Re: Terence Patrick Ewing [2002] EWHC 3169 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

[2002] EWHC 3169 (QB)

Case No Case No: IHQ/02/0198

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

Re: Terence Patrick Ewing

Before

Mr Justice Davis

The Claimant appeared in person

Mr Robin Tam (instructed by The Treasury Solicitor) for the Secretary of State for the Home Department

Hearing dates : 10th and 12th December 2002

Date 20 December 2002

[1]Mr Justice Davis: Introduction On the 10 th December 2001 the Secretary of State for the Home Department signed a certificate pursuant to s.28 (2) of the Data Protection Act 1998 ("the 1998 Act") certifying various categories of personal data as exempt from various provisions in that Act, for the purpose of safeguarding national security. On the 11 th February 2002 the Security Service invoked such exemption with regard to an application made by Mr Ewing for access to data. Mr Ewing was aggrieved by such certification. He accordingly sought to appeal to the the Information Tribunal by lodging an appeal on the 26 th February 2002, relying on the provisions of s.28 (4) of the 1998 Act.

[2]At that time Mr Ewing was (and is) the subject of an order made on the 21 st December 1989 (as amended on 27 th February 1990 – "the 1989 Order") under s.42 of the Supreme Court Act 1981 (" the 1981 Act") – which is of a type commonly known as a "Vexatious Litigant Order". Such order, put shortly for present purposes, prohibited Mr Ewing from instituting any civil proceedings in any court without the leave of the High Court. On the 26 th February 2002 Mr Ewing had not obtained leave to appeal to the Information Tribunal pursuant to s.28 (4) of the 1998 Act. Mr Ewing appreciated that. On that date he also issued an application in the High Court seeking a declaration that he did not require leave to bring the appeal and, in the alternative, seeking such leave, if leave was required.

[3]The issues thus raised by Mr Ewing can be summarised as follows: .1 Is the Information Tribunal a "court" for the purposes of s.42 of the 1981 Act and the 1989 Order? Mr Ewing submits that it is not and accordingly leave is not required. .2 Is the appeal to the Information Tribunal to be regarded as "civil proceedings" for the purposes of s.42 of the 1981 Act and the 1989 Order? Mr Ewing submits that it is not, and accordingly leave is not required. .3 Alternatively, if leave is required, are there reasonable grounds for the bringing of the appeal under s.28 (4) of the 1998 Act? Mr Ewing submits that there are, and that leave should be granted.

[4]On the 20 th May 2002, the application came before Mrs Justice Hallett. She adjourned the application pending a directions hearing due to take place before the Information Tribunal on the 20 th June 2002.

[5]On the 23 rd July 2002 the Information Tribunal (The Rt. Hon Sir Anthony Evans (President); Professor Jack Beatson QC; and Robin Purchas QC) decided to adjourn the appeal pending the decision of the High Court as to whether Mr Ewing required leave to bring the appeal and (if he did) whether to give leave. In those circumstances, the Information Tribunal understandably declined to express any views, one way or the other, on the merits of the appeal. It did, however, prepare a detailed report on the issue as to whether leave was required, having (at a previous hearing date) received submissions on the point, in case it might assist the High Court to know the views of the Information Tribunal. Such report has been adduced before me and I have been greatly assisted by it. However it remains for me to form my own view on the issues raised.

[6]A further point then surfaced. The application in the High Court was restored for further hearing and came before Mr Justice Henriques on the 2 nd September 2002. Appearing before Mr Justice Henriques were Mr Ewing; Counsel for the Secretary of State; and Counsel for the Attorney-General. Counsel for the Attorney-General indicated that the Attorney-General took a neutral position and proposed to take no further part in the proceedings. Counsel for the Secretary of State (the putative respondent to the appeal to the Information Tribunal) indicated that he wished to raise arguments on Mr Ewing's application to the High Court. Mr Ewing then contended that the Secretary of State had (and has) no locus standi – if Latin be permitted – on that application. Mr Justice Henriques, in such circumstances, gave directions as to the issues that were to be determined at the substantive hearing of the application. He directed that the issue as to the locus standi of the Secretary of State be heard as a preliminary issue at such hearing. He also gave consequential directions.

[7]It is that application, and those issues, which have come before me for determination. The Attorney-General has maintained his previous stated position and has elected not to be represented before me. The Secretary of State has been represented by Mr Robin Tam of Counsel. Mr Ewing has appeared before me in person. Mr Ewing is, if I may be allowed to put it this way, a highly experienced litigant in person. He has argued his case knowledgeably, fluently, fully and courteously. Locus Standi

[8]The first point, therefore, is whether the Secretary of State has any right to be heard on this application. At first sight, it would seem surprising that the Secretary of State should not have locus standi. He, after all, is directly affected by the appeal to the Tribunal, to which he is the effective respondent, and would appear clearly to have an interest in this application. Such perception would seem to accord with the Application Notice prepared by Mr Ewing as issued on the 26 th February 2002, which names the Security Service (which I would take to be, for this purpose, an effective naming of the Secretary of State for the Home Department) as respondent. It is fair to add, however, that on the Application Notice it is also said that no parties were to be served unless directed by the Court.

[9]However matters cannot be resolved quite so simply.

[10]Section 42 of the 1981 Act provides as follows:

"(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 any reasonable ground- (a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or (b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another; or (c) instituted vexatious prosecutions (whether against the same person or different persons). the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order, a criminal proceedings order or an all proceedings order. (1A) In this section- "civil proceedings order" means an order that- (a) no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made; (b) any civil proceedings instituted by him in any court before the making of the order shall not be continued by him without the leave of the High Court; and (c) no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court; "criminal proceedings order" means an order that – (a) no information shall be laid before a justice of the peace by the person against whom the order is made without the leave of the High Court; and (b) no application for leave to prefer a bill of indictment shall be made by him without leave of the High Court: and "all proceedings order" means an order which has the combined effect of the two other orders. (2) An order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely. (3) Leave for the institution or continuance of, or for the making of an application in, any Civil proceedings by a 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. (3A) Leave for the laying of an information or for an application for leave to prefer a bill of indictment by a 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 institution of the prosecution is not an abuse of the criminal process and that there are reasonable grounds for the institution of the prosecution by the applicant. (4) No appeal shall lie from a decision of the High Court refusing leave required by virtue of this section. (5) A copy of any order made under subsection (1) shall be published in the London Gazette. "

It may be observed that whereas the reference in the sub-sections 1(a) and (b) is to "whether in the High Court or any inferior Court" a "civil proceedings order" is so defined in subsection (1A) as to refer to the institution or pursuit of proceedings in "any court". Section 42, I might add, ultimately derives from the Vexatious Actions Act 1896: the wording of that Act, however, although broadly comparable, is not the same as that set out in s.42.

[11]The 1989 Order (in its amended form) was made on the application of the Attorney General and reads, in the relevant respects, as follows:

"IT IS ORDERED that the Applicant's Motion herein be allowed and that Terence Patrick Ewing be and is hereby prohibited from (i) instituting any Civil proceeding in any court (ii) continuing any Civil proceedings instituted by him in any court before the making of this Order and (iii) making any application (other than an application for leave as required by this order) in any Civil proceedings instituted by him or another in any Court unless he obtains the leave of the High Court and satisfies the Court that the proceedings are not an abuse of the process of the Court in question and that there are reasonable grounds for the proceedings or application."

