A v B

The existence of the Investigatory Powers Tribunal does not, without sufficiently clear statutory language, oust the Administrative Court’s jurisdiction. The expression “only appropriate tribunal” in section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 excludes other tribunals, but does not by itself exclude the courts. Section 65(2)(b) likewise confers jurisdiction on the Tribunal without making it exclusive. A claim combining Convention and domestic public-law grounds may still be a claim under section 7(1)(a) of the Human Rights Act 1998. Judicial review remains available, although claims concerning surveillance and other investigatory powers will ordinarily belong before the Tribunal.

The claimant, a former member of the Security Service, sought judicial review of the defendant’s refusal to authorise publication of a book describing his work and experiences. He alleged unreasonableness, bias and incompatibility with article 10 of the European Convention on Human Rights.

The defendant argued that section 65 of the Regulation of Investigatory Powers Act 2000 made the Investigatory Powers Tribunal the exclusive forum, at least for the Convention claim and potentially for the whole dispute. The preliminary issue was whether the Administrative Court retained jurisdiction and, if so, whether the claim was brought under section 7(1)(a) of the Human Rights Act 1998.

1. Jurisdiction retained. The claim was within the court’s jurisdiction. Access to a court is of high constitutional importance, and jurisdiction is not removed by implication. Clear and explicit words are required.
2. Section 65(2)(b) of the Regulation of Investigatory Powers Act 2000 does not state that the Investigatory Powers Tribunal has exclusive jurisdiction over complaints for which it is the appropriate forum. Section 65(2)(a), describing the Tribunal as the only appropriate tribunal for relevant section 7(1)(a) proceedings, excludes another tribunal where appropriate, but does not refer to excluding the courts. The contrast with section 66, which expressly permits exclusion of a court or tribunal, supports that construction.
3. The claimant’s article 10 challenge was a free-standing claim under section 7(1)(a) of the Human Rights Act 1998, notwithstanding the additional grounds of irrationality and bias. A claim under section 7(1)(a) may be joined with other claims and may be pursued by judicial review.
4. R v Shayler [2003] 1 AC 247 provided a powerful indication that judicial review is the appropriate safeguard where authorisation to disclose information is refused. The court must conduct a rigorous review informed by article 10, weighing the nature of the material, national-security interests and the proportionality of the restriction.
5. The conclusion did not mean that the Administrative Court should ordinarily entertain claims concerning surveillance, interception, covert services or related investigatory powers. Parliament had intended such matters to be dealt with by the Tribunal. The present claim was materially wider and less suited to the Tribunal’s restricted procedures. The court therefore rejected the jurisdictional objection and left open any later application that it should decline to exercise its jurisdiction in favour of the Tribunal.