Introduction
The Investigatory Powers Tribunal (IPT) was established under s. 65 of the Regulation of Investigatory Powers Act 2000 (RIPA). It is the only appropriate tribunal for the purposes of section 7 of Human Rights Act 1998 (HRA) in relation to, insofar as relevant for the purposes of this article, any proceedings under s. 7(1)(a), HRA (proceedings for actions incompatible with ECHR rights) against any of the intelligence services…or complaints properly made to them and any qualifying proceedings.
Complaints are those made to them where the IPT is the appropriate forum: s. 65(2)(b), RIPA and proceedings are those brought against the intelligence services (or their agents) or they are “proceedings relating to the taking place in challengeable circumstances of conduct falling within [s. 65(5), RIPA]”. That conduct includes that by or on behalf of the intelligence services and conduct by a police force under Part II, RIPA (use and conduct of covert human intelligence sources, directed and intrusive surveillance). Challengeable circumstances is defined in s 65(7) and (7A). The former relates to conduct that was or ought to have been authorized under RIPA and the latter conduct under s 76A (relating to foreign surveillance operations).
The possibility of an appeal or judicial review of the Tribunal’s decision-making was previously expressly excluded under s. 65(8), RIPA.
These two provisions in s 65, RIPA are known as “ouster clauses” (for ease theses are referred to the “jurisdiction ouster” and the “appeal ouster”, respectively). They have a unique constitutional significance: see the blog by Paul Daly, “Thinking again about ouster clauses: R (Privacy International) v Foreign and Commonwealth Secretary” and overview of and comprehensive draft paper by Professor Mark Elliott “Through the Looking-Glass? Ouster Clauses, Statutory Interpretation and the British Constitution”. This article is concerned with how the provisions have been applied in practice, the amendment relating to the appeal ouster in the Investigatory Powers Act 2016 (IPA 2016) and issues arising from one of the recent decisions on jurisdiction.
Jurisdiction
The leading case remains R (on the application of A) v B [2010] 2 WLR 1. The facts related to a manuscript written by a former member of the Security Service (MI5) who had then sought permission from the Service to publish it, without which, publication would almost certainly have constituted an offence under the Official Secrets Act 1989. Permission was refused and relying on R v Shayler [2003] 1 AC 247, the claimant brought proceedings for judicial review. The defendant resisted this, claiming that the appropriate forum was the Investigatory Powers Tribunal. The Supreme Court agreed.
The case was considered in AJK and others v Commissioner of Police for the Metropolis [2013] EWHC 32(QB), litigation arising from the activities of rogue undercover officers who had infiltrated protest groups and formed intimate relationships with persons from within the groups. The issue before the High Court was whether the nature of the relationship between the undercover officers and female protestors fell within the definition of use and conduct of a Covert Human Intelligence Source for the purposes of s 26(8) of RIPA and was therefore conduct taking place in challengeable circumstances. The relationship gave rise to both human rights’ based claims (under Article 8) and claims at common law (under the tort of deception). Tugendhat J held that it did in part fall within Part II of RIPA and that in the circumstances the proceedings insofar as they related to the alleged breach of the Human Rights Act 1998, must be heard by the IPT. However, the common law claims for damages fell outside the Tribunal’s jurisdiction. The judge ordered that pending the determination by the Tribunal, these should be stayed. This was upheld on appeal, although the stay was lifted.
Recent application
Jurisdiction
The jurisdiction ouster has been considered recently by the Court of Appeal in Northern Ireland in two cases: R (Sheridan) v Chief Constable of the Police Service of Northern Ireland and the Police Ombudsman of Northern Ireland [2017] NICA 54 and X v Ministry of Defence and Chief Constable of the Police Service of Northern Ireland [2017] NICA 66. The Sheridan decision insofar as it related to the construction of s 26, RIPA, has been looked at in detail here.
