R (on the application of A) v B

A free-standing claim under section 7(1)(a) of the Human Rights Act 1998 against an intelligence service must be brought in the Investigatory Powers Tribunal. Section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 gives that tribunal exclusive jurisdiction, including where the claim does not concern the exercise of an investigatory power.

This allocation is not an ouster of a pre-existing judicial remedy. The statutory right and its specialist remedy were created together. Concerns about the tribunal's procedures or Convention compatibility should be addressed by modifying those procedures, not by imposing an artificial limitation upon its jurisdiction.

A, a former senior member of the Security Service, sought permission to publish a book about his work. B refused to authorise parts of the manuscript on national security grounds. A applied for judicial review, alleging unreasonableness, bias and breach of article 10 of the European Convention on Human Rights.

Collins J held that the Administrative Court had jurisdiction: [2008] EWHC 1512 (Admin); [2008] 4 All ER 511. The Court of Appeal, by a majority, reversed that decision: [2009] EWCA Civ 24; [2009] 3 WLR 717.

The issue was whether section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 required A's section 7(1)(a) human-rights claim to be brought exclusively before the Investigatory Powers Tribunal.

1. Appeal dismissed unanimously. Lord Brown delivered the judgment with which every member of the Court agreed. Parliament had conferred exclusive and final jurisdiction upon the Investigatory Powers Tribunal in respect of A's claim.

2. The expression “the only appropriate tribunal” in section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 encompassed both courts and tribunals. Section 7(2) of the Human Rights Act 1998, the word “only”, and the specialist statutory arrangements for handling sensitive intelligence material all indicated that Parliament did not intend claimants to choose between the ordinary courts and the IPT. The absence of any other tribunal with jurisdiction over the relevant categories of claim reinforced that conclusion.

3. The IPT's exclusive jurisdiction was not confined to claims arising from investigatory powers regulated by the 2000 Act. Such a restriction would require words to be inserted into section 65(3)(a). Other paragraphs of section 65(3) were expressly directed to regulated investigatory activity, whereas section 65(3)(a) referred without qualification to proceedings against an intelligence service. Publication disputes could themselves require examination of highly sensitive material.

4. The legislation allocated jurisdiction rather than ousting an existing judicial remedy. The section 7(1)(a) right and the specialist remedy came into existence together. The case therefore fell within the principle in Barraclough v Brown [1897] AC 615, rather than Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 or Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Judicial scrutiny remained available, but in the forum selected by Parliament.

5. The Court was not persuaded that use of the IPT would necessarily violate article 6. Its procedures retained some flexibility and had to be assessed in the circumstances of the particular case. If the procedures proved incompatible with article 6, the remedy would be their modification, not an artificial restriction of the IPT's jurisdiction.

6. Lord Hope added that a counterclaim alleging an unlawful breach of Convention rights is substantively a claim under section 7(1)(a), rather than reliance under section 7(1)(b). A defence relying upon Convention rights falls within section 7(1)(b). This difference did not undermine the construction of section 65(2)(a).

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The Court affirmed the Court of Appeal's conclusion that the Investigatory Powers Tribunal had exclusive jurisdiction: [2009] UKSC 12 .
2. Court of Appeal: By a majority, Laws and Dyson LJJ, Rix LJ dissenting, the court reversed Collins J and held that exclusive jurisdiction lay with the Investigatory Powers Tribunal: [2009] EWCA Civ 24 ; [2009] 3 WLR 717 .
3. High Court, Administrative Court: Collins J held that the Administrative Court had jurisdiction to hear the challenge: [2008] EWHC 1512 (Admin) ; [2008] 4 All ER 511.