R (Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents) [2019] UKSC 22

# R (Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents) [2019] UKSC 22

R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22 is a judgment of the Supreme Court concerning the effect of section 67(8) of the Regulation of Investigatory Powers Act 2000, which purported to exclude decisions of the Investigatory Powers Tribunal from being “liable to be questioned in any court”. By a majority, the Court allowed the appeal and held that the ouster clause did not exclude judicial review by the High Court of the Tribunal’s decisions for error of law.

Privacy International had complained that the Government Communications Headquarters had carried out unlawful computer hacking. The Investigatory Powers Tribunal held a public hearing to determine preliminary issues of law and held that section 5 of the Intelligence Services Act 1994 permitted the issue of so‑called “thematic” warrants authorising activity in respect of a broad class of property. Privacy International sought judicial review of the Tribunal’s decision, contending that it rested on an error of law in the interpretation of section 5. The Divisional Court held that section 67(8) of the 2000 Act prohibited judicial review of the Tribunal’s decision. The Court of Appeal dismissed Privacy International’s appeal, holding that the reference in section 67(8) to decisions “including decisions as to whether they have jurisdiction” was designed to address the possibility of the Tribunal making an error of law going to its jurisdiction or power to act, distinguishing the case from Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

In the Supreme Court, Privacy International argued that section 67(8) must be read, applying Anisminic, as excluding only legally valid decisions and not decisions vitiated by error of law, which were to be treated as nullities. The interested parties contended that the language of section 67(8), combined with the context – the special allocation of judicial responsibility to the Tribunal in the national security context, its high judicial quality, and the bespoke procedural regime – showed an intention that the Tribunal’s decisions should not be subject to review by the ordinary courts.

Lord Carnwath (with whom Lady Hale and Lord Kerr agreed) held that the provision for the Secretary of State to provide a route of appeal had not been exercised and in any event did nothing to weaken the case for ultimate control by the courts. The interpretation of section 67(8) had to be informed by the close parallel with the provision under review in Anisminic. By the time of its original enactment in the Interception of Communications Act 1985, the drafter must have been aware of Lord Diplock’s explanation in O’Reilly v Mackman [1983] 2 AC 237 that a determination vitiated by any error of law was to be treated as no determination at all. On the authority of Anisminic, the exclusion applied only to a legally valid determination, award or decision. A decision which was vitiated by error of law was no decision at all. The reference to decisions “as to whether they have jurisdiction” did not alter this result; the exclusion applied only to a legally valid decision relating to jurisdiction. While the words might be read as designed to exclude issues of fact going to jurisdiction following R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74, they were not apt to exclude challenges for error of law.

Lord Carnwath rejected the argument based on the special status and procedures of the Tribunal. The High Court had ample powers to ensure that sensitive information was protected. The Tribunal’s jurisdiction was not limited to sensitive claims against the intelligence services. The special status of the Tribunal might be a reason for restricting the grant of permission for judicial review, but not for excluding it altogether. There was nothing to suggest that Parliament intended the Tribunal to be immune from challenge even where it blatantly disregarded limits to its powers. If Parliament had intended to exclude judicial review in respect of errors of law, it could have been expected to have employed language which excluded jurisdiction not only in respect of decisions but also in respect of purported decisions, as attempted in clause 11 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003, which was withdrawn following objections.

Lord Carnwath also addressed the second issue, which concerned the broader question of whether and in what circumstances Parliament could by statute oust the supervisory jurisdiction of the High Court. He emphasised the constitutional significance of section 1 of the Constitutional Reform Act 2005, which affirmed the existing constitutional principle of the rule of law, and the function of the courts to determine its content and limits. The process of refinement of the Anisminic principle had raised serious questions as to the need for continued reliance on concepts such as ultra vires or nullity. The critical step taken by this court in R (Cart) v Upper Tribunal [2012] 1 AC 663 was to confirm 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. The question in any case was the level of scrutiny required by the rule of law, set on a basis which was both principled and proportionate. Certain fundamental requirements of the rule of law could not be excluded by any form of ouster clause: cases of excess of jurisdiction and abuse of jurisdiction, such as decisions in breach of natural justice. As for errors of law, Lord Carnwath stated that there was a strong case for holding that, consistently with the rule of law, binding effect could not be given to a clause which purported wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal for error of law. In all cases it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context and the nature and importance of the legal issue in question.

