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Submissions of Privacy International and the Interested Partiesjulie-ball

Lord Justice Sales recorded the submissions of Privacy International, which, in summary, were that:

  1. RIPA 2000, s 67(8) is not drafted in sufficiently clear language to exclude a right to apply to the High Court for judicial review, particularly as s 67(8) ought to read in a narrow and restricted way in line with established principle;
  2. the restrictive approach to interpretation of ouster clauses which is illustrated by Anisminic Ltd v Foreign Compensation Commission ([1969] 2 AC 147; [1969] 2 WLR 163) is an example of the application of the principle of legality;
  3. taking into account the restrictive approach and Anisminic, if the clause sought to oust jurisdiction it ought to have provided in terms that this exclusion of judicial review applied even if the IPT had made an error of law. [20-22]

The submissions of the interested parties were also recorded, which, in summary, were that:

  1. there are different ways in which and degrees to which the principle of the rule of law and the right to have access to a court or tribunal might be brought into question by an ouster clause in a statute, depending on the context, and the clarity needed in the statutory language depends on the level of how intrusive an ouster of judicial review would be to the rule of law (“variable impact of the principle of legality”);
  2. it is the substantive effect of the language used which is important rather than the use of any particular formula; and
  3. in this case, the IPT is an independent and impartial judicial body, presided over a High Court Judge and RIPA 2000,  s 67(8) is in clear terms and should be construed to mean that there is no right to apply for judicial review in the High Court in relation to decisions and determinations of the IPT. [23]

Judgment

Lord Justice Sales found that the case turned on a short point of statutory construction in relation to RIPA 2000 and saw force in the general thrust of the interested parties’ argument about the variable impact of the principle of legality. However, he also noted that a provision which isolates a tribunal from any prospect of appeal on points of law which may be controversial and important, such as determinations on the lawfulness of action taken by the intelligence services, involves a substantial inroad upon the usual rule of law standards in England and Wales. [24-25]

Lord Justice Sales considered that the statutory language of s 67(8) was clear when considered in its legislative context and by it meant that “all determinations, awards, orders and decisions of the IPT ‘shall not… be liable to be questioned in any court’, including in the High Court on judicial review”. [26]

Lord Justice Sales then considered the case law on ouster clauses relied upon by Privacy International beginning with Anisminic and noted the Supreme Court’s interpretation of that case in R (Cart) v Upper Tribunal (Public Law Project intervening) ([2012] 1 AC 663, which was that Anisminic effectively removed the distinction between errors of law and errors in excess of jurisdiction.  His Lordship also considered that language between the ouster clause in issue in Anisminic and the case before him was materially different as was their relative contexts. [27-32]

The text in parentheses in RIPA 2000, s 67(8), “(including decisions as to whether they have jurisdiction)”, had particular importance for Lord Justice Sales as he found that “at least so far as the word ‘decision’ is concerned, it is not tenable to apply the simple distinction relied upon in the Anisminic ” He then went on to extend that finding to the other types of decision referred to in the section, including determinations, awards, and orders, and further justified it, having considered the preliminary procedure of the IPT, by noting that there is nothing to indicate that Parliament intended there to be any difference in the availability of a judicial review challenge between the various types of decisions. [34-36]

Other reasons relied upon by Lord Justice Sales included that:

  1. the statutory language implied that Parliament considered that the IPT can be trusted to make sensible decisions and reference was made to the standards for membership of the panel in terms of expertise and independence;
  2. the preliminary issue in this case on the interpretation of the Act of 1994, s 5 was one that went to jurisdiction;
  3. there was no good reason for reading s 67(8) in a “narrow way” so that the words in parentheses only refer to decisions where the IPT gives its attention to a particular issue affecting its jurisdiction and reasons a considered view on it. Moreover, this would create a new form of esoteric distinction;
  4. his Lordship’s interpretation promotes the legislation’s purpose, which was a tribunal capable of considering claims against the intelligence services under closed conditions and thereby prevent disclosure of sensitive confidential information, whereas judicial review in the courts would subvert that purpose;
  5. his Lordship agreed with what he characterised as the persuasive authority of the obiter dictum of Lord Brown JSC in R(A) v Director of Establishments of the Security Service [2000] 2 AC 1 which described RIPA 2000, s 67(8) as “an unambiguous ouster” of the jurisdiction of the courts. [37-48]

Supreme Court: Grounds of Appeal

Privacy International’s grounds of appeal to the Supreme Court are, in summary, that the Court of Appeal erred in law by:

  1. failing to address or give effect to authorities regarding “no certiorari” clauses;
  2. failing to apply Anisminic properly and as a result, finding that there a material distinction between the ouster clause considered in Anisminic and the one in the extant case;
  3. placing reliance on an irrelevant consideration, namely, the ‘quality’ of the members of the IPT; and
  4. placing reliance on the IPT’s capacity to deal with sensitive material, particularly as in this case, there was no sensitive material in issue; or
  5. judicial review of decision of an inferior tribunal of limited jurisdiction is a fundamental constitutional principle which cannot be excluded by statute, regardless of the way it is drafted.

Comment

This appeal is of general public and constitutional importance because the Supreme Court will have an opportunity to review the seminal judgment in Anisminic and offer guidance on the form of words parliament may use to oust the jurisdiction of the courts. In particular, the Supreme Court is likely to make a finding as to whether the variable impact of the principle of legality should apply to ouster clauses.

As regards the substantive case, a finding in favour of Privacy International will permit the High Court to review the IPT’s construction of the Intelligence Services Act 1994, s 5 and thereby consider whether the wide scope of specificity in warrants relied upon by the security services to legitimise their activities is lawful.

Please see Part One here.