Ewing v Security Service

THE claimant, Mr Terence Patrick Ewing, was made subject of a civil proceedings order under Section 42 of the Supreme Court Act 1981 by order of the Divisional Court dated 21st December 1989. The effect of that order is that Mr Ewing needs leave, from the High Court, to institute any “civil proceedings” in a court. He wishes to make application to the Investigatory Powers Tribunal under Section 65(2)(a) and 65(3)(a) of the Regulation of Investigatory Powers Act 2000, alleging breaches of the Security Service of various of his rights under the Human Rights Act 1998 when dealing with his application for subject data access under 7(1) and 82 of the Data Protection Act 1998. He has already commenced that application and seeks leave retrospectively.

Section 42, in so far as it is material, is in these terms. Section 42(1):

“If on an application made by the Attorney General under this section the High Court is satisfied that any person has habitually and persistently and without reasonable grounds (a) instituted vexatious civil proceedings whether in the High Court or any inferior court, and whether against same person or different persons, the court may, after hearing that person or giving an opportunity of being heard, make a civil proceedings order”

Two principal questions arise. Is the Investigatory Powers Tribunal a court within the meaning of Section 42? And, secondly, whether I am satisfied that there are reasonable grounds for the proceedings. There is no basis for saying that the proceedings are an abuse of the process of the court, if it is a court, and that is agreed between Mr Ewing and Mr Tam, who appears for the defendant, Security Service.

The background of the matter is this: the Security Service is a “data controller” within the meaning of the Data Protection Act 1998 which in summary provides that an individual is entitled to be informed by any data controller the details of any personal data held by him. This entitlement is subject to exemptions, and particularly an exemption in respect of national security. Applications under Section 7(1) are within that exemption. Mr Ewing made an application under Section 7(1) called “a subject access request” on 13th December 2001. The Security Services replied by a letter dated 11th February 2002 which informed him of the exemption provided for in Section 28 and continued: “I can inform you that there is no data to which you are entitled to have access but you should not assume from this letter that any such data is held about you”. In language used by both Mr Ewing and Mr Tam this letter neither confirmed nor denied whether the Security Services possessed or processed any data relating to Mr Ewing and this policy, for such it is, is conveniently referred as the NCND policy.

The letter also informed Mr Ewing of two other matters. Firstly, that there was a right of appeal under Section 28, secondly that the section provided that an exemption was confirmed by a certificate signed by the Home Secretary on 10th December 2001. There was an appeal to the information tribunal. Permission for that to be brought was sought before Mr Justice Davis. Mr Ewing claimed that, as here, the tribunal was not a court, that the proceedings were not civil proceedings and that there were reasonable grounds for bringing the proceedings. Mr Ewing failed in that application, and Mr Justice Davis found against him in all three respects in a judgment dated 20th December 2002.

In parallel with that application, Mr Ewing has made this application in respect of the Investigatory Powers Tribunal. Some of the considerations that arise here were also considered by Mr Justice Davis, but the two tribunals are separate and set up under different Acts of Parliament and have to be separately considered.

The first question, is the Investigatory Powers Tribunal a court within Section 42? Mr Ewing has prepared his submissions very thoroughly with a separate skeleton argument in a ring binder for each topic, supported by many authorities. He has argued his case skilfully and economically. I have considered all the cases he has cited but I do not find it necessary to refer to most of them. The starting point for both Mr Ewing and Mr Tam is the Attorney General v the British Broadcasting Corporation [1981] Appeal Cases 303. Lord Diplock, in an appeal which concerned whether a Valuation Court was a court which could be protected by contempt proceedings brought by the Attorney General, said this at page 338:

“While every court is a tribunal, the converse is not true. There are many tribunals which are not courts despite the fact that they are charged with dealing with certain matters and have features in common with courts. A distinction is drawn in this country between tribunals which are courts and those which are not.”

And a little later:

“Generally I would say that just because a tribunal has features resembling those of a court it should not be held to be a court.”

