R (A) v Director of Establishments of the Security Service

JurisdictionEngland & Wales
JudgeLord Justice Laws,Lord Justice Rix,Lord Justice Dyson
Judgment Date18 February 2009
Neutral Citation[2009] EWCA Civ 24
Docket NumberCase No: C1/2008/1808
CourtCourt of Appeal (Civil Division)
Date18 February 2009

[2009] EWCA Civ 24

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

Collins J

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Laws

Lord Justice Rix and

Lord Justice Dyson

Case No: C1/2008/1808

Between:
A
Claimant/Respondent
and
B
Defendant/Appellant

Mr Philip Havers QC and Mr Jason Coppel (instructed by The Treasury Solicitor) for the Defendant/Appellant

Mr Gavin Miller QC and Mr Guy Vassall-Adams (instructed by Bindmans LLP) for the Claimant/Respondent

Hearing date: 24 November 2008G

Lord Justice Laws

Lord Justice Laws:

INTRODUCTION

1

This is an appeal, with permission granted by the judge below, against the decision of Collins J given in the Administrative Court on 4 July 2008 to the effect that the Administrative Court possesses jurisdiction to hear the respondent's claim against the appellant alleging a violation of Article 10 of the European Convention on Human Rights (ECHR). I will refer to the respondent as the claimant.

2

The claimant is a former member of the Security Service. He has written and desires to publish a manuscript which, as Collins J put it, “contains inter alia a description of his work for the Service”. Bound as he is by a strict duty of confidentiality, he may not publish such material without the authority of the appellant (defendant in the proceedings), who is the Director of Establishments of the Security Service and to whom I will refer as the Director.

3

The claimant applied for the Director's consent to publish, which was refused. Thereafter on 13 November 2007 the claimant lodged an application in the Administrative Court for permission to bring judicial review proceedings to challenge the Director's refusal of consent. He claimed that the refusal violated his right of free expression guaranteed by ECHR Article 10, and was unreasonable and vitiated by bias. On the same day, 13 November 2007, Collins J gave directions including orders to protect the identities of the claimant and the proposed defendant (there is however no difficulty in the way of naming the defendant/appellant, by reference to his office: so much was done in Collins J's substantive judgment now under appeal). On being served with the proceedings the Director asserted that the Administrative Court had no jurisdiction to entertain the claim of violation of ECHR rights. On 12 March 2008 Collins J granted judicial review permission and directed a preliminary hearing on the jurisdiction issue raised by the Director. On 15 June 2008 Collins J conducted the preliminary hearing, and his reserved judgment, by which he decided the jurisdiction issue in favour of the claimant, was delivered on 4 July 2008 and as I have indicated is now the subject of this appeal.

4

The Director's contention is that by force of s.65(2)(a) of the Regulation of Investigatory Powers Act 2000 ( RIPA), to which I will come directly, the only judicial entity having jurisdiction to entertain the Article 10 claim is the Investigatory Powers Tribunal (the IPT), which was established by RIPA s.65(1). The High Court and thus the Administrative Court therefore has none.

STATUTORY MATERIALS

5

I should first set out the following provisions of the RIPA.

“65 The Tribunal

(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;

(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;

(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;

66 Orders allocating proceedings to the Tribunal

(1) An order under section 65(2)(d) allocating proceedings to the Tribunal—

(a) may provide for the Tribunal to exercise jurisdiction in relation to that matter to the exclusion of the jurisdiction of any court or tribunal; but

(b) if it does so provide, must contain provision conferring a power on the Tribunal, in the circumstances provided for in the order, to remit the proceedings to the court or tribunal which would have had jurisdiction apart from the order.

67 Exercise of the Tribunal's jurisdiction

(1) Subject to subsections (4) and (5), it shall be the duty of the Tribunal—

(a) to hear and determine any proceedings brought before them by virtue of section 65(2)(a) or (d); and

(b) to consider and determine any complaint or reference made to them by virtue of section 65(2)(b) or (c).

