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Supreme Court holds that Investigatory Powers Tribunal is subject to judicial review

15/05/19

The Supreme Court today held that decisions of the Investigatory Powers Tribunal (IPT) are subject to judicial review in the High Court. It rejected the government's argument that section 67(8) of the Regulation of Investigatory Powers Act 2000 (RIPA) excludes the High Court's jurisdiction to review decisions of the IPT for error of law.

The Appellant and Claimant, Privacy International (PI), challenged the government's use of "thematic" warrants issued under section 5 of the Intelligence Services Act 1994 in the IPT. "Thematic" warrants purport to permit computer network exploitation (colloquially "hacking") in respect of a broad class of property rather than, for example, computers of an identified individual or at identified premises. PI argued that section 5, properly construed, did not authorise the issue of "thematic" warrants or, if it did, it was not consistent with Article 8 of the European Convention of Human Rights. The IPT dismissed PI's claim.

PI instituted judicial review proceedings before the High Court. The High Court directed that, as a preliminary issue, the Court should decide whether section 67(8) of RIPA excluded the High Court's jurisdiction to review the IPT's decision.

Section 67(8) of RIPA is similar to other "ouster" clauses that have previously been held not to exclude the High Court's jurisdiction to review decisions they purport to protect. It stated at relevant times:

"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 Divisional Court (notwithstanding the contrary view of Mr Justice Leggatt) and the Court of Appeal held that section 67(8) ousted the jurisdiction of the High Court to review the IPT's decision.

The Supreme Court reversed this by majority (Lady Hale, Lord Kerr, Lord Carnwath and Lord Lloyd-Jones) and allowed PI's appeal. Lord Reed, Lord Sumption and Lord Wilson dissented. The majority held that section 67(8) did not prevent the High Court reviewing a decision of the IPT that involved an error of law. They held that section 67(8) was not in substance different from previous clauses that had been held not to oust the High Court's jurisdiction. Much clearer language would have been required to achieve that result. 

Three members of the court (Lady Hale, Lord Kerr and Lord Carnwath) went further. In a passage with some constitutional significance, they would have held, had it been necessary, that the rule of law prevented Parliament in principle from ousting the jurisdiction of the High Court to review the decisions of a tribunal of limited jurisdiction. Lord Lloyd Jones preferred not to express a view on that issue.

The judgment is here.

Martin Chamberlain QC and David Heaton appeared for Liberty, which made written and oral submissions in the Supreme Court in support of the Appellant, PI.