R (Privacy International) v IPT

Facts

Privacy International challenged the lawfulness of warrants permitting intelligence services to hack into computers and networks, which were issued under section 5 of the Intelligence Services Act 1994. The Investigatory Powers Tribunal decided that section 5 permitted warrants of a broad kind that covered computers within a class. Privacy International sought to challenge that decision on the ground that the Tribunal had made an error of law about the scope of the power.

History

Privacy International applied for judicial review of the Tribunal's ruling. The courts below, the Divisional Court and the Court of Appeal, held that section 67(8) of the 2000 Act, which provided that determinations of the Tribunal were not to be subject to appeal or liable to be questioned in any court, excluded judicial review. Privacy International appealed to the Supreme Court.

Issue

Whether section 67(8) of the Regulation of Investigatory Powers Act 2000 excluded the supervisory jurisdiction of the High Court to review decisions of the Investigatory Powers Tribunal for error of law.

Held

The appeal was allowed by four to three. Section 67(8) did not exclude judicial review for error of law, and the decision of the Tribunal could be reviewed.

Ratio

• Parliament is presumed not to oust the High Court's supervisory jurisdiction to correct errors of law by an inferior body unless it does so by clear and unambiguous words, and the language of section 67(8) was not sufficient to do so.
• A decision made on a wrong view of the law by a tribunal of limited jurisdiction is treated as outside the tribunal's power, and a provision purporting to make its decisions final does not protect such a decision from review.

The judgments

Key reasoning

• The rule of law requires that statutory bodies be kept within the limits of their powers as determined by the courts, and that an error of law on the part of an inferior tribunal should be capable of correction.
• A clause which excludes challenge in the courts is read strictly, and the wording used here did not clearly exclude review of errors of law, particularly as the Tribunal's work affects fundamental matters such as rights to privacy and the lawfulness of surveillance.

Obiter

• The majority indicated that the rule of law may place limits on the effect of an ouster clause, without deciding how far a clause expressed in the clearest terms could be effective.

Where it fits in the module

The case is central to the treatment of judicial review and the rule of law in the constitutional law course. It tests the limits of the sovereignty of Parliament, since the majority's reasoning suggests that the courts will not apply an ouster clause that is too general, and it reopens the old debate on Anisminic. It is also relevant to the debate over whether the courts have a constitutional power to protect judicial review from legislative removal.

Criticisms

• The majority adopted a technical doctrine of nullity for errors of law that the minority described as a fiction, so that the decision rests on a contested theory of jurisdiction.
• Reading section 67(8) down despite its clear purpose of making the Tribunal the final decision maker on security matters may be seen as the court substituting its own view for Parliament's intention.
• The remarks hinting at limits on parliamentary sovereignty are uncertain and unnecessary to the decision, leaving the status of the constitutional principle unclear.