R (Privacy International) v Investigatory Powers Tribunal

The Supreme Court allowed the appeal and held that section 67(8) of the Regulation of Investigatory Powers Act 2000 does not exclude the supervisory jurisdiction of the High Court to quash decisions of the Investigatory Powers Tribunal for error of law. The court applied the long-established presumption against statutory ouster of judicial review, considered the effect of Anisminic Ltd v Foreign Compensation Commission and subsequent authorities (notably O’Reilly v Mackman and R (Cart) v Upper Tribunal), and concluded that the parenthetical reference in section 67(8) to “decisions as to whether they have jurisdiction” does not plainly oust review of legal error. The court accepted that Parliament may in principle allocate final judicial functions to some specially constituted tribunal, but emphasised that clear and explicit words are required to displace the High Court’s supervisory role; on the construction of the relevant provision in RIPA 2000 they were not present.

The majority acknowledged the special procedural and national-security context of the IPT but held that these features do not, without clearer words, justify treating its errors of law as immune from review. The court confirmed that, where judicial review remains available, case management and permission stages may suitably limit challenges in sensitive cases.

The appellant, Privacy International, sought judicial review of a determination of the Investigatory Powers Tribunal (IPT) given on 12 February 2016. The IPT had considered preliminary issues including the meaning of section 5 of the Intelligence Services Act 1994 (the scope of warrants said to authorise computer network exploitation or so-called “thematic” warrants) and dismissed the appellant’s claim. The appellant obtained permission to apply for judicial review in the High Court (Lang J) and the Divisional Court answered a preliminary question in the negative on the ground that section 67(8) of the Regulation of Investigatory Powers Act 2000 ousted judicial review. The Court of Appeal dismissed the appellant’s appeal ([2017] EWCA Civ 1868). The case came to the Supreme Court.

Nature of the claim and relief sought:

• The appellant sought judicial review of the IPT’s legal interpretation of section 5 of the Intelligence Services Act 1994 and in effect an order quashing or setting aside that determination if it was wrong in law.

Issues for the Supreme Court:

1. Whether section 67(8) of RIPA 2000 ousts the High Court’s supervisory jurisdiction to quash an IPT determination for error of law.
2. More generally, whether Parliament may by statute exclude the supervisory jurisdiction of the High Court over inferior courts or tribunals of limited statutory jurisdiction, and if so by what principles.

Court’s reasoning (concise):

• The majority began from the strong presumption against statutory ouster of judicial review and the established requirement that only the clearest and most explicit words can exclude the ordinary supervisory jurisdiction of the High Court.
• The judgments reviewed the authorities from Anisminic onwards, including O’Reilly v Mackman and the Supreme Court’s reappraisal in Cart, explaining that the modern approach requires careful analysis of context and of whether Parliament has plainly intended to allocate final judicial authority to a specialist tribunal.
• Applying those principles, the majority concluded that the parenthetical reference in section 67(8) to “decisions as to whether they have jurisdiction” did not, on natural construction, remove the High Court’s power to review for legal error. That phrase was not sufficient to countermand the long-established presumption against ouster given the absence of explicit language making IPT determinations immune from challenge for legal error.
• The majority accepted that the IPT’s special procedures and national security considerations are relevant and may justify restricting the grant of permission in individual cases, but not excluding judicial review altogether without clear statutory words. The court noted the subsequent statutory introduction (Investigatory Powers Act 2016) of a limited appeal route which did not apply to the IPT’s 2016 decision and so was not material to the appeal.

Disposition: The appeal was allowed by the majority, with detailed reasoning confirming the availability of judicial review subject to the ordinary supervisory principles and case management restraints. Dissenting judgments argued that the statutory scheme and the IPT’s essentially judicial character justified construing section 67(8) as excluding review of merits errors of law.

Appeal allowed. The Supreme Court held that section 67(8) RIPA 2000 does not, in its terms, exclude the High Court’s supervisory jurisdiction to quash decisions of the Investigatory Powers Tribunal for error of law. The court relied on the strong presumption against ouster clauses, the Anisminic line of authority and the later reappraisal in Cart, and concluded that the parenthetical reference to “decisions as to whether they have jurisdiction” did not clearly displace judicial review. The court observed that Parliament could in principle allocate final judicial authority to a specially constituted tribunal but only by the clearest words; absent those words the High Court’s review remains available (subject to permission and case-management limitations in sensitive cases).

Permission to apply for judicial review was granted by Lang J (17 June 2016). The Divisional Court answered the preliminary question that judicial review was ousted (President, [2017] EWHC 114 (Admin)). The Court of Appeal dismissed the appellant’s appeal ([2017] EWCA Civ 1868). The Supreme Court allowed the appeal ([2019] UKSC 22).