UK Constitutional Law Association

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Robert Craig: The Fall-out from Evans: Positioning Roszkowski and Privacy International in a Post-Evans Constitutional Landscape (Part 1)

Two recent Court of Appeal decisions raise some interesting constitutional questions about the status of Tribunals in the UK legal system. This post (in two parts) seeks to explore some of the implications and suggests that a key constitutional principle, the separation of powers, has once again been neglected. The two cases are Roszkowski v Secretary State for the Home Department (‘Roszkowski’) and R (Privacy International) v Investigatory Powers Tribunal (‘Privacy International’). Privacy International has received considerably more coverage than Roszkowski and is rumoured to be on the way to the Supreme Court. It has already been addressed on this blog by Thomas Fairclough and elsewhere by Mark Elliott. Roszkowski explores the implications of an important and controversial Supreme Court case, R (Evans) v Attorney General (‘Evans’) and contains some critical comment on the reasoning of Lord Neuberger in that case.

The first post will focus on the reasoning in Roszkowski. It will suggest that the attempt in the lead judgment, given by Lord Justice McCombe, to construct an alternative ratio for Evans using the minority concurring judgment is bold, but ultimately unsuccessful, because it directly contradicts important aspects of the judgments in that case. It will argue that, contrary to McCombe LJ’s position, Evans is directly binding on Roszkowski and it follows therefore that the Court of Appeal should have instead decided against the Government on an orthodox reading of the ratio of Evans. The second post will suggest that an alternative argument has been missed in both Evans and Roszkowski that would have respected the clear statutory wording and, if correct, also means that Evans was wrongly decided. I first set out the basics of this alternative argument in a case note in the Modern Law Review on Evans. I can do little more than sketch it here with apologies for its brevity – a fuller treatment will be necessary in due course.

Case summary

In Roszkowski, a First-tier Tribunal decision to release a Polish national on bail prior to deportation (due to previous criminal convictions) was overruled by a civil servant on behalf of the Secretary of State. The power to overrule was granted by para 22(4) of Schedule 2 of the Immigration Act 1971, as amended.

(4) A person must not be released on bail in accordance with this paragraph without the consent of the Secretary of State if –

(a) directions for the removal of the person from the United Kingdom are for the time being in force, and

(b) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.

Roszkowski claimed that the decision to overrule the tribunal judge could not stand because the executive cannot overrule the decisions of a judge ‘merely because he does not agree with it’ (Evans at [51]). To establish this principle he relied on the judgment of Lord Neuberger for the majority in Evans and in particular:

First… it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive.

Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are… reviewable by the court at the suit of an interested citizen.

Section 53, as interpreted by the Attorney General’s argument in this case, flouts the first principle and stands the second principle on its head. [52].

In Evans, an Upper Tribunal decision under the Freedom of Information Act (‘FOIA’) to order release of various ‘black spider’ memos written by Prince Charles was vetoed by the Attorney General using s 53 FOIA. Lord Neuberger, speaking for most of the majority, held that the exercise of the veto was unlawful because it did not fall within either of the two scenarios when the veto could properly be used. Counsel for Roszkowski, Mr Jacobs, unsurprisingly submitted that this case fell squarely within the ratio of Lord Neuberger’s majority judgment. The Court of Appeal disagreed and held unanimously that the power to overrule the bail decision was lawfully exercised and that Parliament had intended to allow for the tribunal decision to be overruled.

Applying Evans

The Court of Appeal in Roszkowski sought to disregard the majority judgment in Evans and extract an alternative ratio from the case. This means, unfortunately, that it is essential to set out the complicated ways in which the judges in Evans disagreed with each other.

There was a seven-member panel in Evans that split 5-2 in favour of quashing the Attorney General’s decision. The five judges in favour of quashing the decision themselves split 3-2 with Lord Neuberger being joined by Lord Reed and Lord Kerr (‘the majority’). Lord Mance and Lady Hale (‘the concurring-minority’) concurred with the outcome but disagreed with the majority reasoning. Lord Hughes and Lord Wilson dissented (‘the dissenters’). The situation was made even more complicated because the majority and the concurring-minority went out of their way to disagree with each other – the concurring-minority even listing the paragraphs of Lord Wilson’s dissent with which they explicitly agreed and which dissented strongly from the majority. The majority explicitly attacked the concurring-minority for reasons that are basically indistinguishable from the relevant sections of the dissenting judgments.

The Court of Appeal in Roszkowski sought to distinguish the majority judgment and relied instead on the concurring-minority judgment which they purported to combine with the two dissenting judgments to assert an alternative ratio. Slightly oddly, they placed some reliance on the headnote to the Appeals Cases by the law reporters to achieve this goal. McCombe LJ said ‘the summary by the law reporters of the views of Baroness Hale, Lord Mance, Lord Wilson and Lord Hughes may more closely reflect the majority opinion on this issue’ [29]. The headnote states, in part:

Per Baroness Hale of Richmond DPSC, Lord Mance, Lord Wilson and Lord Hughes JJSC. Section 53 [means] the Attorney General can…assert that he has reasonable grounds for considering that disclosure is not due … Disagreement as to the weight …is a matter … which a certificate could properly address by properly explained and solid reasons…

This headnote purported to stitch the concurring-minority and dissenting judgments together and this was endorsed by McCombe LJ. This is problematic. The first reason it is problematic is that even if the majority judgment is perhaps somewhat undermined by the explicit disagreement of all the other judges, the exact same point can be made with equal or greater force about the concurring-minority judgment. If the majority judgment was in one sense ‘disapproved’ 4-3, the concurring-minority was certainly disapproved 5-2. No version of the concurring-minority judgment can form the ratio.

