[2025] UKUT 251 (AAC)

if, however, he is undertaking a Part I Enquiry commenced by Trigger A, then he has “…an overall entitlement to require the production of LPP Material” (see [59]).

Since the purpose of a Part I Enquiry is the same, whether commenced by Trigger A or B, there is no rationale for endowing the IC with an “…overall entitlement to require the production of LPP Material” for a Part I Enquiry initiated by Trigger A, whilst restricting his access to that material to such of it as he reasonably requires, if the Part 1 Enquiry has been started by Trigger B.

In R (Andrews) v Secretary of State for Environment, Food and Rural Affairs [2015] EWCA Civ 669 (a case requiring the interpretation of the Inclosure Consolidation Act 1801), the Court of Appeal at [33] commented on the exercise of statutory interpretation of modern statutes, per Lord Dyson MR, delivering the judgment of the Court:

“Even in relation to modern statutes, which are drafted by skilled specialist draftsmen and are assumed to be drafted with precision and consistency, the courts adopt a purposive (in preference to a literal) interpretation so as to give effect to what is taken to have been intended by Parliament. We use the phrase “purposive interpretation” as shorthand for an interpretation which reflects the intention of Parliament. The court presumes that Parliament does not intend to legislate so as to produce a result which (i) is inconsistent with the statutory purpose or (ii) makes no sense or is anomalous or illogical. A purposive interpretation is all the more appropriate in a statute which is couched in language which is less consistent and more imprecise than that generally found in modern statutes.”

Whether commenced by Trigger A or Trigger B, a Part I Enquiry is the same process, whichever route of initiation brings it into being. To hold, as the Tribunal did, that s.51(1) creates “… two separate, alternative, scenarios.” means that under one “scenario”, the IC’s power to require the production of information is limited to that which he reasonably requires (Trigger B), but, under the other “scenario”, he has an untrammelled, unqualified power to compel the production of any information (including LPP Material) which he elects to seek (Trigger A). The sole distinguishing criterion is the Trigger (A or B).

In the words of Lord Dyson MR in R(Andrews),such a finding makes no sense, is anomalous and lacks logic. If Parliament had intended to create the two-tier system which the Tribunal has found to exist, it could - and should - have done so by using words making that intention clear. Parliament did not do that. It has been suggested on behalf of the IC that s.51(1) employs “carefully drafted and differentiated language”: in fact, s.51 was simply transposed from s.43 of the Data Protection Act 1998 (“the DPA 1998”) (see paragraph 174 of the Explanatory Note to the Act). Where the information sought by the IC includes LPP Material, since LPP is a right of basic constitutional character (see R v Derby Magistrates Court, ex p B[1995] 1 AC 48, B & ors v Auckland District Law Society & anr[2003] UKPC 38; [2003] 2 AC 736), any inroads into, or abrogations from, LPP in a statute require clear words expressing the circumstances in which those inroads/abrogations are to operate.

Bennion, Bailey & Norbury on Statutory Interpretation (8^th ed.) s.13.5 states:

“The presumption against absurdity means that the courts will generally avoid adopting a construction that creates an anomaly or otherwise produces an irrational or illogical result”.

That comment (and others from the 6^th edition of Bennion) were cited and approved in Driver and Vehicle Standards Agency v Rowe[2017] EWHC 608 (Admin) at [21]:

“In terms of the approach I should take to the construction of these provisions I was assisted by reference to Bennion on Statutory Interpretation (6th ed) and in particular:

i)

Section 195: the plain meaning rule, namely that when the enactment is only grammatically capable of one meaning and on an informed interpretation of the enactment the interpretative criteria raise no real doubt as to whether the grammatical meaning is the one intended by the legislator that grammatical reading should be followed.

ii)

Section 265: which states that:

"the court when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended [to produce a result which is just and fair] … [and] should therefore strive to avoid adopting a construction which leads to injustice." [the emphasis appears in the case report]

iii)

Section 315: which states that the court seeks to avoid a construction which creates an anomaly or otherwise produces an irrational or illogical result.

iv)

Section 271: which encapsulates the principle that the court should strive to avoid adopting a construction which penalises a person where the legislator's intention to do so is doubtful. The court, when considering in relation to the facts of the case before it, which construction would give effect to the legislative intention should presume that the legislator intended to observe this principle”.

S.13.5 of Bennion also states:

“An effective legal system seeks to avoid unjustified differences and inconsistencies in the way it deals with similar matters. As Lord Devlin said, 'no system of law can be workable if it has not got logic at the root of it' (see Hedley Byrne v Heller[1964] AC 465 at 516).”

As to the judgment at [72], the PSNI submitted that: