Facts
As a result of the Suez Crisis some mining properties of the appellant Anisminic (renamed from Sinai Mining Co.) located in the Sinai peninsula were seized by the Egyptian government before November 1956. The appellants then sold the mining properties to The Economic Development Organisation (TEDO), an Egyptian government owned organisation, in 1957.
The Suez Crisis, or the Second Arab–Israeli war, also called the tripartite aggression in the Arab world and Sinai War in Israel, was an invasion of Egypt in late 1956 by Israel, followed by the United Kingdom and France. The aims were to regain Western control of the Suez Canal and to remove Egyptian President Gamal Abdel Nasser, who had just nationalized the canal. After the fighting had started, political pressure from the United States, the Soviet Union and the United Nations led to a withdrawal by the three invaders. The episode humiliated the United Kingdom and France and strengthened Nasser.
Egypt, officially the Arab Republic of Egypt, is a country spanning the northeast corner of Africa and southwest corner of Asia by a land bridge formed by the Sinai Peninsula. Egypt is a Mediterranean country bordered by the Gaza Strip and Israel to the northeast, the Gulf of Aqaba and the Red Sea to the east, Sudan to the south, and Libya to the west. Across the Gulf of Aqaba lies Jordan, across the Red Sea lies Saudi Arabia, and across the Mediterranean lie Greece, Turkey and Cyprus, although none share a land border with Egypt.
In 1959, a piece of subordinate legislation was passed under the Foreign Compensation Act 1950 to distribute compensation paid by the Egyptian government to the UK government with respect to British properties it had nationalised. The appellants claimed that they were eligible for compensation under this piece of subordinate legislation, which was determined by a tribunal (the respondents in this case) set up under the Foreign Compensation Act 1950.
The tribunal, however, decided that the appellants were not eligible for compensation, because their "successors in title" (TEDO) did not have the British nationality as required under one of the provisions of the subordinate legislation.
There were two important issues on the appeal to the Court of Appeal and later, the House of Lords. The first was straightforward: whether the tribunal had made an error of law in construing the term "successor of title" under the subordinate legislation.
The House of Lords of the United Kingdom, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's jurisdiction was essentially limited to the hearing of appeals from the lower courts. Appeals were technically not to the House of Lords, but rather to the Queen-in-Parliament. By constitutional convention, only those lords who were legally qualified heard the appeals, since World War II usually in what was known as the Appellate Committee of the House of Lords rather than in the chamber of the House.
The second issue was more complex and had important implications for the law on judicial review. Even if the tribunal had made an error of law, the House of Lords had to decide whether or not an appellate court had the jurisdiction to intervene in the tribunal's decision. Section 4(4) of the Foreign Compensation Act 1950 stated: “The determination by the commission of any application made to them under this Act shall not be called into question in any court of law”, this was a so-called "ouster clause".
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Exclusion of judicial review has been attempted by the Parliament of Singapore to protect the exercise of executive power. Typically, this has been done though the insertion of finality or total ouster clauses into Acts of Parliament, or by wording powers conferred by Acts on decision-makers subjectively. Finality clauses are generally viewed restrictively by courts in the United Kingdom. The courts there have taken the view that such clauses are, subject to some exceptions, not effective in denying or restricting the extent to which the courts are able to exercise judicial review. In contrast, Singapore cases suggest that ouster clauses cannot prevent the High Court from exercising supervisory jurisdiction over the exercise of executive power where authorities have committed jurisdictional errors of law, but are effective against non-jurisdictional errors of law.
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