R (on the application of A) v B

This appeal concerned the proper construction of section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 (RIPA) and whether a challenge under section 7(1)(a) of the Human Rights Act 1998 (HRA) to a refusal to permit publication by a former Security Service officer must be brought exclusively in the Investigatory Powers Tribunal (IPT) or may be brought in the ordinary courts by way of judicial review. The Supreme Court held that section 65(2)(a) makes the IPT the only appropriate forum for such section 7(1)(a) proceedings against the intelligence services. Key reasons were the natural meaning of the words "only appropriate tribunal", the specialist statutory regime (including sections 67–69 and the Investigatory Powers Tribunal Rules) designed to protect national security and regulate disclosure, and the contemporaneous legislative scheme created by HRA, RIPA and the Civil Procedure Rules. The court rejected the alternative constructions urged by the appellant: that the phrase "tribunal" excluded courts, or that exclusivity applied only to disputes arising from RIPA investigatory powers. The court further rejected arguments that the allocation of exclusive jurisdiction to the IPT was an unlawful ouster of judicial review or that such exclusivity necessarily breached article 6 ECHR.

Background and factual matrix.

• A is a former senior member of the Security Service who sought B's consent to publish a book about his work. A was subject to contractual, statutory and Official Secrets Act 1989 obligations. B refused to authorise publication of parts of the manuscript following top-secret consideration and correspondence describing national security objections.
• On 13 November 2007 A commenced judicial review proceedings challenging B's decision as unreasonable, vitiated by bias and incompatible with article 10 ECHR. The principal legal question was whether such a section 7(1)(a) HRA claim against an intelligence service must be brought exclusively in the IPT under section 65(2)(a) RIPA, or whether the claimant could choose to proceed in the ordinary courts.

Procedural history. Collins J at first instance held that the Administrative Court had jurisdiction to hear A's challenge. The Court of Appeal reversed, holding that exclusive jurisdiction lay with the IPT. The matter came to the Supreme Court on appeal.

Issues framed by the court.

1. Whether the wording and statutory context of section 65(2)(a) RIPA make the IPT the exclusive forum for section 7(1)(a) HRA proceedings against the intelligence services.
2. If so, whether exclusivity should be read down so as to apply only to proceedings arising out of investigatory powers regulated by RIPA.
3. Whether the statutory allocation of exclusive jurisdiction to the IPT is constitutionally objectionable as an unlawful ouster of the courts, or incompatible with Convention rights (notably article 6) such that the section should be given a narrower construction or read in a Convention-compliant way.

Court’s reasoning and conclusions.

• The court concluded that the expression "only appropriate tribunal" in section 65(2)(a) includes courts as well as tribunals and, read in its statutory context, was intended to designate the IPT as the sole forum for section 7(1)(a) claims falling within section 65(3). That construction is reinforced by the specialist statutory regime (including sections 67–69) and the Investigatory Powers Tribunal Rules designed to protect sensitive intelligence material, ensure necessary disclosure to the IPT and to permit procedures (including closed hearings) appropriate to national security concerns.
• The alternative submission that exclusivity should be confined to matters arising from RIPA investigatory powers was rejected because it would require importing limiting words not present in section 65(3)(a) and would be inconsistent with the other language of the section and the overall scheme.
• Arguments that the allocation of exclusive jurisdiction amounted to an unconstitutional ouster were rejected: the scheme created by HRA, RIPA and the Civil Procedure Rules came into force contemporaneously and allocated remedial routes; no pre-existing common-law right to bring the newly created section 7 remedy in the courts existed prior to enactment. Cases invoked to resist the allocation (such as Anisminic and Pyx Granite) were distinguished.
• Alleged incompatibility with article 6 was not made out in the abstract. The IPT’s rules contain procedural flexibilities and statutory safeguards; if incompatibilities exist the proper remedy is modification of the IPT’s procedures rather than a strained construction of section 65.

Disposition. The appeal was dismissed and the matter remitted to the IPT for determination if the appellant wished to proceed there.

Appeal dismissed. The Supreme Court held that section 65(2)(a) RIPA makes the Investigatory Powers Tribunal the only appropriate forum for section 7(1)(a) Human Rights Act proceedings against the intelligence services. The court reached this conclusion from the natural meaning of the statutory language, the statutory scheme (including sections 67–69 and the IPT Rules), the contemporaneous enactment of HRA, RIPA and the Civil Procedure Rules, and the need to protect sensitive intelligence material. The court rejected alternative narrower constructions, and found no basis to treat the provision as an unlawful ouster or as necessarily incompatible with article 6 ECHR.

First instance: Administrative Court, Collins J held the High Court had jurisdiction ([2008] 4 All ER 511; 4 July 2008). Court of Appeal reversed, holding exclusive jurisdiction lay with the IPT ([2009] 3 WLR 717; 18 February 2009). Appeal to the Supreme Court: [2009] UKSC 12 (9 December 2009).