UK Supreme Court considers whether spy court should be immune to legal probes

Privacy International lays out its case to El Reg

The UK's highest court has this week heard arguments in Privacy International's long-running attempt to challenge decisions made by Britain's shadowy spying oversight court, the Investigatory Powers Tribunal (IPT).

The campaign group wants to launch a judicial review at the Investigatory Powers Tribunal (IPT) over a 2016 decision in a case probing the legalities of the UK spy agencies' computer hacking.

However, the government sought to stop that challenge in its tracks, saying the tribunal was exempt from judicial reviews, citing Section 67(8) of the Regulation of Investigatory Powers Act (as was in force at the time).

This would mean the only court in which decisions of the IPT can be challenged is the European Court of Human Rights, and only for possible breaches of human rights law – a situation civil rights groups unsurprisingly want to change.

After two failed challenges in lower courts, Privacy International was granted one last chance to makes its case, to the Supreme Court. That hearing took place over two days this week.

"This [case] is really quite significant," Privacy International's general counsel Caroline Wilson Palow told The Reg after the hearing. "If we are successful, that the judgment is going to be far-reaching."

For Palow, the ability to challenge a decision by the IPT would introduce an important safeguard into the process, and said the court seemed to be taking the question seriously. "That was also indicated by the fact it was a seven Justice panel, which they usually reserve for the more serious cases."

How did we get here?

2014 – Privacy International issues a legal complaint to the Investigatory Powers Tribunal challenging the lawfulness of the intelligence services' use of computer hacking.

2016 – The IPT rules spies can lawfully hack devices using thematic, or "general", warrants that cover broad classes; for instance, "all mobile phones in London”.

2017 – The High Court in February rejects Privacy International's efforts to hold the IPT subject to judicial review, followed by the Court of Appeal in November.

2018 – The Supreme Court, the final court of appeal in the UK, in May agrees to hear the appeal.

Privacy International's argument in the Supreme Court is that specialist tribunals, such as those for employment, are generally subject to judicial reviews in the regular courts. Without this oversight, a tribunal can effectively set the limits of its own powers, and interpret the law without oversight from other courts.

And while the government believes that s67(8) renders the IPT immune to judicial review, Privacy International has countered – so far unsuccessfully – that this section should be read in restricted terms.

"S67(8) properly construed does not oust judicial review of the Tribunal," Privacy International said in its written argument.

"It is a very long-established principle of the common law that a statute should not be interpreted as ousting judicial review of a statutory tribunal of limited jurisdiction if there is any reasonably tenable construction of the provision which would preserve the supervisory jurisdiction of the High Court."

Investigatory Powers Tribunal has a broad remit

The group is also seeking to persuade the Supreme Court that the IPT's role in overseeing the conduct of the security and intelligence agencies is just one part of its jurisdiction.

This is to counter the argument that the tribunal was set up to deal with matters of national security, which might cause problems for a regular court when dealing with sensitive material as evidence.

The Court of Appeal "placed great weight" on the IPT's national security caseload, Privacy International said in its written case.

"The Court drew an inference that Parliament had intended that a tribunal hearing sensitive claims against the security and intelligence services should be wholly insulated from any review, regardless of the context or seriousness of the error."

But civil rights groups argue its remit is far more broad, as it considers claims and complaints on the use of investigatory powers, surveillance and covert human intelligence by various public authorities.

"It is objectionable in principle, and inimical to the rule of law, that a body with such broad jurisdiction should be entirely immune from challenge, save in the Strasbourg Court, and then only when the challenge raises a question of the UK’s compliance with the ECHR," said Liberty, in a submission filed in support of Privacy International's case.

Further to this, Palow said that the idea the regular courts would always have to deal with sensitive material as evidence wasn't accurate

"Most of the time, that wouldn’t really be necessary, because often the points under judicial review are points of law… They could be argued in an open way."

The never-ending battle needs cash

This week's hearing, though, is just one of the many steps in Privacy International's battle against government hacking.

The underlying case that brought it to the Supreme Court this week is that the IPT erred in one of its decisions – whether the government could issue what the group calls general warrants.

And so the next stage, if the group wins, will be to go back to the High Court to ask it to consider the question of general warrants and the IPT's decision.

But, should the group lose, the court may order it to pay for the government’s lawyers and, despite a protective costs order, this could still reach £35,000.

As such, the group has this week launched a crowd funding campaign to help meet these costs – or put towards its many other challenges of government hacking if it does win.

"As a small charity, that's a lot of money for us," said Palow. "Of course, we're hoping not to lose... The tribunal is a competent specialist tribunal, but the real point is that, ultimately, this very secretive work of the intelligence services needs to be subject to the rule of law." ®

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