[12]There can be no doubt but that the Civil Procedure Rules apply to the Application Notice issued on the 26 th February 2002: see Rule 2.1(1). The Civil Procedure Rules themselves were introduced pursuant to the authority conferred by the Civil Procedure Act 1997: the statutory stated objective being "to securing that the civil justice system is accessible, fair and efficient": see s.1(3). Turning then to the Rules, one finds a Practice Direction (p81 of Volume 1 of the White Book, 2002 ed) which is stated to supplement CPR Rule 3.4 (relating to the power to strike out a statement of case). Paragraph 7 of the Practice Direction relates expressly to Vexatious Litigants. In the relevant respects it provides as follows. "7.1 This Practice Direction applies where a "civil proceedings order" or an "all proceedings order" (as respectively defined under section 42(1A) of the Supreme Court Act 1981) is in force against a person ("the litigant"). 7.2 An application by the litigant for permission to begin or continue, or make any application in, any civil proceedings shall be made by application notice issued in the High Court and signed by the litigant. ………….. 7.6 The application notice, together with any written evidence, will be placed before a High Court judge who may;(1) without attendance of the applicant make an order giving the permission sought;

(2) give directions for further written evidence to be supplied by the litigant before an order is made on the application;

(3) where the remedy sought, or the grounds advanced, substantially repeat those submitted in support of a previous application which has been refused, make an order dismissing the application without a hearing; or

(4) in any case where (3) does not apply, give directions for the hearing of the application. 7.7 Directions given under paragraph 7.6(4) may include an order that the application notice be served on the Attorney General and on any person against whom the litigant desires to bring the proceedings for which permission is being sought. ………………… 7.9 A person may apply to set aside the grant of permission if: (1) the permission allowed the litigant to bring or continue proceedings against that person or to make any application against him and (2) the permission was granted other than at a hearing of which that person was given notice under paragraph 7."

[13]It is true that the Practice Direction does not in terms state that the prospective Defendant is entitled to be heard on an application under s.42 (3). It is also the case, however, that nowhere is it provided that the propective Defendant is not entitled to be heard. In any event it is clear, from the provisions in paragraph 7.7 entitling the court to direct service on any person against whom the litigant desires to bring proceedings, coupled with the provision in paragraph 7.9 that such a person who has not been given notice may apply to set aside the grant of permission, that such a person, if directed to be served, may attend, and advance argument at, the hearing at which the grant of permission is sought. Any contrary conclusion would be wholly senseless.

[14]Mr Ewing's skilful and ingenious argument, however is to this effect. He submits, relying on the decision of the Court of Appeal in Jones v Vans Colina

1996 1WLR 580

, that it has been authoritatively decided that the only person who may appear on an application under s.42(3) of the Supreme Court Act 1981 (apart from the vexatious litigant making the application, or his representative) is the Attorney-General – whether through counsel instructed on his behalf or counsel instructed to act as amicus curiae (or advocate to the court). He further submits that the Practice Direction, albeit appended to CPR Part 3, is not itself a rule of court or promulgated with any statutory authority: and to the extent that the Practice Direction was promulgated under the inherent jurisdiction of the court it cannot supersede what has been established as the substantive law by the Court of Appeal: and if it purports to do so it is ultra vires.

[15]In Jones v Vans Colina , the plaintiff, Mr Marcus Jones, against whom a vexatious litigant order was in place, was, at an ex parte hearing, given leave under s.42 (3) to bring certain proceedings in the County Court against the Defendant. When the Defendant was in due course served with the County Court proceedings the Defendant issued a summons seeking to set aside the original order granting leave (and also a further order permitting service). The Court of Appeal held (not following what Lord Denning had said in Becker v Noel (Practice Note)

1971 1WLR 803

) that the Defendant was not a party and was not entitled to be party to the s.42(3) proceedings; and accordingly had no standing to set aside the order obtained. In the course of his judgment, Lord Justice Nourse (with whom Lord Justice Roch and Lord Justice Schiemann agreed) referred to the provisions of RSC 0.32 r.6 (the proceedings in that case, of course, antedating the Civil Procedure Rules) which provided:

"The Court may set aside an order made ex parte."

Having referred to Becker v Noel and the reasoning of

the judge below, Lord Justice Nourse said this at p1584H:

"While I am unable to support the whole of the judge's reasoning, I am in no doubt that his decision was correct. I approach the question in this way. The power expressed in Ord. 32, r. 6 can only apply to an order made in proceedings in which the person seeking to have it set aside is either a party or entitled to be made one. The court could not accede to an application made by a person who had no locus standi to make it. On the application under section 42 (3) for leave to institute proceedings the proposed defendant is neither a party to the application nor is he entitled to be made one. In Becker v Teale (Practice Note) [1971] 1 W.L.R. 1475, another case in which Mrs. Dorothy Becker had been given leave to institute proceedings, Davies L.J said, at p.1476: "

It is to be remembered that the application, in the first instance at any rate, is ex parte, although the judge may cause notice of the application to be given to the Attorney-General so that he may be represented." It appears from those observations that Davies L.J. assumed that there could be no question of joining the proposed defendant. He was not entitled to be made a party to the application. The Attorney-General was in a different position because it was he who had brought the proceedings in which the applicant had been declared a vexatious litigant. It was he and only he, who had the locus standi to appear on the application; see also the observations of Brooke J. in re C., The Times, 14 th November 1989." A little later on, after citing ex.p Ewing

1991 WLR 388

and ex.p Ewing (No 2)

1994 1 WLR 1553

– I add that those cases also involved the present applicant - Lord Justice Nourse said this at p1585H-1586A; "While I cannot agree with Sir John Wood that the observations made in the two Ewing cases are of more than persuasive authority in the decision of the question that now confronts us, they are certainly valuable as demonstrating an assumption that a defendant to proceedings for the institution of which leave has been given under section 42(3) cannot apply to set the leave aside. Coupled with the limitations which must be put on Ord. 32, r. 6 and the observations of Davies L.J. in Becker v. Teale (Practice note) [1971] 1 W.L.R. 1475, 1476, I think that they provide a solid basis for affirming Sir John Wood's decision in this case." He concluded that a proposed defendant was not entitled to be made a party to the application under s.42 (3). Lord Justice Nourse went on to hold that such an order, made under s.42 (3), fell within the ambit of RSC 0.32 r.6.

[16]Mr Ewing submitted that that governs the position here. The Secretary of State had, and has, no entitlement to be a party on an application under s.42 (3) any more than he would have an entitlement to seek to have such an order set aside. To the extent that the Practice Direction sought to depart from that, the Court should not give effect to it and should disregard it as being ultra vires. Mr Ewing cited, as authorities which he said were illustrative of such an approach, General Mediterranean Holdings SA v Patel 1999 3 All E R 673 ; and R v Lord Chancellor, ex.p. Witham

1997 2 All ER 779

[17]Mr Tam submitted that the Practice Direction appended to CPR Part 3 expressly and deliberately reversed the position as enunciated in Jones v Vans Colina . He further submitted that this was a change of procedure, not of substance, and there was every entitlement to depart (if thought fit) from a previously established procedural position. Further, s.42, he submitted, nowhere itself, by its provisions, imposes any limitation on those who may be heard on an application under s.42 (3). He submitted that a matter such as an entitlement to be heard was ordinarily to be regarded as a procedural matter within the court's control, subject to rules made to cover a particular situation; and the new procedure, set out in the Practice Direction, was not in any way inconsistent with the statute. Further, whilst he accepted that Practice Directions are ordinarily to be regarded as being made by Heads of Division under the inherent jurisdiction of the court, their existence is expressly recognised in certain respects in section 5 of the Civil Procedure Act 1997 ("Practice Directions" being defined in s.9(2)of that Act). He also referred to paragraph 6 of schedule 1 to the 1997 Act which provides:

"6. Civil Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions."

[18]Having considered the competing submissions I have come to the conclusion that the provisions of the Practice Direction have changed the erstwhile procedural position, as established by Jones v Vans Colina and that it cannot be said that the Practice Direction was invalid or ultra vires.

