Privacy International [2019]
Facts: These proceedings concerned whether section 67(8) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) had the effect of “ousting” the supervisory jurisdiction of the High Court over decisions of the Investigatory Powers Tribunal (“IPT”). The IPT is a specialist statutory tribunal of limited jurisdiction created to determine complaints surrounding the exercise of investigatory powers by, inter alia, the intelligence services.
Issue : Whether section 67(8) of RIPA ‘ousts’ the supervisory jurisdiction of the High Court to quash a judgment of the IPT for error of law
Held: Appeal allowed s67(8) of the 2000 Act does not oust the supervisory jurisdiction of the High Court for errors of law. S 67(8) only protected legally valid decisions, falling within the Tribunal’s jurisdiction. The ouster clause was not clear enough to oust judicial review of questions of law. Exempting the tribunal from JR would be inimical to the RoL.
s67(8), Regulation of Investigatory Powers Act 2000. Section 67(8) of RIPA provides: Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards 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.
Lord Reed : The drafter must say that “Determination” must include both real and purported determination : “Expanding the meaning of the word “determination” into “real” and “purported” determination made a difference in that it would have allowed s67(8) to oust all determinations by the Investigatory Powers Tribunal, both determinations made by them (Real) and determinations which they made but it turns out later they had no power to (Purported). The current drafting only allows ousting of the former, not the latter.”
Lord Carnwath - (agrees with majority but use Allan’s view - not adopted by all judges - not the law) goes somewhat further, apparently denying Parliament’s authority to exclude judicial review in cases where the courts think that that would be contrary to the rule of law: “The critical step taken by this court in Cart was to confirm, what was perhaps implicit in some of the earlier cases, 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’ (para 131). This proposition should be seen as ‘a natural application of the constitutional principle of the rule of law . . . and as an essential counterpart to the power of Parliament to make law” (para 132).
Lord Sumption (dissenting) : Observes that the Investigatory Powers Tribunal is a judicial body, exercising a power of judicial review that would otherwise be exercised by the High Court: “There is 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 presumption against ouster clauses is concerned to protect the rule of law, which depends on the availability of judicial review” (para 199).