On 15 May the Supreme Court ruled that decisions made by the Investigatory Powers Tribunal (the IPT) are subject to review by the High Court. This was despite apparently clear wording in the Regulation of Investigatory Powers Act 2000 (RIPA, which established the IPT) that “determinations … 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” (s67(8)).
This type of provision is known as an ‘ouster clause’, because it seeks to ‘oust’ the jurisdiction of the High Court to review a decision of another court.
The decision resolved a preliminary issue in a case brought by Privacy International, an NGO that campaigns for privacy rights. This case challenged powers exercised by the intelligence agencies to hack computers and other devices.
This Insight looks at why Privacy International brought a case against the
Government Communications Headquarters (GCHQ), the role of the Investigatory Powers Tribunal, and what the Supreme Court’s decision might mean for parliamentary sovereignty.
The role of the IPT
The Investigatory Powers Tribunal is a special tribunal established by RIPA to hear complaints about the use of covert powers, such as surveillance and interception, by MI5, MI6 and GCHQ, among other things.
IPT hearings can take place in private and without the complaining party. This is intended to achieve a balance between fairness to complainants and the need to safeguard national security by preventing the consideration of sensitive material in open court.
Privacy International’s concerns over ‘hacking operations’ by GCHQ
Privacy International (PI) brought a case about GCHQ’s use of powers provided for by the Intelligence Services Act 1994 (ISA). Under the ISA, the Secretary of State can issue a warrant which authorises ‘interference’ with property, if it would assist the intelligence services in carrying out their functions.
According to PI, the disclosures by Edward Snowden in 2013, “revealed sweeping hacking operations by …GCHQ.” In 2014 the then Intelligence Services Commissioner (Sir Mark Waller) disclosed in his annual report that the intelligence services were interpreting section 5 of the ISA to authorise interference with ‘wireless telegraphy’ (i.e. electronic communications). The Government then published an Equipment Interference Code of Practice, which provided guidance for the agencies carrying out this type of activity.
It was not previously clear how the Government and agencies were interpreting the ISA, and therefore what activities it was being used to authorise (referred to by the IPT as “under the waterline” arrangements). These disclosures made it clear that the intelligence agencies were using section 5 to authorise ‘Computer Network Exploitation’ (CNE) – activity commonly referred to as hacking. The Investigatory Powers Act 2016 has since explicitly provided for hacking warrants (referred to as ‘equipment interference’) to be issued to the agencies, provided certain requirements are met.
PI argued that using the ISA to authorise hacking was unlawful and incompatible with the rights to privacy and freedom of expression guaranteed by the European Convention on Human Rights. Further, PI argued section 5 could not be used to grant “thematic” warrants, which authorise interference with a broad class of property, as opposed to specifically identified property.
The IPT dismissed the claim. PI applied for a judicial review of the IPT’s decision but the High Court decided it did not have jurisdiction to determine the claim because of the section 67(8) ouster clause. The Court of Appeal upheld that decision.
The Supreme Court overrules the High Court
The Supreme Court decided by a majority of four to three that section 67(8) of RIPA did not prevent the High Court from judicially reviewing a decision of the IPT.
Giving the lead judgment, Lord Carnwath concluded that any decision by the IPT based on an error of law would not be legally valid. Further, the wording of an ouster clause has to be interpreted in the context of a common law presumption against interpreting legislation so as to exclude the possibility of judicial review by the High Court.
In light of this presumption, an ouster clause can only exclude the possibility of judicial review by using the most clear and explicit words. The wording of section 67(8) was not clear enough to exclude the possibility of judicial review of a decision by the IPT that was based on an error of law and therefore legally invalid. This conclusion was necessary to ensure the consistent application of the rule of law, because the legal issues decided by the IPT are of general public importance, and have implications for legal rights and remedies going beyond the IPT’s remit.
The Supreme Court did not reach a firm conclusion on a second more general question as to the circumstances in which Parliament could oust the High Court’s jurisdiction. However, Lord Carnwath concluded that there was:
“…a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal … . In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld …”
The decision means that PI can now proceed with the judicial review of the IPT’s original decision.
What does it mean for parliamentary sovereignty?
Unsurprisingly, PI welcomed the judgment as confirming, “the vital role of the courts in upholding the rule of law.”
However, in identifying possible limits to Parliament’s power to legislate, it also raises questions about the principle of parliamentary sovereignty, which allows Parliament to legislate in any way it pleases. Some have suggested that it is a positive development. For example the Oxford Human Rights Hub (a network of academics based at Oxford University) suggested that the courts taking more confident steps towards the recognition of common law constitutional rights creates “an opportunity for a more muscular approach to the protection of human rights by the courts.”
Others have suggested that it represents illegitimate judicial activism. Professor Richard Ekins, head of the Judicial Power Project at Policy Exchange claimed the judgment, “undermines the rule of law and violates the sovereignty of Parliament.” This was on the basis that the Supreme Court had unravelled Parliament’s choice to limit judicial review in these circumstances. He went on to suggest that “some Supreme Court judges have a wholly misconceived idea of their place in our constitution,” and that they had asserted an intention in the future “openly to disobey statute.”
Acting on such an intention would warrant their removal from office, he concluded. An article on the Inforrm Blog made a similar, if more measured, point that the judgment gave insufficient consideration to Parliament’s intention when RIPA was passed. If in the future the court does not give an even more clearly worded clause as a result of the court’s approach in this case, “there may be questions as to whether the court has overstepped its own role within the rule of law.”
About the author: Joanna Dawson is a Senior Library Clerk at the House of Commons Library, specialising in home affairs.