This week the Supreme Court handed down an important judgment on the jurisdictional scope of the Investigatory Powers Tribunal (IPT): R (on the application of A) v B [2009] UKSC 12. The case involved a former spy, ‘A’, who wished to publish a manuscript relating to the successes, failures and recruiting techniques of MI5. MI5 had refused to authorise the publication of certain elements of the manuscript under the Official Secrets Act 1989. A subsequently brought a claim for judicial review in the administrative court challenging MI5’s decision. The claim was advanced in particular on the basis that MI5’s refusal breached A‘s right to freedom of expression under Article 10 of the European Convention of Human Rights. The claim was resisted on the basis that, under s. 65 of the Regulation of Investigatory Powers Act (RIPA), it was the Investigatory Powers Tribunal (IPT) which had exclusive jurisdiction to hear any challenge made against MI5’s decision, irrespective of whether or not that challenge was made under the Human Rights Act 1998 (HRA). A’s claim for judicial review was allowed at first instance. In summary, Collins J held that the High Court exercised jurisdiction in respect of the claim in parallel with the IPT ([2008] 4 All ER 511). Collins J’s judgment was subsequently overturned by a majority of the Court of Appeal ([2009] 3 WLR 717). The Supreme Court has now unanimously upheld the Court of Appeal’s majority judgment. In essence, the Supreme Court held that:

 

• the wording of s. 65 RIPA should be construed broadly so as to ensure that, where decisions of this nature were in issue, they should be heard by the IPT, even if they embraced challenges brought under the HRA;

 

• the fact that s. 65 operated to oust the jurisdiction which the ordinary courts would otherwise have to hear a human rights challenge was not objectionable on constitutional grounds (i.e. it did not constitute an unlawful ouster). In particular, the ouster of jurisdiction embodied in s. 65 was lawful because: (a) it had been provided for in clear terms under the relevant legislation; and (b) it did not operate to prevent judicial scrutiny of the particular decision but instead merely ensured that that scrutiny was conducted by the IPT;

 

• the mere fact that the IPT procedures were more secretive than those which would apply in the ordinary courts did not mean that there would be any breach of A’s right to a fair trial under Article 6 ECHR. The use of such procedures could be justified in view of the fact that determination of A’s claim would entail consideration of information which raised issues of national security. (It was noted in the judgment that an application to the ECtHR is currently pending on the question of whether certain of the IPT rules breach various articles of the Convention, including articles 6, 8 and 10).

 

The judgment is likely to be seen as controversial in certain quarters, not least because the secretive nature of the IPT process is regarded by many as being inherently unjust. 11KBW’s Jason Coppel appeared on behalf of B before the Supreme Court.  See further my post on the recent application of the IPT process to a surveillance procedure applied by a local authority.