R (on the application of Privacy International) v. Investigatory Powers Tribunal and others
[2019] UKSC 22
On appeal from: [2017] EWCA Civ 1868
Supreme Court
Introduction
In this case, R (on the application of Privacy International) v. Investigatory Powers Tribunal and others, the appellants are Privacy International and others, and the respondents are the Investigatory Powers Tribunal and others . The case is of constitutional significance as it discusses the principles of parliamentary sovereignty, the rule of law, the separation of powers as well as their conflicting relationship in regard to ouster clauses.
Facts
This case concerns the supervisory jurisdiction of the Investigatory Powers Tribunal (IPT) and their ability to define the scope of their own jurisdiction through ouster clauses. Given its jurisdiction by the Regulation of Investigatory Powers Act 2000 (RIPA), the IPT has the power to examine and scrutinise the activity of the intelligence services. This case came before the Supreme Court as a result of an appeal from the Court of Appeal decision based on previous claims made by Privacy International that the IPT’s rulings on the lawfulness of government hacking was based on an error of interpretation and the ability of the IPT’s ruling to be immune from judicial review.
Case History
In 2014, a report revealed GCHQ’s computer hacking operations where they obtained access to devices and used this for surveillance of activities under section 5 of the Intelligence Services Act (ISA) 1994. This permits the Secretary of State to issue warrants that authorise actions they consider necessary in aiding the intelligence services . Privacy International contended section 5 was not as broad as it was being interpreted as. The IPT dismissed the claim , holding GCHQ were allowed under UK law and ECHR to continue hacking operations provided the warrants were as specific as possible . Sir Brian Leveson contended that, because the IPT were already performing a supervisory jurisdiction over public bodies, there appeared no reason why the IPT’s decisions should not be immune from scrutiny. However, Leggatt LJ’s view differed as he placed more emphasis on the reasoning in Anisminic where the words ‘no determination…shall be called in question in any court of law’ did not have sufficient clarity to oust the supervisory function of the High Court. Hence it was difficult to see how the wording of section 67(8) could be seen as unambiguous however, Leggatt also saw strength in the notion that the section served to be an ouster clause. The Divisional Court concurred despite reservations.
Privacy International then applied to the High Court in February 2017 for judicial review of the IPT’s finding however the High Court ruled that section 67(8) of the RIPA prevented judicial review of this ruling. Section 67 (8) states:
“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 Court of Appeal upheld the High Court’s decision; section 67(8) acted as an ouster clause, prohibiting judicial review . Sales LJ distinguished Anisminic by concluding the language and context of section 67(8) was materially different in the present case . The ouster clause refers to decisions regarding jurisdiction specifically and this makes a difference as to how we look at the meaning of the clause because, if this is done, it means that all decisions of the IPT, even those founded on erroneous understandings of the law, are immune from review by this clause.
The Supreme Court was therefore faced with the appeal from this decision.
Issues
There were two key legal issues before the Supreme Court, the first being a more specific question about section 67(8), the latter being a more general question of the way in which ouster clauses should be treated. The two issues are as follows:
i. Whether section 67(8) of RIPA ‘ousts’ the supervisory jurisdiction of the High Court to quash a judgement of the IPT for error of law?
ii. Whether, and, if so, in accordance with 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?
Judgement
Ratio Decidendi
The appeal was allowed by the majority. They decided that supervisory jurisdiction of the High Court was not excluded by the ouster clause in section 67(8). The High Court could review decisions of the IPT because the language used in the ouster clause was not sufficiently clear to oust judicial scrutiny. They contended that if Parliament had intended to oust judicial review, it would have said so clearly, in express language.
First issue: whether section 67(8) of the RIPA ousts supervisory jurisdiction of the High Court for errors of law made by the IPT
Following a review of previous judgements regarding judicial review and in particular, a discussion of the background that Anisminic provides and the development of case since then, the leading judgement (given by Lord Carnwath with whom Lord Lloyd Jones agrees) concludes that the section does not oust the supervisory function of the High Court.
In his judgement, Lord Carnwath contends that a decision that is vitiated by an error of law whether as to jurisdiction or otherwise is a nullity. In doing so, he identifies a close parallel with the ouster clause discussed in Anisminic. Here, the court displayed a reluctance to give effect to such ‘ouster clauses’ that try to exclude their jurisdiction in judicial review. Lord Carnwath uses the proposition resulting from Anisminic , which states that all decisions vitiated by legal error are equivalent to a decision made without jurisdiction and is therefore a nullity, to highlight that the reference to ‘determination’ was to be interpreted as to be only a legal valid one. Following this, Lord Carnwath approaches the statutory interpretation by following Cart . He contends that Cart reiterated ‘the continuing strength of the fundamental presumption against ousting the supervisory role of the High Court over other adjudicative bodies, even those established by Parliament with apparently equivalent status and powers to those of the High Court’ , which takes the exercise of interpretation outside the normal rules of inferring Parliamentary intention from statute.
