R (on the application of Privacy International) v Investigatory Powers Tribunal & Ors [2019] UKSC 22

Privacy International challenged the Investigatory Powers Tribunal's ruling on thematic warrants for computer hacking by GCHQ. The Supreme Court held, by majority, that section 67(8) of RIPA 2000 did not oust the High Court's judicial review jurisdiction over IPT decisions for errors of law.

Facts

The Investigatory Powers Tribunal (IPT) is a specialist tribunal established under the Regulation of Investigatory Powers Act 2000 (RIPA) with jurisdiction to examine the conduct of the intelligence services (the Security Service, the Secret Intelligence Service and GCHQ). Privacy International complained that GCHQ was using ‘thematic warrants’ under section 5 of the Intelligence Services Act 1994 to authorise Computer Network Exploitation (computer hacking) activities affecting broad classes of property. The IPT, on preliminary issues, held that section 5 permitted such warrants and that the 18th century common law aversion to general warrants was not a useful aid to construction.

Privacy International sought judicial review in the High Court. The Divisional Court (Sir Brian Leveson P; Leggatt J inclined to differ) and the Court of Appeal held that section 67(8) of RIPA ousted judicial review. Section 67(8) provides that determinations, awards, orders and other decisions of the IPT ‘(including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court’.

Issues

Two issues were identified:

(i) Whether section 67(8) of RIPA ousts the supervisory jurisdiction of the High Court to quash a judgment of the IPT for error of law.

(ii) Whether, and if so on what principles, Parliament may by statute oust the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction.

Arguments

Appellant (Privacy International)

Relied on the long-established principle that ouster clauses must be construed strictly and that a statute should not be interpreted as excluding judicial review if a tenable alternative construction exists. The wording of section 67(8) was materially indistinguishable from that considered in Anisminic v Foreign Compensation Commission [1969] 2 AC 147. The parenthesis referring to ‘jurisdiction’ could be read as relating to issues of precedent fact (as in Khawaja) but not errors of law. Allowing the IPT’s jurisdiction to be wholly immune from challenge would be inimical to the rule of law, particularly given the overlap with the ordinary courts’ jurisdiction.

Respondents/Interested Parties

Argued that section 67(8), particularly the words in parenthesis, was expressly designed to address errors of law going to jurisdiction in a way that the clause in Anisminic was not. Emphasised the high judicial quality of the IPT, its bespoke procedural regime for handling sensitive national security material, and its role equivalent to the High Court on judicial review. Relied on Lord Brown’s obiter statement in R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 that section 67(8) was ‘an unambiguous ouster’.

Judgment

The Supreme Court, by a majority of 4-3 (Lady Hale, Lord Kerr, Lord Carnwath and Lord Lloyd-Jones; Lord Sumption, Lord Reed and Lord Wilson dissenting), allowed the appeal.

Majority reasoning (Lord Carnwath)

Lord Carnwath traced the development from Anisminic through O’Reilly v Mackman [1983] 2 AC 237, Page and Cart. Following Anisminic as interpreted in subsequent authorities, a decision vitiated by any error of law (jurisdictional or not) is to be treated as a nullity and outside the protection of an ouster clause. The exclusion in section 67(8) applies only to legally valid determinations. The parenthesis referring to ‘decisions as to whether they have jurisdiction’ does not extend the exclusion to decisions vitiated by error of law; such decisions are ‘no decision at all’. The words in parenthesis might usefully cover decisions on issues of precedent fact going to jurisdiction.

Judicial review can only be excluded by ‘the most clear and explicit words’ (Cart, para 31). Section 67(8) was not sufficiently explicit, particularly when compared with the far more extensive formulation attempted in clause 11 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003. The special security context did not justify exclusion because the High Court has adequate procedures to protect sensitive material, and the overlap between IPT and ordinary court jurisdictions makes review all the more important to prevent the development of ‘local law’.

On the second issue (obiter), Lord Carnwath considered there was a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause purporting wholly to exclude the High Court’s supervisory jurisdiction over an inferior court or tribunal. It remains ultimately for the court to determine the extent to which such clauses should be upheld, having regard to their purpose, statutory context, and the nature of the legal issue.

Lord Lloyd-Jones

Agreed with Lord Carnwath on the first issue. The IPT is a judicial body performing a judicial function, and Parliament can in principle confer on such a body power to decide questions of law conclusively, but only with clear and explicit words. Section 67(8), construed against the post-Anisminic legal background, did not achieve this. Had Parliament intended to exclude review of purported determinations founded on errors of law, it would have had to say so in clear terms, as clause 11 of the 2003 Bill attempted.

Dissent (Lord Sumption, with Lord Reed)

Considered that section 67(8), read with the parenthesis, excluded judicial review on the merits of the IPT’s decisions but not review for ‘outright’ excess of jurisdiction or fundamental procedural failings. The IPT is a judicial body exercising powers equivalent to those of the High Court on judicial review, and the rule of law does not require a further right of appeal or review from such a body. Drew on Lord Wilberforce’s speech in Anisminic concerning the ‘permitted field’ and on Racal, Lee v Ashers Baking Co Ltd [2018] 3 WLR 1294 and R (A).

Dissent (Lord Wilson)

Considered that the natural meaning of section 67(8), including the parenthesis adopted following the confusion generated by Anisminic, was to exclude judicial review of ordinary errors of law by the IPT. On the second issue, limited to ordinary errors of law, Parliament had power to exclude review given the IPT’s exceptional institutional features: its high judicial composition, its exclusive and bespoke role reviewing the intelligence services, and its independence and authority as a body of ‘like standing and authority to that of the High Court’.

Implications

The decision reaffirms the strong common law presumption against the exclusion of judicial review and the principle, traceable at least to the 17th century, that ouster clauses must be construed strictly and only the clearest and most explicit words will suffice. The majority’s approach confirms that the Anisminic line of authority, as developed through O’Reilly v Mackman, Page and Cart, treats all errors of law as rendering a decision outside the protection of an ouster clause.

Practically, the decision means that determinations of the IPT made before 31 December 2018 (when section 67A introduced a limited statutory right of appeal) remain in principle amenable to judicial review in the High Court for error of law. The special status and expertise of the IPT may inform the Administrative Court’s approach to the grant of permission, but does not exclude review altogether.

Significantly, Lord Carnwath’s obiter observations on the second issue (supported by Lady Hale and Lord Kerr) indicate that a majority of the court considered it to be ultimately a matter for the courts, and not the legislature, to determine the limits set by the rule of law to Parliament’s power to exclude judicial review. This represents an important constitutional statement, though its precise reach remains to be tested. The strength of the dissents (three justices) indicates continuing judicial disagreement about the proper balance between parliamentary sovereignty and the supervisory jurisdiction of the High Court.

The case matters to public lawyers, practitioners in national security and surveillance fields, and constitutional scholars. It reinforces the protection of the rule of law against statutory encroachment and confirms that Parliament, if it wishes to exclude judicial review, must squarely confront what it is doing in unmistakable terms, accepting the political cost.

Verdict: Appeal allowed (by a majority of 4-3). Section 67(8) of the Regulation of Investigatory Powers Act 2000 does not exclude the judicial review jurisdiction of the High Court to quash a decision of the Investigatory Powers Tribunal for error of law.

Source: R (on the application of Privacy International) v Investigatory Powers Tribunal & Ors [2019] UKSC 22