At page 339 he said this:

“I do not think that the Divisional Court’s jurisdiction extends to all courts created by the state for I think that a distinction has to be drawn between courts which discharge judicial functions and those which discharge administrative ones, between courts of law which form part of the judicial system of the country on the one hand and courts which are constituted to resolve problems which arise in the administration of the government of this country. In my opinion a local Valuation Court comes within the latter category.”

Although others of their Lordships to an extent spoke with differing voices there was a consensus that a body, whatever it was called, which had a judicial function was a court, whereas if it had an administrative function, albeit carried out judicially, it would not be a court. Both Mr Ewing and Mr Tam refer to the case of Peach Gray and Company v Summers [1995] ICR 549, where an industrial tribunal was held to be a court for the purposes of contempt proceedings. The gap in the law as such it was identified in the BBC case was dealt with by Section 19 of the Contempt of Court Act 1981 which provides:

“A court includes any tribunal or body exercising the judicial power of the state.”

Mr Ewing submitted that that provision intended to change the law following the BBC case and put the question beyond decision as to whether the industrial tribunal was a court for the purposes of the law of contempt. However, the question the Divisional Court posed for itself was that whether an industrial tribunal was an inferior within the meaning of Rules of the Supreme Court, order 52. The Divisional Court held that it was a court for those purposes and identified a number of factors which influenced that decision, and I will return to those when I come to deal with Mr Tam’s submissions.

Mr Ewing made a submission which I need only refer to in outline as to the proper construction of Section 42. He submitted that the original approach to the Section’s predecessor was that it should be construed strictly; see for example the case of Bowler [1915] 1 KB 1921. There had been more recently a tendency for the Court of Appeal to apply a more purposeful construction, see the Attorney General v Jones [1981] 1 WLR 859, followed in Vidler v Unison [1999] 1 ICR 746, a decision of an employment tribunal chairman. Mr Ewing said the Attorney General v Jones, where Lord Donaldson, Master of the Rolls, gave a leading judgment, was incorrect and decided per incuriam and had been overruled by a case which coincidentally involved himself ex parte Ewing 2 [1994] 1 WLR 1553 and the correct approach should be that there should be a strict interpretation of the section. I interpolate there to say that, having considered the case of Ewing 2, it is quite clear that that case, on the face of it, did not overrule or criticise the case of Attorney General v Jones. The judgment of Lord Bingham, Master of the Rolls as he then was, made no reference to it and it is listed in the cases cited by Mr Ewing but not referred to in the judgment.

I continue. Mr Ewing submitted the correct approach here should be a strict interpretation, and that the case of the Attorney General v Jones had wrongly applied or interpreted the BBC case, and also the case of Badry and DPP of Mauritius [1982] 3 All ER 973.

Mr Ewing submitted that it was apparent on the face of the Act that the Investigatory Powers Tribunal was not a court for the purposes of the statute. And he also relied on Rule 11(1) which provides:

“The tribunal may receive evidence in any form and may receive evidence that would not be admissible in a court of law.”

He submitted that this was a clear statutory recognition that the Investigatory Powers Tribunal was certainly not a formal court of law, but it was therefore difficult to see how it could be a court for the purposes of Section 42(1)(a).

Mr Ewing also relied on the nature and powers of the tribunal itself, which were strongly indicative that this was not a court. The principal features he drew attention to were that the proceedings may not necessarily always be in public, the claimant may sometimes not be permitted to be present, and the tribunal could hear witnesses without the claimant having an opportunity to question witnesses or make representations. Even if oral hearings were heard, they would normally be in private. This was subject to the recent decision of a tribunal itself, in the case of Kennedy, decided on 23rd January 2003, that rule 9(6) was ultra vires where it prohibited legal submissions and reasons to be held in private.

Finally there was no proper reasoned decision at the end of the hearing, unless the claimant succeeded when there was summary, and all of this pointed strongly away from the tribunal being a court.