[19]Nothing in the Practice Direction conflicts with or is inconsistent with the provisions of s.42 of the 1981 Act nor does the Practice Direction remove or interfere with the substantive rights of a vexatious litigant: the relevant provisions of the Practice Direction are procedural, and only procedural. I can see nothing that precludes the introduction in this way of a procedural position different to that previously applicable as decided in Jones v Vans Colina. That decision moreover was made in the context of the now superseded Rules of the Supreme Court (in particular RSC 0.32 r6): it is plain that the provisions of 0.32 r 6 were a material part of Lord Justice Nourse's reasoning: indeed he held in terms that limitations had to be put on that rule. The position is now quite different and those limitations are removed, since specific provision is made on the point in the Practice Direction. It matters not, in my view, that the new provisions are contained in a Practice Direction rather than a Rule as such: the High Court (by its Heads of Division) has the inherent power to make Practice Directions: and Practice Directions are in any case expressly recognised under the Civil Procedure Act 1997. I would for good measure add (although this was not a point specifically adverted to by Mr Tam or Mr Ewing) that Part 3 of the Civil Procedure Rules commences by Rule 3.1 (1) with the following:

"The list of powers in this rule is in addition to any powers given to the Court by any other rule or practice direction or by any other enactment or any powers it may otherwise have."

(emphasis added)

[20]In his closing submissions in reply Mr Ewing referred me to Rule 23.10 of the Civil Procedure Rules which, he submitted, replaced RSC 0.32 r 6 and (he submitted) was in substance to no different effect. Rule 23.10 is, in fact, very differently worded to RSC 032 r6: but in any event, given the existence of the Practice Direction, I do not think this Rule can bring about the outcome which Mr Ewing seeks. I did, however, draw the attention of Mr Ewing and Mr Tam in the course of argument to the provisions of Rule 40.9. That provides:

"A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside"

. It seems to me that a person in the position of the Secretary of State here, as prospective Defendant to proceedings for which leave may be given under s.42 (3), is "directly affected" by such an order. I observe that the notes at 40.9.1 (p879 of Volume 1 of the White Book) rather cautiously state "Generally, where a non-party is likely to succeed in an application it will be in circumstances where, at least arguably, he is entitled to be made a party to the proceedings". The note also, interestingly, goes on to refer to certain Practice Directions in various other situations where the rule may be invoked. It is not necessary for me, however, to say more on this aspect. In my view the Practice Direction does effectually give the Secretary of State standing to be heard: and, putting it at its lowest, Rule 23.10 and Rule 40.9 are consistent with such conclusion.

[21]In the course of his submissions Mr Tam referred to the decision in Johnson v Valks

2000 1WLR 1502

. Although that was in certain respects a decision of the Court of Appeal, the passage relied on by Mr Tam derives from part of the judgment of Sir Richard Scott V.C who, for those purposes, was sitting as a High Court Judge. The Vice-Chancellor said this at p1508F:

"I am giving Mr. Johnson permission to appeal under section 42 in the absence of Mr Valks or any of his representatives. It was held by the Court of Appeal in Jones v. Vans Colina [1996] 1 W.L.R 1580 that once permission had been given on an occasion where the respondent was not present, the respondent had no locus standi subsequently to challenge and to seek to have that permission set aside. The practice direction supplementing the new rules to which Robert Walker L.J. referred in the course of his judgment has reversed that state of affairs. "

I might add that, in the course of his judgment, Lord Justice Robert Walker had said, after referring to Jones v Vans Colina, at p1506D; "I note that Jones v Vans Colina has been overtaken by the reform of the Civil Justice System: see paragraph 7.9 of the practice direction supplementing CPR rule 3.4."

[22]Mr Ewing submits that the observations of the Vice Chancellor were obiter. I agree. He submits they are not binding upon me. I agree with that too. He goes on to submit that I should not follow them. But as will be apparent from what I have already said, I in fact agree with and would adopt the observations of the Vice-Chancellor (and, indeed, of Lord Justice Robert Walker): which in my judgment are correct.

[23]I add this. It sometimes can be a relatively straightforward task for a Judge to assess whether or not leave should be given on an application under s.42 (3). Some claims are demonstrably based on reasonable grounds. Other proposed claims are self-evidently incoherent, misconceived or simply dressed up versions of former claims which have previously been dismissed. But many vexatious litigants are knowledgeable and resourceful. They may well be able to present a case which at first sight seems of arguable substance: but which even a limited amount of informed adversarial argument could reveal to be of no true substance at all. The Attorney-General is not always well placed to identify all relevant points. Further, a prospective Defendant, when faced with proceedings for which leave has been given and in respect of which he has been given no prior opportunity to object or to nip in the bud, then may be required to apply to strike out or for summary judgment under whatever procedures are available to him. That can be cumbersome and expensive. Moreover it is a practical reality that it is usually difficult, if not impossible, to recover costs from persons declared vexatious litigants. In such circumstances, the new powers and procedures set out in the Practice Direction relating to applications under s.42 (3) are, in my view, plainly consistent with the overriding objective; and accord with the principle of securing an accessible, fair and efficient civil justice system.

[24]At the conclusion of the argument on the locus standi issue, I announced to Mr Ewing and Mr Tam my conclusion that the Secretary of State had locus standi to appear on Mr Ewing's application for leave under s.42 (3) of the 1981 Act and that I would hear him (by Mr Tam) on that application. I told Mr Ewing that I would give my reasons when I came to give my judgment on his substantive application. The foregoing are those reasons. I have thought it appropriate to deal with the matter at some length(a) because the point would potentially seem to have a bearing on other cases under s.42 (3) and

(b) in view of the sustained and detailed arguments of Mr Ewing. Is the Information Tribunal a Court?

[25]The next question, therefore, is whether the Information Tribunal (formerly known as the Data Protection Tribunal) is within the ambit of the phrase "any court" for the purposes of s.42 of the 1981 Act and of the 1989 Order. If it is not a court, Mr Ewing is free to pursue his appeal under s.28(4) of the 1998 Act before the Information Tribunal.

[26]In my judgment, the Information Tribunal is a court for such purposes.

[27]No authority directly relating to s.42 of the 1981 Act in this particular regard was drawn to my attention, nor am I aware of one. However there are a number of cases where, in varying contexts, the question has arisen as to whether a particular body was or was not a court. Thus in the case of Attorney – General v BBC 1981 AC 303, the Attorney-General brought proceedings to restrain the defendant from broadcasting a programme concerning a religious grouping called the Exclusive Brethren, which dealt with matters said to relate to an appeal pending before a local valuation court. It was asserted that the broadcast would be a contempt of court. In the House of Lords it was held (reversing the decision, by a majority, of the Court of Appeal) that the jurisdiction of the Divisional Court in relation to contempt did not extend to a local valuation court: since such a court was not an "inferior court" within the ambit of RSC 0.52 r.1. The case thus involved considerations rather different to the present case.

[28]In the course of the speeches, however, a number of comments were made as to the meaning of the word "court". Viscount Dilhorne, having noted that a distinction was to be drawn between tribunals which are courts and those which are not, said (p338G):

"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. Tribunals created by or under Acts of Parliament are not as a general rule courts unless constituted as such by the Act creating them."

He went on to hold that the Divisional Court's jurisdiction in contempt cases did not extend to all courts: for as he put it (p339H):

"…..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 course of administration of the government of this country"

. He concluded that while the local valuation court was a court, it was not an inferior court of law to which RSC 0.52 r.1 could apply. Lord Edmund-Davies having posed and considered at length the question:

"What is a 'court'"? concluded (at p351F) that there was no unmistakeable hall-mark by which a "court" or "inferior court" may unerringly be identified. It was, he said, largely a matter of impression. Lord Fraser of Tullybelton (at p353 D-E) said that the class of inferior courts protected by the law against contempt should be limited to those which were "truly courts of law, exercising the judicial power of the state"

. Lord Scarman in his speech said this (p359G):

"I would identify a court in (or 'of') law, ie a court of judicature, as a body established by law to exercise, either generally or subject to defined limits, the judicial power of the state. In this context judicial power is to be contrasted with legislative and executive (i.e administrative) power."