In Sheridan, the complaints had been made to the Ombudsman and Chief Constable about the conduct of police officers that had attempted to recruit the appellant as a covert human intelligence source. The appeal was dismissed. The judicial review constituted “proceedings” against a police force relating to conduct taking place in challengeable circumstances and the IPT had sole jurisdiction. In respect of the Ombudsman, the court held that since he was not mentioned in s. 65(5) the proceedings could in principle have proceeded against him.
In X the court at first instance also held that the human rights challenges arising out a similar approach to the claimant by police officers, fell within the exclusive jurisdiction of the IPT, although the tortious claims did not (this is entirely consistent with the earlier decision in AJK). The Court of Appeal, applying Sheridan, held that there was a sufficient factual basis for the judge reaching that conclusion and dismissed the appeal.
The jurisdiction of the IPT, set out in section 65 of RIPA, the jurisdiction ouster provision, is now widened by the IPA 2016 to reflect the increased investigatory scope of the new Act.
Appeals
In R (Privacy International) v Secretary of State for the Foreign and Commonwealth Department [2017] EWCA 1868 the appeal ouster was considered by the Court of Appeal (following a decision by the Administrative Court, which held that no judicial review was possible of the IPT’s decisions). The constitutional significance of the decision has been considered in the blog and paper referred to above and cannot be improved upon. This article seeks to highlight the amendment of RIPA so as to provide for a right of appeal in s 67A as a result of s 242 of the IPA 2016.
The detailed provisions of the IPA 2016 are analysed in Blackstone’s Guide to the Investigatory Powers Act 2016 but in summary, the right of appeal is available to a ‘relevant person’ (the complainant or respondent or person complained against and in the case of a reference made to the IPT, it includes a public authority). It is exercisable in tightly prescribed circumstances, namely a point of law arising out of a determination by the IPT under section 86(4), RIPA. Permission to appeal is required and may be granted by the IPT or the appropriate appellate court that must, if permission is given, hear the appeal. The threshold for granting permission is high: an appeal must raise an important point of principle or practice or another compelling reason for granting permission must exist.
Current and future issues
The problem in Sheridan
The Court of Appeal held in Sheridan that a judicial review against the Ombudsman could proceed. It seemed to suggest it could do so because the failure to give reasons was not an issue within the jurisdiction of the IPT and “the fact that the Tribunal is the only appropriate tribunal for proceedings against the Chief Constable…”
A judicial review against the Ombudsman, as is the case with any public authority, can in principle proceed where there has been a failure to provide reasons but it is respectfully submitted that where proceedings relate as they did in Sheridan to “the taking place in any challengeable circumstances of any conduct falling within subsection (5)”, jurisdiction is, in such circumstances ousted. There is no requirement for the Ombudsman to be identified within the public authorities referred to in s 65. The Court of Appeal Northern Ireland may have been wrong on this point.
Interestingly, s 65 does not prevent the Ombudsman from considering a complaint of conduct under Part II of RIPA; the IPT has jurisdiction only in relation to eligible complaints made to it. The same must be true of the Independent Office for Police Conduct but any challenge to their decision by a complainant must be to the IPT and not an application for permission to move for judicial review.
Reach of the jurisdiction: criminal proceedings?
One interesting issue yet to be tested is whether jurisdiction to bring a challenge relating to the admissibility or propriety of unlawful surveillance and or the conduct of informers in criminal proceedings is also ousted. This is an uncomfortable proposition – the idea that the exclusionary remedies in ss 76 and 78 of PACE or the inherent jurisdiction of the court to apply the doctrine of abuse of process are ousted by s 65– but that is one interpretation of the provision. The counter argument is to examine the core of primary purpose of the proceedings but what seems clear in AJK and Sheridan is the court had no difficulty in hiving off those matters that were the sole jurisdiction of the IPT. A short amendment excluding criminal proceedings (which are already defined in RIPA) would cure any ambiguity. However, it is very unlikely that criminal defence lawyers or prosecutors will be raising the jurisdiction question any time soon; they may, to develop Professor Mark Elliott’s theme, consider such an application to be more suited to Alice in Wonderland than the law reports.