Privacy International asked the High Court to review an Investigatory Powers Tribunal decision that what were called thematic warrants could authorise computer hacking by GCHQ. Section 67(8) of the Regulation of Investigatory Powers Act 2000 said that the Tribunal’s decisions, including decisions as to its own jurisdiction, were not to be questioned in any court. By a majority, the Supreme Court held that those words did not shut out judicial review for error of law, so the challenge could be heard; it did not decide whether the warrants were lawful.
The complaint and the Tribunal’s decision
The Investigatory Powers Tribunal was set up under the Regulation of Investigatory Powers Act 2000 to examine, among other things, the conduct of the intelligence services. Privacy International’s complaint asked whether computer network exploitation by GCHQ, if it had affected the claimants, was lawful. The Tribunal decided that question on assumed facts, in public, without requiring the respondents to confirm or deny what had actually been done.
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The argument turned on section 5 of the Intelligence Services Act 1994. That section allows the Secretary of State to issue a warrant authorising specified action in respect of specified property, where that is necessary to assist the intelligence services. Privacy International said that this did not permit so-called thematic warrants, authorising activity against a broad class of property, and relied on the common law’s long-standing hostility to general warrants. On 12 February 2016 the Tribunal dismissed the claim. It held that eighteenth-century objections to general warrants were not a useful guide to this express statutory power, and that a warrant had to be as specific as possible so that the property covered was objectively ascertainable.
The Tribunal’s interpretation mattered outside its own proceedings because the validity of a warrant could affect the lawfulness of conduct under it. Privacy International sought judicial review so that the High Court could examine the alleged legal error.
The statutory bar
Section 67(8) provided that, except so far as the Secretary of State might by order otherwise provide, the Tribunal’s determinations, awards, orders and other decisions, including decisions as to whether it had jurisdiction, “shall not be subject to appeal or be liable to be questioned in any court.” The power to create an appeal had not been exercised. A later right of appeal, brought into force on 31 December 2018, did not apply to earlier decisions and was not material.
The wording was close to the clause considered in Anisminic. There, a “determination” of the Foreign Compensation Commission was not to be called in question in any court. The House of Lords held that this did not protect a decision which was not a real determination because the Commission had misconstrued the provision defining its powers. Later authority treated an error of law as making a decision legally invalid, and therefore outside an ouster clause of that kind, unless Parliament had excluded review in the clearest words. There is a strong presumption that a provision taking away the High Court’s supervision of an inferior tribunal will be read, if it reasonably can be, so as to preserve that supervision.
Why the majority held that review was not excluded
Lord Carnwath, with whom Lady Hale and Lord Kerr agreed, treated the question as one of that presumption, not as an ordinary search for Parliament’s policy. Ignoring the words in brackets, the exclusion applies only to a legally valid decision. If the Tribunal had misread section 5, those words would not prevent the courts from intervening.
The bracketed reference to decisions “as to whether they have jurisdiction” did not alter that. The dispute was a short point of construction, principally the word “specified” in section 5. On an ordinary reading it was not a decision about whether the Tribunal itself had jurisdiction. Read in the language of Anisminic, a decision vitiated by an error of law is no decision at all, whether or not it is described as a decision about jurisdiction. The brackets might still do some work, for example where jurisdiction turned on facts rather than law, but the Court would not stretch them beyond their natural meaning. Judicial review can be excluded only by the most clear and explicit words. A much more explicit attempt to shut out challenges to “purported” decisions, including for error of law, had been proposed in 2003 and withdrawn.
The majority acknowledged the Tribunal’s judicial expertise and the sensitive work it handled. Those features did not supply the clear statutory words needed to exclude supervision for an error of law.
Lord Lloyd-Jones agreed that the subsection does not exclude review for error of law. He accepted that the Tribunal performs a judicial function, so there is no presumption against giving it power to decide questions of law, but held that displacing the High Court’s jurisdiction still requires the clearest words. The subsection did not say that purported decisions, as well as decisions, were unquestionable. The special procedures and the standing of the members did not supply that clarity.
Lord Carnwath also discussed, without needing to decide, whether Parliament can ever exclude review of an inferior tribunal altogether. He considered that binding effect cannot consistently with the rule of law be given to a clause which wholly shuts out the High Court’s supervision for excess or abuse of jurisdiction or for error of law, and that the extent of scrutiny is ultimately for the courts. Lady Hale and Lord Kerr agreed with his judgment. Lord Lloyd-Jones expressed no view on that wider question.
The dissent
Lord Sumption, with whom Lord Reed agreed, and Lord Wilson in a separate judgment, would have dismissed the appeal. They read section 67(8), including the words about jurisdiction, as a clear provision, drafted with Anisminic in mind, to stop both appeals and equivalent challenges to the Tribunal’s decisions on the merits. In their view the Tribunal is a judicial body applying the same principles as the High Court on judicial review, and the rule of law does not require a further merits review of its decisions on the law. Lord Sumption would still have left review available for matters outside the Tribunal’s permitted field, such as a want of subject-matter competence, a defect in its constitution, or a failure of natural justice not modified by the Act. He did not regard the construction of section 5 as such a matter.
Verdict: By four votes to three, the Court allowed the appeal. Section 67(8) did not prevent the High Court from reviewing the Tribunal’s decision for error of law. The Court did not decide whether the warrants were lawful or whether Parliament could wholly exclude judicial review.
