February 02 2023

Spy tribunal not immune to legal challenge, Supreme Court rules

Spy tribunal not immune to legal challenge, Supreme Court rules

The UK Supreme Court has ruled that decisions made by the specialist surveillance tribunal covering MI5, MI6, and GCHQ decisions are subject to legal challenge through the UK courts. The landmark ruling was made yesterday in an action brought by Privacy International with the human rights group Liberty intervening.

Megan Goulding, a lawyer at Liberty, said: ‘Putting oversight of the intelligence agencies – with their sweeping intrusive powers under the Snooper’s Charter – beyond the review of ordinary courts, is not just undemocratic, but a sinister attempt to reduce the safeguards that protect our rights.’

‘All state bodies, particularly those with the powers available to intelligence agencies, must be accountable, and subject to the highest levels of scrutiny to ensure that they are not above the law. And, of course the IPT itself must be held to account in its decision making, given the importance of its role.’
Megan Goulding, Liberty

A judicial review is the legal procedure by which a court can review a decision made by a public body, to consider whether the law has been correctly followed in coming to that decision. The Investigatory Powers Tribunal (IPT) is, for security reasons, the only court that hears cases relating to the actions of the British intelligence agencies, and, up until yesterday, was the only court whose decisions were wholly exempt from the oversight of ordinary UK courts by judicial review.

The ruling concludes a five-year legal battle between the government and Privacy International. In 2014, Privacy International sought to judicially review a decision made by the IPT to allow Government bulk hacking. The High Court disallowed the proceedings, rendering the IPT exempt from review. Yesterday, that decision was overturned, and means that Privacy International can proceed with its original challenge of the Government hacking decision.

The Government has argued throughout that, owing to clause in the law that reads: ‘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’, that the IPT should enjoy exemption from judicial review.

The question for the Supreme Court was whether this clause wholly ousted the jurisdiction of the High Court to review decisions made by the IPT. Ruling in favour of Privacy International, the Supreme Court found that Parliament had not expressed a clear intention to render the IPT’s decisions not vulnerable to review in passing the law as to do so would allow for the specialist tribunal to create its own, unchallengeable laws.

Delivering the majority verdict, Lord Carnwath stated that the Court sought ‘to ensure that the law applied by the specialist tribunal is not developed in isolation, but conforms to the general law of the land’.

Human Rights organization Liberty intervened on the grounds that, given the scope of cases the IPT hears that have the potential to impact the general public (decisions made about surveillance, for example), it would be wrong for it to function as a ‘legal island’, exempt from oversight.

Lord Carnwath said he was ‘unimpressed’ by government arguementsthat the IPT should be excluded from judicial review on account of national security. ‘As this case shows, the tribunal itself is able to organise its procedures to ensure that a material point of law can be considered separately without threatening any security interests,’he said. Privacy International has described the win as a ‘major endorsement and affirmation of the rule of law in the UK’.

Dissenting from the majority judgement, Lords Sumption and Wilson said that the law was clear and Parliament had intended to immunise the IPT from judicial review. You can read judgement here.