Ewing v Security Service

For the purposes of a civil proceedings order, a tribunal is a court where it exercises judicial rather than administrative functions. The assessment is functional and turns on matters including its constitution, jurisdiction, powers, procedures and role in determining legal rights. Security-sensitive procedures, private hearings and restricted reasons do not prevent a tribunal from being a court where its jurisdiction is substantially analogous to judicial review. A person subject to a civil proceedings order need show reasonable grounds for the proposed proceedings, but need not establish their likely merits where the relevant tribunal has its own power to reject frivolous or vexatious claims. The High Court should scrutinise the claim sufficiently to identify reasonable grounds, while leaving merits-based assessment to the specialist tribunal.

The claimant was subject to a civil proceedings order made under section 42 of the Supreme Court Act 1981. He had applied to the Security Service for access to personal data under section 7(1) of the Data Protection Act 1998. The Security Service relied on the national-security exemption and adopted a neither-confirm-nor-deny response.

He sought retrospective leave to continue an application to the Investigatory Powers Tribunal alleging that the Security Service had infringed his rights under the Human Rights Act 1998. The issues were whether that Tribunal was a court for section 42 purposes and whether there were reasonable grounds for the proposed proceedings.

1. The application was granted. Leave was granted retrospectively to continue the claimant’s application to the Investigatory Powers Tribunal.
2. For section 42 of the Supreme Court Act 1981, the decisive distinction is between a body exercising judicial functions and one exercising administrative functions. The Investigatory Powers Tribunal was established by Parliament, consisted of legally qualified members, had a president holding or having held high judicial office, determined complaints concerning legal rights and the lawfulness of intelligence-service conduct, and possessed powers analogous to those of the High Court on judicial review.
3. The Tribunal remained a court despite restrictions imposed for national-security reasons. Private hearings, limits on attendance and representation, restricted disclosure of reasons, and the absence of a general right of appeal did not displace its essentially judicial character. The reasoning in Attorney General v British Broadcasting Corporation [1981] AC 303 and the functional factors identified in Peach Gray and Company v Summers [1995] ICR 549 supported that conclusion.
4. The claimant’s proceedings were civil proceedings, a point conceded at the hearing. The Convention arguments did not require a different construction. The court referred to H v United Kingdom and Ebert v Official Receiver [2002] 1 WLR 320 as approving the compatibility of the section 42 regime with Convention rights.
5. Reasonable grounds under section 42 require scrutiny of the allegations and supporting material, but not a determination of the claim’s merits. The claimant had made a statutory data-access request, received a neither-confirm-nor-deny response, believed his rights had been infringed, and sought to invoke the only specialist tribunal capable of examining the complaint. Those matters supplied reasonable grounds.
6. The Tribunal itself was best placed to assess the merits and could refuse to hear proceedings that appeared frivolous or vexatious under section 67(4) of the Regulation of Investigatory Powers Act 2000.