Key points

  • The courts will entertain challenges to a public authority's interpretation of its obligations under an international provision that has not been incorporated into domestic law. However, only where the interpretation is untenable will the courts examine the underlying international law.
  • The only factors public authorities must take into account when making decisions are those they are expressly or impliedly required to by statute. Where no such requirement exists, decision makers are entitled to use their discretion in determining whether or not to take a factor into account and only where their exercise of discretion is perverse will their decision be unlawful.

Background

ICO Satellite Ltd ("ICO") filed an intention with the International Telecommunications Union ("ITU") to operate a mobile satellite service using a particular radio frequency and orbit. The ITU, an international organisation responsible for electronic communications systems, was founded by the Convention on the International Telecommunications Union. The UK is among the 191 member states of the ITU.

ICO consistently failed to bring its satellite network into operation within the timescale it had suggested. At the time of (the Office of Communications) Ofcom's decision, it was also involved in litigation with Boeing over its satellite construction and launch contracts. Until the litigation was resolved in ICO's favour, ICO would not have the funds available to launch its satellites. Moreover, Boeing was the only entity capable of constructing and launching the satellites. Ofcom, the national notifying authority to the ITU, monitored the filing in accordance with its Guidance on Procedures for the Management of Satellite Filings. In light of the circumstances, Ofcom concluded that ICO was unlikely to make use of the assigned radio frequency and orbit. On this basis, Ofcom wrote to the ITU requesting that the filing be cancelled.

ICO's application for judicial review of Ofcom's decision was refused by the High Court. Its subsequent appeal to the Court of Appeal was dismissed. In both courts, ICO brought its case on three main grounds:

  • Ofcom had regard to an irrelevant factor, namely the erroneous belief that it believed that it was obliged to cancel the filing under the ITU regulatory regime;
  • Offcom had not taken into account relevant factors, namely the impact on ICO and the lack of evidence of any prejudice being caused to third parties by the continued filing; and
  • Ofcom's decision was disproportionate.

The "tenable view" test

Lloyd Jones J in the High Court held that the first ground failed on the facts, as Ofcom had not proceeded on the basis that it had a duty to cancel the filing. In his judgment on this issue, he noted the different interpretations the parties had given to the international instruments creating the ITU regime. The question arose as to the extent to which the courts may rule on the meaning and effect of a non-implemented international treaty. Lloyd Jones J applied R (Corner House Research) Director of Serious Fraud Office [2009] 1 AC 756 in holding that as long as the public authority held a tenable view in its interpretation of the international provision, the court would go no further in examining the provision itself. This approach has been justified on policy grounds. The courts have repeatedly expressed their unwillingness to allow the opinions of international organisations to be decisive in the domestic courts. The approach represents a hurdle for parties hoping to challenge the decisions of public authorities on a different interpretation of the international law where that instrument is not incorporated into UK law. On the facts the Court of Appeal did not address this "tenable view" argument.

Factors that decision makers are required to take into account

The Court of Appeal considered the second and third grounds submitted by ICO together. In his judgment, Pill LJ noted that the ITU requires "cooperation between states in the rational, efficient and economical use of limited natural resources" (Article 44(2) of ITU Constitution). This was the context in which the court considered the adequacy of the factors that Ofcom had taken into account. As a result, Ofcom was held to be acting for "lawful and sufficient reasons" in basing its decision on the absence of construction and launch contracts and the lack of funding.

Pill LJ also distinguished between a factor that is capable of being relevant, and a factor that a decision maker is required to take into account by law. The judgment in this respect was in accordance with the approach of the courts, in earlier cases including in Corner House Research and CREEDNZ Inc v Governor General [1981] 1 NZLR 172. His Lordship made it clear that any required factor had to be implied by reference to the intention of the law. On the facts, the intention of the ITU regime was not to safeguard the investment of operators. In the absence of any express provision, therefore, Ofcom was entitled to disregard the factors that ICO submitted were relevant.

Conclusion

The High Court judgment emphasised the importance of the guidance issued by public authorities administering international obligations. In such cases as long as the interpretation of the international law in the guidance was tenable, courts will not adopt other interpretations. From a practical perspective therefore, it is important for parties to comply with relevant guidance by public authorities where instruments have not been incorporated into domestic law unless that guidance sets out an untenable view.

The Court of Appeal decision also confirmed the circumstances in which a public authority is required to take into account particular factors or is prohibited from taking factors into account. Unless expressly or impliedly stipulated in statute, the public authority is entitled to use its discretion in considering or disregarding a certain factor. It will only be where the exercise of discretion is perverse that a decision will be unlawful. Thus for claimants, where the legislation is silent, the task will be to ascertain whether it is possible to argue that the legislation at least by necessary implication requires a factor to be taken into account (or prohibits it from being considered). If claimants are not able to establish that from the legislation they will face the difficult task of demonstrating that the public authority's decision is perverse. Conversely, a defendant may well look to argue that a factor is one which falls within its wide discretion and that its subsequent decision is a reasonable one.