R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22
R (Privacy International) v Investigatory Powers Tribunal is a leading modern decision on ouster clauses. A statutory provision stating that tribunal decisions cannot be questioned did not exclude review for an error of law.
Facts
Privacy International challenged the legality of a government hacking power before the Investigatory Powers Tribunal. The tribunal decided that it had jurisdiction over the complaint and ruled on the statutory power. Privacy International then sought judicial review, alleging that the tribunal had made an error of law. Section 67(8) of the Regulation of Investigatory Powers Act 2000 stated that, except as otherwise provided, determinations and other decisions of the tribunal, including decisions as to jurisdiction, should not be subject to appeal or be liable to be questioned in any court. The preliminary issue was whether this wording excluded the High Court's supervisory jurisdiction.
Legal Issue
Did section 67(8) validly prevent judicial review of the Investigatory Powers Tribunal for an error of law, including an error bearing on its jurisdiction?
Held
By a majority, the Supreme Court held that section 67(8) did not exclude judicial review for error of law. Applying the approach in Anisminic Ltd v Foreign Compensation Commission, the majority interpreted references to a “determination” or “decision” as covering only a legally valid determination. A material error of law meant that the purported decision did not receive the clause's protection. The unusually explicit reference to jurisdiction did not clearly address all reviewable errors. The judgments stressed the constitutional importance of access to the supervisory courts and the rule of law. Some broader comments questioned how far even unmistakable wording could exclude review, but the ratio rested on statutory interpretation of this provision.
⭐ Legal Principle
An ouster clause is interpreted strictly against excluding the High Court's supervisory jurisdiction. Privacy International held, by construing the particular wording of section 67(8), that it did not protect a purported decision affected by a material error of law. The case did not finally decide whether different and unmistakable wording could exclude all judicial review.
Significance
Privacy International modernises the Anisminic approach and demonstrates the powerful presumption that Parliament does not exclude judicial review. The case does not establish a general holding that every conceivable ouster clause is invalid. Parliament subsequently enacted more targeted restrictions, including section 11A of the Tribunals, Courts and Enforcement Act 2007 concerning certain Upper Tribunal permission decisions. The decision should therefore be used as an authority on strict construction, constitutional principle and the particular wording reviewed, while later statutes must be examined on their own terms.
Common exam questions about this case
How did the majority interpret the word “decision” in the ouster clause?
Following Anisminic, the majority treated the protected decision as one made within the legal limits governing the tribunal. A material error of law could render the purported decision legally invalid and therefore outside the clause. General wording that a decision could not be questioned did not clearly protect that kind of error.
Did Privacy International conclusively hold that Parliament can never exclude judicial review?
No. Several judgments discussed deep constitutional limits, but the case was resolved by interpreting section 67(8). The binding result was that this clause did not exclude review for error of law. Whether Parliament could achieve a wider exclusion through different and unmistakable wording was not finally determined by the majority's ratio.
Why is Anisminic central to Privacy International?
Anisminic established that an ouster clause protecting a “determination” did not protect a purported determination affected by reviewable legal error. Privacy International applied and developed that reasoning to a specialist tribunal and more explicit wording. Together, the cases illustrate the courts' strict approach to attempts to remove supervisory jurisdiction.