The Issues Considered
These proceedings concerned whether section 67(8) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) had the effect of “ousting” the supervisory jurisdiction of the High Court over decisions of the Investigatory Powers Tribunal (“IPT”). The IPT is a specialist statutory tribunal of limited jurisdiction created to determine complaints surrounding the exercise of investigatory powers by, inter alia, the intelligence services.
The underlying proceedings arose out of a preliminary issue of law concerning the power of the Secretary of State, under section 5 of the Intelligence Services Act 1994 (“ISA”), to issue a “thematic” warrant authorising “computer network exploration” (hacking) in respect of a broad class of property. The Appellant, Privacy International, argued that the IPT’s interpretation was inconsistent with Convention rights and sought judicial review. Lang J directed the hearing of a preliminary issue as to whether the High Court’s jurisdiction to hear the claim was ousted by section 67(8) of the RIPA.
Section 67(8) of the RIPA provides:
“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”
The Divisional Court ( EWHC 114 (Admin)) and the Court of Appeal ( 1 WLR 2572) held that section 67(8) effectively precluded judicial review. Leggatt J, while not formally dissenting, adopted an alternative stance on the grounds that the provision used a formula which is not materially different from that which the House of Lords held as not to oust judicial review in Anisminic v Foreign Compensation Commission  2 AC 14.
Upon appeal to the Supreme Court, the questions for determination were:
- Whether s.67(8) RIPA “ousts” the supervisory jurisdiction of the High Court to quash an IPT judgement for error of law and;
- Whether, and if so, in what circumstances, Parliament may statutorily oust the supervisory jurisdiction of the High Court over a tribunal of limited statutory jurisdiction.
The Supreme Court Decision
A majority of the Supreme Court (Lady Hale, Lord Kerr, Lord Carnwath, and Lord Lloyd-Jones) allowed Privacy International’s appeal, with the consequence that the IPT were amenable to judicial review by the High Court. This reversed the decisions of the Divisional Court and Court of Appeal. Lord Sumption, Lord Reed and Lord Wilson dissented.
Lord Carnwath, giving the lead judgment for the majority, noted the “obvious parallel” with the ouster clause in Anisminic . The first issue therefore hinged upon whether the context and the wording (particularly, the inclusion of the parenthesis to section 67(8), which demonstrates a clear Parliamentary intention to preclude High Court jurisdiction) materially affected that outcome . Lord Carnwath outlined the historic development of the High Court’s relationship with inferior courts and tribunals [30-40] and legal developments pertaining to ouster clauses from Anisminic to R (Cart) v Upper Tribunal  1 AC 663 [41-101] (“Cart”).
Against this background, he held that “on no ordinary view” could the proper construction of s.5 of the ISA be considered a decision “as to whether [the IPT] had jurisdiction”  and, further, if those words are read in the language of Anisminic, the exclusion applied only to a “legally valid decision relating to jurisdiction” .
In agreement, Lord Lloyd-Jones added that it is a “necessary corollary of the sovereignty of Parliament that there should exist an authoritative and independent body which can interpret and mediate legislation made by Parliament”, referring to the Laws LJ’s exposition in the Divisional Court in Cart at paras 36-40 .
Lord Carnwath (with whom Lady Hale and Lord Kerr agreed) considering the second issue on appeal, held:
“I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.” 
Lord Lloyd-Jones remained silent on the second issue .
Notwithstanding the shroud of statutory interpretation which disguises this verdict, the Supreme Court has strongly implied that Parliament may not ‘oust’ the jurisdiction of the courts by virtue of the rule of law. This may be justified by reference to the rule of law’s protection of the right to a fair hearing, which includes the judicial oversight of the legality of executive action.
This will impact Parliament’s future legislative efforts, though the effect of the decision on ‘extreme’ ouster clauses remains to be seen. As such, impacts may also be felt in the statutory establishment of adjudicatory bodies, given that it is difficult, if not impossible, for Parliament to afford those bodies sole (limited) jurisdiction. The retention of the High Court’s power of review in this case seems to suggest that Parliament is effectively being precluded from legislating away the role of the courts in review, even in areas of ‘national interest’, such as security.
The judgement in Privacy International may cause ripples in the constitutional tug of war between Parliament and the Supreme Court, under the Separation of Powers Doctrine. This is especially noteworthy in light of the growing willingness of the Supreme Court to dilute Parliamentary sovereignty in matters of ‘constitutional importance’. Yet, it is easy to overestimate the radicalism of this judgement. In form, Lord Carnwath adds little to the Lords’ earlier disregard for Parliamentary intent in Anisminic. Further, while the substantive implications of this case remain indeterminate, even ad extremis, the protection of the court’s jurisdiction is unsurprising. Not least is it the duty of the court to ensure the rule of law presides over Parliament, but equally, the precedent of Lords Hope and Steyn and Lady Hale in R (Jackson) v Attorney General  UKHL 56 , that “there are some things that even a sovereign parliament at the behest of the Commons may not do”, suggests there is an remains a long-standing competence of the court to override Parliament in constitutional matters.
By Connor Wright