Presumption against blocking judicial review reaffirmed

In an important judgment on constitutional principle, the Supreme Court has reaffirmed the fundamental presumption against ousting the supervisory judicial review jurisdiction of the High Court (R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22).

Key Points 

• There is a fundamental presumption against ousting the supervisory role of the High Court over other adjudicative bodies, even those established by Parliament with equivalent status and powers to the High Court.

• Judicial review can only be excluded by the most clear and explicit words in legislation.

Background

Section 67 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) prescribes the jurisdiction of the Investigatory Powers Tribunal (“IPT”), which investigates and determines complaints of alleged infringement of human rights by public authorities, law enforcement agencies, security and intelligence agencies through unlawful use of covert investigative techniques.

Under Section 67(8) of RIPA “determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction),” shall, except to such extent as otherwise ordered by the Secretary of State of Foreign and Commonwealth Affairs (the “Secretary of State”), “not be subject to appeal or be liable to be questioned in any court”.

A complaint regarding computer network exploitation activity (i.e computer hacking) by Government Communications Head Quarters (“GCHQ”) was filed with the IPT by the Appellant. One issue before the IPT was whether, and if so, to what extent the GCHQ had been acting pursuant to a lawful warrant issued by the Secretary of State under section 5(2) of the Intelligence Services Act 1994. The IPT ruled that Section 5(2) which empowers the Secretary of State to issue a warrant “authorising the taking of such action as is specified in the warrant in respect of any property so specified” extends to thematic warrants which authorise a broad extent of activity in relation to a class of property. The Appellant applied for judicial review of the order, which was refused by the High Court on the ground that judicial review of IPT’s decisions was prohibited under section 67 (8) of RIPA. The Appellant’s appeal to the Court of Appeal was dismissed and the Appellant appealed to the Supreme Court.

The central issues before the Supreme Court were:

1. Whether section 67(8) of RIPA “ousts” the supervisory jurisdiction of the High Court to judicially review a judgment of the IPT for error of law.
2. Whether, and, if so, under what principles, Parliament may by statute “oust” the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction.

The Supreme Court's Decision

Issue 1

The Appeal was allowed on the first issue by a majority of 4 (Lord Carnwath, Lady Hale, Lord Kerr and Lord Lloyd Jones) to 3 (Lord Sumption, Lord Reed and Lord Wilson) with the finding that the interpretation of section 67(8) must be informed by the existing leading cases of Anisminic v Foreign Compensation Commission [1969] 2 AC 147, O’Reilly v Mackman [1983] 2 AC 237 and R (on the application of Cart) v Upper Tribunal [2011] QB 120.

Anisminic held that an ouster clause in the Foreign Compensation Act 1950 did not effectively exclude the court’s review of a government agency’s “determination” where the question was whether the agency had acted within its jurisdiction.

In O’Reilly the judgment in Anisminic was interpreted to mean that where a determination made by an inferior court or tribunal was vitiated by an error of law, it was not a “determination” - it was legally invalid (a “nullity”) and judicial review could not be excluded. This meant that there was no need to focus on whether or not the error related to jurisdiction.

In Cart, the Supreme Court determined that the essential question was the level of independent scrutiny required by the rule of law outside the tribunal structure. The Supreme Court concluded that there must be a principled approach - “should be no more (as well as no less) than is proportionate and necessary for maintaining the rule of law”. It was a matter for the Court to determine whether judicial review was permissible.

Relying on the dicta in these cases Lord Carnwath concluded that the fundamental presumption was “against ousting the supervisory role of the High Court over other adjudicative bodies, even those established by Parliament with equivalent status and powers to the High Court”. Instead the status of such bodies was to be respected, not by exclusion of review but “by the careful regulation of the court’s power to grant or refuse permission for judicial review”.

Accordingly, if Parliament had intended section 67(8) to oust the High Court’s jurisdiction from challenges concerning the IPT’s jurisdictional or legal decisions, then it would (or should) have adopted a “more explicit formula” in the statute. Judicial review can only be excluded by “the most clear and explicit words”. The reference in section 67(8) to “jurisdiction” was insufficient for this in light of the post-Anisminic case law making it clear that determinations vitiated by errors of law were no determinations at all and the question of jurisdictional error was irrelevant to this conclusion.

The minority view was that the wording in section 67(8) ousted the jurisdiction to entertain an appeal or judicial review as Parliament had allocated the powers of the High Court to the IPT.

Issue 2

Once the appeal had been allowed on issue 1, it was strictly unnecessary to express a view on issue 2.

However, Lord Carnwath expressed the view that it was for the courts, and ultimately the Supreme Court, to determine the limits of the rule of law. There are certain fundamental requirements of the rule of law such as “excess of jurisdiction” and “abuse of jurisdiction”, which no form of ouster clause (however “clear or explicit”) could exclude from the supervision of the courts.

The question in any case should be the level of scrutiny required by the rule of law. A specialist tribunal’s application of the law may have implications for legal rights and remedies going beyond the scope of its remit. Consistent application of the rule of law required such issues to be reviewed by ordinary courts.

Comment

The decision highlights the difficulties that arise in determining the effect of ouster clauses and their interpretation, as well as the explicit formulations that would be required in legislation to successfully oust judicial review. It is notable that, despite holding that nothing less would be sufficient, the judgment refers to an example where such an explicit formulations was attempted but then had to be removed because of pressure from Parliament. This, combined with the strong comments from the majority of the Supreme Court, means it is not clear in what circumstances a successful ouster clause could actually be included in legislation.

Review of ouster clauses will have to be carried out on a case by case basis in light of the circumstances of each case and whether Parliament intended the court’s jurisdiction to be ousted. The majority’s decision leaves a wide discretion with the courts in determining what is required to further the rule of law.