Air Canada v Secretary of State for Trade

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Fraser of Tullybelton,Lord Wilberforce,Lord Edmund-Davies,Lord Scarman,Lord Templeman
Judgment Date10 Mar 1983
Judgment citation (vLex)[1983] UKHL J0310-1

[1983] UKHL J0310-1

House of Lords

Lord Fraser of Tullybelton

Lord Wilberforce

Lord Edmund-Davies

Lord Scarman

Lord Templeman

Air Canada and Others
(Appellants)
and
Secretary of State for Trade and Others
(Respondents)
Lord Fraser of Tullybelton

My Lords,

1

This appeal is concerned with the question of when and in what circumstances the court should exercise its power to inspect documents which are relevant to an action, with a view to ordering their production, when their production has been objected to on behalf of the Crown on the ground that they fall within a class of documents the production of which would be injurious to the public interest.

2

The appellants are a group of 18 international airlines, headed by Air Canada, all of which operate into and out of Heathrow Airport. They are the plaintiffs in the action. There are two respondents. One is the British Airports Authority ("BAA") a statutory body whose main function is to own and manage several airports in the United Kingdom, including Heathrow. Its functions are now regulated by the Airports Authority Act 1975 ("the 1975 Act"). It is the second defendant and the second respondent. The first defendant and first respondent is the Secretary of State for Trade, who has under the 1975 Act certain supervisory powers over the BAA particularly in financial matters. He is the only respondent who was represented before your Lordships' House.

3

The plaintiffs object to the charges made by the BAA for the use of Heathrow Airport, and particularly to increases in the charges made in November 1979 and April 1980, which they allege are excessive in amount and discriminatory in character. All parties accept that, although the BAA has no express statutory power to charge airlines for the use of Heathrow, it has an implied power to do so. On several occasions since 1976 the BAA has increased its charges at Heathrow in ways to which the plaintiffs object, but, so far as the present appeal is concerned, the only relevant increases are those which applied from 1st November 1979 and 1st April 1980. The case made by the plaintiffs falls under four main heads. The first head, with which alone this appeal is concerned, has been called "the constitutional case." It is summarised in paragraph 22 of the re-re-amended points of claim which includes an averment that the increases from 1st November 1979 and/or 1st April 1980 "were ultra vires the BAA and unlawful and not imposed in the proper exercise of its discretion substantially the 1975 Act but were substantially caused or contributed to by the ultra vires and unlawful directions substantially the 1975 Act but were substantially requirements or interference of the Secretary of State whose dominant purpose was the implementation of non-aviation related government policy (and particularly to achieve any reduction, whether temporary or otherwise, in the public sector borrowing requirement) and who at no time paid any or any sufficient regard to his own powers and duties, the powers and duties of the BAA or the international obligations of the United Kingdom �".

4

These are partly averments of fact�viz. that the Secretary of State "imposed" the increases by directions and requirements�and partly averments of law�viz. that his directions were ultra vires and unlawful. In relation to the factual averments a large number of documents have been produced without objection on behalf of the Secretary of State, including virtually all the relevant communications between the Department of Trade and the BAA. These communications may well tend to show whether the Secretary of State imposed charges or agreed them with the BAA. The averments relating to ultra vires depend partly on construction of the Act of 1975, which will not be assisted by the production of documents, but they also raise the question of what was "the dominant purpose" of the Secretary of State in acting as he did. The plaintiffs' case on that briefly is that the Secretary of State had power to give financial directions to the BAA, but only for the purposes of the 1975 Act, and not for other purposes such as reducing the public sector borrowing requirement. They say that, because the Secretary of State's dominant purpose was to reduce the public sector borrowing requirement, his directions were ultra vires and unlawful. In order to investigate what was the Secretary of State's dominant purpose, they wish to refer to the documents the production of which is objected to on behalf of the Crown.

