UK spy court ruled immune from judicial review – for now

Judges reject Privacy International's case against Investigatory Powers Tribunal

The UK's Court of Appeal has ruled that the body that oversees the nation's intelligence agencies cannot be held subject to a judicial review under active laws.

In a judgment handed down yesterday, the court rejected an argument from campaign group Privacy International that aimed to use case law to back up its the right to appeal a decision from the Investigatory Powers Tribunal.

As part of its ongoing legal battles with the UK's snoops, Privacy International took GCHQ to the court, alleging that it had been the subject of unlawful computer hacking by the spy agency.

It questioned whether there had been a lawful warrant from the secretary of state for this activity, with the case hinging on the specificity of the warrant.

Whereas Privacy International argued for a restrictive interpretation of the relevant sections of the Regulation of Investigatory Powers Act, GCHQ said that the Secretary of State can issue warrants in general terms that allow a broad class of activities.

In a February 2016 ruling, the IPT upheld the government's submission – a decision that Privacy International wanted to challenge, and so commenced judicial review proceedings against the tribunal.

However, Section 67(8) of RIPA (as was in force at that time) aims to exempt the IPT from judicial reviews:

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.

Privacy International's QC, Dinah Rose, said the section must be read in restricted terms – parliament could not have intended it to be read as excluding all resource to judicial review, she said.

But the Court of Appeal rejected this argument, finding in agreement with a previous decision handed down by the lower, Divisional Court.

Changes to the right of appeal

The part of RIPA under discussion is known as an ouster clause – it allows Parliament, by virtue of the act, to oust the courts' ability to hear a judicial review.

It makes the decision taken by the Court of Appeal of fundamental importance to constitutional lawyers, because if a tribunal is found to be immune from judicial review then it can effectively set the limits of its own powers, and interpret the law without oversight from other courts.

However, in practical terms, this may not be the huge roadblock to civil rights groups' right to redress the IPT’s decisions it first appears.

That's because the Investigatory Powers Act – which gained royal assent last year – provides another route for appeal on contested issues on a point of law by amending Section 67(8).

The government has previously said that it intends to bring this new right of appeal into force by the end of this year.

In September, it slipped out a consultation on the rules around this right of appeal – as well as some more changes to what it has acknowledged is an "outdated" piece of legislation. That closed for submissions on November 10.

In the document (PDF), the government said the new right of appeal was "from decisions and determinations of the IPT in circumstances where there is a point of law that raises an important point of principle or practice, or where there is some other compelling reason for allowing an appeal".

We've contacted Privacy International for comment.

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