This post is in two parts. The first post (available here) addressed the detail of McCombe LJ’s judgment in Roszkowski v Secretary State for the Home Department (‘Roszkowski’) and in particular the impact of the differing judgments in R (Evans) v Attorney General (‘Evans’). This second post puts forward an alternative argument not canvassed in Evans or Roszkowski. A version of the argument was first suggested in a case note on Evans written by the author in the Modern Law Review. This second post also addresses some implications for Privacy International.

Separation of powers and the dual capacity of tribunals

The separation of powers has long been neglected in constitutional discourse. Despite claims that the constitution is ‘firmly based’ on the concept (Duport Steels), the classic tripartite distinction has been shown to be a poor match for reality. Adam Tomkins (Public Law, OUP: 2003, Ch. 2) has argued persuasively that the better approach is to see the historic split between Crown and Parliament as being the true separation of power with the courts’ authority ultimately rooted in the Crown’s prerogative of justice. The original circuit judges who travelled from county to county were as much administrators as judges. This makes historical sense when one considers that the distinction between ‘administrative’ and ‘judicial’ decisions was historically vague and only more recently became more rigid as the courts formally separated.

The rigid separation between executive and judiciary was finally confirmed in the Act of Settlement 1701 which gave judges tenure independently of the executive. Indeed, it is arguable that this Act evidences the strong intention of Parliament to lay down an absolute ‘bright line’ distinction between executive bodies and judicial bodies in contrast with more blurred boundaries between the other branches of the state. This means that Parliament has mandated that bodies exercising executive power cannot interfere with bodies exercising judicial power – and vice versa.

The constitutional status of tribunals remains opaque. As I argued in the case note on Evans, Tribunals are best understood as having ‘dual capacity’. This means that they can operate in an executive or judicial capacity depending on the circumstances. This is because they began as an offshoot of the Executive in precisely the same way that courts did centuries earlier. Indeed, Australia still treats its tribunals as functionally executive bodies. Over time, however, tribunals have become more formalised and ‘judicialised’ in their processes such that the Upper Tribunal, for example, is now a superior court of record, when acting in its judicial capacity.

Simple classification under the classic separation of powers doctrine is therefore not possible for Tribunals. Instead, a nuanced and careful approach is necessary when assessing what capacity is being exercised by various tribunals in different situations, in order to avoid contravening the Act of Settlement. Once this functionalist approach is adopted, it is possible to re-analyse apparently difficult cases in order to explain and categorise them in useful ways. This reduces the necessity for complicated agonising over the ‘rule of law’ that arguably misses the actual issues at stake.

Instead, it should be understood that it would be a clear breach of the intention underpinning the Act of Settlement 1701 for someone exercising a judicial function to substitute their own view for the decision of the executive on the merits of an administrative decision. Equally, the executive cannot under its own authority interfere with or override determinations by bodies acting judicially. This was cogently expressed by Nolan LJ in M v Home Office, where he said that ‘the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is’.

Rethinking Evans

As I have argued elsewhere, Evans was treated at all times as an executive override of a judicial decision when in fact it was an executive override of an executive decision. This alternative argument was not made at any point during that litigation. One possible reason why this perhaps understandable mistake was made was that the decision was taken by the Upper Tribunal which according to statute is a ‘superior court of record’. This is normally true but in this particular case, the importance of the issues at stake meant that the First-tier Tribunal passed the case directly up to the Upper Tribunal for the substantive hearing. This meant that the Upper Tribunal was therefore in effect standing in the shoes of the First-tier Tribunal. Normally, the Upper Tribunal only hears appeals on points of law from the lower level.

The passing of the case to the Upper Tribunal should not be allowed to obscure the fact that the Upper Tribunal heard the case on the merits, including cross examination and witnesses and substituted its (different) decision for the Information Commissioner’s original decision. This meant that it was hearing a direct appeal on the merits and, unless Parliament had expressly disapplied the Act of Settlement 1701, must therefore have decided the case in its residual executive capacity. That the Upper Tribunal might have a residual executive capacity was arguably recognised in Cart.

If the Upper Tribunal was acting as a court in hearing the merits of the case then the Upper Tribunal decision itself was arguably a breach of the separation of powers because it would be a body acting judicially substituting its decision for the executive (the Information Commissioner). This would be constitutionally unacceptable. Once it is understood that the Upper Tribunal was acting in its executive capacity, it can be seen that Evans in fact is a fairly uncontroversial situation where an executive decision by the Upper Tribunal was overridden by a statutorily authorised executive veto power under s 53 of the Freedom of Information Act that was exercised by the Attorney General.

Rethinking Roszkowski

This re-characterisation of Evans can be applied to Roszkowski. The Court of Appeal reached the correct outcome but took a similar wrong turn as Evans in part of its reasoning. Roszkowski is not an example of the executive overriding a court decision. Instead it is, like Evans, better understood as the executive overriding a First-tier Tribunal acting in its executive capacity. It must be remembered that the tribunal has the power to substitute its decision on bail or detention for that of the original immigration officer – who is part of the executive. The statutorily authorised power of the Home Office to override the tribunal acting in its executive capacity is therefore constitutionally unproblematic.

If the tribunal is acting as a court, that would breach the clear prohibition on courts – or, more accurately, bodies acting judicially – substituting their own view on the merits of executive decisions. Instead, the tribunal is acting as another branch of the executive and the statute clearly sets out that the Home Office has the power to overrule the tribunal decision subject to the usual public law limitations of rationality and ultra vires.