Mr Ewing made two principal submissions on the Human Rights Act and the European Convention on Human Rights. Firstly, the phrase “in any court” in Section 42 had to be construed under Section (3)(1) of the Human Rights Act 1998 which provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be real and given effect to in a way which is compatible with conventional rights.”

Mr Ewing argued that that meant that Section 42 should be interpreted to permit to a convention right of access to inferior tribunals for the determination of civil rights. In this context, he also referred to The Queen v Lambert [2001] 3 All ER 577. He also submitted that it might be unlawful under Section 6(1) of the Human Rights Act for the court to interpret the phrase “in any court” widely enough to cover the tribunal in this case. Section 6(1) provides:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right”

and Section 6(3)(a), in this section a public authority includes a court or tribunal.

Mr Ewing’s other submission under the Human Rights Act was that under Article 10(1) of the Convention, and by implication Article 6(1), statutes must be sufficiently certain and their results reasonably foreseeable, the law must be adequately accessible and formulated with sufficient precision to enable a citizen to regulate his conduct. He must be able, if need be with appropriate advice, to foresee to agree it is reasonable in the circumstances the consequences which a given action may entail. He referred to Sunday Times v United Kingdom [1979] 2 EHRR 245, also Steele v United Kingdom [1998] 28 EHRR 603 and Hashman and Hariff v United Kingdom [2000] 30 EHRR 241, which is the well-known binding over case.

In response Mr Tam pointed out that the Investigatory Powers Tribunal had to deal with sensitive security matters and of necessity its rules and procedures were drawn to protect the security service from intrusion into sensitive and secret matters. With that preface he submitted that the Act and the rules provided a regime which had all the features of a court: its duties were obviously judicial and were not administrative. A useful starting point was the nature of the tribunal itself: its members all had to be legally qualified and the president had to be someone who holds or who has held high judicial office. In fact the current president is a serving Lord Justice of Appeal, and the vice-president a High Court judge. The need for this level of judicial expertise is explained by the judicial review remit the tribunal has, with the equivalent powers of the administrative court of the High Court of for example quashing decisions, certificates and ordering compensation.

Mr Tam argued that one reason for so designating the tribunal rather than allowing judicial challenges to proceed in the High Court was the need for the Tribunal to offer confidentiality in the handling of sensitive evidence, which undoubtedly increased its effectiveness in scrutinising, for example, whether there have been judicial review grounds for challenge to the certificate. The particular jurisdiction of the court that I am concerned with is that under Section 65(2)(b), which looks at the lawfulness of the conduct of the intelligence services if they are the subject of a complaint on a judicial review basis analogous to that which the High Court adopts.

The fundamental point, Mr Tam submitted, is that the tribunal’s jurisdiction provides exclusive venue for a human rights complaint against the intelligence services. No other court or tribunal can be applied to in that behalf. Mr Tam submitted that applying the law as to be found in The Attorney General v the BBC and Peach Gray & Co v Summers that the answer was clear, namely that the tribunal was a court exercising its judicial function and not any administrative function. In Peach Gray & Co v Summers the Divisional Court where Lord Justice Rose gave the leading judgment, applying Attorney General v the BBC in deciding that the industrial tribunal was a court exercising judicial functions, took into account a number of factors, many but not all of which are replicated in the Investigatory Powers Tribunal, and they were these. Firstly, it was established by Parliament. Secondly, it had a legally qualified chairman appointed by the Lord Chancellor. Thirdly, it decided the rights of subjects. Fourthly, it had the power to compel the attendance of witnesses to administer oaths and control proceedings by striking out and by amendment and to order discovery. Fifthly, the parties may be legally represented. Sixthly, it has rules of procedure relating to the calling and questioning of witnesses and addresses on behalf of all the parties. Seventhly, it can award costs. Eighthly, it must give reasons, and, lastly, it can be appealed on a point of law to the Employment Appeal Tribunal and then to the Court of Appeal.

