ANISMINIC CASE PDF

If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. All forms of public law challenge to a decision have the same effect, to render it a nullity. The House made obsolete the historic distinction between errors of law on the face of the record and other errors of law. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in.

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In this article we will navigate our way through the decision and have a look at the principles that lie behind this case and what its wider significance might be. Effectively, the IPT is the court where a person can challenge the lawfulness of a decision to put them under surveillance. The question in this case was whether the decisions of the IPT itself could be challenged in court. In particular, did the High Court have jurisdiction to entertain an application for judicial review brought by Privacy International against a decision by the IPT that computer hacking by GCHQ fell lawfully within its general warrant to undertake such activity?

The ears of public law students will surely have pricked up at these words, for of course they bring to mind the case of Anisminic Ltd v Foreign Compensation Commission [] UKHL 6, one of the most famous cases in the development of modern British public law.

In that case, a statutory commission was given the job of deciding whether compensation should be awarded for property sequestrated as a result of the Suez Crisis. The legislation empowering it involved an ouster clause which provided that the determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.

However, the House of Lords ruled by a majority that this provision was not enough to oust judicial review for an error of law. The majority considered that the commission had based its decision on an inquiry into the nature of the appellant company which the legislation did not empower it to make. Therefore, it had gone outside its jurisdiction. This meant that the determination that the appellant did not qualify to be paid compensation was not a true determination, but a nullity.

This reasoning may seem redolent of Alice in Wonderland. But the seriousness of the issue behind the word game cannot be doubted. The jurisdiction of the High Court to supervise decisions by the commission was considered by the majority of the House of Lords to be so important that the language of the ouster clause was not enough to displace it. And so the ouster was ousted. The ouster is set out in section 67 8 of the Regulation of Investigatory Powers Act , which provides that Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal including decisions as to whether they have jurisdiction shall not be subject to appeal or be liable to be questioned in any court.

The view of the Court of Appeal, as discussed by David Hart QC here , was that this was materially different from that in Anisiminic, as it expressly ousted jurisdiction to question whether the IPT had jurisdiction. The conclusion was that the legislation had been drafted in such a way at to enable the IPT, the expert body tasked with examining decisions on the use of investigatory powers, to make decisions on issues before it including on questions of law without the need for the High Court to have ultimate supervision.

By a majority as narrow as the scoreline in the Anisminic decision , the court allowed the appeal. But it nonetheless demonstrated the continuing strength of the fundamental presumption against ousting the supervisory role of the High Court over other adjudicative bodies, even those established by Parliament with apparently equivalent status and powers to those of the High Court. That clause introduced an extreme ouster which expressly precluded a court from entertaining proceedings to determine whether a purported decision was a nullity for any reason.

The clause was withdrawn after it met powerful objections within and outside Parliament []. The reason for not adopting that course may simply be that, as in , it might not have been expected to survive Parliamentary scrutiny.

Conclusion This is a highly significant decision which may have wide ramifications. In the concluding section of the leading judgment, Lord Carnwath said that although he had not had to decide on the general lawfulness of ouster clauses, I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law.

But that was not today. He is a barrister at One Crown Office Row.

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Anisminic v Foreign Compensation Commission [1969]

In this article we will navigate our way through the decision and have a look at the principles that lie behind this case and what its wider significance might be. Effectively, the IPT is the court where a person can challenge the lawfulness of a decision to put them under surveillance. The question in this case was whether the decisions of the IPT itself could be challenged in court. In particular, did the High Court have jurisdiction to entertain an application for judicial review brought by Privacy International against a decision by the IPT that computer hacking by GCHQ fell lawfully within its general warrant to undertake such activity?

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Anisminic Ltd v Foreign Compensation Commission: HL 17 Dec 1968

In , a piece of subordinate legislation was passed under the Foreign Compensation Act to distribute compensation paid by the Egyptian government to the UK government with respect to British properties it had nationalised. The appellants claimed that they were eligible for compensation under this piece of subordinate legislation, which was determined by a tribunal the respondents in this case set up under the Foreign Compensation Act The tribunal, however, decided that the appellants were not eligible for compensation, because their "successors in title" TEDO did not have the British nationality as required under one of the provisions of the subordinate legislation. There were two important issues on the appeal to the Court of Appeal and later, the House of Lords. The first was straightforward: whether the tribunal had made an error of law in construing the term "successor of title" under the subordinate legislation. The second issue was more complex and had important implications for the law on judicial review.

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Anisminic Ltd V Foreign Compensation Commission

Cross-posted from the Administrative Law in the Common Law World symposium on ouster clauses I want to explore three aspects of the decision in Anisminic v Foreign Compensation Commission [] 2 AC which are relevant to the Privacy International ouster clause litigation. I will explain their relevance by reference to comparative materials. First, the relationship between form and substance. This reasoning could justly be described as formalistic. But it has a strong substantive underpinning. The importance of substance can be perceived in cases from other jurisdictions: in New Zealand, where the result of giving effect to an ouster clause would be the creation of dictatorial power, Anisminic has been applied with full force Bulk Gas Users Group v Attorney-General [] NZLR but where the supervisory jurisdiction has, in substance, been preserved, courts have not engaged in Anisminic-style reasoning H v Refugee and Protection Officer [] NZCA ; and in Ireland, where individuals enjoy a constitutional right of access to the courts including the constitutionally entrenched supervisory jurisdiction of the High Court , the constitutionality of ouster clauses turns on the substantive question of whether they prevent individuals from exercising their rights In re Article 26 and the Illegal Immigrants Trafficking Bill [] 2 IR ; White v Dublin City Council [] 1 IR

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