It might be thought that issues of detention are rather more serious than whether some letters to ministers should be released (as in Evans) and therefore the tribunal should be understood as acting ‘judicially’ in some way. It is true that it is more serious but that is nothing to the point. At all times, lawyers for Mr Roszkowski had recourse to the High Court and the writ of habeus corpus if it was thought that the legality of the detention was in question rather than the substantive merits of detention. As it happens, such a writ of habeas corpus was indeed brought at one point during the course of the litigation in this matter.

It must be recalled that the executive, such as the police and immigration authorities, detain people all the time and for various lengths of time. This changes nothing about the constitutional issues in this case which concern the classification of the relevant institutions under normal separation of powers principles focusing on the functions of the various bodies. The tribunal weighed up the same factors as the original decision maker and then substituted its own view. This is necessarily and logically an executive function and the tribunal was therefore acting in an executive capacity.

Further evidence of the appropriate categorisation of the First-tier Tribunal in this case can be found in the authorising legislation and how it has been amended over the years. Space precludes a detailed examination but the Immigration Act 1971 originally gave the decision on an appeal to an ‘adjudicator’ who was obviously part of the executive. This became ‘immigration officer or adjudicator’ in subsequent legislation before the current formulation of ‘Chief Immigration Officer or First-tier Tribunal’. To reiterate, an appeal against an immigration decision lay, on the merits, to one of two options which had equivalent status and function. It is suggested that both were therefore executive in nature.

Privacy International v Investigatory Powers Tribunal (‘Privacy International’)

The Privacy International case raises different issues to Evans and Roszkowski but there is potential for it to be problematic in analogous ways. The case has been argued so far as if it was a straightforward rehash of the issues in the case of Anisminic except that the wording of the ouster clauses in the two cases is slightly different. Section 67(8) of RIPA states:

Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders 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.

No reference has been made to a potentially vital distinction between Anisminic and this case: that the Foreign Compensation Commission in Anisminic was arguably an executive body because it made substantive, discretionary, decisions about allocating sums of public money in individual cases – from a limited pot. This is arguably what triggered the insistence on the jurisdictional oversight by the courts on matters of law. Bodies carrying out executive functions must operate intra vires and only the clearest words could possibly oust the court’s overarching statutory jurisdiction to police the boundaries set by Parliament.

The difference in Privacy International is that the Tribunal in this case was clearly acting in a judicial capacity. At no point does the Tribunal substitute its own views for the Intelligence Services or make substantive decisions on the merits of actual intelligence scenarios (unlike the Foreign Compensation Commission in Anisminic). This, it is suggested, supplies a real distinction between this case and Anisminic that is arguably far more important and material than the slight difference in wording between the two different ouster clauses which have given rise to arguably misdirected commentary on the purported rule of law issues thereby raised.

Once it is understood that the Tribunal in Privacy International was acting in a judicial capacity, this should lead to very different treatment of the  ‘ouster’ clause (the term ‘exclusionary’ clause would actually be more apt, in order to emphasise the functional distinction). It is normally possible to draw to the higher courts attention errors of jurisdiction by lower courts, but this would usually be by way of ordinary appeal because such errors would inevitably also be errors of law justifying an appeal.

One possible route that the Supreme Court could therefore take would be to construe the clause as excluding the jurisdiction of the higher courts for ordinary, substantive appeals but not for so-called ‘second-tier’ appeals on points of law of general, public importance. Dealing with the extra words in brackets that concern appeals as to jurisdiction could be construed narrowly as simply ousting the jurisdiction of the courts with regards to any residual (probably non-existent) executive capacity possessed by the Tribunal.

This approach would be in line with Cart in general terms and would rightly, and pragmatically, retain the ultimate supervisory authority of the higher courts. Procedurally, the absence of appeal procedure in the statute may necessitate seeking a remedy via prerogative writ but equally seeking relief in the High Court by ordinary writ may be preferable. Since the Order 53 reforms and more recent case law relaxing the rule in O’Reilly v Mackman, selection of procedure should not be material as long as the choice is made in good faith and not deliberately to circumvent time limits etc.

There is an irony here: the Evans and Roszkowski cases were argued on the assumption that the relevant tribunal was itself acting in a judicial capacity when it was in fact acting in an executive capacity. Conversely, the Privacy International case is being argued as if it falls under the aegis of Anisminic, which presupposes that the tribunal in question was acting in an executive capacity, when it was quite clearly acting in a judicial capacity.

Conclusion

It has been fascinating to see how the rash of cases in recent years on the status of Tribunals, and the commentary on them, have been skewed by a mistaken focus on the rule of law at the expense of the separation of powers. It is hoped that once a more appropriate constitutional lens is selected, a clearer image of the relevant issues in these cases will come into focus.

In summary, both Evans and Roszkowski are in fact examples of Tribunals acting in their executive capacity; this renders a statutorily authorised overruling of their determinations by another part of the executive constitutionally unproblematic. If this is accepted, then the convergence in Evans between the majority and the dissenting judgments set out in the first post could provide a sensible test for when this power can be used rationally. It will be recalled that the restrictive administrative law approach of the concurring-minority in Evans was disapproved by all the other judges, on one reading.

In the Privacy International case, the classification of the case as falling within the aegis of Anisminic arguably treats the Investigatory Powers Tribunal in Privacy International as acting in an executive capacity when it is manifestly acting in a judicial capacity. The ouster (or exclusionary) clause is therefore far less constitutionally controversial than many believe, particularly if it were to be construed by the Supreme Court as only preventing full-blooded appeals but not ‘second-tier’ appeals following the approach in Cart.

Much of the evident confusion in this area would be ameliorated if far greater emphasis was placed on a proper understanding of the constitutional implications of the separation of powers instead of excessive focus on the alleged relevance of the rule of law.

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 2)’, U.K. Const. L. Blog (11th Dec. 2017) (available at https://ukconstitutionallaw.org/))