Finally Mr Tam invited me to consider and follow the decision of Mr Justice Davis. I have considered that judgment but the statutory framework is not the same.

In my view it is clear that the Investigative Powers Tribunal is a court within the meaning of Section 42. I accept Mr Tam’s submissions in their entirety and need not repeat them. Of Lord Justice Rose’s factors, it should be noticed that in the instant case the parties must be legally represented, unless permission is given by the tribunal for a non-lawyer to represent the claimant. The requirement to give reasons is very much circumscribed by the security requirement, and finally there is no right of appeal in the instant case unless the Secretary of State makes an order to that effect, although for other applications there is an order of the Secretary of State giving a right of appeal.

Mr Ewing argued that those differences made the comparison with the Peach Gray case of little value and showed that the tribunal was not a court. I disagree. Notwithstanding the policies which underlay this tribunal and the restrictions upon it for security reasons, it is plainly a court whose functions are closely analogous to the High Court’s judicial review function and it is obviously judicial.

Neither of Mr Ewing’s Human Rights submissions point to a different view. In the first place, the Section 42 regime was approved as conforming with the Convention in application 11559/85 H v United Kingdom and Ebert v Official Receiver [2002] 1 WLR 320. It follows that Section 22 need not be interpreted in the way suggested by Mr Ewing. As to accessibility and ease of understanding, the position was now clear in English law that a court under Section 42 had to be a body which carried out a judicial and not an administrative function. And given that test it was not difficult to foresee what the decision would be when the facts are fully known.

The other requirement of Section 42, that the proceedings must be civil proceedings, was contested by Mr Ewing before Mr Justice Davis, but he conceded at the outset of this hearing that these proceedings were civil proceedings.

I now turn to the question as to whether I am satisfied that there are reasonable grounds for bringing the proceedings, and I can take this quite shortly. Mr Ewing pointed out that in expressing himself not satisfied that Mr Ewing had reasonable grounds to apply to the Information Tribunal, Mr Justice Davis said this, and I omit immaterial words, paragraph 65:

“Alternative remedies are available. In particular a person who is aggrieved by anything which he believes the security service may have done in relation to him can apply to the independent Investigatory Powers Tribunal, which has replaced the Security Service Tribunal. The Regulation of Investigatory Powers Act 2000 in fact contains a number of provisions specifically relating to the supervision of the security service and other such agencies. The wide powers in respect of the security service, for example, are conferred on the Investigatory Powers Tribunal by Section 65 of the Act, which extend to dealing with a complaint by any person aggrieved by conduct by or on behalf of any of the intelligence services. And finally, it may in fact be noted that Mr Ewing has himself already issued an application to the Investigatory Powers Tribunal.”

In summary Mr Ewing’s submissions are these, and there are none from Mr Tam for reasons which no doubt are sensible reasons that the security service, because of the attack upon their policy, do not wish at this stage to become involved in any debate on merits, but Mr Ewing’s submissions are these. Firstly, he wants to question before the tribunal the applicability of the NCND policy to him and by way of its powers of “judicial review” declare it unlawful. Secondly, in that connection he relies on article 10(1) of the Convention. He acknowledges that article 10(2) provides that the exercise of the freedoms described in article 10(1) may be restricted if necessary in the interests of national security, but he wants the opportunity to argue that matter before the only tribunal that can deal with these matters, that is the Investigatory Powers Tribunal. Thirdly, he has a statutory right to ask for data in the first place. Fourthly, he has a statutory right to take an unsatisfactory response by way of complaint to the Investigatory Powers Tribunal.

Coming to my decision, a judge should proceed with caution before giving leave under Section 42. In some cases reasonable grounds are easy to identify. The most litigious vexatious litigant may be struck by a car and have a claim for damages for personal injury. He may be involved in a consumer dispute over, for example, a holiday or a car repair. The examples are endless. In each case the claim arises because the claimant claims a wrong has been done to him, for example by the motorist, the tour operator or the repair garage. Before the court can be satisfied there are reasonable grounds for the proceedings, there has to be some scrutiny of the allegations and the evidence in support. In the case of an apparently genuine claim the court will be readily satisfied there are reasonable grounds.

