A v B

Proceedings under section 7(1)(a) of the Human Rights Act 1998 against an intelligence service fall within the exclusive jurisdiction of the Investigatory Powers Tribunal under section 65(2)(a) of the Regulation of Investigatory Powers Act 2000. The ordinary courts therefore lack jurisdiction.

An intelligence service remains within that provision although it is an emanation of the Crown without separate legal personality. The statutory expression covers proceedings concerning acts performed through the service, including decisions incidental to its national-security functions. This allocation is not an ouster of pre-existing High Court jurisdiction because the Convention cause of action and its allocation to an appropriate forum formed part of one legislative scheme.

A former member of the Security Service sought permission to publish a manuscript describing aspects of his work. After the Director of Establishments refused consent, he applied for judicial review, alleging infringement of article 10 of the European Convention on Human Rights, unreasonableness and bias.

Collins J granted permission and subsequently decided that the Administrative Court had jurisdiction to determine the article 10 claim. The Director appealed. The central issue was whether section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 made the Investigatory Powers Tribunal the exclusive forum for proceedings under section 7(1)(a) of the Human Rights Act 1998 against an intelligence service. A further issue was whether proceedings concerning an intelligence service were instead proceedings against the Crown.

1. Appeal allowed by a majority. Laws and Dyson LJJ held that section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 assigned all proceedings under section 7(1)(a) of the Human Rights Act 1998 against an intelligence service exclusively to the Investigatory Powers Tribunal. The words “any proceedings” were unqualified. Limiting the provision to claims formerly within the jurisdiction of earlier specialist tribunals would deprive it of substantial independent content and produce an incoherent division between different Convention claims against intelligence services.

2. The use of “the only appropriate tribunal”, rather than “court or tribunal” or “forum”, did not preserve the courts’ jurisdiction. The Investigatory Powers Tribunal was itself a tribunal. The detailed rules governing its proceedings, particularly those protecting national security and sensitive information, reinforced the conclusion that Parliament intended section 7 proceedings against intelligence services to be determined there.

3. The construction did not oust pre-existing High Court jurisdiction. The Convention cause of action, its assignment to an appropriate court or tribunal, and the relevant investigatory-powers regime formed a single legislative scheme which came into force together. Parliament was allocating a newly created jurisdiction. Laws LJ added that transferring jurisdiction to a judicial body of comparable standing, operating under procedures suited to the subject matter, was constitutionally distinct from excluding judicial supervision altogether.

4. The proceedings remained proceedings against an intelligence service although the Security Service was an emanation of the Crown without separate legal personality. Otherwise section 65(3)(a) would have no meaningful content. Decisions about a former member’s proposed publication were incidental to the Service’s statutory national-security functions.

5. Rix LJ dissented on the principal issue. He considered that the statutory language did not clearly exclude the courts and would have dismissed the appeal. All three Lord Justices rejected the argument that the claim fell outside section 65 merely because the Crown stood behind the Security Service.

6. The orders of Collins J were set aside and a declaration made that the Administrative Court lacked jurisdiction over the article 10 claim. The court did not determine whether the remaining allegations of unreasonableness and bias should be entertained by the Administrative Court or reformulated as a complaint to the Investigatory Powers Tribunal.

• Court of Appeal (Civil Division): By a majority, allowed the Director’s appeal, set aside Collins J’s orders and declared that the Administrative Court lacked jurisdiction to entertain the article 10 claim: [2009] EWCA Civ 24.
• Administrative Court: Collins J granted permission for judicial review and, following a preliminary hearing, held on 4 July 2008 that the Administrative Court possessed jurisdiction to determine the article 10 claim.