Lord Lloyd‑Jones agreed with Lord Carnwath and added some brief comments of his own. He traced the development of the law since Anisminic and considered that it was now established that there was a single category of errors of law, all of which rendered a decision ultra vires. He rejected the suggestion, derived from dicta of Lord Diplock in In re Racal Communications Ltd [1981] AC 374, that a distinction should be drawn between errors of law by administrative tribunals and by judicial bodies. The relevant distinction was between a judicial body and an administrative body; what mattered was whether a body was charged with performing a judicial function. The Tribunal was undoubtedly charged with performing a judicial function. If the jurisdiction of the High Court could be excluded at all, it required the most clear and explicit words. Subject to one point, the wording of section 67(8) closely resembled that in Anisminic. By 1985, when section 7(8) of the 1985 Act was enacted, it would have been entirely clear from O’Reilly v Mackman that a determination founded on an error of law was not to be regarded as a determination at all. If it had been the intention of Parliament to exclude the jurisdiction of the High Court in respect of such decisions, it could be expected to have employed language which excluded jurisdiction in respect of purported determinations as well. The words in parenthesis “(including decisions as to whether they have jurisdiction)” were not apt to extend the exclusion to what purported to be decisions but in law were not so regarded. If the Tribunal took a decision which was founded on an error of law, it was not in any real sense taking a decision as to whether it had jurisdiction. Section 67(8) did not satisfy the requirement for clarity. Lord Lloyd‑Jones considered that the explanation of the words in parenthesis might be that they were intended to refer to determinations of precedent fact, but it was not necessary to come to a concluded view on this point.

Lord Sumption (with whom Lord Reed agreed) delivered a dissenting judgment. He held that the effect of section 67(8) was to exclude the jurisdiction of the High Court to entertain a challenge to the Tribunal’s decisions on the merits. The Tribunal acted as a court, exercising powers of judicial review over the intelligence services on the same basis as the High Court. The purpose of judicial review was to maintain the rule of law, but the rule of law was sufficiently vindicated by the judicial character of the Tribunal. It did not require a right of appeal from the decisions of a judicial body of this kind. Lord Sumption traced the historical development of ouster clauses and the distinction between excess of jurisdiction and errors of fact or law committed in the course of exercising jurisdiction. He analysed the speeches in Anisminic, emphasising that they did not reject the distinction between errors of law going to jurisdiction and errors within jurisdiction, but broadened the concept of jurisdiction to embrace legal relevance. The extent of a tribunal’s jurisdiction depended on the construction of its enabling Act and the breadth of its “permitted field”. Lord Sumption considered the treatment of errors of law by judicial bodies in subsequent cases, including Lord Diplock’s distinction in Racal between administrative tribunals and courts of law, and the approval by the House of Lords of the dissenting judgment of Geoffrey Lane LJ in Pearlman v Keepers and Governors of Harrow School [1979] QB 56. He held that the relevant distinction was between a judicial and an administrative body, Parliament being more likely to confer on a judicial body a power to decide wider questions of law. Lord Sumption regarded R (Cart) as not direct authority because it was not a case about ouster clauses.

Lord Sumption held that the Tribunal was a judicial body exercising a power of judicial review which would otherwise be exercised by the High Court. Its adjudicative jurisdiction was coordinate with that of the High Court. In R (A) v Director of Establishments of the Security Service [2010] 2 AC 1, Lord Brown had recognised that section 67(8) was an unambiguous ouster of any jurisdiction of the courts over the Tribunal. As to the construction of section 67(8), it was common ground that clear words were required if it was to be regarded as ousting the review jurisdiction of the High Court, but the degree of elaboration called for depended on how anomalous the effect would be. There was nothing inconsistent with the rule of law about allocating a conclusive jurisdiction by way of review to a judicial body other than the High Court. The Tribunal’s “permitted field” plainly extended to determining questions of law arising in the course of any proceedings or complaint. The draftsman had deliberately chosen substantially the same formula as was considered in Anisminic but had modified it by adding the bracketed words “(including decisions as to whether they have jurisdiction)”, extending the ouster to decisions in excess of jurisdiction. The reference to an appeal showed that Parliament’s concern was to ensure that the barring of appeals was not rendered nugatory by applications for judicial review on grounds which amounted to the same thing. The rational course for Parliament, if it intended to allow judicial review on the ground of error, would have been to provide for an appeal, which it had done only in limited circumstances. It would be wrong to construe the Act as allowing for judicial review on grounds indistinguishable from an appeal on the merits when Parliament had so carefully circumscribed the conditions on which an appeal was available. The main subject matter of the legislation was secret intelligence whose disclosure would be contrary to the public interest, and there was an entirely rational reason why Parliament should have wished to confine the examination of these matters to a secure Tribunal. Finally, if section 67(8) did not exclude a challenge to the merits of the Tribunal’s decisions by way of judicial review, it was difficult to see what else it could mean. Lord Sumption rejected the suggestion that it ousted judicial review only in relation to alleged errors of fact.

In short, the majority held that section 67(8) of the 2000 Act did not exclude judicial review of the Tribunal’s decisions for error of law, applying the principle in Anisminic that an ouster clause does not protect decisions vitiated by error of law, and that the words in parenthesis did not alter that result.

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Walumba Lumba (Congo) v Secretary of State for the Home Department [2011] UKSC 12
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R (Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475
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Chesterfield Poultry Ltd v Sheffield Magistrates Court [2019] EWHC 2953 (Admin), [2020] 1 WLR 499
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