Reference may also be made to cases such as Shell Co. of Australia Ltd v Federal Commissioner of Taxation 1931 AC 275 . It may be noted that the statements of Lord Fraser and Lord Scarman find reflection in the definition of "court" contained in s.19 of the Contempt of Court Act 1981.

[29]In Peach Grey & Co v Sommers

1995 ICR 549

, the Divisional Court was (again in the context of a contempt of court application) concerned to decide whether proceedings before an Industrial Tribunal were subject to the powers of the Court as to contempt. The Divisional Court held that an industrial tribunal was an inferior court within the ambit of RSC 0.52 r.1. In the course of his judgment Lord Justice Rose observed that such a tribunal had many (although by no means all) of the characteristics of a Court of Law. They included the following:29.1 It was established by Parliament.

29.2 It had a legally qualified Chairman appointed by the Lord Chancellor.

29.3 It decided the rights of subjects.

29.4 It had power to compel attendance of witnesses, to administer oaths, to control pleadings by strike out and amendment and to order disclosure of documents.

29.5 Parties might be legally represented.

29.6 There were rules of procedure relating to calling of witnesses and to the conduct of hearings.

29.7 It could award costs.

29.8 It must give reasons for a decision.

29.9 An appeal on a point of law lay to the Employment Appeal Tribunal and the Court of Appeal.

[30]I turn, then, to consider the functions, characteristics and procedures of the Information Tribunal (acting, for present purposes, by its National Security Appeals Panel) on appeals under s.28(4) of the 1998 Act.

[31]The 1998 Act came into force on 1 st March 2000. It replaced the Data Protection Act 1984. The governing title states that it is an Act "to make new provision for the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information."

[32]Section 1 contains basic interpretative provisions. Amongst other definitions, wide definitions are given to the words "data" and "personal data". Data protection principles are set out in Schedules: see section 4; and the applicability of the Act to data controllers (as defined) is provided for in Section 5. Section 6 (omitting certain parts) provides, in the relevant respects, as follows: " 6. The Commissioner and the Tribunal ……………. (3) For the purposes of this Act there shall continue to be a Data Protection Tribunal (in this Act referred to as 'the Tribunal'). (4) The Tribunal shall consist of-(a) a chairman appointed by the Lord Chancellor after consultation with the Lord Advocate,

(b) such number of deputy chairmen so appointed as the Lord Chancellor may determine, and

(c) such number of other members appointed by the Secretary of State as he may determine. (5) The members of the Tribunal appointed under subsection (4) (a) and (b) shall be - (a) persons who have a 7 year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990, (b) advocates or solicitors in Scotland of a least 7 years' standing, or (c) members of the bar of Northern Ireland or solicitors of the Supreme Court of Northern Ireland of at least 7 years' standing. (6) The members of the Tribunal appointed under subsection (4)(c) shall be- (a) persons to represent the interests of data subjects, and (b) persons to represent the interests of data controllers. (7) Schedule 5 has effect in relation to the Commissioner and the Tribunal.

[33]Section 7 (which is contained in Part II) then provides in the respects relevant for present purposes as follows: 7. Right of access to personal data(1) Subject to the following provisions of this section and to sections 8 and 9, an individual is entitled- (a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of the data controller, (b) if that is the case, to be given by the data controller a description of- (i) the personal data of which that individual is the data subject, (ii) the purposes for which they are being or are to be processed, (iii) the recipients or classes or recipients to whom they are or may be disclosed, (c) to have communicated to him in an intelligible form – (i) the information constituting any personal data of which that individual is the data subject, and (ii) any information available to the data controller as to the source of those data, and (d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.

(2) A data controller is not obliged to supply any information under subsection (1) unless he has received – (a) a request in writing, and (b) except in prescribed cases, such fee (not exceeding the prescribed maximum) as he may require. ……………………. (7) An individual making a request under this section may, in such cases as may be prescribed, specify that his request is limited to personal data of any prescribed description. (8) Subject to subsection (4), a data controller shall comply with a request under this section promptly and in any event before the end of the prescribed period beginning with the relevant day. (9) If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request. It thus may be noted that the statute permits a person who has made a valid request to apply to a court where it is said that a data controller has failed to comply with the request in contravention of the statutory provisions. Such jurisdiction is exerciseable by the High Court or County Court or, in Scotland, Court of Session or Sheriff Court: see section 15.

[34]Section 28 (which is contained in Part IV of the Act headed "Exemptions") is of fundamental importance for present purposes. It reads as follows:

" 28. National Security. (1) Personal data are exempt from any of the provisions of – (a) the data protection principles, (b) Parts II, III and V and (c) section 55, if the exemption from that provision is required for the purpose of safe-guarding national security. (2) Subject to subsection (4), a certificate signed by a Minister of the Crown certifying that exemption from all or any of the provisions mentioned in subsection (1) is or at any time was required for the purpose there mentioned in respect of any personal data shall be conclusive evidence of that fact. (3) A certificate under subsection (2) may identify the personal data to which it applies by means of a general description and may be expressed to have prospective effect. (4) Any person directly affected by the issuing of a certificate under subsection (2) may appeal to the Tribunal against the certificate. (5) If on an appeal under subsection (4), the Tribunal finds that, applying the principles applied by the court on an application for judicial review, the Minister did not have reasonable grounds for issuing the certificate, the Tribunal may allow the appeal and quash the certificate. (6) Where in any proceedings under or by virtue of this Act it is claimed by a data controller that a certificate under subsection (2) which identifies the personal data to which it applies by means of a general description applies to any personal data, any other party to the proceedings may appeal to the Tribunal on the ground that the certificate does not apply to the personal data in question and, subject to any determination under subsection(7), the certificate shall be conclusively presumed so to apply (7) On any appeal under subsection (6), the Tribunal may determine that the certificate does not apply. (8) A document purporting to be a certificate under subsection (2) shall be received in evidence and deemed to be such a certificate unless the contrary is proved. (9) A document which purports to be certified by or on behalf of a Minister of the Crown as a true copy of a certificate issued by that Minister under subsection (2) shall in any legal proceedings be evidence (or, in Scotland, sufficient evidence) of that certificate. (10) The power conferred by subsection (2) on a Minister of the Crown shall not be exercisable except by a Minister who is a member of the Cabinet or by the Attorney General or Lord Advocate. (11) No power conferred by any provision of Part V may be exercised in relation to personal data which by virtue of this section are exempt from that provision. (12) Schedule 6 shall have effect in relation to appeals under subsection (4) or (6) and the proceedings of the Tribunal in respect of any such appeal. "

The appeal which Mr Ewing wishes to make is pursuant to s.28 (4)

[35]Schedule 6, which s.28 (12) stipulates is to have effect to appeals under subsections (4) and (6)), contains provisions as to constitution and procedure. Paragraph 7 provides that the Secretary of State may make rules regulating appeals under (inter alia) s.28(4) and the practice and procedure of the Tribunal. Paragraph 8 provides as follows:

"8(1) If any person is guilty of any act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute contempt of court, the Tribunal may certify the offence to the High Court or, in Scotland, the Court of Session. (2) Where an offence is so certified, the court may inquire into the matter and, after hearing any witness who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, deal with him in any manner in which it could deal with him if he had committed the like offence in relation to the court."