These examples are far removed from the instant case. Here Mr Ewing wished to avail himself of an entitlement given to him in the first place by the Data Protection Act to access his personal data. Because he has chosen to require data information from the security service, he has run into the difficulty created by Section 28 of the Act, and his application resulted in the NCND policy being invoked. It is to be observed that an application under Section 7(1) of the Data Protection Act 1998 does not have to be supported by a statement of reasons or an explanation as to why the information is sought. No barrier or filtering process is in place to regulate the number of applicants. Similarly there is to all those not restrained by an order under Section 42 an unfettered right to appeal to the Investigatory Powers Tribunal. Permission does not have to be sought. The decision letter refers to “a right of appeal”. It is only the vexatious litigant who has to show “reasonable grounds” to commence proceedings. Does that mean that unlike others not so restrained he has to satisfy the High Court judge with evidence that he has specific reasonable grounds for appealing or making a claim to the Investigatory Powers Tribunal? I think not. I think Mr Ewing was correct in not serving evidence to justify his belief that the security services may hold data on him any more than he had to in making his original application. Some indication of the data he believed might be held on him can be found in his application form:

“any files or ‘data’, either manual or held on computer, relating to litigation activities etc or political activities, or alleged involvement in criminal activities etc or any ‘data’ of any description whatsoever”.

The grounds he relies on in support of the application before me are, firstly, that he applied for details of data that might be held on him as he was entitled to under Section 7 of the Data Protection Act 1998. Secondly, the security service by its decision letter would neither confirm nor deny that such data was held by them on him. Thirdly, he was dissatisfied with that answer and considered it infringed his rights in the terms of the Human Rights Act 1998 and he wished to exercise his right to proceed against the security service before the tribunal as the only appropriate tribunal for the purposes of Section 7 of the Human Rights Act in relation to proceedings under Section 7(1)(a), being proceedings for actions of the security services incompatible with his rights.

On that material he has satisfied me that he has reasonable grounds for making his claim or application. I cannot speculate on the merits of the claim and Mr Tam has for good reason not offered assistance on the merits. If in the end his claim is devoid of merit, and at this stage I cannot tell, the Investigatory Powers Tribunal has its own procedures to deal with that situation. Section 67(4) provides:

“The tribunal shall not be under any duty to hear, consider or determine any proceedings, complaint or reference if it appears to them that the bringing of proceedings or the making of complaint or reference is frivolous or vexatious.”

It follows that the tribunal has its own powers to deal with applications that should not have been brought. The tribunal is in the best position, with all the information before it, to decide whether to entertain the proceedings or complaint at all or whether it will hear and determine the matter on its merits. I am not in a position to make any assessment of the merits at all, that is the tribunal’s function, and in my view Mr Ewing should have his opportunity of presenting his claim that his human rights have been infringed.

If Mr Ewing was asking for leave to bring judicial review proceedings in the administrative court it is clear from authority that the Section 42 approach should be to consider first whether permission would be given for the claim in the administrative court, and if it would be so given then it would follow that there were reasonable grounds for the proceedings. Here, if the Investigatory Powers Tribunal is applied to for identical judicial review, there is at present no permission stage. It may be that Section 67(4) may be used as a filtering process but there is no obstacle to the commencement of proceedings.

Mr Ewing specifically relies on article 8 and article 10. Both articles are qualified by the need to recognise or protect national security. The Investigatory Powers Tribunal, by its constitution and very nature, is the only tribunal that can judge these matters. Mr Ewing sent his claim form to the tribunal on 7th February 2003 so that the claim can be brought within 12 months, as required by the tribunal’s rules. In the result I grant leave to Mr Ewing to continue his claim.