be heard by a High Court judge.
- I need not give examples of SIAC's subjection to judicial review before the enactment of s.1(3). Mr Eadie has nothing to stem the same tide from running the same way after s.1(3) was added to SIACA, save only the terms of s.1(3) itself. But for reasons I have given s.1(3) cannot immunise SIAC from judicial review. Nor can s.1(4), which as I have said was also added by s.35 of the 2001 Act. It is a no certiorari clause which falls foul of the Anisminic principle. There is no basis for any autonomous immunity arising under the common law. SIAC is, and throughout its life has been, amenable to judicial review for excess of jurisdiction in both senses. It cannot be taken to be an alter ego of the High Court.
- The issue of SIAC's potential immunity from judicial review has in fact crossed the court's threshold in an earlier case. In G v Secretary of State  1 WLR 1349 the Court of Appeal gave preliminary consideration to the point. Lord Phillips MR stated at paragraph 20:
"SIAC is a court of very limited jurisdiction. It is not easy to accept that, if SIAC purports to exercise a jurisdiction that does not exist, Parliament has excluded all possibility of putting the matter right. What if section 24 had provided that 'a suspected international terrorist who is detained may not be released on bail'? Would there be no remedy if SIAC purported to grant bail?"
However the matter had not been fully argued and was not then finally determined. The case was adjourned for further submissions, but in the event, for reasons which do not concern us, it was not restored in court. It is clear (at least) that there is nothing in G to suggest that SIAC might be immune from judicial review.
- I think it important to emphasise the limited consequences (if my Lord agrees) of my holding that SIAC is subject to the judicial review jurisdiction. A final determination of an appeal by SIAC is by SIACA s.7 subject to appeal to the Court of Appeal. It is elementary that judicial review is a discretionary remedy of last resort. Accordingly it will not be deployed to assault SIAC's appealable determinations. Not of course for want of jurisdiction: but because the court's discretion should not be so exercised. Nor will it go to interlocutory decisions on the way to such a determination, at least without some gross and florid error. As for bail, the court will not allow judicial review to be used as a surrogate means of appeal where statute has not provided for any appeal at all. In a sensitive area where the tribunal is called on to make fine judgments on issues touching national security, I would anticipate that attempts to condemn the refusal (or grant) of bail as violating the Wednesbury principle will be doomed to failure. A sharp-edged error of law will have to be shown.
- In light of my conclusion that SIAC is in principle amenable to judicial review for any excess of jurisdiction, the defendants' alternative submission that the remedy only runs to SIAC in rare and exceptional cases does not arise. I must, however, address the second question which I identified at the outset, namely whether the decisions by SIAC to revoke bail (U) and to refuse bail (XC) violated the claimants' rights guaranteed by ECHR Article 5(4). Those decisions are as I have said not subject to appeal pursuant to SIACA s.7, and are proper candidates for judicial review. The claimants' argument on ECHR Article 5(4) discloses what I have called a sharp-edged error of law. I will deal with it after stating my conclusions as to the common law position relating to judicial review of UT, to which I turn next.
- Here I think the position is very different. UT is at the apex of a new and comprehensive judicial structure designed to rationalise and re-organise in a single system the means of adjudication for a multitude of claims previously determined by a variety of disparate tribunals with no common appeal mechanism. Though it is not a court of unlimited jurisdiction, being of course confined to what TCEA gives it, its jurisdiction is very wide. Subject to the fact that some tribunals presently remain outside the fold, it may be said to be an appeal court of general jurisdiction in relation to matters which are consigned to adjudication at first instance by statutory tribunals.
- In addition, as I have shown (paragraphs 13 – 14 above), UT possesses a jurisdiction itself to grant judicial review, applying the same principles and granting the same relief as the High Court. This, I think, is of some importance in considering "the powers of the tribunal and its relationship with the High Court" (Muldoon, per Goff LJ). The intention of TCEA ss.15 – 21 is, I apprehend, to bring about a state of affairs in which the function of judicial review is shared (in England and Wales, and Northern Ireland; ss.20 and 21 deal with Scotland) between UT and the High Court. It is notable that UT's power to grant judicial review is not delineated by a positive list of topics or subjects stated to fall within its scope. It is expressed entirely generally, subject only to certain limitations (TCEA s.15). A striking feature of the balance of judicial review work struck by the statute between UT and the High Court is that by s.31A of the Supreme Court Act 1981 (inserted by TCEA s.19(1)) judicial review applications commenced in the High Court must be transferred to UT if four conditions are met; I give the details at paragraph 14 above. If the third condition (that the application must fall within a class specified for the purposes of s.18(6) in a direction given by the Lord Chief Justice (with agreement of the Lord Chancellor Lord Chancellor) is not met but the other three are, the High Court enjoys a discretion whether to transfer the case (s.31A(3)).
