The appeal in R (A) v B will be heard by the Supreme Court on Monday, 19 October. The Supreme Court will determine whether the Administrative Court rather than the Investigatory Powers Tribunal (“IPT”) has jurisdiction to hear the Claimant’s claim that the Defendant acted contrary to Article 10 of the European Convention on Human Rights (“ECHR”), in withholding consent from the Claimant to publish material regarding his work.
The Claimant is a former member of the security services and has written, and wishes to publish, a book that contains a description of his work. The Claimant is bound by a duty of confidentiality and is therefore not entitled to publish such material without the consent of the Defendant.
The Claimant applied for consent but it was refused. He consequently applied for permission, in the Administrative Court, to bring judicial review proceedings to challenge the refusal of consent. The Claimant claimed that the Defendant’s decision was unreasonable, “vitiated by bias” and was contrary to Article 10 of the ECHR because it violated his right to freedom of expression. The Defendant asserted that the Administrative Court had no jurisdiction to hear the part of the claim relating to Article 10 of the ECHR on the basis that section 65(2)(a) the Regulation of Investigatory Powers Act 2000 (“RIPA”) provided that the IPT was the only “tribunal” that had jurisdiction to hear an any ECHR claim brought against the intelligence services.
This question of jurisdiction was brought as a preliminary issue. Collins J held in the first instance that the Administrative Court did have jurisdiction to hear such a claim on the basis that section 65(2)(a) of RIPA stated that the IPT was the only “tribunal” but not the only court. Thus the jurisdiction of the Administrative Court was not ousted. Nonetheless, he granted the Defendant permission to appeal the decision.
The Court of Appeal reversed Collins J decision (with Rix LJ dissenting). Laws LJ commented in the Court of Appeal judgment that the Defendant’s case was actually very “straightforward”. He said that the Claimant’s Article 10 argument was “without doubt” a claim within the meaning of section 7(1)(a) of the Human Rights Act 1998 (“the HRA”) and that where a claim was brought against an intelligence service (as defined in RIPA) the appropriate “court or tribunal” was in fact the IPT.
The Claimant put forward one additional argument in the appeal: that the claim was essentially against the Crown and therefore not against any of the intelligence services as provided for in RIPA. The Claimant submitted that the Administrative Court did therefore have sufficient jurisdiction to hear the claim under s 7 of the HRA 1998 (and CPR 7.11). The Court of Appeal held that in fact the functions of the Security Service were statutory functions and that even though the Crown was the body behind the Security Services, the Security Services were still intelligence services for the purpose of RIPA and therefore fell within the RIPA definition.
Laws LJ commented that it should be remembered that the Claimant’s claim included other elements that could be heard in the Administrative Court. The Defendant argued that the Claimant should have to reformulate the remaining portions of his claim so that the entire matter could be heard by the IPT. The Defendant submitted that if the Claimant refused to do so, the Administrative Court should use its discretion to refuse to hear the remainder of his claim as he had not exhausted all other remedies. Laws LJ agreed that that was “plainly'”right.
If the Supreme Court upholds the decision of the Court of Appeal, it will make for interesting speculation as to whether the IPT will be as likely to uphold the Claimant’s Article 10 right to freedom of expression as perhaps the Administrative Court would have been. One important factor to the Claimant may be that there is currently no avenue of appeal from an IPT decision (see section 67(8) of RIPA).
The case will be considered by Lords Phillips, Hope, Brown, Mance and Clarke on Monday.