Privacy International v Investigatory Powers Tribunal 1) Secretary of State for Foreign and Commonwealth Affairs and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Flaux,Lord Justice Floyd |
| Judgment Date | 23 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1868 |
| Docket Number | Case No: C1/2017/0470 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2017 |
[2017] EWCA Civ 1868
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (QUEENS BENCH DIVISION)
SIR BRIAN LEVESON PQBD AND MR JUSTICE LEGGATT
CO23682016
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
Lord Justice Sales
and
Lord Justice Flaux
Case No: C1/2017/0470
The Queen on the Application of:
Dinah Rose QC, Ben JaffeyQC &Tom Cleaver (instructed by Bhatt Murphy LTD) for the Apellant
Jonathan Glasson QC (instructed by Government Legal Department) for the Respondent
James Eadie QC and Kate Grange QC (instructed by Government Legal Department) for the Interested Parties
Hearing date: 05 October 2017
This is an appeal from the decision of a two judge Divisional Court (Sir Brian Leveson, President of the Queen's Bench Division, and Leggatt J) on a preliminary issue in judicial review proceedings brought against the Investigatory Powers Tribunal ("the IPT" or "the Tribunal"). The IPT is a special tribunal which was established under the Regulation of Investigatory Powers Act 2000 (" RIPA") with jurisdiction to examine, among other things, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters or "GCHQ" (together, "the intelligence services").
The preliminary issue determined by the Divisional Court relates to whether the ouster clause in section 67(8) of RIPA has the effect of preventing a judicial review claim being brought against the IPT. Section 67(8) is as follows:
"Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court."
The Divisional Court made an order to the effect that by reason of section 67(8) a decision of the IPT is not amenable to judicial review. It did so in unusual circumstances, in that the court was divided in its view as to the effect of section 67(8). In the view of Sir Brian Leveson PQBD, for the detailed reasons set out in his judgment, section 67(8) does have the effect of exempting rulings by the IPT from judicial review by the High Court. Leggatt J inclined to the view that section 67(8) does not have that effect, for the countervailing detailed reasons set out in his judgment. Nonetheless, he was prepared to agree to make the order proposed by Sir Brian, since there was no point in having the issue re-argued before a different constitution of the Divisional Court where the order made could be taken forward to an appeal so that the issue could be considered and determined by this court.
On this appeal, the IPT itself was represented by Jonathan Glasson QC. Mr Glasson provided us with a helpful note on behalf of the IPT which explained its composition and functions. It also pointed out the practical difficulties which would arise in judicial review proceedings in relation to handling of sensitive confidential information if this court concludes that the appeal should be allowed and that the IPT is amenable to judicial review. However, the main burden of the submissions, both oral and written, in support of the order made by the Divisional Court was assumed by James Eadie QC for the interested parties.
The structure and functions of the IPT
In his judgment Sir Brian Leveson PQBD set out a helpful account of the structure and functions of the IPT. No-one has suggested it contains any errors. I gratefully adopt what he said, as follows:
"5. It is no accident that RIPA (establishing the IPT) came into force at the same time as the Human Rights Act 1998 and the Civil Procedure Rules (described as "a single legislative scheme": see A v Director of the Security Service (' A v B') [2010] 2 AC 1; [2009] EWCA Civ 24 and [2009] UKSC 12 per Laws LJ (at [14]) and Dyson LJ (at [48]) in the Court of Appeal echoed by Lord Brown in the Supreme Court at [21]. The Explanatory Notes to RIPA identified that the main purpose of the Act was to ensure that investigatory powers (including, for example, the interception of communications and the carrying out of surveillance) were "used in accordance with human rights".
6. The IPT effectively replaced the Interception of Communications Act Tribunal, the Security Services Act Tribunal and the Intelligence Services Act Tribunal which now exist only in relation to complaints made before 2 October 2000. These tribunals (established by the Interception of Communications Act 1985, the Security Services Act 1989 and the 1994 Act [the Intelligence Services Act 1994] respectively) were repealed by RIPA and contained almost identical ouster provisions. Thus, section 7(8) of the 1985 Act provides:
"The decisions of the Tribunal (including any decisions as to their jurisdiction) shall not be subject to appeal or liable to be questioned in any court."
Similarly, section 5(4) of the 1989 Act and section 9(4) of the 1994 Act provide:
"The decisions of the Tribunal and the Commissioner under that Schedule (including decisions as to their jurisdictions) shall not be subject to appeal or liable to be questioned in any court."
7. The IPT also replaced the complaints provision of Part III of the Police Act 1997 (concerning police interference with property). It stands apart from other tribunals and is not part of Her Majesty's Courts and Tribunal Service on the basis that (according to Sir Andrew Leggatt in his Report of the Review of Tribunals at para 3.11) "it is wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service". Sir Andrew went on:
"The Tribunal's powers are primarily investigatory, even though it does also have an adjudicative role. Parliament has provided that there should be no appeal from the tribunal except as provided by the Secretary of State."
8. The membership of the IPT is made up of the President, the Vice President, three other judges (all five of whom are judges of the High Court) and other distinguished lawyers including representatives from Scotland and Northern Ireland. Its remit is established by section 65 of RIPA (as amended) in these terms:
"(1) There shall, for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.
(2) The jurisdiction of the tribunal shall be—
(a) to be the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;
(b) to consider and determine any complaints made to them which, in accordance with subsection (4), are complaints for which the tribunal is the appropriate forum;
(c) to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of section 17, on his relying in, or for the purposes of, any civil proceedings on any matter; and
(d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order.
(3) Proceedings fall within this subsection if—
(a) they are proceedings against any of the intelligence services …
(b) they are proceedings against any other person in respect of any conduct, proposed conduct, by or on behalf of any of those services;
(c) they are proceedings brought by virtue of section 55(4); or
(d) they are proceedings relating to the taking place in any challengeable circumstances of any conduct falling within subsection (5).
(4) The tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes—
(a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunications service or telecommunication system; and
(b) to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services.
(5) Subject to subsection (6), conduct falls within this subsection if (whenever it occurred) it is–
(a) conduct by or on behalf of any of the intelligence services;
(b) conduct for or in connection with the interception of communications in the course of their transmission by means of a postal service or telecommunication system;
(c) conduct to which Chapter II of Part I applies;
(ca) the carrying out of surveillance by a foreign police or customs officer (within the meaning of section 76A);
(d) other conduct to which Part II applies;
(e) the giving of a notice under section 49 or any disclosure or use of a key to protected information;
(f) any entry on or interference with property or any interference with wireless telegraphy.
(6) For the purposes only of subsection (3), nothing mentioned in paragraph (d) or (f) of subsection (5) shall be treated as falling within that subsection unless it is conduct by or on behalf of a person holding any office, rank or position with–
(a) any of the intelligence services;
(b) any of Her Majesty's forces;
(c) any police force;
(ca) the Police Investigations and Review Commissioner;
(d) the National Crime Agency;
(f) the Commissioners for Her Majesty's Revenue and Customs;
and section 48(5) applies for the purposes of this subsection as it applies for the purposes of Part II.
(7) For the purposes of...
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