5

I need not refer to the heads of the action other than the constitutional head. The relief sought under that head, as against the Secretary of State, is a declaration that certain specified acts of his were ultra vires and unlawful. The reliefs sought under the first head as against the BAA include declarations that its user charges since 1st November 1979 and/or 1st April 1980 were ultra vires and unlawful; injunctions restraining the BAA from imposing those charges on the plaintiffs; and a declaration that the plaintiffs are entitled to repayment of the charges in whole or in part. Relief is sought against both respondents in this action, and the learned judge ( Bingham J.) held that, in the circumstances, procedure by way of action was more appropriate than the procedure under RSC Order 53 which would have been available against the first respondent. His view on that point has not been challenged.

6

The Treasury Solicitor on behalf of the Secretary of State served on the plaintiffs a list of documents, but he objected to production of certain of the documents in the list. The objection was supported by a certificate dated 26th June 1981 by Sir Kenneth Clucas KCB, the then Permanent Secretary to the Department of Trade, claiming immunity for two categories of documents in the list. Category A consist of approximately 100 documents being communications between, to and from ministers (including ministers' personal secretaries acting on behalf of ministers) and minutes and briefs for ministers, other documents considered by ministers, drafts for consideration by ministers and memoranda of meetings attended by ministers. The certificate explained that all these documents relate to

"( a) The formulation of the policy of the previous government in relation to the early consideration of the policy of the BAA commencing in 1977 �

( b) In relation to (sic) the formulation of the policy of the present government regarding the limitation of borrowing by the public sector with particular regard to the exercise of the Secretary of State's powers to control the BAA's borrowing and the effect of BAA's plans for substantial capital expenditure;

( c) In relation to formulation of the policy to be adopted by the government towards the BAA's proposals for landing fees for 1980-81 �

( d) In relation to formulation of the policy to be adopted by the present government in view of representations by Members of Parliament and the various airlines using London Heathrow Airport and their representatives.

Category B consist of communications between, to and from senior officials of the Department of Trade, of the Treasury, of the Foreign and Commonwealth Office and of the Departments of Energy, Industry and Transport � relating to the formulation of one or more aspects of the policy described in Category A".

7

The certificate further provided inter alia

"5. It is, in my opinion, necessary for the proper functioning of the public service that the documents in Category A and Category B should be withheld from production. They are all documents falling within the class of documents relating to the formulation of government policy. Such policy was decided at a high level, involving as it did matters of major economic importance to the United Kingdom. The documents in question cannot properly be described as routine documents �".

8

The certificate explains further the reasons for objection on lines very similar to the certificate referred to in the case of Burmah Oil Co. v. Bank of England [1980] A.C. 1090. It was accepted on behalf of the appellants that the objections were valid, that is to say that the certificate stated grounds which were relevant and persuasive, and that it was in proper form. The reason why it was granted by the Permanent Secretary and not by a Minister was that some of the documents related to formulation of the policy of the previous government which, by constitutional practice, are not disclosed to their successors in another government. A supplemental certificate was made on 10th September 1981 by Sir Kenneth Clucas in respect of a further document but nothing turns upon it. There were further supplemental certificates by Sir Kenneth Clucas's successor as Permanent Secretary of the Department of Trade and by the Secretary of the Cabinet. These were made after the decision by Bingham J. and no special point arises on them.

9

By order dated 16th May 1982 Bingham J. ordered the Secretary of State to produce for inspection by himself (the learned judge) the documents in Category A, but not those in Category B. He further directed that the order for production should be stayed pending an appeal by the Secretary of State for which he gave leave. The order for a stay was in accordance with usual and proper practice in cases where documents are ordered to be produced in spite of a claim to public interest immunity.

10

The Court of Appeal (Lord Denning M.R., Watkins and Fox L.JJ.) unanimously allowed the Secretary of State's appeal from the decision of Bingham J., so far as it ordered production of the documents, and gave leave to appeal to your Lordships' House.

11

In considering the present law of England on what has come to be called public interest immunity, in relation to the production of documents, it is not necessary to go further back than the case of Conway v. Rimmer ...

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