[36]Rules were duly made by the Secretary of State as contemplated by paragraph 7 of Schedule 6. Those Rules are the Data Protection Tribunal (National Security Appeals) Rules 2000 (SI 2000 No. 206), which came into force on the 1 st March 2000. Such rules in terms apply to appeals under s.28 of the 1998 Act. It is provided by paragraph 3(1) that, in exercising its functions under those Rules the Tribunal should secure that information is not disclosed contrary to the interests of national security. Paragraph 3 (3) provides that for the purposes of paragraph 3(1) the disclosure of information is to be regarded as contrary to the interests of national security if it would indicate the existence or otherwise of any material. The rules go on to make detailed provision for (amongst other things) the method and time limits for appealing; for acknowledgement of service; for amendments; and for withdrawal and consideration of appeals. Provision is made for applications to strike out and for summary disposal of appeals. There is provision for a Minister to raise what, in effect, would be public interest immunity objections. The Tribunal is empowered to give directions as to the conduct of appeals: these include provision for preliminary issues, pre-hearing reviews, disclosure and inspections of documents and exchange of witness statements and of written arguments. The Tribunal may give directions as to expert witnesses; and may allow oral examination and cross-examination. The Tribunal is expressly empowered to summons witnesses to attend a hearing of an appeal. Legal representation is expressly provided for. It is also stipulated that except as provided in the Rules the Tribunal should seek so far as it appeared to it to be appropriate to avoid formality in its proceedings. It is also provided (rule 26) that the Tribunal may receive in evidence any document or information notwithstanding that it "would be inadmissible in a court of law". In making a determination, the Tribunal is required to state its material findings of fact and its reasons for its decision. It is empowered to award costs, in the circumstances set out in rule 28. Rule 23 provides that all hearings are to be in private unless the Tribunal, with the consent of the parties and the relevant Minister, otherwise directs.

[37]Mr Ewing (whilst accepting that the matter could not be decided simply by reference to the name conferred on the body in question) submitted that the Information Tribunal was not a "court" for the purposes of s.42 of the 1981 Act. He submitted that it had limited functions and its characteristics and functions were properly to be categorised as administrative, not judicial. He was disposed to favour the approach of Viscount Dilhorne in the BBC case; and submitted that, if the Information Tribunal was to be regarded as a court, the 1998 Act should have said so. Mr Ewing placed particular emphasis on paragraph 8 of schedule 6: why, he asked, was it thought necessary to include a provision as to contempt in relation to proceedings before the Information Tribunal " [as] if these proceedings were proceedings before a court having power to commit for contempt"? Such wording, he submitted, would indicate that the Tribunal was not regarded as a court. I suspect that he would make a like submission (although he did not in terms do so) as to the admissibility of evidence under rule 26 of the 2000 Rules albeit that it would not be admissible in a "court of law".

[38]Mr Ewing went on to develop his submissions by laying emphasis on general considerations of the Human Rights jurisprudence and of the importance of the accessibility to justice for citizens. He stated that if Parliament had intended s.42 to apply to tribunals it could and should have expressly said so: he contrasted the provisions of s.42 of the 1981 Act with the provisions of s.32 of the Judicature (Northern Ireland) Act 1978. He submitted that s.42 should, given that it was a statute which encroached on the rights of a subject to have access to courts, be read strictly and in such a way as to minimise such encroachment. In that regard, he cited, for example, the observations of Lord Justice Buckley, Lord Justice Kennedy and Mr Justice Scrutton in re Boaler 1915 1 KB 21 (a case concerning the Vexatious Actions Act 1896); of Lord Bridge in Raymond v Honey

1982 1 All ER 756

at p762b-c; and of Mr Justice Taylor in ex p. Ruddock

1987 2 All ER 518

at p520 f-h.

[39]Mr Tam, on behalf of the Secretary of State adopted the Report of the Information Tribunal as part of his submissions. He submitted that, when one had regard to the characteristics, functions and procedures of the Information Tribunal, by reference to the 1998 Act and 2000 Rules, such Tribunal, for the purposes of s28, was plainly a judicial body, exercising judicial functions and powers and by means of judicial procedures; and was a court within the ambit of s.42 and of the 1989 Order. He also referred me to Vidler v Unison

1999 ICR 746

, in which an Employment Tribunal decided that it was a "court" for the purposes of s.42 of the 1981 Act. He went on to submit that there was no straining of the language of s.42 in applying it to bodies such as the Information Tribunal, if they were properly identified as judicial bodies exercising judicial functions and were properly categorised as courts; and, further, he submitted, if it be necessary, that there were in fact sound policy reasons for giving the word "court" as used in s.42 a broad construction so as to include a body such as the Information Tribunal.

[40]In my view the Information Tribunal, dealing with appeals under s.28 of the 1998 Act, is a court within the ambit of s.42 of the 1981 Act. My reasons can be summarised as follows.40.1 The establishment and constitution of the Information Tribunal, as prescribed by Parliament, requires a chairman appointed by the Lord Chancellor and members who are legally qualified. In practice, indeed, as I gather, all three member of such Tribunal may – as in the present case – have had significant judicial experience: invariably, at least one will.

40.2 It is, in my view, of central importance to see just what it is that the Information Tribunal's functions and powers under s.28 are. The function is, on an appeal under s.28 (4), to determine "applying the principles applied by the court on an application for judicial review" whether the Minister did not have reasonable grounds for issuing the certificate. If it does so determine, the Tribunal may "quash" the certificate. That language makes clear that, in effect, the Tribunal is exercising (in a way analogous to the Administrative Court) judicial review functions and powers: that connotes judicial, not administrative, functions and powers.

40.3 A consideration of Schedule 6 and of the 2000 Rules leads also to that conclusion. The Rules, for example, confer a list of powers (including as to amendment; disclosure of documents; the summoning of witnesses; conduct of proceedings and of hearings; costs; and so on) which are typical judicial powers: compare Peach Grey & Co. v Sommers.

40.4 To conclude from all this that the Information Tribunal is a court is not inconsistent with the observations, taken overall, of Viscount Dilhorne in the BBC case; and is consistent, in my judgment, with the observations of Lord Fraser and Lord Scarman. Further, if the ultimate test is one of impression, as Lord Edmund-Davies suggests, then all I would say is that, based on all the foregoing, my clear impression is that the Information Tribunal, acting under s.28, is a court.

[41]As to Mr Ewing's reliance on the provisions of paragraph 8 of schedule 6 (relating to contempt) I do not think that tells against such conclusion. As Mr Tam submitted, it is possible to have courts (properly so designated) which do not have an available contempt jurisdiction. In my view, it is unsurprising that Parliament would wish to make explicit that contempt procedures would be available in respect of Information Tribunal proceedings, to remove any doubt on the point. I accept, too, that the Information Tribunal does not have every characteristic of, say, the High Court or County Court: most obviously, for example, its hearings will ordinarily take place in private (the reason for that, I might add, being clear). But courts do not (as Mr Ewing himself accepted) all have identical functions, characteristics and procedures: the question, in any given case, is whether such functions, characteristics and procedures as the body does have indicate that it is, in truth, a court.

[42]In so concluding, I reject Mr Ewing's submission that Parliament has failed to use sufficiently clear language needed to restrict the right of access to a body such as the Information Tribunal. Parliament has (for the purposes of s.42) chosen – in defined circumstances – to place something of a fetter on unimpeded access by vexatious litigants to courts: although in truth, as it seems to me, the process is more akin to a filtering process (The procedure, it may be noted, has been authoritatively established as conforming with the European Convention on Human Rights: see Application 11559/85 H v UK (1985) 45 D&R 281; Ebert v Official Receiver

2002 1WLR 320

;

2001 EWCA Civ 340

). Parliament has chosen not to extend such fetter to proceedings in tribunals. There are many bodies or tribunals (so called) which exercise purely administrative functions and which are not properly to be categorised as courts. S.42 does not, as I see it, relate to those. But equally there are bodies bearing the name of, say, a commission or tribunal which (even though they bear the name "commission" or "tribunal") can properly be identified as courts. That a body may be labelled a court does not mean that it is a court; any more than that a body is labelled a tribunal means that it is not a court. Indeed Mr Ewing did not identify what the phrase "any court", narrowly construed (as he urged), covered: at all events, he disclaimed any suggestion that it only related to the High Court or County Court or Magistrates Court. In my view, the answer is that s.42 extends to all bodies which (having regard to their functions, characteristics and procedures), are constituted as bodies having judicial characteristics and exercising judicial functions by means of judicial procedures, such that they can properly be categorised as courts. There is no occasion for "reading down" these provisions. Accordingly, where a vexatious litigant desires to commence proceedings in a particular forum, then the initial task of the High Court on an application under s.42 (3) – albeit a task which, I accept, must be undertaken with caution – is to assess whether or not the forum in question is properly to be categorised as a court. And in this case I conclude that the Information Tribunal, acting under s.28 of the 1998 Act, is a court for the purposes of s.42 of the 1981 Act and of the 1989 Order. Are the s.28 appeal proceedings "civil proceedings"?

