Anisminic v Foreign Compensation Commission

Facts

Anisminic Ltd, a British company, owned a mining property in Sinai that was seized by Egypt during the Suez crisis of 1956. The property was later sold by an Egyptian authority, and Egypt paid a sum to the United Kingdom for distribution to British claimants through the Foreign Compensation Commission. Under an Order in Council made under the Foreign Compensation Act 1950, a claimant had to show it was a British national and, where it had a successor in title, that the successor was also British. The Commission rejected Anisminic's claim because the successor in title was not British. Section 4(4) of the 1950 Act provided that a determination of the Commission was not to be called in question in any court of law.

History

At first instance Browne J declared the Commission's determination a nullity. The Court of Appeal allowed the Commission's appeal, holding that the statutory provision barred the inquiry. The House of Lords allowed Anisminic's appeal and restored the declaration.

Issue

Whether the provision that a determination of the Commission shall not be called in question in any court prevented the court from inquiring whether the Commission had misconstrued the Order in Council; and, if it did not, whether such a misconstruction made the determination a nullity.

Held

Appeal allowed by a majority. The Commission had misconstrued the Order: the requirement about a British successor in title applied only where the applicant was itself a successor, not where it was the original owner. That error took the Commission outside its jurisdiction, so what it issued was a purported determination and a nullity. The ouster provision did not protect it, and the declaration was restored.

Ratio

• A provision that a determination shall not be questioned protects only a real determination, not a purported one; where a tribunal makes an error of law that takes it outside the powers conferred on it, its decision is a nullity and the provision does not apply.
• A tribunal can act outside its jurisdiction not only by deciding a question it has no power to decide but also in the course of an inquiry, for example by misconstruing the provisions that define its task, by asking itself the wrong question, or by taking account of irrelevant considerations or ignoring relevant ones.

The judgments

Key reasoning

• The word determination in the ouster provision is read as meaning a determination that is legally valid; something made outside the tribunal's powers is not a determination in that sense.
• The Order in Council required the Commission to decide whether the claimant met the stated conditions, and the Commission read the successor in title condition as applying to an original owner. That was a wrong answer to the question Parliament and the Order had set, not a permitted mistake within an area of discretion.
• Reading the provision as protecting every error of law would remove the courts' control over bodies given limited powers, and clear words would be needed to do that.

Obiter

• Remarks by Lord Reid and Lord Pearce that the range of errors capable of ousting jurisdiction is very wide, and that the traditional distinction between jurisdictional and non-jurisdictional errors of law has been largely eroded, were later relied on as showing that any error of law in a decision by an administrative tribunal takes it outside its powers.

Where it fits in the module

On the Ouster of judicial review topic, Anisminic is the starting point for the debate about the relationship between parliamentary sovereignty and the rule of law. Candidates trace it through the courts' treatment of finality clauses in later cases, including Page [1993] AC 682 and Boddington v British Transport Police [1999] 2 AC 143, and then to R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, where a majority applied the Anisminic approach to a provision excluding challenge to a specialist tribunal and some justices doubted whether Parliament could exclude review of error of law at all. The discussion turns on whether Anisminic is a rule of construction, a presumption of constitutional principle, or a disguised limit on legislative power, and on whether the Judicial Review and Courts Act 2022 limits on review of Upper Tribunal permission decisions changed the position.

Criticisms

• The case treats the clause as ineffective by redefining the word determination, and critics say this is a strained reading that preserves the court's power by pretending to obey Parliament, instead of confronting whether Parliament can oust review.
• Because the reasoning rests on nullity, the same clause can bar review of ordinary mistakes yet fail whenever there is a legal error, so the protection offered by a finality clause is unpredictable and depends on how widely jurisdictional error is drawn.
• The majority gave little guidance on how clear the words must be to oust review: later courts have found that even express words do not exclude review of fundamental errors, leaving the limits of legislative power undecided.
• The House did not explain why a body set up to decide a limited class of claims should be treated differently from a court whose errors of law are protected by a finality provision.