R v Investigatory Powers Tribunal and others

A statutory provision excludes judicial review of an inferior court or tribunal for error of law only if it uses the clearest and most explicit language. An ouster protecting the tribunal’s decisions, including decisions about its jurisdiction, ordinarily protects only legally valid decisions.

The status, expertise and specialist procedures of a tribunal may justify restraint when permission for judicial review is considered. They do not, without sufficiently clear statutory words, make its legal errors immune from the High Court’s supervisory jurisdiction. This supervision protects the rule of law and prevents specialist tribunals from developing an isolated body of law.

The Investigatory Powers Tribunal held that section 5 of the Intelligence Services Act 1994 permitted warrants authorising computer network exploitation by reference to classes of property. Privacy International sought judicial review for error of law.

The Divisional Court, [2017] EWHC 114 (Admin), held that section 67(8) of the Regulation of Investigatory Powers Act 2000 excluded judicial review. The Court of Appeal dismissed the appeal: [2017] EWCA Civ 1868; [2018] 1 WLR 2572.

The Supreme Court considered whether section 67(8), particularly its reference to decisions about jurisdiction, excluded the High Court’s power to review the Tribunal for error of law. It also heard argument about whether Parliament could wholly exclude that supervisory jurisdiction.

1. Appeal allowed by a majority of four to three. Lord Carnwath, with whom Lady Hale and Lord Kerr agreed, and Lord Lloyd-Jones held that section 67(8) of the Regulation of Investigatory Powers Act 2000 did not exclude judicial review of the Tribunal for error of law. The preliminary issue was answered in favour of the appellant, and permission for judicial review should be granted.

2. The provision had to be construed against the strong common-law presumption that judicial review is excluded only by the clearest and most explicit words. Following Anisminic and its authoritative explanation in later cases, a determination vitiated by error of law is treated for this purpose as legally invalid. The references in section 67(8) to determinations, awards and decisions therefore did not include a purported decision founded on an error of law.

3. The parenthetical words covering decisions about whether the Tribunal had jurisdiction did not supply the required clarity. They could sensibly apply to a legally valid jurisdictional decision, possibly including a decision on precedent fact. They did not clearly extend protection to purported decisions founded on legal error. Lord Brown’s contrary observation in R (A) was expressly obiter and had been made without argument on the point.

4. The Tribunal’s judicial quality, specialist procedures and national-security functions did not alter the construction. The Administrative Court can protect sensitive information and regulate permission. The overlap between the Tribunal’s jurisdiction and that of the ordinary courts made supervision important to prevent the development of inconsistent local law.

5. Lord Carnwath further considered, without deciding the constitutional issue, that the courts ultimately determine the degree of scrutiny required by the rule of law. He regarded there as being a strong case that Parliament cannot give binding effect to a provision wholly excluding review of an inferior court or tribunal for excess or abuse of jurisdiction or error of law. Lord Lloyd-Jones expressed no concluded view on that issue.

6. Lord Sumption, with whom Lord Reed agreed, and Lord Wilson dissented. They considered section 67(8) sufficiently clear to exclude review for an ordinary error of law within the Tribunal’s allotted field. In their view the rule of law was satisfied by the Tribunal’s independent judicial character, although review for lack of subject-matter competence, improper constitution or fundamental procedural failure would remain available.

1. United Kingdom Supreme Court: By a majority of four to three, allowed the appeal and held that section 67(8) of the Regulation of Investigatory Powers Act 2000 did not exclude the High Court’s judicial review jurisdiction: [2019] UKSC 22 .
2. Court of Appeal: Dismissed the appeal, holding that the language and statutory context excluded judicial review: [2017] EWCA Civ 1868 ; [2018] 1 WLR 2572 .
3. Divisional Court: Held that section 67(8) prohibited judicial review of the Tribunal’s decision: [2017] EWHC 114 (Admin) .
4. Investigatory Powers Tribunal: Dismissed the claim concerning the legality of thematic warrants: [2016] UKIP Trib 14_85-CH.