- I have also described (paragraph 15) the statutory arrangements contained in TCEA Schedule 1 which have been set in place to establish the membership of UT. In England and Wales full-time professional judges of all ranks (save justices of the Supreme Court) are ex officio judges both of FTT and UT. However the Senior President is to be a judge of the Court of Appeal here or in Northern Ireland or a judge of the Inner House of the Court of Session, assuming agreement as to the appointee's identity among the statutory consultees (the Lord Chancellor, the Lord Chief Justice both here and in Northern Ireland and the Lord President of the Court of Session); otherwise the JAC will recommend a person who meets eligibility criteria as to his professional standing. The ordinary expectation, as I read the statute, is that the Senior President will be a judge of Court of Appeal rank (as is the present incumbent, Carnwath LJ), and that is of some significance in considering the tribunal's authority. The role of the JAC is in the nature of a longstop in the case of unlooked for disagreement.
(2) The Claimant's Submissions
- Mr Drabble's argument on behalf of Mr Cart was deployed on quite a narrow front, and barely engaged the broader considerations which I have canvassed. He submitted that the "judicial review" provisions contained in TCEA are irrelevant to his client's case. He said that the decision of UT sought to be impugned by the claimant was of exactly the same kind as many decisions of Social Security Commissioners taken over the years which have been subject to the judicial review jurisdiction with nothing but benign results for the accurate administration of the social security system. He cited among other cases Woodling v Secretary of State  1 WLR 348 and Connolly v Secretary of State  1 WLR 421. It is unnecessary to enter into the detail of these authorities, for I accept without cavil Mr Drabble's submission that they exemplify what was at the time a useful application of the judicial review jurisdiction which kept or put the law on the right track; and (so far as can be seen) ran into no countervailing logistical difficulties. Reasoning from Connolly was applied, as Mr Drabble demonstrated, by Lightman J in Chamberlain v Social Security Commissioner  EWHC Admin 364.
- Mr Drabble referred to a line of cases concerned with judicial review of decisions of county courts, notably Sivasubramaniam  1 WLR 475, to which I have already referred in passing and which is the principal authority deployed by Mr Eadie to support his alternative argument to the effect that judicial review will only run against UT in rare and exceptional cases. As I understood him Mr Drabble recognised the force of the Court of Appeal's acceptance in Sivasubramaniam of counsel's argument that "when a litigant reaches the end of the road by reason of the refusal of the appeal court to grant permission to appeal, an application for permission to claim judicial review should be refused, subject to exceptional circumstances" (paragraph 49). He submitted, I think correctly, that none of the social security cases was cited in Sivasubramaniam, nor indeed in another case concerned with county courts, Gregory  1 WLR 1149, nor yet another in which the Court of Appeal had to deal with an application for judicial review of the Lands Tribunal's refusal to grant permission to appeal against a determination of a Leasehold Valuation Tribunal: Sinclair Investments  3 All ER 650.
- The thrust of these cases is encapsulated in the proposition I have cited from paragraph 49 of Sivasubramaniam: if the litigant has reached the end of the appeal road, he should not generally be allowed a fresh start down a different track marked judicial review. As Mr Drabble was at pains to emphasise, however, that approach was not applied in the social security cases such as Connolly. Nor has it been applied so as to exclude judicial review, after any statutory appeal right has been exhausted, of decisions of the appellate authorities in immigration and asylum cases. So much was expressly recognised by the Court of Appeal in Sivasubramaniam (paragraph 50).
- I do not see these differences of approach as impurities in the law's complexion. They represent the configuration of the judicial review jurisdiction to meet the pragmatic demands of the rule of law. In some instances free rein for judicial review's full panoply will be disproportionate to what is at stake: Sivasubramaniam paragraph 54, Sinclair Investments paragraph 69. In others, it will not. It is in the nature of the High Court's unlimited, common law powers that it will move its jurisdiction's practical edge to the line where its protection is needed, and will move it no further; and the line itself may shift. In this case we have to set the jurisdiction's practical edge according to the same principle. I acknowledge the clear force of Mr Drabble's submission that the decision sought to be reviewed by Mr Cart was of a type accepted, for good reason, as fit for judicial review when taken by a Commissioner (Woodling, Connolly). But I consider that the advent of UT and FTT now commends a different outcome.
