Ousting the Jurisdiction of the Courts: R (Privacy International) v Investigatory Powers Tribunal [2017] EWHC 114 (Admin)

R (Privacy International) v Investigatory Powers Tribunal [2017] EWHC 114 (Admin) is a rare example of an effective ouster clause. The applicant took issue with the Tribunal’s conclusion that, as a matter of law, the Foreign and Commonwealth Secretary was entitled to engage in computer hacking under s. 5 of the Intelligence Services Act 1994. Section 67(8) of the Regulation of Investigatory Powers Act 2000 provides:

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 Tribunal argued that this amounted to an ouster of the High Court’s jurisdiction to correct any errors of law the Tribunal might have made. Lurking in the background was the decision in A v Director of the Security Service [2010] 2 AC 1, where Lord Brown of Eaton-under-Heywood had described s. 67(8) as an “unambiguous ouster” (at para. 23). His description was obiter, however. Moreover, the question there was the very different one of whether first-instance jurisdiction could be vested exclusively in the Tribunal, not whether judicial review of the exercise of that first-instance jurisdiction could be ousted. Laws LJ explained the point well in the Court of Appeal: “statutory measures which confide the jurisdiction to a judicial body of like standing and authority to that of the High Court, but which operates subject to special procedures apt for the subject matter in hand, may well be constitutionally inoffensive” ([2009] EWCA Civ 24, at para. 22).

Sir Brian Leveson P accepted that “the courts will presume against the conferment of such a power save in the clearest cases specifically because of the risk of unchallengeable decisions on the breadth of the jurisdiction conferred or unreviewable errors of law” (at para. 36). He found, nonetheless, that the ouster clause was effective, influenced especially by the role and expertise of the Tribunal:

In exercising its powers to hear proceedings under section 65(2)(a) and to consider complaints under section 65(2)(b) of RIPA, the IPT is performing a similar oversight function in relation to activities of the intelligence services to that ordinarily performed in relation to the actions of public bodies by the High Court when it deals with claims for judicial review. This is reflected in subsections 67(2) and (3)(c) of RIPA, which require the IPT, in determining such proceedings and complaints, to apply the same principles “as would be applied by a court on an application for judicial review.” The reason for allocating this judicial review jurisdiction to a specially constituted tribunal is the nature of its subject matter, involving as it does highly sensitive material and activities which need to be kept secret in the public interest. Such cases are not suitable for determination through the normal court process and a carefully crafted regime has been created by Parliament to deal with them…There is a material difference between a tribunal – such as the Foreign Compensation Commission whose “determination” was in issue in Anisminic, SIAC, or the Upper Tribunal (when dealing with appeals from the First-tier Tribunal) – which is adjudicating on claims brought to enforce individual rights and the IPT which is exercising a supervisory jurisdiction over the actions of public authorities. In the former case there are compelling reasons for insisting that a decision of the tribunal is not immune from challenge and that, if the tribunal follows an unfair process or decides the case on a wrong legal basis, the decision may be subject to judicial review by the High Court. The need, and indeed the justification, for such judicial review is far less clear where the tribunal (here the IPT) is itself exercising powers of judicial review comparable to those of the High Court (at paras. 41-42).

In addition, s. 67 provides for the possibility of statutory appeals. Indeed, it is the “duty of the Secretary of State to secure that there is at all times…an appeal to a court against any exercise by the Tribunal of their jurisdiction under section 65(2)(c) or (d)” (s. 67(9)). And the Tribunal exercises judicial review powers similar to those of the High Court, making it difficult to review the Tribunal’s decisions – a judicial review of a judicial review is a difficulty if not a logical impossibility (at para. 42).

One difficulty with Leveson P’s reasoning is that it seems to conflate the first-instance issue in A with the ouster issue in the instant case. One can accept that matters of great sensitivity requiring significant expertise can usefully be channelled through a bespoke statutory procedure rather than through “the normal court process” without accepting that the High Court’s ability to correct any errors of law the procedure produces has been ousted. In other words, there are good policy reasons for having Tribunals in the first place (and, I would add, for deferring to them on some questions of law) but these policy reasons do not compel the conclusion that judicial oversight, even on questions of law, ought to be excluded – a point made more politely by Leggatt J in his concurring judgment: see para. 60. Although there might be some instances in which a judicial review of a judicial review is impossible – “if, for example, a decision of the tribunal were to be challenged on grounds of irrationality[,] it would make little or no sense to apply a test of irrationality on top of an irrationality test” (at para. 61, per Leggatt J) – the argument simply does not hold with respect to errors of law, which can be isolated and corrected by the High Court.

Moreover, as Leggatt J correctly pointed out, the availability of a statutory appeal would, ordinarily, go only to the question of whether a court should exercise its discretion to refuse a remedy if an applicant has not exhausted alternative remedies and not to the broader question of whether review has been ousted entirely (at paras. 57-58). In any event, no appeal mechanism has yet been provided for: s. 67(9) is not even in force (at para. 59).

On Leggatt J’s reading, s. 67(8) did not amount to an unambiguous ouster:

For myself, I find it difficult to see how section 67(8) can be characterised as unambiguous when the operative words (“shall not … be liable to be questioned in any court”) are materially similar to the words (“no determination … shall be called in question in any court of law”) which were held by the House of Lords in Anisminic to be ineffective to oust the supervisory jurisdiction of the High Court – as Parliament in enacting RIPA must be taken to have known. I cannot see that the inclusion of the further words “shall not be subject to appeal” in section 67(8) can affect the position, since there was no means of appeal from decisions of the Foreign Compensation Commission – so that the prohibition against its decisions being questioned in any court could only have been intended to exclude judicial review. Yet the House of Lords refused to accept that it did so. The only potentially relevant difference in the wording of section 67(8) is that it contains the words in brackets “(including as to whether they have jurisdiction)”.   But I find it hard to see how these words can make a critical difference in the light of Anisminic.  It seems to me that on a realistic interpretation that case did not decide that every time a tribunal makes an error of law the tribunal makes an error about the scope of its jurisdiction.  Rather, it decided that any determination based on an error of law, whether going to the jurisdiction of the tribunal or not, was not a “determination” within the meaning of the statutory provision.  That reasoning, and the underlying presumption that Parliament does not intend to prevent review of a decision which is unlawful, is just as applicable in the present case and is not answered by pointing to the words in brackets (at paras. 54-55).

Nonetheless, Leggatt J did not press his disagreement to the point of dissent, because he recognised the cogency of the alternative position (at para. 62).

The case is largely academic, because a new appeal mechanism has now been provided for (see para. 35), but it is very interesting to see an English court accept that Parliament legislated with sufficient clarity to oust the judicial review jurisdiction of the superior courts.

This content has been updated on February 6, 2017 at 13:21.