[43]The next issue is whether the appeal proceedings started by Mr Ewing on 26 th February 2002 under s.28 (4) of the 1998 Act are civil proceedings within the ambit of s.42 of the 1981 Act and of the 1989 Order. In my view, they plainly are. I reject Mr Ewing's submission that they are somehow "neutral proceedings". The structure of the 1981 Act (and its immediate predecessors) is to differentiate between civil proceedings on the one hand and criminal proceedings on the other hand (the initial Vexatious Actions Act 1896, in contrast, had used the broad formulation of "legal proceedings"): see ex p. Ewing (No2)

1994 1WLR 1544

. The nature of the proceedings before the Information Tribunal (being proceedings which at least relate to the rights of subjects) is such, given the functions and procedures of the Information Tribunal, that they are civil proceedings.

[44]It follows that Mr Ewing requires leave to continue his appeal before the Information Tribunal. That is the final issue, to which I now turn. Should Mr Ewing be given leave?

[45]Mr Tam disclaimed any point that, strictly, Mr Ewing had initiated his appeal under s.28 (4) of the 1998 Act before he had in fact obtained leave under s.42 (3) of the 1981 Act. Mr Tam also disclaimed any suggestion that the proposed appeal was an abuse of the process of the court in question. The sole issue, therefore, is whether there are reasonable grounds for the proposed appeal.

[46]I asked Mr Ewing, at the outset of his argument on this issue, what his concerns were. Did he have reason to think that the Security Service held data (if they exist) on him which restricted his employment prospects? Did he think that business opportunities were being denied him by reason of any such data (if they exist)? Did he have reason to think that his personal or private life was being effected by the holding of such data (if they exist)? I did not understand Mr Ewing to say any of this. He maintained, however, that he had "concerns". He also informed me that he was making similar applications to other data controllers. When I asked him to elaborate, he named (by way of non-exhaustive list): the Treasury Solicitor; the Attorney-General; various Local Authorities; the Parole Board; the Police Complaints Authority; and the Court Service.

[47]At the outset of his submissions, Mr Ewing (repeating his point that s.42 operated as a fetter on a subject's normally unimpeded right of access to the courts) submitted that there was no heavy onus on him to justify the obtaining of the grant of leave; and that the observations of Lord Justice Davies in Becker v Teale (Practice Note)

1971 1 WLR 1475

were not to be taken as indicating the contrary. Mr Ewing referred, among other cases, to the observation of Lord Bingham CJ in AG v Oakes (unrep: 15 th February 2000) that the provisions of s.42 (3) were "not a high threshold to cross". He accepted, however, that the jurisdiction should be exercised with caution and care: as, in my view, it indeed should be. There are, in truth, competing considerations here. On the one hand there is the prima facie right – albeit that is not an absolute right – of subjects to have unimpeded access to the courts; on the other hand there is the right of a prospective defendant not to be vexed with unwarranted and abusive claims. As put by Lord Justice Staughton in AG v Jones

1990 1 WLR 859

at p865 C-D. "The power to restrain someone from commencing or continuing legal proceedings is no doubt a drastic restriction of his civil rights, and is still a restriction if it is subject to the grant of leave by a High Court Judge. But there must come a time when it is right to exercise that power, for at least two reasons. First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; secondly the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances, and should not be squandered on those who do not."

[48]Mr Ewing invited me to lay down principles or guidelines for the purposes of applications made under s.42 (3) of the 1981 Act. Even if it were possible to do so (which I doubt) I decline to do so. The statute clearly sets out the parameters by reference to which leave may be given. It is a precondition to the grant of leave that the Court is satisfied that the proposed proceedings are not an abuse of the process of the court in question and that there are reasonable grounds for the proposed proceedings. It is undesirable to put any judicial gloss on what the section provides. Each application must be considered on its own merits, on a case by case basis. In short, in a case such as the present (where abuse of process is not an issue) the question for the court is whether there are reasonable grounds for the proceedings: no less than that but equally no more than that.

[49]I should state that Mr Ewing also started on what seemed likely to be an elaborate argument to the effect that the phrase "reasonable grounds" was too vague and too uncertain to be workable. The argument commenced with the citation of the case of Mayer v Bristow, a decision dated 24 th November 1999 of the Court of Appeals of the Third Appellate Judicial District of Ohio (Crawford County). That case appears to have raised the issue as to whether what may broadly be described as a vexatious litigant order infringedArticle 1 Section 16 of the Ohio Constitution. Mr Ewing told me that the decision had been controversial and attracted wide-spread interest – whether in Ohio or in the United States of America or elsewhere I did not altogether ascertain. However, I need not say more about this particular proposed argument since Mr Ewing (in the face, it has to be said, of initial indications of judicial scepticism as to its likely relevance or viability) abandoned it.

[50]I did in fact raise with Mr Tam one other point. The subject matter of the appeal relates to the 1998 Act. The appeal itself relates, in substance, to the certificated exemption from compliance with parts of the 1998 Act, on national security grounds; which in the ordinary way would have come before a specialist and highly qualified Tribunal designated by Parliament to deal with National Security Appeals relating to data protection. Further, I was told that a number of other appeals are pending before the Information Tribunal in which are raised points the same as (or at least similar to) those raised by Mr Ewing. I therefore queried whether those considerations would not be in themselves reason to give leave to Mr Ewing, so that his case could be dealt with by the Information Tribunal: perhaps in conjunction with the other pending appeals.

[51]Mr Tam's submission was to this effect. If, on consideration, I thought there might be something in Mr Ewing's proposed arguments, even if I were very sceptical, then such considerations might well operate to confirm a view that there were reasonable grounds for the appeal and thus to give leave. But, he submitted, the court should not be deflected by such considerations if it could be seen that there simply were no reasonable grounds for the proceedings. I agree with that. It is the judicial function and duty of the Court, on applications under s.42 (3), first to decide whether it is satisfied that the proposed proceedings in question are not an abuse of the court concerned and whether there are reasonable grounds for the proceedings. That is a precondition to the grant of leave. Were it otherwise the whole policy underlying s.42 could be defeated. I thus must make such an assessment.

[52]Mr Ewing initially made an informal request to the Security Service for production of any data held, pursuant to s.7 (1) and 8(2) of the 1998 Act, on 29 th October 2001. On 6 th November 2001, he was notified that the Security Service would claim an exemption from the requirements of the 1998 Act, under s.28. Mr Ewing pursued his request, lodging a detailed application form on 13 th December 2001. After further correspondence, the Security Service on 11 th February 2002 informed Mr Ewing, having checked its records, that no data was held by it relating to staff administration, building security CCTV and commercial agreements (being the purposes of personal data processing notified to the Data Protection Commissioner by the Security Service). The letter went on to say this:

"3. Any other personal data held by the Security Service is exempt from the notification and subject access provisions of the Data Protection Act 1998 on the ground that such exemption is required for the purposes of safeguarding national security, as provided for in Section 28 (1) of the Act. Thus, if it were to be the case that the Service held any data regarding you other than for the purposes set out in paragraph 2 above, the Data Protection Act would not confer an automatic right of access to it. 4. 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."

