Privacy International, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs & Ors

An ouster clause must be construed in its statutory context. Although courts adopt a restrictive approach to provisions excluding judicial review, sufficiently clear language can exclude review of an inferior tribunal, including review for error of law or jurisdictional error. Section 67(8) of the Regulation of Investigatory Powers Act 2000 clearly prevents the High Court questioning any determination, award, order or other decision of the Investigatory Powers Tribunal. This includes preliminary legal rulings and decisions made on an erroneous view of the law. The construction protects the specialist closed procedure established for sensitive intelligence cases.

Privacy International complained to the Investigatory Powers Tribunal that GCHQ had unlawfully conducted computer hacking. On assumed facts, the Tribunal ruled that section 5(2) of the Regulation of Investigatory Powers Act 2000 permitted broadly framed thematic warrants: [2016] UKIP Trib 14 at [31]-[47]. No appeal order was in force, so Privacy International began judicial review proceedings. A divided Divisional Court held by order that section 67(8) barred the claim. The appeal concerned whether that provision excluded judicial review by the High Court, including review of errors of law and jurisdiction.

1. Appeal dismissed. Sales LJ gave the leading judgment. Flaux LJ and Floyd LJ agreed, making the decision unanimous.
2. The courts’ restrictive approach to ouster clauses reflects the principle of legality and the constitutional importance of access to a court. The clarity required depends on statutory context. An independent and impartial tribunal may reduce the impact on the rule of law, but excluding all review by the higher courts on important points of law remains a substantial constitutional interference.
3. Section 67(8) of the Regulation of Investigatory Powers Act 2000 uses sufficiently clear language. The reference to decisions, including decisions as to whether the Tribunal has jurisdiction, covers preliminary rulings, final determinations and procedural decisions. It also covers decisions which might otherwise be found unlawful because of an error of law. Parliament did not create a distinction between advertent and inadvertent legal errors.
4. The wording must be read with the statutory scheme. The Tribunal was created to determine sensitive claims through procedures allowing closed hearings and non-disclosure of material where necessary to protect national security and other specified public interests. Judicial review in the ordinary courts could require examination of sensitive evidence without equivalent safeguards and would undermine that legislative purpose.
5. The distinction drawn in Anisminic Ltd v Foreign Compensation Commission between real and purported determinations did not control the construction of section 67(8), because the language and statutory context materially differed. The view expressed by Lord Brown in R (A) v Director of Establishments of the Security Service that section 67(8) was an unambiguous ouster was expressly identified as obiter but was treated as powerful persuasive authority and approved.

1. Court of Appeal (Civil Division): The appeal was unanimously dismissed. [2017] EWCA Civ 1868.
2. Divisional Court, Queen’s Bench Division: On a preliminary issue, the court ordered that section 67(8) barred judicial review of the IPT. Leveson PQBD took that view; Leggatt J inclined to the contrary view but agreed to the order so that the issue could be appealed.
3. Investigatory Powers Tribunal: The Tribunal had made the underlying preliminary ruling on thematic warrants in [2016] UKIP Trib 14.