Wednesday 15 May 2019

Privacy International in the Supreme Court

The Supreme Court has handed down judgment in Privacy International v Investigatory Powers Tribunal [2019] UKSC 22.  The appeal was heard on 3 and 4 December 2018 before 7 Justices - Lady Hale, Lords Reed, Kerr, Wilson, Sumption, Carnwath and Lloyd-Jones.   By a majority, Privacy International's appeal was successful.  The Regulatory Powers Act 2000 s67(8) as it stood at the relevant time was not sufficient to exclude (oust) the jurisdiction of the High Court to conduct judicial review proceedings.


The case concerned
the legal effect of the ouster clause, as originally enacted, in the Regulation of Investigatory Powers Act 2000 s67(8) - RIPA.  The Investigatory Powers Act 2016 enacted a differently worded ouster clause which is now the amended s67(8).  The new clause took effect from 31 December 2018 along with certain appeal rights which, for the first time, were inserted into RIPA at s67A.

In 2016, the Investigatory Powers Tribunal (IPT) heard Privacy International's complaint about "computer hacking."  Privacy International claimed that the IPT had misinterpreted the power of the Secretary of State to issue warrants - Intelligence Services Act 1994 s.5.  [See the IPT's decision].

There was no right of appeal and so Privacy International brought a judicial review but they were met with the ouster clause which at the time stated -

"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."

On behalf of Privacy International it was argued that the clause was ineffective on the basis of the seminal House of Lords decision in Anisminic - (previous post).  The two-judge Divisional Court was divided on the point.  Sir Brian Leveson P considered the ouster clause to be effective whereas Leggatt J did not - [2017] EWHC 114 (Admin).  The Court of Appeal (Civil Division) unanimously held that the clause was effective to oust judicial review - R (Privacy International) v IPT [2017] EWCA Civ 1868 - Floyd, Sales and Flaux LJJ. .

The Investigatory Powers Tribunal (IPT) was considered in this previous post.

Supreme Court's Judgment:

There were two issues in the appeal.

i) Whether section 67(8) of RIPA “ousts” the supervisory jurisdiction of the High Court to quash a judgment of the IPT for error of law.

ii) Whether, and, if so, in accordance with what principles, Parliament may by statute “oust” the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction.

The Supreme Court allowed the appeal by a majority concluding that section 67(8) did not oust the supervisory jurisdiction of the High Court for errors of law. Lord Sumption (with whom Lord Reed agrees) and Lord Wilson give dissenting judgments. 

Because of the decision on Issue (i) it was not necessary to consider Issue (ii) but the court nevertheless stated that it was ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review. This proposition is a natural application of the constitutional principle of the rule of law and an essential counterpart to the power of Parliament to make law.

This case will undoubtedly produce considerable comment.  I will add links below as they become available.

15 May 2019 - UK Human Rights Blog - Anisminic 2.0

Incorporated Council for Law Reporting - Privacy International - various links

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