(3) Principal Conclusion
- In my judgment UT is, for relevant purposes, an alter ego of the High Court. It therefore satisfies the material principle of the rule of law: it constitutes an authoritative, impartial and independent judicial source for the interpretation and application of the relevant statutory texts. It is not amenable to judicial review for excess of jurisdiction in the second sense: the case where, albeit acting within the field ascribed to it, the court perpetrates a legal mistake. It is a court possessing the final power to interpret for itself the law it must apply. Mr Drabble's elegant argument has not persuaded me to the contrary. UT's role at the apex of a new and comprehensive judicial structure ought to be respected and given effect. Its judicial review function is highly material to that role's status and authority. And it must, I think, be obvious that judicial review decisions of UT could not themselves be the subject of judicial review by the High Court; but I cannot see that UT might be reviewable when acting under TCEA ss.11 – 12 but not when acting under ss.15 – 21.
- The need of proportionality also, in my judgment, tells in favour of the defendants. Because of (a) FTT's power to review its own decisions (TCEA s.9), (b) the procedure for applications for permission to appeal to be made first to FTT and if unsuccessful to UT, (c) the procedure for judicial review permission to be sought first on paper and then renewed in court, and (d) the further procedures for permission to appeal to the Court of Appeal, a point first raised in FTT may be liable to something like eight tiers of judicial consideration if judicial review is available as urged on behalf of Mr Cart.
- Mr Eadie submitted, as I have stated, that even if judicial review could not generally be had against UT, still it might be available in rare and exceptional cases as envisaged by the Court of Appeal in Sivasubramaniam. We have seen that that case dealt with review of the county court. Lord Phillips MR giving the judgment of the court said this:
"53... There is a right to seek permission to appeal against such decisions [sc. of district judges in county courts], and to renew the application at an oral hearing if it is refused on paper. The decision challenged will, in this way, be open to review by a Judge. That review can consider any challenge that is made to the jurisdiction of the Judge below. It can also consider the merits of any attack that may be made on the conclusions of the Judge below in relation to any matter, be it fact, law or the basis upon which a discretion has been exercised. If grounds for appeal are held to exist, a full appeal will follow.
54. This scheme we consider provides the litigant with fair, adequate and proportionate protection against the risk that the Judge of the lower court may have acted without jurisdiction or fallen into error. The substantive issue will have been considered by a Judge of a court at two levels. On what basis can it be argued that the decision of the Judge of the appeal court should be open to further judicial review? The answer, as a matter of jurisprudential theory is that the Judge in question has limited statutory jurisdiction and that it must be open to the High Court to review whether that jurisdiction has been exceeded. But the possibility that a Circuit Judge may exceed his jurisdiction, in the narrow pre Anisminic sense, where that jurisdiction is the statutory power to determine an application for permission to appeal from the decision of a District Judge, is patently unlikely. In such circumstances an application for judicial review is likely to be founded on the assertion by the litigant that the Circuit Judge was wrong to conclude that the attack on the decision of the District Judge was without merit. The attack is likely to be misconceived, as exemplified by the cases before us. We do not consider that Judges of the Administrative Court should be required to devote time to considering applications for permission to claim judicial review on grounds such as these. They should dismiss them summarily in the exercise of their discretion. The ground for so doing is that Parliament has put in place an adequate system for the reviewing the merits of decisions made by District Judges and it is not appropriate that there should be further review of these by the High Court...
55. Everything that we have said should be applied equally to an application for permission to claim judicial review of the decision of a Judge of the County Court granting permission to appeal. We are not aware that such an application has yet been made.
56. The possibility remains that there may be very rare cases where a litigant challenges the jurisdiction of a Circuit Judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing. If such grounds are made out we consider that a proper case for judicial review will have been established."
