R (on the application of Privacy International) v Investigatory Powers Tribunal and Others
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lady Hale,Lord Kerr,Lord Lloyd-Jones,Lord Sumption,Lord Reed,Lord Wilson |
| Judgment Date | 15 May 2019 |
| Neutral Citation | [2019] UKSC 22 |
| Court | Supreme Court |
| Date | 15 May 2019 |
[2019] UKSC 22
Lady Hale, President
Lord Reed, Deputy President
Lord Kerr
Lord Wilson
Lord Sumption
Lord Carnwath
Lord Lloyd-Jones
Appellant
Sir Jeffrey Jowell QC
Dinah Rose QC
Ben Jaffey QC
Tom Cleaver
Gayatri Sarathy
(Instructed by Bhatt Murphy Solicitors)
Respondent
Jonathan Glasson QC
(Instructed by The Government Legal Department)
Interested Parties
Sir James Eadie QC
Kate Grange QC
Catherine Dobson
James Bradford
(Instructed by The Government Legal Department)
(Intervener — Liberty)
Martin Chamberlain QC
David Heaton
(Instructed by Liberty)
Respondent:
(1) Investigatory Powers Tribunal – written submissions only
Interested Parties:
(2) Secretary of State for Foreign and Commonwealth Affairs and Government Communications Headquarters
Heard on 3 and 4 December 2018
( with whom Lady Hale and Lord Kerr agree) The issue
The Investigatory Powers Tribunal (“IPT”) is a special tribunal 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 (“the intelligence services”). Section 67(8) provides:
“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders 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 genesis of this subsection can be traced back to the Interception of Communications Act 1985. Section 7(8) provided in relation to the tribunal established by that Act (the predecessor of the IPT):
“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.”
There is an obvious parallel with the “ouster clause” considered by the House of Lords in the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (“ Anisminic”). Section 4(4) of the Foreign Compensation Act 1950 provided:
“The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.”
The House of Lords decided by a majority that these words were not effective to exclude review by the courts of the legal basis of the Commission's decision. In summary they held (in the words of the headnote):
“… that the word ‘determination’ in section 4(4) of the Act of 1950 should not be construed as including everything which purported to be a determination but was not in fact a determination because the commission had misconstrued the provision of the Order defining their jurisdiction. Accordingly, the court was not precluded from inquiring whether or not the order of the commission was a nullity.”
It will be necessary later to examine in more detail the reasoning in Anisminic, and its treatment in later cases, culminating in the major reappraisal of the relationship of courts and tribunals by the Supreme Court in R (Cart) v Upper Tribunal (Public Law Project intervening) [2012] 1 AC 663 (“ Cart”).
Reduced to its core the central issue in the present case is: what if any material difference to the court's approach is made by any differences in context or wording, and more particularly the inclusion, in the parenthesis to section 67(8), of a specific reference to decisions relating to “jurisdiction”?
The legislative scheme established by RIPA replaced three earlier statutes dealing with the oversight of the security services. Its enactment was closely linked to that of the Human Rights Act 1998 (“ HRA”), which was brought into force at the same time. The Explanatory Notes stated (paras 3–4):
“The main purpose of the Act is to ensure that the relevant investigatory powers are used in accordance with human rights. These powers are:
• the interception of communications;
• the acquisition of communications data (eg billing data);
• intrusive surveillance (on residential premises/in private vehicles);
• covert surveillance in the course of specific operations;
• the use of covert human intelligence sources (agents, informants, undercover officers);
• access to encrypted data.”
For each of these powers, it was said, the Act would ensure that the law would clearly cover the purposes for which they could be used, by whom and with whose authority, the use that could be made of the material gained, and also “independent judicial oversight”, and means of redress for individuals.
The statutory provisions governing the composition, jurisdiction and procedures of the IPT are complex. There is a comprehensive account in the judgment of Sir Brian Leveson P in the Divisional Court (paras 5 to 15) ( [2017] EWHC 114 (Admin)). For present purposes it is enough to note the principal features. Section 65(1) and Schedule 3 deal with its composition. The number of members is set by Her Majesty by Letters Patent (section 65(1)). The President must have held high judicial office, and the other members must have held high judicial office or meet specified legal qualifications. In the present case the tribunal consisted of five members presided over by Burton J (President) and Mitting J (Vice-President), the others all being leading counsel.
As to its jurisdiction section 65(2) provides:
“(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.”
The remainder of section 65 provides further details of these four categories of jurisdiction, which are not material in the present case. It is to be noted that the jurisdiction of the IPT may depend on uncertain issues of law or fact. For example, in C v The Police IPT/03/32/H the IPT considered a complaint by a retired police officer alleging that there had been unlawful covert surveillance in breach of article 8 of the European Convention on Human Rights (“the Convention”) by his former police force. The essential facts were agreed, but the IPT held that it had no jurisdiction to consider his complaint because there was no “directed surveillance” which satisfied the definition of conduct to which Chapter II of Part I of RIPA applied (see para 74 of the determination; RIPA section 65(3)(d), (5)(c)). In some cases the jurisdiction of the IPT may overlap with that of the ordinary courts: see, for example, AKJ v Comr of Police of the Metropolis [2014] 1 WLR 285 (parallel claims under HRA section 7, and in tort, in respect of damage suffered as a result of the actions of two undercover police officers).
Section 67 is headed “Exercise of the Tribunal's jurisdiction”. Subsection (1) provides that it shall be the duty of the Tribunal to hear and determine proceedings, or to consider and determine complaints or references, brought before it under section 65(2). Subsections (2) and (3) provide, among other things, that the tribunal shall apply “the same principles as would be applied by a court on an application for judicial review”. Subsections (4)-(6) make provision in relation to frivolous and vexatious claims, limitation, and the power to make interim orders. Subsection (7) sets out the powers of the tribunal “on determining any proceedings, complaint or reference” to make “any such award of compensation or other order as they think fit”. It also gives examples of such orders, including (a) “an order quashing or cancelling any warrant or authorisation”, and (b) “an order requiring the destruction of any records of information which (i) has been obtained in exercise of any power conferred by a warrant or authorisation; or (ii) is held by any public authority in relation to any person”.
Subsection (8) has been set out above (para 1). As there seen, it allowed for an appeal to be provided for by order of the Secretary of State, but that power has never been exercised. Subsection (9) goes further, imposing a “duty” on the Secretary of State to secure an order allowing for an appeal to a court against any exercise by the tribunal of their jurisdiction under section 65(2)(c) or (d); but that subsection has not been brought into force. Subsections (10)-(12) make provision as to the contents of, and procedure for making, such an order were the power ever to be exercised. After the commencement of these proceedings there was enacted (by section 242 of the Investigatory Powers Act 2016) a new section 67A providing for an appeal on a point of law to the Court of Appeal or Court of Sessions against certain decisions of the tribunal. That was brought into force on 31 December 2018 by regulation 2 of the Investigatory Powers Act 2016 (Commencement No 10 and Transitional Provision) Regulations 2018/1397, but it does not apply to any decision or determination of the IPT made before this...
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