(2) Where the Tribunal hear any proceedings by virtue of section 65(2)(a), they shall apply the same principles for making their determination in those proceedings as would be applied by a court on an application for judicial review.

68 Tribunal procedure

(1) Subject to any rules made under section 69, the Tribunal shall be entitled to determine their own procedure in relation to any proceedings, complaint or reference brought before or made to them.

(2) The Tribunal shall have power—

(a) in connection with the investigation of any matter, or

(b) otherwise for the purposes of the Tribunal's consideration or determination of any matter,

to require a relevant Commissioner appearing to the Tribunal to have functions in relation to the matter in question to provide the Tribunal with all such assistance (including that Commissioner's opinion as to any issue falling to be determined by the Tribunal) as the Tribunal think fit.

(4) Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either—

(a) a statement that they have made a determination in his favour; or

(b) a statement that no determination has been made in his favour.

(6) It shall be the duty of the persons specified in subsection (7) to disclose or provide to the Tribunal all such documents and information as the Tribunal may require for the purpose of enabling them—

(a) to exercise the jurisdiction conferred on them by or under section 65; or

(b) otherwise to exercise or perform any power or duty conferred or imposed on them by or under this Act.

(S.68(7) then sets out a list of persons. The first, at s.68(7)(a), is “every person holding office under the Crown”.) S.69 empowers the Secretary of State to make rules regulating the IPT's exercise of its jurisdiction and other matters. Then s.70:

“70 Abolition of jurisdiction in relation to complaints

(1) The provisions set out in subsection (2) (which provide for the investigation etc. of certain complaints) shall not apply in relation to any complaint made after the coming into force of this section.

(2) Those provisions are—

(a) section 5 of, and Schedules 1 and 2 to, the Security Service Act 1989 (investigation of complaints about the Security Service made to the Tribunal established under that Act);

(b) section 9 of, and Schedules 1 and 2 to, the Intelligence Services Act 1994 (investigation of complaints about the Secret Intelligence Service or GCHQ made to the Tribunal established under that Act); and

(c) section 102 of, and Schedule 7 to, the Police Act 1997 (investigation of complaints made to the Surveillance Commissioners).”

6

I must next give some account of the Investigatory Powers Tribunal Rules 2000 (the Rules), made by the Secretary of State pursuant to RIPA s.69.

7

Paragraph 2 of the Rules defines “section 7 proceedings” as “proceedings under section 7(1)(a) of the Human Rights Act 1998 in relation to which the Tribunal is the only appropriate tribunal by virtue of section 65(2)(a) of the Act”. By paragraph 3, the Rules are applied to section 7 proceedings. There follows a series of provisions elaborating special procedures clearly fashioned to accommodate the particular considerations, not least those of national security, which are likely to arise in such proceedings. Notable among them is paragraph 6, headed “Disclosure of information”, part of which is in these terms:

“(1) The Tribunal [sc. the IPT] shall carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United...

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7 cases
2 books & journal articles
  • Disclosure of Foreign Intelligence Material: CPIA, Norwich Pharmacal and the War on Terror
    • United Kingdom
    • International Journal of Evidence & Proof, The No. 15-4, October 2011
    • 1 Octubre 2011
    ...INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 341DISCLOSURE OF FOREIGN INTELLIGENCE MATERIAL19 [2004]UKHL 3, [2004] 2 AC 134.20 [2009] EWCA Civ 24, [2009] 3 WLR 717.21 Ibid. at 29, per Laws LJ.22 [2009] EWCA Crim 682, [2010] 1 Cr App R whether by individuals, companies or foreign security agenc......
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    • United Kingdom
    • International Journal of Evidence & Proof, The No. 15-4, October 2011
    • 1 Octubre 2011
    .... . . . . . . . 232 382 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOFTABLE OF CASESA v B (Investigatory Powers Tribunal: Juris-diction) [2009] EWCA Civ 24, [2009] 3 WLR717 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341A vHoare [2008] UKHL8, [2008] 2All ER 1. . . . 150......

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