Mr Ewing's attention was drawn to his right of appeal under s.28. Specific reference was made to the certificate relating to the work of the Security Service signed by the Home Secretary on the 10 th December 2001. A copy of the certificate was provided in due course.

[53]The certificate is long and complex. I had a considerable amount of sympathy with Mr Ewing's complaint that it was difficult to follow. However, in fairness it should be said that it deals with complex issues: and its effect does reveal itself after more than one reading. The certificate itself is a general certificate: that is to say, it is designed (for obvious practical reasons) for use in cases other than just Mr Ewing's (cf s.28(3)). Mr Ewing raises no objection to that.

[54]The structure of the certificate (which is a four page document) is as follows. Paragraphs 1 and 2 contain what may be described as recitals. Paragraphs 3 and 4 constitute the operative parts of the certificate. The final two pages contain Parts A-D, in tabulated columns, which Parts are referred to in and incorporated by paragraph 3. Column 1 of each Part, in essence, designates categories of personal data processed by or on behalf of the Security Service in the circumstances set out in each Part; and column 2 specifies the provisions of the 1998 Act to be exempted for the purposes of such Part. Three of such columns include exemption as to section 7 (1) and Part V of the 1998 Act; and all include exemptions of various other provisions of the 1998 Act.

[55]Paragraphs 1 to 4 of the certificate read as follows:

"1. Whereas: (i) by section 28(1) of the Data Protection Act 1998 ("the Act") it is provided that personal data are exempt from any of the provisions of: (a) the data protection principles (b) Parts II, III, and V and (c) section 55 of the Act if the exemption from that provision is required for the purpose of safeguarding national security; (ii) by subsection 28(2) it is provided that a certificate signed by a Minister by the Crown certifying that the exemption from all or any of the provisions mentioned in subsection 28(1) is or at any time was required for the purpose there mentioned in respect of any personal data shall be conclusive evidence of fact; (iii) by subsection 28(3), it is provided that a certificate under subsection 28(2) may identify the personal data to which it applies by means of a general description and may be expressed to have prospective effect. 2. And considering the potentially serious adverse repercussions for the national security of the United Kingdom if the exemptions hereafter identified were not available. And for the reasons set out in document referenced DPA/S28/TSS/2 – REASONS, in summary that: 2.1 The work of the security and intelligence agencies of the Crown requires secrecy. 2.2 The general principle of neither confirming nor denying whether the Security Service possesses data about an individual, or whether others are processing personal data for , on behalf of with a view to assist or in relation to the functions of the Security Service, is an essential part of that secrecy. 2.3 In dealing with subject access requests under the Data Protection Act 1998, the Security Service will examine each individual request to determine: (i) whether adherence to that general principle is required for the purpose of safeguarding national security; and (ii) in the event that such adherence is not required, whether and to what extent the non-communication of data or any description of data is required for the purpose of safeguarding national security. 2.4 The very nature of the work of the Security Service requires exemption on national security grounds from those parts of the Act that would prevent it, for example, passing data outside the European Economic Area and that would allow access to the Security Service's premises by third parties. 3. Now therefore, I, the Right Honourable David Blunkett MP, being a Minister of the Crown who is a member of the Cabinet, in exercise of the powers conferred by the said section 28(2) do issue this certificate and certify as follows: 3.1 that any personal data that are processed by the Security Service as described in Column 1 of part A in the table below are and shall continue to be required to be exempt from those provisions of the Act that are set out in Column 2 of Part A; 3.2 that any personal data that are processed by any other person or body (in circumstances where that data processing compromises or includes the retention or disclosure of data by that other person or body for or to the Security Service) in the course of data processing operations carried out for, on behalf of or at the request of the Security Service or in relation to the functions of the Security Service of the Security Service Act 1989 as described in Column 1 of Part B in the table below are and shall continue to be exempt from those provisions of the Act that are set out in Column 2 of Part B; 3.3 that any personal data that are processed by any other person or body (other than a government department, agency or non-departmental public body) in the course of data processing operations following the data's disclosure to that person or body by the Security Service in accordance with section 2(2) (a) of the Security Service Act 1989 as described in Column 1 of Part B in the table below are and shall continue to be exempt from those provisions of the Act that are set out in Column 2 of Part B: 3.4 that any personal data that are processed by the Security Service for the purposes set out in Column 1 of Part C in the table below are and shall continue to be required to be exempt from those provisions of the Act that are set out in Column 2 of Part C below; and 3.5 that any personal data that are processed by the Security Service as described in Column 1 of Part D of the table below are and shall continue to be required to be exempt from those provisions of the Act that are set out in Column 2 of Part D below. all for the purpose of safeguarding national security, provided that: (i) no data shall be exempt from the provisions of section 7(1) (a) of the Data Protection Act 1998 if the Security Service, after considering any request by a data subject for access to relevant personal data, determines that adherence to the principle of neither confirming nor denying whether the Security Service holds data about an individual is not required for the purpose of safeguarding national security; (ii) no data shall be exempt from the provisions of section 7(1) (b), (c) or (d) of the Data Protection Act 1998 if the Security Service, after considering any request by a data subject for access to relevant personal data, determines that non-communication of such data or any description of such data is not required for the purpose of safeguarding national security. 4. This certificate gives notice that I require the Security Service, by virtue of my authority arising from s1(1) of the Security Service Act 1989, to report to me on the operation of the exemptions described in this certificate."

[56]The Reasons document referred to in paragraph 2 of the certificate is available to the public and was supplied to Mr Ewing. It is a 12 page document, written in clear and plain English. It sets out the background to the 1998 Act; the functions of the Security Service, and the need for secrecy in the national interest; the need for a policy of "neither confirm nor deny" (NCND) with regard to information relating to the Security Service; the controls over, and supervision of, the Security Service; and the reasons for, and explanations as to the form and scope of, the certificate.

[57]A previous general certificate, in different form, claiming exemption from relevant parts of the 1998 Act, had been issued by the Home Secretary dated 22 nd July 2000. That was the subject of challenge by way of appeal under s.28 (4) by Mr Norman Baker. The appeal came before the Information Tribunal (Sir Anthony Evans, Michael Beloff QC and James Goudie QC). The decision, issued on 1 st October 2001, is reported at 2001 UKHRR 1275. It was held, in connection with that particular certificate, that

Article 8 of the European Convention on Human Rights

was engaged in consequence of the NCND policy; that the concept of "national security" was sufficiently clear; that there was, in issuing the certificate, the pursuit of a legitimate aim (this was conceded); but that the blanket exemption given by that certificate in relation to s.7(1) (a) was wider than was necessary to protect national security; and such blanket exemption wrongly relieved the Security Service of any obligation to give consideration to individual requests. In the course of its determination, the Information Tribunal said this at paragraphs 81 to 84:81. "All States and international instruments recognise the requirements of national security as paramount, and States are allowed a large margin of appreciation in deciding what degree of protection is necessary and justified. Many other States operate one form or another of NCND policy when responding to requests for personal data (including requests as to the existence of data) when national security is involved. NCND has been the policy and practice of successive governments of this country .

82. Much of the material put before us, by the parties and by the Information Commissioner, is concerned with the history of and justifications for the NCND policy, both in this country and in other States. We do not find it necessary to consider this evidence in detail. The appellant accepts that the policy is both necessary and justified in very many, perhaps even the great majority of, cases where the Service is requested to disclose information or whether personal data are being accumulated or held. Secrecy is essential to their operation, and it may be vital that the veil of secrecy should protect the Service's agents and informers and the methods and techniques they use or have used.

83. None of this is in dispute, nor is the fact that the Service itself is best placed to decide whether or not, and if so, to what extent, the NCND policy should be applied in an individual case. The issue raised by this appeal is whether it is reasonable and proportionate for the Service to apply the policy in every case; whether it should be authorised to answer every request in this way, even if in a particular case the request could be given a positive rather than non-committal answer without harming national security.

