Privacy International, R (On the Application Of) v Investigatory Powers Tribunal

An ouster clause may exclude judicial review where Parliament has used sufficiently clear language. Section 67(8) of the Regulation of Investigatory Powers Act 2000 unambiguously restricted challenges to decisions of the Investigatory Powers Tribunal to the statutory appeal mechanisms provided by the Act. The provision had to be interpreted in the context of the Tribunal’s specialist supervisory jurisdiction, its procedures for protecting sensitive intelligence material and Parliament’s express provision for appeals. The constitutional presumption against ouster clauses was therefore not engaged in the same way as in cases concerning inferior tribunals deciding individual claims. The later statutory appeal scheme confirmed that the position would change prospectively when brought into force.

The claimant sought judicial review of a decision of the Investigatory Powers Tribunal concerning the construction of section 5 of the Intelligence Services Act 1994. The Tribunal had held that the provision permitted thematic warrants authorising computer and network exploitation.

The claimant challenged both the Tribunal’s construction of section 5 and the jurisdictional effect of section 67(8) of the Regulation of Investigatory Powers Act 2000. Lang J granted permission but directed that the amenability issue be tried as a preliminary issue. The central question was whether section 67(8) excluded judicial review of an error of law by the Tribunal.

1. Claim dismissed. The Divisional Court held, by the President’s judgment, that judicial review did not lie against the IPT’s decision.
2. Parliament may exclude judicial review if it uses sufficiently clear language. The court must interpret the provision in its statutory and constitutional context, rather than by comparing isolated words with the ouster clause considered in Anisminic v Foreign Compensation Commission [1969] 2 AC 147.
3. The IPT was materially different from an inferior tribunal adjudicating individual rights. Under sections 65 and 67 of the Regulation of Investigatory Powers Act 2000, it exercised a supervisory jurisdiction over intelligence-service activities which would otherwise be exercised by the High Court. Its specialist membership, closed procedures and extensive powers to obtain sensitive material were apt to that subject matter.
4. Section 67(8), read with sections 67(9) and 67(10), restricted challenge to the statutory appeal system for which the legislation provided. Otherwise, the express power to create an appeal route, and the duty to create one for specified proceedings, would have little purpose. The reasoning in A v B [2010] 2 AC 1 supported that conclusion, although the Supreme Court’s statement that section 67(8) was an unambiguous ouster had not formed part of its ratio.
5. The position was prospective. Section 242 of the Investigatory Powers Act 2016, inserting section 67A into RIPA, created a restricted appeal on a point of law subject to the second-tier criteria approved in R (Cart) v Upper Tribunal [2012] 1 AC 663. Once brought into force, that scheme would provide the route for challenging IPT decisions.
6. Leggatt J concurred in the result but expressed reservations. He considered that section 67(8) was not unambiguous and that the constitutional principle in Anisminic should ordinarily preserve review for legal error. His reasoning did not command the result.

High Court (Administrative Court): Lang J granted permission on 17 June 2016 and directed a preliminary hearing on whether the IPT decision was amenable to judicial review. The Divisional Court dismissed the claim on the preliminary issue.