Ewing v Security Service
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DOUGLAS BROWN |
| Judgment Date | 30 July 2003 |
| Judgment citation (vLex) | [2003] EWHC J0730-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | IHQ/03/179 |
| Date | 30 July 2003 |
[2003] EWHC J0730-1
IN THE HIGH COURT OF JUSTICE
EG QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
MR JUSTICE DOUGLAS BROWN
IHQ/03/179
MR EWING represented himself
MR T TAM (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
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"
and in Section 42(3) the act provides:
"Leave for the institutional continuance of or for making of an application in any civil proceedings by any person who is the subject of an order for the time being in force under subsection 1 shall not be given, unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application."
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...
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