B & Ors, R (on the application of) v Investigatory Powers Tribunal

The Investigatory Powers Tribunal’s privacy orders do not determine the confidentiality or publicity of separate proceedings in the Administrative Court. The Administrative Court has exclusive responsibility for managing its own proceedings and for deciding whether privacy protections are compatible with open justice. Views expressed by the Tribunal on those matters do not bind the Administrative Court or alter the parties’ legal position.

Even if such a Tribunal decision were amenable to judicial review, the court may withhold the remedy where its legal effect is merely vestigial, the claimant can advance all relevant arguments in the substantive proceedings, and that forum is better placed to assess privacy in the context of the underlying claim.

The claimants challenged a decision of the Investigatory Powers Tribunal answering questions referred to it by a judge in related Administrative Court proceedings. Earlier IPT proceedings concerning unlawful surveillance and related material had been conducted in private. The Administrative Court was considering whether its own proceedings, documents and judgment could be made public, and asked the IPT for its views.

The IPT concluded that the Administrative Court should decide whether and to what extent the earlier decisions and documents could be referred to publicly. The claimants sought permission to challenge that conclusion by judicial review. The central issues were whether the IPT’s decision was amenable to judicial review and, if so, whether judicial review should be made available.

1. Permission and disposition. Permission to apply for judicial review was granted because the issues were of general significance. The claim for judicial review was dismissed.
2. No amenability to judicial review. The jurisdiction and powers of the IPT and the Administrative Court are different. Investigatory Powers Tribunal Rules 2018, rule 7, materially qualifies open justice within the IPT but does not apply to the Administrative Court. The IPT has no jurisdiction to determine the conduct or privacy arrangements of proceedings in the Administrative Court.
3. The Administrative Court must decide for itself whether its proceedings should be private and what protections, if any, are consistent with open justice. That includes deciding the effect of material used in or generated by earlier private IPT proceedings. The IPT’s answers were not binding, did not vary its existing privacy order and did not alter the claimants’ rights or legal position. The Administrative Court could take the answers into account as relevant considerations, but no more.
4. Discretionary refusal of relief. Even if the Decision were amenable to judicial review, relief should not be made available. Its effect, if any, was vestigial. The claimants could present all their arguments, including their arguments concerning [2007] EWCA Civ 848, to the Administrative Court. That court was the suitable and only appropriate forum because it was familiar with the underlying claim and could design protections by balancing the privacy interests against open justice. Any error in its decision could be challenged by an appeal to the Court of Appeal.

This was a first-instance judicial review application arising from answers given by the Investigatory Powers Tribunal to questions referred by a judge in related Administrative Court proceedings. The court granted permission but dismissed the substantive application.