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The Supreme Court’s twelfth judgment concerned an issue (the compatibility of certain aspects of domestic tribunals with Article 6 ECHR) which is becoming very familiar this term: see for example Tomlinson v Birmingham, heard on 23 November and previewed here; and R v Horncastle, in which judgment was also handed down today.  In A v B, a case with strong echoes of the David Shayler affair in 2002, the Supreme Court were asked to consider the jurisdiction of the Investigatory Powers Tribunal (IPT), a secretive tribunal established by Parliament in 2000 to hear proceedings brought against the country’s intelligence services.  In particular, the question was whether a human rights claim by a former M15 agent should be heard in the ordinary public courts (by a judicial review process in the High Court); or in secret by the IPT.  On one level, this involved a narrow question of construction of the legislation which created the IPT (the Regulation of Invesigatory Powers Act 2000 (RIPA)); however, the human rights group JUSTICE were granted leave to intervene, instructing Lord Pannick QC, to open up the wider question of whether the IPT procedure is fair and compatible with Article 6 ECHR. 

Lord Brown gave the leading judgment, with which Lords Phillips, Hope, Mance and Clarke were unanimously agreed, dismissing A’s appeal and holding that the IPT was the appropriate tribunal to determine A’s claim.  Lord Brown based this judgment on the narrow question of interpreting the wording of RIPA; regarding the wider question of unfairness, the Court declined to find the IPT incompatible with Article 6.  The judgment has already been the subject of a critical press release from JUSTICE, and will come as a disappointment to human rights campaigners seeking greater freedom of speach and transparency in areas of national security. 

 The case was brought by a former MI5 agent (A) who wanted to publish memoirs about his time with the intelligence services.  (We have previously blogged on A’s attempts to keep his indentity secret, notwithstanding his desire to get his book published).  Like all intelligence service operatives, A was bound by a duty of confidentiality (both contractual and under the Official Secrets Act 1989) which prevented him from publishing any such details without the permission of B, MI5′s director of establishments.  B refused permission and A sought to challenge that decision in the Courts, claiming that his rights to freedom of expression under Article 10 ECHR had been breached, and that the decision was unreasonable and vitiated by bias.

S.65 of RIPA confers jurisdiction on the IPT in respect of “any proceedings against the intelligence services”, and s.65(2) goes even further, specifying that the IPT is the “the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998″ (i.e. any claim brought against a public authority claiming a breach of ECHR rights).  Nevertheless, A brought proceedings against B in the High Court claiming that judicial review was the appropriate process to determine his claim for breach of Article 10.  The IPT has certain characteristics that A was clearly keen to avoid (as JUSTICE’s submissions highlighted in detail):

1.  Hearings before the IPT are in secret and the complainant does not even have the right to attend (and hence may not even know if a hearing is taking place)
2.  The complainant has no automatic right, as he would do under the CPRs, to see the evidence against him – unless the opposing party or witness consents.  Hence, there is no opportunity to test the evidence by cross-examination
3.  The IPT is not obliged to give any reasons for its judgment
4.  The complainant has no right of appeal against the IPT’s decision.

As a preliminary question of jurisdiction, A argued (i) that s.65 operated to exclude the jurisdiction of any other ‘tribunals’, but not that of the Courts, and (ii) in any event, the IPT’s exclusive jurisdiction was restricted to hearing proceedings concerning the exercise of investigatory powers under RIPA, which the current proceedings were not.  A succeeded at first instance before Mr Justice Collins in July 2008 ([2008] 4 All ER 511), who held that s.65 RIPA was not sufficiently clear to oust the jurisdiction of the ordinary Courts, such that A was free to choose between the two processes.  That decision was reversed by the Court of Appeal in April 2009 ([2009] EWCA Civ 24) (Rix LJ dissenting).  Lord Justice Laws and Dyson held that Collins J had applied the wrong approach: the wording of s.65 (“any proceedings”… “only appropriate tribunal”) was unqualified, such that Parliament’s intention to grant the IPT exclusive jurisdiction over such matters was clear.  Dyson LJ stated: “It seems to me inherently unlikely that Parliament intended to create an elaborate set of rules to govern proceedings against an intelligence service under s.7 of the 1998 Act in the IPT and yet contemplated that such proceedings might be brought before the Courts without any rules“. 

When the case reached the Supreme Court, JUSTICE intervened to offer the USKC the intriguing possibility of declaring the nation’s ‘spy courts’ to be ECHR incompatible.  However, Lord Brown, adopting the reasoning of Laws and Dyson LJJ, declined to do so, deciding the case on the narrow construction of the statute.  Lord Brown was not persuaded by the Appellant and JUSTICE’s contention that the Courts had some inherent jurisdiction which could not be ousted by RIPA, and that such an ouster was constitutionally objectionable; RIPA, HRA 98 and the CPRs all came into force “at the same time as part of the a single legistative scheme”, and thus Parliament’s intention to confer jurisdiction on the IPT was clear.  His Lordship added policy reasons to support these conclusions, including the “self-evident need to safeguard the secrecy and security of sensitive intelligence material, not least with regard to the working of the intelligence services”; and the fact that the RIPA afforded the IPT wide powers (such as a power of disclosure against the Crown) which meant that disputes in the IPT would be “properly determined”.  In this regard, Lord Brown relied on Lord Bingham’s speech in R v Shayler [2003] AC 247, in which the Law Lords held that national security could override Article 10 and justify non-disclosure of secret information, a point which has also been confirmed on numerous occasions in Strasbourg jurisprudence. 

The UKSC’s judgment will be seen in some eyes as another example of the Courts backing the establishment.   Indeed, following on from the decision in the Bank Charges case, it seems the UKSC is shying away from potentially radical, headline-grabbing decisions (of the type that Lord Neuberger has forecast as a possibility), and has instead chosen in its first term to steer a more conservative course – much like the old House of the Lords, in fact.  Eric Metcalfe of JUSTICE responded to the judgment earlier today as follows:

“Jeremy Bentham once said, ‘where there is no publicity, there is no justice’.  The Investigatory Powers Tribunal is as secret as it gets.  This is a tribunal where you have no right to go to a hearing, see any of the evidence, cross-examine a witness, or even know the reasons why your complaint has been rejected.  The Supreme Court’s decision makes it less likely that anyone with a complaint against the intelligence services will get a fair hearing.  It also raises the chilling prospect that even more cases will end up in this black hole of secrecy“.

However this may not be the end of the matter.  Whilst the UKSC may have refused the opportunity to challenge the fairness of the IPT, that same question is pending before the ECHR .  In 2003, the IPT effectively ruled on itself and declared its process to be Article 6, 8 and 10 compatible, and that ruling is currently being challenged in Strasbourg – who may yet bring about the legislative change that the UKSC was clearly unwilling to support. 

In the meantime, it remains to be seen whether A will wish to continue his claim now that the ‘black hole’ of the IPT has been confirmed as his judicial forum, and now that the UKSC have confirmed that On Her Majesty’s Secret Service means… exactly that.

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