84. Such cases do exist…."

[58]In the light of that ruling, the form of the certificate was changed, to that provided to Mr Ewing. It is self-evident, from what it is said in paragraph 2.3 of the certificate (in its new form) and from provisos (i) and (ii) to paragraph 3 of the certificate in its new form – which provisos, it may be noted, qualify the entirety of paragraphs 3.1, 3.2, 3.3, 3.4, and 3.5 and the incorporated Parts A, B, C and D – that the criticisms of the Information Tribunal as to the previous form of certificate, as identified in the Baker case, have been addressed. The certificate now requires that, on each individual application, data is not to be exempt if the Security Service, after consideration of such request, determines that adherence to the NCND policy for the purposes of s.7(1)(a) is not required for the purpose of safeguarding national security or that for the purposes of s.7(1)

(b)

(c) (d), non-communication of such data is not required for the purpose of safeguarding national security. It is to be noted that the certificate does not give the Security Service a discretion as to whether or not to examine and consider each individual request: it is required to do so. Section 10 of the Reasons (in plain English) also spells that out.

[59]In those circumstances, Mr Ewing's first challenge (as set out in his re-amended Notice of Appeal dated 14 th August 2002 and elaborated by him in argument) is, in my judgment, unsustainable.

[60]Mr Ewing conceded that the exemption with regard to s. 7(1) (b) (c) (d) was in principle proportionate and compatible with the Convention. But he denied that the application of a NCND policy by exemption of s.7 (1) (a) - whereby an individual was not entitled to know whether or not any personal data was in relation to him being processed by the Security Service as data controller – was lawful. In my view, a general NCND policy, in response to requests for personal data, including as to the existence (or non-existence) of personal data, is in principle justifiable and cannot be criticised as unreasonable or unnecessary. So much, indeed, was accepted by the Information Tribunal in the Baker case itself. It could clearly be very damaging to national security if individuals or organisations could know that data was held by the Security Service on him or them (or, indeed, if they could know that no such data was held). The underlying reasoning is obvious and is summarised in section 5 of the Reasons document incorporated by the certificate itself. The vice, identified by the decision in Baker , was to apply such policy inflexibly, without any regard to the possibility, in an individual case, that exemption was not required in the interests of national security. That vice has been cured by the revised form of certificate. Mr Ewing's first challenge thus, in my view, has no prospects of success.

[61]Mr Ewing's second proposed challenge is to say that the drafting of paragraph 2.3 and of the provisos to paragraph 3 of the certificate is too vague and uncertain. He submits that there is no way of knowing when or whether such individual examination or consideration by the Security Service will occur and that the wording in reality permits a continuation of the blanket NCND policy without consideration of individual cases. I cannot accept that: paragraphs 2 and 3 make clear, as it seems to me, that individual consideration by the Security Service of each request is required. Mr Ewing, I might add, has put before me no basis for saying that such consideration has not been given to his particular case.

[62]Mr Ewing's third proposed challenge is one in respect of which he in fact has not yet obtained leave from the Tribunal to add, by amendment, to his present Notice of Appeal. But I propose to consider it. To some extent it flows from his other challenges. Although it is presented as a discrete argument, I find it difficult to see much, if any, practical purpose for it if the first two challenges have failed, so far as Mr Ewing is concerned: which is also a relevant consideration for the purposes of this application under s.42(3).

[63]The third challenge is to this effect. Part V of the 1998 Act contains detailed enforcement provisions. It enables, for example, a person directly affected by any processing of data to request the Information Commissioner to make an assessment as to whether the provisions of the Act are being complied with (s.42). The Commissioner is given extensive powers in that regard and is entitled to serve information notices or enforcement notices on data controllers (see sections 43 to 47). There is provision for appeals by persons receiving notices to the Tribunal in this regard (see sections 48 and 49). Mr Ewing submits that the exemption claimed in the certificate deprives him and all others in his position of a valuable remedy: and that such exemption is unnecessary, unjustified, disproportionate and unreasonable.

[64]Again, I do not agree. There are understandable reasons for the need to exempt Part V. The Commissioner and his staff are, as Mr Tam observed, not necessarily well equipped to handle and protect sensitive information included in data processed by the Security Service. Moreover specialist judgments need to be taken as to whether it is necessary for the Security Service to be exempt from particular provisions of the 1998 Act; yet further, a decision by the Commissioner as to whether to serve enforcement notices or request notices, and the communication of the results of the investigations, potentially may, in themselves, bring about a breach of the NCND principle. It is also, perhaps, of some note that s.28 itself – by s.28 (11) – specifically builds in a degree of reinforcement to any such exemption in respect of Part V of the 1998 Act.

[65]Alternative remedies are available. Various safeguards and statutory controls (or, in the American word, "oversights") are set out in section 6 of the Reasons document. In particular, a person who is aggrieved by anything which he believes the Security Service may have done in relation to him can apply to the independent Investigatory Powers Tribunal (which has replaced the Security Service Tribunal). The Regulation of Investigatory Powers Act 2000 in fact contains a number of provisions specifically relating to the supervision of the Security Service (and other such agencies). Wide powers in respect of the Security Service, for example, are conferred on the Investigatory Powers Tribunal by s.65 of the Regulation of Investigatory Powers Act 2000; which extend to dealing with a complaint by any person aggrieved by conduct by or on behalf of any of the intelligence services. Wide powers of compelling disclosure are conferred by s.68. There, are, in my view, adequate alternative remedies available and I reject Mr Ewing's submission to the contrary. In my view their availability reinforces the point that it is not unreasonable or disproportionate for there to be an exemption in respect of Part V of the 1998 Act. It may, in fact, be noted that Mr Ewing has himself already issued an application to the Investigatory Powers Tribunal.

[66]I accordingly reject all three challenges raised by Mr Ewing in his proposed appeal. Mr Ewing has at various stages sought to invoke Article 8 (and also Article 10) of the European Convention on Human Rights as informing his argument. But those rights are qualified rights; and in the light of my view that the certification in this case is properly to be regarded as necessary and reasonable in the interests of national security, an invocation of such Convention Rights can have no further independent standing on this application. I accept Mr Tam's submission to that effect.

[67]I would like to add one observation. In those cases where the Security Service proposes to rely on the current certificate and, in particular, to seek exemption in respect of s.7(1) of the 1998 Act, I would suggest that it might be considered desirable (in the ordinary case, at any rate) that the letter so notifying the individual applicant expressly includes words in plain English to the effect that individual consideration has been given to his particular request. It will be understood that such a statement cannot lawfully be made, or the exemption of s.7(1) contained in the certificate lawfully invoked, unless that has indeed been the case.

[68]I have borne in mind throughout that what I am concerned to determine is whether there are reasonable grounds for Mr Ewing's appeal under s.28(4). Mr Ewing is under no obligation whatsoever at this stage to satisfy me that he is certainly, or even probably, right in what he seeks to say. Having considered the respective submissions I have come to the conclusion that none of Mr Ewing's proposed challenges are even arguably sustainable and that there are no reasonable grounds for his appeal. Conclusion

[69]In summary, my conclusions are as follows:(1) The Secretary of State has sufficient standing to be heard on this application.

(2) The Information Tribunal, for the purposes of an appeal under s.28 (4) of the 1998 Act, is a court within the meaning of s.42 (1A) of the 1981 Act (and thus of the 1989 Order).

(3) Appeal proceedings under s.28

(4) of the 1998 Act are civil proceedings within the meaning of s.42 (1A) and (3) of the 1981 Act. (4) Leave to continue the appeal issued on the 26 th February 2002 by Mr Ewing in the Information Tribunal should not be given under s.42 (3) of the 1981 Act.

[70]I refuse this application.

Re: Terence Patrick Ewing [2002] EWHC 3169 (QB)

the judge below, Lord Justice Nourse said this at p1584H:

Cited in 5 later judgments