A Supreme Court ruling has been hailed as an ‘historic victory for the rule of law’ for affirming that intelligence agencies may be subject to oversight by ordinary UK courts. In R (on the application of Privacy International) v Investigatory Powers Tribunal and others a majority of seven justices found that decisions of the Investigatory Powers Tribunal (IPT), which hears complaints about surveillance by public bodies including the security services, can be subject to judicial review.
The case was brought by campaign group Privacy International, which was attempting to challenge a 2016 tribunal ruling allowing government agencies to intercept communications under so-called ‘thematic warrants’. The government fought the challenge on the grounds that the High Court had no jurisdiction over the tribunal, which was created by the Regulation of Investigatory Powers Act 2000. Section 67(8) of the act provides that ‘decisions of the tribunal… shall not be subject to appeal or be liable to be questioned in any court’.
The case reached the Supreme Court after the Court of Appeal dismissed an appeal against a High Court ruling that Section 67(8) applied in the case. The highest court was asked to resolve:
- Whether 67(8) ousts the supervisory jurisdiction of the High Court to quash a judgment for error of law; and
- 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.
In lead judgment, Lord Carnwarth concluded that section 67(8) does not oust the High Court’s supervisory judgment. Lady Hale and Lord Kerr agrred; Lord Lloyd-Jones gave a separate concurring judment. Lord Sumption and Lord Wilson gave dissenting judgments.
Privacy International hailed the ruling as ’a historic victory for the rule of law. It ensures that the UK intelligence agencies are subject to oversight by the ordinary UK courts’. it said the ruling paves the way for it to challenge the use of ‘bulk computer hacking warrants’.
Simon Creighton, of London human rights firm Bhatt Murphy Solicitors, which acted for Privacy International, said: ‘The Supreme Court was concerned that no tribunal, however eminent its judges, should be able to develop its own “local law”. Today’s decision welcomes the IPT back from its legal island into the mainstream of British law.’
However Professor Richard Ekins, head of thinktank Policy Exchange’s Judicial Power Project, said the ruling ‘undermines the rule of law and violates the sovereignty of parliament’. He said: ‘A majority of the court has chosen to misinterpret an ouster clause – the statutory provision which expressly limits the High Court’s jurisdiction to review decisions of the Investigatory Powers Tribunal. Parliament chose to limit judicial review by creating a specialist tribunal to consider complaints against the intelligence services. It is not the Supreme Court’s place to unravel this choice.’
Sir Jeffrey Jowell QC, Dina Rose QC, Ben Jaffey QC, Tom Cleaver and Gayatri Sarathy, instructed by London civil liberties firm Bhatt Murphy Solicitors, appeared for Privacy International; Jonathan Glasson QC, instructed by the Government Legal Department, for the government. Sir James Eadie QC, Kate Grange QC, Catherine Dobson and James Bradford, instructed by the Government Legal Department, appeared for the interested parties and Martin Chamberlain QC and David Heaton, instructed by Liberty, for intervener Liberty.