To be more specific, the attempt by McCombe and the headnote writer to stitch together a ratio purporting to reconcile the concurring-minority and the dissenting judgments is severely undermined by the concurring-minority’s express claim that the only time the exercise of a veto could be reasonable is in effect the same scenarios set out by the majority [130]. Lord Hughes held that these scenarios were so ‘vestigial’ [156] that the majority and concurring-minority were directly contradicting what ‘Parliament has plainly shown [as its] intention’ [154]. In effect, the veto power was being reduced to a mere shadow of what Parliament had intended. Lord Wilson held that the two purported circumstances that could constitute reasonable grounds where the veto could be used were ‘so far-fetched’ that ‘for all practical purposes, no certificate can be given under section 53’ [177]. They both therefore expressly dissented from the legal interpretation of s 53 put forward by the concurring-minority. The attempt by the Court of Appeal in Roszkowski to portray the concurring-minority and dissenters as agreeing on a test of some unspecified kind but differing on the application of that test to the ‘facts’ in this case is imaginative but, unfortunately, unsustainable. This alone could form the basis of an appeal to the Supreme Court.

Applying the dissenting judgments from Evans?

Interestingly, it could even be said that, on close examination, Roszkowski actually applies the approach of the dissenting judgments, instead of the concurring-minority judgment it purports to apply. After all, the decision to grant bail was quashed by the Home Office without falling within the two scenarios endorsed by the majority or concurring-minority in Evans. It is difficult to see how McCombe LJ could therefore fit Roszkowski within the concurrent-minority test.

In fact, McCombe LJ might have been slightly more persuasive if he had fastened on the intriguing ‘counter-factual’ hypothesised by the majority in Evans at [95] that:

If the Attorney General was permitted to disagree with the tribunal on such issues in the absence of any new material, then I would have thought that he should be entitled simply to say so in the way that he did, namely because he had clearly thought about the issues and simply took a different, and inherently rational, view of the evidence and arguments.

It is suggested that in the first line the majority is referring to the ‘constitutional principle’ at the core of the majority judgment that the executive cannot override a court (‘If the Attorney General was permitted to disagree with the tribunal‘). The rest of the quotation addresses the hypothetical situation if the majority is wrong about the constitutional principle. It could then be pointed out that the constitutional principle was clearly disapproved by the other four judges. It might be argued, therefore, that the constitutional principle could be treated as a preliminary issue that was disapproved by a majority of judges in Evans.

If so, then the rest of paragraph [95] in effect endorses the approach of the dissenters against the highly restrictive concurring-minority approach to s 53 on the issue of rationality. The concurring-minority held that few if any situations could legitimately see the veto being used from a purely administrative law perspective qua ‘rationality’. The dissenters disagreed on that point. Paragraph [95] suggests that the majority disagreed too, on this point anyway. This could be said to form a genuine convergence of opinion by five judges on how to treat override powers if the executive can in fact override tribunals. The importance of this factor will become clearer in the second post.

If McCombe LJ had instead focused on this interesting quasi-endorsement by the majority of the broad dissenting approach (if they were wrong about the constitutional principle), he could perhaps have constructed a useful quasi-ratio on which to base his decision. Indeed, if the approach in this post were to be a valid reading of Evans, McCombe LJ’s judgment might in fact be defensible as to outcome, even if the reasoning was not quite the same as suggested in this post. There is of course one serious problem with this argument which is that it would contradict the actual outcome of the Evans case. This seriously, and possibly fatally, weakens this line of argument, at least in the absence of future Supreme Court consideration of these matters. As already argued, McCombe LJ’s actual approach is also seriously problematic because he in effect applies a test derived from an unconvincing stitching together of the concurring-minority judgment with the dissenting judgments.

Taking a step back

If one takes a step back from these speculative enquiries, it is inescapable that these attempts to circumvent the majority judgment are stimulating but in the end unsustainable. Five of the seven judges agreed on the outcome, which was that the exercise of the veto was found to be unlawful and was quashed. Three of those five agreed on the legal basis for that outcome. Despite the concurring-minority claims and the dissenting judgments, the only sustainable ratio of the Evans case is the majority judgment, however flawed it might be. Only the Supreme Court can fix this.

Overall, however, if the actual ratio of Evans were applied to Roszkowski, it is difficult to avoid the conclusion that the decision to overrule the tribunal decision by the executive using a statutory power falls squarely within the mischief that Lord Neuberger and the majority were targeting. In Roszkowski, the executive overruled a tribunal decision that had been fully argued by using a statutory override power. Technically, therefore, the Court of Appeal were wrong to find for the Government in this case. There is, however, an alternative argument that does not appear to have been put to the court in Roszkowski or in Evans which might have been more persuasive. A version of this argument was first put forward in a case note on Evans by the author and will be addressed in a second post which will appear on the blog shortly.

The author would like to thank Gavin Phillipson, Stephen Tierney and Roger Masterman for their helpful comments on previous drafts. The usual disclaimer applies.

 Robert Craig, PhD Candidate and Tutor in Law, Durham University and part-time lecturer, London School of Economics

(Suggested citation: R. Craig, “The Fall-out from Evans: Positioning Roszkowski and Privacy International in a Post-Evans Constitutional Landscape (Part 1)”, U.K. Const. L. Blog (8th Dec 2017) (available at https://ukconstitutionallaw.org/))

One comment on “Robert Craig: The Fall-out from Evans: Positioning Roszkowski and Privacy International in a Post-Evans Constitutional Landscape (Part 1)

  1. Pingback: Robert Craig: The Fall-out from Evans: Positioning Roszkowski and Privacy International in a Post-Evans Constitutional Landscape (Part 2) | UK Constitutional Law Association

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