- The question is whether judicial review might properly go to UT on such exceptional grounds. Now, the county court is not an alter ego of the High Court. The decision in Sivasubramaniam was simply to the effect that in what might be termed the ordinary case, judicial review of a circuit judge's grant or refusal of permission to appeal should eschewed on grounds of proportionality and pragmatism. Here (though I have made reference to proportionality) the essence of my conclusion is that UT is such an alter ego; it constitutes an authoritative, impartial and independent judicial source for the interpretation and application of the relevant statutory texts. It might be said that this is the language of jurisdiction: its consequence is that the High Court has not the legal power to issue judicial review to UT; but if it has not, it has no more business doing so in exceptional cases than in any other kind of case. Indeed, I have headed this part of the judgment "The Jurisdiction Issue".
- The nature of the judicial review jurisdiction owned by the High Court has an elusive quality, because its limits are (generally) set by itself. In consequence, the distinction between a legal place where the jurisdiction cannot go, and a legal place where as a matter of discretion the High Court will not send it, is permeable: even unprincipled. Ultimately the court is simply concerned to give the jurisdiction the reach, or edge, which the rule of law requires. Here, for reasons I have given, the rule of law does not require that UT be reviewable for excess of jurisdiction in the second sense of the term as I have described it (where, acting within its proper field, the court perpetrates a legal error): quite the contrary. It might therefore be said that the High Court has no jurisdiction to issue judicial review to UT on such grounds. In truth, however, it means only that there is no case in which it would be right to exercise the judicial review jurisdiction on such grounds. Accordingly my principal conclusion in UT's favour offers no logical bar to an acceptance of Mr Eadie's fall-back position based on Sivasubramaniam.
- In the grossly improbable event that UT were to embark upon a case that was frankly beyond the four corners of its statutory remit – the first sense of excess of jurisdiction – I see no reason why the High Court should not correct it. As for "denial of the applicant's right to a fair hearing" (Sivasubramaniam paragraph 56) I would be very much more cautious. Complaints of unfairness in the course of a hearing are legion, and very various. The rule of law would be frustrated, not advanced, if litigants were allowed to test in the High Court the merits of any and every such complaint. I would, with diffidence, repeat what I said in R(Strickson) v Preston County Court  EWCA Civ 1132 at paragraph 32:
"How should such a defect be described in principle? I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre-Anisminic jurisdictional error... It would include substantial denial of the right to a fair hearing..."
I hope it is clear from the context that the reference there to a "substantial denial of the right to a fair hearing" was intended only to denote the case where there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal.
- Only to this limited, and I apprehend theoretical, extent would I grant any space for judicial review of UT. It cannot help Mr Cart.
V: THE ARTICLE 5(4) ISSUE
- ECHR Article 5(4) provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
I should also set out the first sentence of Article 6(1):
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
As I have indicated (paragraphs 23 and 25) SIAC's decisions to revoke U's bail and to refuse bail to XC, taken on 20 March 2009 and 21 May 2009 respectively, were wholly based on closed evidence. The decisions are prima facie lawful (SIACA s.3 and ECHR Article 5(1)(f), which I need not cite). In neither case, however, had the evidence been "gisted" (to use the barbarism apparently in vogue) to the claimant. Do those facts disclose violations of Article 5(4)?
- The starting-point is the decision of the European Court of Human Rights in A and others v United Kingdom (Application 3455/05, 19 February 2009). In that case the court had to consider the procedure adopted by SIAC when considering challenges to the detention of persons certified as suspected international terrorists under Part 4 of the Anti-Terrorism, Crime and Security Act 2001. All save one of the applicants had been detained on the strength of closed evidence which was not disclosed except to special advocates with whom the detainees were not permitted to consult. It was submitted that:
"Article 5 § 4 imported the fair trial guarantees of Article 6 § 1 commensurate with the gravity of the issue at stake. While in certain circumstances it might be permissible for a court to sanction non-disclosure of relevant evidence to an individual on grounds of national security, it could never be permissible for a court assessing the lawfulness of detention to rely on such material where it bore decisively on the case the detained person had to meet and where it had not been disclosed, even in gist or summary form, sufficiently to enable the individual to know the case against him and to respond." (judgment, paragraph 195)
The government submitted (paragraph 197) that "there were valid public interest grounds for withholding the closed material. The right to disclosure of evidence, under Article 6 and also under Article 5 § 4, was not absolute". After considering its earlier case-law, including Chahal (1997) 23 EHRR 413, the Strasbourg court stated:
"217… [I]n the circumstances of the present case, and in view of the dramatic impact of the lengthy - and what appeared at that time to be indefinite - deprivation of liberty on the applicants' fundamental rights, Article 5 § 4 must import substantially the same fair trial guarantees as Article 6 § 1 in its criminal aspect (Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001 and see also see Chahal, cited above, §§ 130-131).
218. Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, Article 5 § 4 required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him.
219. The Court considers that SIAC, which was a fully independent court… and which could examine all the relevant evidence, both closed and open, was best placed to ensure that no material was unnecessarily withheld from the detainee. In this connection, the special advocate could provide an important, additional safeguard through questioning the State's witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure. On the material before it, the Court has no basis to find that excessive and unjustified secrecy was employed in respect of any of the applicants' appeals or that there were not compelling reasons for the lack of disclosure in each case.
220. The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5 § 4 would not be satisfied."
Applying this approach the court found violations of Article 5(4) in some (but not all) of the applicants' cases.
- A and others v UK was cited to Mitting J, sitting at SIAC to determine the Secretary of State's application to revoke U's bail. Mitting J sought to distinguish it. He observed (paragraph 15 of his judgment given on 20 March 2009) that unlike the applicants in A, U was liable to be detained under Article 5(1)(f). He continued (also paragraph 15):
"[T]he live issue to which the closed material served by the Secretary of State relates will often be the risk of absconding. It is likely to be of such a nature that it cannot be disclosed to the appellant without grave damage to the public interest. However, it is not being deployed to support detention for an indefinite period, nor for a purpose unconnected with Article 5.1(f). The period is defined by the time which it will take to determine an appeal and/or application initiated by the appellant. It is truly a measure ancillary to the purpose identified in Article 5.1(f) and not, as in the case of A & Others v UK, an end in itself. Accordingly, there is no true analogy between these proceedings and detention on remand in criminal proceedings of the kind which persuaded the Strasbourg Court that substantially the same fair trial guarantees were imported as those which applied to criminal proceedings by Article 6.1: paragraph 217. Finally even if we had been persuaded that the analogy was so close that we had to have regard to it under section 2(1)(a) of the Human Rights Act 1998, we would be bound, or at least prefer, to follow the guidance of Lord Bingham in R (Ullah) v Special Adjudicator  UKHL 26 at [paragraph] 20, as qualified by Lord Brown in R (Al-Skeini) v Secretary of State  UKHL 26 at paragraph 106, that it is our duty to keep pace with the Strasbourg jurisprudence, but no more. We are not convinced that, faced with the problem which this judgment addresses, the Strasbourg Court would give the same answer as it did in A & Others v UK."
I have already (paragraph 22) cited the conclusion of Mitting J's judgment:
"44. For the reasons which are wholly set out in the closed judgment, we are satisfied that the risk that U will breach his bail conditions has significantly increased."
There is no separate reasoning I need cite from Mitting J's judgment in XC given on 21 May 2009.
- Miss Rose for U, and Mr Fordham who appeared for XC (as well as for the Public Law project), submit that the reasons for which Mitting J distinguished A & Others v UK cannot be supported. They would so submit without the assistance of further authority; but ample such assistance, they say, is at hand in the shape of the decision of their Lordships' House in Home Secretary v AF & Ors (No 3)  3 WLR 74. Their Lordships' opinions in that case were delivered on 10 June 2009, and so of course were not available to Mitting J.
- The House of Lords sat nine judges in AF. The case concerned the imposition of "non-derogating" control orders on the three appellants pursuant to s.2 of the Prevention of Terrorism Act 2005 on the ground that the Secretary of State had reasonable grounds for suspecting that they were, or had been, involved in terrorism-related activity. The control orders did not require the appellants' detention but involved significant restrictions of their liberty. In each case the order had been made in reliance on closed material whose nature was not disclosed – "gisted" – to the appellant. The appellants contended that this procedure violated their right to a fair hearing guaranteed by ECHR Article 6 in conjunction with the Human Rights Act 1998.
