Can the High Court surveil the Investigatory Powers Tribunal?

20 May 2019

In R (on the application of Privacy International) v Investigatory Powers Tribunal and others, the Supreme Court considered whether judicial review of decisions of the Investigatory Powers Tribunal ("IPT") was successfully excluded - or ousted - by statute and whether such ouster was permissible in any case.



Background

The IPT was established under the Regulation of Investigatory Powers Act 2000 ("RIPA") with the power to examine the conduct of the Security Service, Secret Intelligence Service and GCHQ. Privacy International sought judicial review of a decision of the IPT on the scope of the Secretary of State's power to authorise certain surveillance activities.

Section 67(8) of RIPA provides that:

"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 liable to be questioned in any court."

Despite the seeming clarity of that provision, the Supreme Court ruled by a majority of 4-3 that it did not prevent the High Court from reviewing decisions of the IPT. The Court then went on to consider the means, if any, by which Parliament could in fact do so.

Was judicial review ousted in this case?

In Anisminic Ltd v Foreign Compensation Commission the House of Lords considered a similar clause (absent the parentheses) which purported to prevent a decision by the Foreign Compensation Commission from being called into question in any court of law. By a majority of 3-2 it was held that the clause only prevented challenges to decisions which fell within the jurisdiction of the Commission. Where the Commission strayed outside its jurisdiction its decisions were not valid decisions at all and were hence amendable to review by the High Court.

The specific reference to jurisdiction in section 67(8) would therefore seem to have been an attempt to guard against the effect of Anisminic

However, over the years that decision has evolved to become authority for the idea that any error of law, not just one relating to jurisdiction, would mean that a decision fell outside the relevant powers of the decision maker and would not be protected by an ouster clause.

Giving the leading judgment Lord Carnwath (with whom Lady Hale and Lord Kerr agreed) considered that the exercise to be undertaken by the court was not one of ordinary statutory interpretation to discern the will of Parliament, but had to be framed in the context of the strong common law presumption against ouster of judicial review by the High Court to review errors of law.

Although not completely redundant, the reference to jurisdiction in section 67(8) was not relevant for present purposes and to all intents and purposes the provision was indistinguishable from that in Anisminic.

Following the Supreme Court's determination in Cart, judicial review can only be ousted by the 'the most clear and explicit words'. Parliament had to spell out its intention in absolutely clear terms. In 2003 a more explicit clause had been suggested and then withdrawn by the government in relation to certain immigration decisions. So the wording could be found if desired.

However, the wording in this case was not so explicit and, in the face of the presumption against ouster, section 67(8) was held to apply only to those decisions of the IPT which are free from any errors of law. Where there is an error of law, judicial review by the High Court to consider it will not be ousted.

Can judicial review ever be ousted?

In relation to the second issue, Lord Carnwath held that it is ultimately for the courts, not Parliament, to determine the limits set by the rule of law to the power to exclude judicial review. The question in any case is the level of scrutiny that the court will apply.

Some forms of ouster clause may be acceptable - such as the shortening of time limits to apply for judicial review in certain cases.

However, it is doubtful if the role of the High Court can be excluded altogether. This is because specialist tribunals such as the IPT do not develop law in isolation, but deal with legal principles applied across the legal system. A central function of the High Court is to ensure the consistent development and application of such principles across all courts. It would contravene the rule of law to allow specialist tribunals to develop their own 'local law' which was inconsistent with that applied in the ordinary courts.

Of the two dissenting judgements, Lord Sumption (with whom Lord Reed agreed) considered that the judicial nature of the IPT was sufficient to uphold the rule of law and as such the High Court could not review its decisions.

Lord Wilson considered that the IPT should not be subject to judicial review but agreed with the leading judgement that it should be for the courts to determine whether the power of review should be excluded and that clauses which seek to wholly exclude the supervisory jurisdiction of the High Court are less likely to be binding.


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