Applying this, for Lord Carnwath, the words in parenthesis, ‘decisions as to whether they have jurisdiction’ , read within the reasoning of Anisminic, create no issues because it follows that section 67 therefore only applies to legally valid decisions regarding jurisdiction. The distinction between jurisdictional and non-jurisdictional errors had now become unnecessary. What matters is that all errors of law are reviewable, not just jurisdictional errors. Furthermore, Lord Carnwath notes the significance of the insufficient clarity of Parliament in expressing its intention; the courts’ role is not to extend the interpretation of statutes beyond their natural meaning . If Parliament wanted to be clearer, it could have been; the mere fact that it had not suggests the courts are entitled to infer Parliament did not intend to exclude the supervisory jurisdiction of the high court. For Lord Carnwath, this did not mean that the words in parenthesis were futile because some decisions as to jurisdiction will involve issues where the exclusion can apply without engaging the common law presumption against ouster, instead judicial review must therefore only be ousted by explicit wording with sufficient clarity.
Lord Carnwath also notes the special security related feature of the IPT regime on which the Court of Appeal relied did not alter the interpretation of section 67(8). Lord Carnwath holds, ‘the IPT can organise its procedures to ensure that a material point of law can be considered separately without threatening any security interests’ . Furthermore, the potential for overlap with legal issues considered by normal courts raises the significance that the IPT should not be capable of developing its own local law that is immune from further review .
Quoting Law LJ in Cart, Lord Lloyd-Jones states it is a required consequence of Parliamentary sovereignty that an ‘authoritative and independent body’ that can interpret and evaluate legislation exists and is not wholly excluded. He elaborates that section 4 of the FCA did not encompass purported determinations and that, after O’Reilly v Mackman , it is clear that determinations based on legal errors were not determinations at all. From this, he concludes it is a distinctive element of section 67(8) that wording excluding jurisdiction of both valid and purported ‘determinations, awards and other decisions of the Tribunal’ was absent and he contends further that the words in parenthesis do not extend ousting judicial review to purported determinations of the IPT.
Lord Sumption dissents and concludes the effect of section 67(8) was to oust the supervisory jurisdiction of the High Court to entertain a challenge to the IPT’s ruling. Lord Sumption approaches section 67(8) by examining the character of the Tribunal’s functions and the nature of the error of law which Privacy International accuses the IPT of. His judgement also asks the question: to what extent, if we gave the natural meaning to section 67(8), would it result in placing the rule of law in jeopardy. He concludes the rule of law was not at risk because the IPT had the character of an independent judicial body exercising judicial review that would otherwise be exercised by the High Court . Lord Sumption holds that Parliament must set boundaries for the IPT’s jurisdiction but in this case, the decision fell within the allocated jurisdiction (within the ‘permitted field’ ). If the IPT’s interpretation of section 5 of the ISA 1994 was in error, then it was an error within the permitted field of interpretative power provided to the IPT by Parliament.
Lord Wilson, also dissenting, agrees with Lord Sumption and concludes the words in parenthesis are significant in incorporating within the exclusion of judicial review all decisions of the IPT regarding its jurisdiction . He describes the definition ascribed to ‘jurisdiction’ in Anisminic as strained and disagrees with Lord Carnwath’s argument about the insufficient clarity of the words in parenthesis, contending that they are ‘totally clear in excluding judicial review’ . The presumption against ousting review can only apply when the words are read in a reasonable manner hence section 67(8) ousts the supervisory jurisdiction of the High Court.
2nd issue: Can Parliament, by statute, oust the supervisory jurisdiction of the High Court?
Lord Carnwath despite viewing it unnecessary to consider this issue due to conclusion on the first question, he concludes that it is ‘ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’ . This, Lord Carnwath says, is a ‘natural application of…the rule of law…and an essential counterpart to the power of Parliament to make law’ . Lord Carnwath concludes that binding effect cannot be given to a provision that attempts to wholly exclude judicial review by the High Court of a decision made by inferior courts or tribunals . The court should take into account the clause’s purpose, statutory context and the nature and importance of the legal issue in determining the level of scrutiny that the rule of law requires. Lord Lloyd Jones failed to comment on the second issue.
Lord Sumption rejects the concept that the rule of law is a fundamental principle from which everything evolves. In the absence of a written constitution acting as a higher source of law, the status of Parliamentary acts being superior is the fundamental constitutional principle everything should be based on.
Lord Wilson
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