- Although AF was not a case involving detention, the Secretary of State sought to persuade their Lordships that the requirements of fairness under the civil aspect of ECHR Article 6(1) were less stringent than those which the Strasbourg court had found to apply by force of Article 5(4) in A and others where lengthy detention had been in issue. That argument was rejected. Lord Phillips (presiding) said this:
"57. The requirements of a fair trial depend, to some extent, on what is at stake in the trial. The Grand Chamber was dealing with applicants complaining of detention contrary to article 5(1). The relevant standard of fairness required of their trials was that appropriate to article 5(4) proceedings. The Grand Chamber considered, having regard to the length of the detention involved, that article 5(4) imported the same fair trial rights as article 6(1) in its criminal aspect - see paragraph 217. Mr Eadie submitted that a less stringent standard of fairness was applicable in respect of control orders, where the relevant proceedings were subject to article 6 in its civil aspect. As a general submission there may be some force in this, at least where the restrictions imposed by a control order fall far short of detention. But I do not consider that the Strasbourg Court would draw any such distinction when dealing with the minimum of disclosure necessary for a fair trial. Were this not the case, it is hard to see why the Grand Chamber quoted so extensively from control order cases. I turn to the effect of the Grand Chamber's decision."
- Their other Lordships agreed. Lord Hope at paragraph 82 and Lord Brown at paragraphs 111-112 asserted (as did Lord Phillips in the passage cited) that there is no room for distinctions based on the severity of the detention in A and others or the fact that Article 6 in its civil as opposed to criminal aspect was relied upon. I will just cite this passage from Lord Hope, recalling paragraph 218 of A & Others which I have already set out:
"81. In para 218 the Grand Chamber said that where full disclosure was not possible, article 5(4) required that the difficulties that this causes must be counterbalanced in such a way that the applicant still has the possibility effectively to challenge the allegations against him. In para 220 it said that, where the open material consisted purely of general assertions and the court's decision was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied. The controlled person must be given sufficient information about the allegations against him to give effective instructions to the special advocate. This is the bottom line, or the core irreducible minimum as it was put in argument, that cannot be shifted."
- Mr Tam QC advanced the Secretary of State's submissions on the Article 5(4) issue. He was at pains to urge that it is the special advocate's duty to secure the transfer of closed material to open session whenever that is possible. I am sure that is so; but the fact does not serve as any point of distinction between this case on the one hand and A and others and AF on the other. He submitted, correctly, that Article 5 addresses different types of detention, the remedy provided by Article 5(4) potentially applies in relation to all of them, and the scope of Article 5(4) is not static (Chahal paragraph 127, compare Bouamar v Belgium (1989) 11 EHRR 1, paragraph 60). He sought to build on these propositions by submitting further that the level of "procedural stringency" which the Strasbourg standard requires may vary between cases of different forms of detention. Among other materials he cited A and others at paragraph 203:
"The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question..."
- In light of all these considerations Mr Tam submitted that because bail applications are not final, and immigration detention (if bail is refused) is essentially temporary, being ancillary to the power to deport and terminable upon the happening of a specific event, namely the subject's deportation in due course, this was a context in which a less stringent procedural standard was required than that vouchsafed in A and others v UK and AF.
- In my judgment all Mr Tam's arguments face an insuperable difficulty. They founder on the hard rock of the fact that in AF their Lordships' House concluded that the obligation to provide the suspect with sufficient information about the case against him so that he might give effective instructions to the special advocate was "the bottom line" or "the core irreducible minimum" (Lord Hope, paragraph 81) even in a case where the suspect was not liable, or about to be made liable, to detention at all. AF, it must be recalled, was about non-derogating control orders. It was not a detention case.
- Mr Tam was at pains to persuade us that the House of Lords concluded as it did only because they considered that the Strasbourg court would make no distinction between a detention case and a control order case. He referred to Lord Phillips' opinion at paragraph 57 which I have cited: "I do not consider that the Strasbourg Court would draw any such distinction when dealing with the minimum of disclosure necessary for a fair trial". Their other Lordships agreed with Lord Phillips (though Lord Carswell did not say so expressly). I understood Mr Tam to suggest that their Lordships should not have taken such a view; but I cannot see that this advances the matter. Even if we might be persuaded that their Lordships in some way misunderstood the Strasbourg jurisprudence (and I am certainly not so persuaded), we should follow the House of Lords: Kay v Lambeth LBC  2 AC 465.
- In the result it is, in my judgment, impossible to find a legally viable route, somehow navigating between A and others and AF, by which to conclude that in bail cases a less stringent procedural standard is required than that vouchsafed in A and others. In my view AF obliges us to hold that the selfsame standard applies, and Mitting J's points of distinction set out at paragraph 15 of his judgment in U must be regarded as erroneous.
- In the result, I apprehend that subject to my Lord's agreement Mr Cart's application must be dismissed, while those of U and XC succeed. We should no doubt receive submissions from counsel as to the appropriate orders to be made.
Mr Justice Owen:
- I agree.