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Once More unto the Breach: R (Privacy International) v Investigatory Powers Tribunal

Document Cited authorities 3 Cited in Related
Vincent
Date01 January 2020
DOI10.3366/elr.2020.0605
Published date01 January 2020
Pages103-109
INTRODUCTION

The classic modern framing of the British constitution sets up a contest between the Diceyan orthodoxy of the sovereignty of Parliament and the constitutional value of the rule of law, understood – most often – to mean at its heart the availability of judicial review.1 The decision of the Supreme Court in R (Privacy International) v Investigatory Powers Tribunal2 offers, first of all, important insights into the balance between these two concepts within the contemporary constitution. There, the court continued a now venerable tradition of holding that particular ouster clauses failed in what we must assume was their intended effect, while leaving open the possibility that some other, as yet hypothetical, clause might succeed in shielding the acts of some body from the supervisory jurisdiction of the High Court.3 Beyond that, however, the judgment offers the suggestion that it might yet be possible to transcend that framing, protecting the rule of law without rejecting Parliamentary sovereignty as the bedrock of the constitution. Both of these elements, however, are predicated – and this is a third point – upon a subtle but vital rejection of the national security framing of the judgments of the lower courts, possible only because of an earlier, separate, decision of the Supreme Court.

 BACKGROUND

The Investigatory Powers Act 2016 provides for a right of appeal from the Investigatory Powers Tribunal (“IPT”) – the body which adjudicates upon, amongst other things, the legality of various forms of state surveillance4 – to the Court of Appeal in England and Wales, or the Inner House of the Court of Session in Scotland.5 Before the relevant provisions were brought into force, there was no such right of appeal: the Regulation of Investigatory Powers Act 2000 (“RIPA”) permitted the Secretary of State to make provision for one, but that power was never exercised.6 What, then, if the IPT erred in law? The answer to that question turns on the interpretation of section 67(8) of RIPA, which provides that “determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not… be liable to be questioned in any court”. Does this “ouster clause” have the effect of excluding judicial review of Tribunal decisions? If not, could any such clause ever do so?

The RIPA ouster clause bears a striking resemblance to that held in Anisminic v Foreign Compensation Commission7 not to shield the Commission from the supervisory jurisdiction of the courts, on the basis that the error of law it had committed had rendered the Commission's decision a mere nullity and so deprived it of the ouster clause's protection. Against that background, the parenthetical words of the RIPA clause (not present in its predecessor) might be thought to represent an attempt to counter the logic of Anisminic by extending the clause's protection to those decisions which contain an error of law that would have the effect of depriving the IPT of jurisdiction. If so, it is notable that the relevant words fell far short of the unambiguously Anisminic-proof ouster clause in the Asylum and Immigration (Treatment of Claimants etc) Bill 2003.8 That clause's inclusion provoked a constitutional storm and prefigured the (in)famous remarks of a number of the Law Lords, in Jackson v Attorney General, to the effect that the courts might at some point in the future be willing to hold the rule of law to be the higher value than the sovereignty of Parliament.9 That is, there was – it was suggested – at least one thing that the legislature might be unable to do: exclude certain acts or decisions from the supervisory jurisdiction of the High Court. Such outright exclusion of judicial review must though be distinguished from the channelling of review in specialist fora, as endorsed by the Supreme Court in Cart and Eba.10 When Cart had been argued at first instance, it had been joined...

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