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On Monday and Tuesday, the 3 and 4 December 2018, the Supreme Court (Lady Hale, julie-ballLord Reed, Lord Kerr, Lord Wilson, Lord Sumption, Lord Carnwath, and Lord Lloyd-Jones) will hear Privacy International’s appeal (UKSC 2018/0004) against the Court of Appeal’s decision in R (Privacy International) v Investigatory Powers Tribunal ([2017] EWCA Civ 1868; [2018] 1 WLR 2572), which found that the Regulation of Investigatory Powers Act 2000 (“RIPA 2000”), s 67(8) ousted the jurisdiction of the High Court in respect of applications for judicial review against any determination, award, order or decision of the Investigatory Powers Tribunal (“IPT”).

The IPT is represented in these proceedings. However, the burden of the submissions resisting the appeal falls to the two interested parties: Secretary of State for Foreign and Commonwealth Affairs; Government Communications Headquarters.

Permission to appeal to the Supreme Court was granted by the Supreme Court (Lord Mance, Lady Black and Lord Lloyd-Jones) on the 22 March 2018.

Issue on the appeal

The issue on the appeal is whether the Court of Appeal was wrong in interpreting s 67(8) of RIPA 2000 as ousting the jurisdiction of the courts to determine an application for judicial review against the IPT. s 67(8) RIPA 2000 states:

“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.”

Background

Underlying substantive proceedings

In May 2014, Privacy International filed a complaint and a human rights complaint against Government Communications Headquarters (“GCHQ”) and the Secretary of State for Foreign and Commonwealth Affairs alleging that GCHQ was engaging in unlawful computer network exploitation activity; in particular, by infecting individuals’ computers and mobile devices on a widespread scale to gain access to the functions of those devices, for example, activating a camera or microphone without the user’s consent or to obtain stored data.

A well-established procedure for the IPT is to make assumptions as to the significant facts in favour of the claimant and reach conclusions on that basis at a preliminary hearing. If the conclusion is that the respondent’s conduct would be unlawful if the assumed facts were proved, then the IPT continues the claim in closed session.

One of the issues at the preliminary hearing of Privacy International’s claims on which the IPT ruled concerned the proper interpretation of the Intelligence Services Act 1994, s 5, and, in particular, the degree of specification required in a warrant issued by the Secretary of State under s 5(2) of the 1994 Act in order for s 5(1) of that Act to apply and, thereby, give lawful authority to “entry on or interference with property or with wireless telegraphy”.

In a judgment of the 12 February 2016 ([2016] UKIP Trib 14_85-CH), the IPT rejected Privacy International’s submissions on the specificity point and upheld the submissions of GCHQ and the Secretary of State, which included that s 5(2) permits the Secretary of State to issue warrants authorising the taking of such action as is specified in the warrant in respect of any property so specified provided that both the activity and the property were “objectively ascertainable”. [36-37, 47]

Judicial Review: Procedural History

Following the IPT’s judgment, Privacy International applied for judicial review of the IPT’s interpretation of the Intelligence Services Act 1994, s 5.

High Court

On the 17 June 2016, Ms Justice Lang granted Privacy International permission to apply for judicial review and observed that she had ‘real doubt’ as to whether the Court had jurisdiction to determine the substantive claim. As a result, she ordered a preliminary issue to be tried as to whether the decision of the IPT was amendable to judicial review.

Preliminary issue: Jurisdiction

The preliminary issue was heard by the Divisional Court (Sir Brian Leveson PQBD and Leggatt J) on the 2 November 2016, and by Order of that Court, the IPT was not amenable to judicial review.

However, the Order was a result of an unusual procedure adopted by Mr Justice Leggatt. While Mr Justice Leggatt’s judgment was that he was inclined to the view that RIPA 2000, s 67(8) does not exclude the possibility of judicial review, he agreed to the form of the order proposed by Sir Brian Leveson, who found that the IPT was not amenable to judicial review, in order to avoid the matter being re-argued by a differently constituted Divisional Court.

On the 9 February 2017, permission to Appeal to the Court of Appeal was granted by Sir Brian Leveson.

Court of Appeal

On the 23 November 2017, the Court of Appeal (Floyd, Sales, Flaux LJJ) dismissed Privacy International’s appeal against the Divisional Court’s Order on the preliminary issue.

Decision of the Court of Appeal

Lord Justice Sales gave judgment in the Court of Appeal to which Lords Justice Floyd and Flaux agreed.

Nature and function of the IPT

Lord Justice Sales adopted the passages of Sir Brian Leveson in the High Court as to the structure and functions of the IPT as well as identifying the impetus for the establishment of the IPT as being necessary for compliance with human rights and outlined the patchwork of statutory bodies which the IPT replaced. [5]

Lord Justice Sales noted the particular sensitivity in relation to the evidential material in issue and the public interests which may be jeopardised if it is disclosed and the rules by which the IPT protects those public interests, namely national security, for example, by examining “in private and without disclosure of any relevant confidential evidence which cannot safely be reveal to the complainant” [10]. Lord Justice Sales also noted that at the relevant time there was no right of appeal from the IPT under RIPA 2000 but made provision for the Secretary of State by order to provide otherwise. [11].

Please see Part Two here.