• In the case of R Privacy International v Investigatory Powers Tribunal [2019] UKSC 22, it was found that the ouster clause in section 67(8) of the Regulation of Investigatory Powers Act 2000 which seeks to exclude a challenge or appeal of any decision of the Investigatory Powers Tribunal doesn’t stop a challenge of judicial review based on a mistake of law. 

Facts of the Case

  • This case sought to dissect the preliminary issue of law about the power of the Secretary of State (under section 5 of the Intelligence Services Act 1994) in relation to issuing a “thematic” warrant allowing the hacking of a category of property.
  • C, Privacy International, sought judicial review on the basis that the Tribunal’s inference contravened the Convention Rights.
  • Lang J pointed the case towards the preliminary issue regarding whether the High Court’s jurisdiction to hear the claim was ousted by section 67(8).

Issues

  • Did section 67(8) oust the jurisdiction of the High Court to rescind a Tribunal judgement for a mistake of law?
  • Whether, and in what circumstances, can Parliament oust the supervisory jurisdiction of the High Court under statute over a tribunal of lower statutory jurisdiction?

Held by the Supreme Court

  • The Supreme Court always C’s appeal by a majority (4:3) and found that the Tribunal was in fact amenable to judicial review, thereby reversing the decision of the Divisional Court and Court of Appeal

Lord Carnwath

  • His Lordship interpreted section 67(8) in close parallel with Anisminic v Foreign Compensation Commission [1969] 2 AC 14. Before the Act was drafted, the drafter could not doubt that a determination impaired by a mistake of law was to be deemed as no determination.
  • “At least by that date, following Lord Diplock’s explanation in O’Reilly v Mackman (1983), the drafter can have had no serious doubt about the far-reaching effect of that decision. A determination vitiated by any error of law, jurisdictional or not, was to be treated as no determination at all. It therefore fell outside the reference in the ouster clause to a “determination of the commission”. In other words, the reference to such a determination was to be read as a reference only to a legally valid determination.” [105]
  • It was also found that 

Lord Sumption (dissenting)

  • His Lordship agreed with the Divisional Court and Court of Appeal’s findings and found that the effect of section 67(8) is to exclude the jurisdiction of the High Court to consider a challenge to the Tribunal’s decisions on the merits.  His Lordship also asserted in his dissenting judgement that the Tribunal took the form of a court.
  • “The question at issue on this appeal is whether an application for judicial review on the ground that the Tribunal has decided an issue on a wrong view of the law, is available having regard to section 67(8) of the Act. The Divisional Court and the Court of Appeal have both held that it is not. I agree with them. I shall need to examine the law in some detail, but my reason can be shortly summarised. The effect of section 67(8) is simply to exclude the jurisdiction of the High Court to entertain a challenge to the Tribunal’s decisions on the merits. In other words, it excludes judicial review on grounds which would be tantamount to an appeal.” [172]

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