Joanna Bell: Privacy International Symposium – Framing Questions about Ouster Clauses

Privacy International has brought judicial review proceedings against the Investigatory Powers Tribunal, in respect of the Tribunal’s treatment of a complaint about computer hacking by GCHQ. At first instance ([2017] EWHC 114 (Admin)) and on appeal ([2017] EWCA Civ 1868), it has been held that judicial review of the Tribunal is precluded by the ouster clause contained in s. 67(8) of the Regulation of Investigatory Powers Act 2000. A seven-judge bench of the Supreme Court (Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Sumption, Lord Carnwath and Lord Lloyd-Jones) will hear Privacy International’s appeal in December.

This online collection grows out of a symposium held by the Centre for Public Law at the University of Cambridge on October 20, 2018, organised by Dr Paul Daly (University of Cambridge). Symposium participants have agreed to post short contributions on this important litigation.

In legal adjudication, the way in which questions are framed matters. The starting-point of an inquiry can have an important shaping effect on how that inquiry proceeds and, ultimately, on the conclusion reached. The judgments which have been rendered in the Privacy International litigation to date have been much analysed. One question which has not received much attention, however, is that of whether all of the judges in the case have proceeded with the same legal question in mind. There is reason to think that they have not. Consider, in the first place, the judgments in the Court of Appeal. These judgments have a clear binary quality in that the deciding judges appear to have viewed themselves as having to choose between two options: either section s67(8) of the Regulation of Investigatory Powers Act 2000 (‘RIPA’) is to be read as excluding judicial oversight of the Investigatory Powers Tribunal (‘IPT’) in all its iterations or else the court is to embrace a ‘narrow and restricted’ ([20]) interpretation of the ouster, the effect of which would be to preserve the full force of judicial review. By contrast, Leggatt J’s judgment in the Administrative Court appeared to envisage a broader array of options. Thus at paragraph [59], Leggatt toyed with the idea that, while the ouster clause may be effective in excluding many challenges it might not prevent the courts from considering particular kinds of argument such as allegations of ‘bias or other serious procedural irregularity’ or of a decision being made in ignorance of ‘binding precedent or statutory provision.’ For Leggatt, in other words, the question was not ‘judicial review: all of nothing?’ but ‘what kinds of legal argument does the ouster clause prevents the courts from hearing?’

The aim of this short blog post is not to offer a concluded view on this issue. Its aim is to make a more limited argument: we ought not to take it as a given that the Supreme Court, when it comes to decide Privacy International, will understand the central question in the same binary way as the Court of Appeal. The post, more particularly, seeks to draw attention to three reasons why this is so.

The ‘Classic Cases’

The first point to be stressed is that the ‘binary’ quality of the Court of Appeal’s approach to deciding Privacy International above is not reflected in how the courts have approached the interpretation of ouster clauses in some of the most-known case law. Two examples will suffice to illustrate.

Thus consider, in the first place, Smith v East Elloe. The applicant in this case sought to challenge a compulsory purchase order on the ground that it was made in bad faith. A provision in the relevant legislation, however, stipulated that such orders were not to be ‘questioned in any legal proceedings whatsoever.’ The House of Lords in this case did not understand itself to be faced with the binary choice of either reading the ouster clause in a way which excluded judicial oversight entirely or not at all. The court, rather, focused closely and specifically on the narrower question of whether, when read properly, the clause permitted the court to consider the particular allegation of bad faith which the applicant sought to bring to the courts attention. The House of Lords, ultimately, was split on this issue. The minority considered that it was a fundamental common law principle that the courts should be able to intervene to remedy mala fides exercises of power and that this principle could not be displaced by such general words. The majority, by contrast, considered that there were good reasons for regarding that principle as having been displaced in the context, including, for instance, the fact that an individual could always proceed in a claim for damages against the particular official alleged to have acted in bad faith.

A similar point, furthermore, could be made about Anisminic. Anisminic is sometimes read in retrospect as a case in which the House of Lords regarded itself as facing a choice between either reading section 4 of the Foreign Compensation Act 1950 in a way which excluded judicial review in all its iterations or adopting a narrow interpretation of the ouster which preserved the full force of review. Paul Daly is right, however, to draw attention to the fact that this was not how the court viewed its task. Their Lordships, more particularly, were much more preoccupied with identifying the kinds of legal argument section 4, when construed properly, would and would not prevent the courts hearing. Thus while, for instance, some of the judges offered lists of legal grounds, breach of which could in some circumstances result in an excess of jurisdiction and which would therefore not be excluded by section 4, it is noteworthy that review for unreasonableness did not find its way onto any of these lists and therefore was presumably regarded by all as having been effectively excluded by the ouster.

UKSC Case Law

The second reason why we ought not to expect the Supreme Court to proceed on the assumption that it face a binary choice between regarding review as wholly excluded or not at all is that this does not seem to have been how the court has reasoned in the most relevant of its recent case law. Again, two examples will suffice to illustrate. Consider in the first place Cart v Upper Tribunal. Cart was not an ouster clause case as such. It is, however, relevant in that one of the arguments considered in the case was that Parliament had, in a sense, implicitly ousted judicial review. By overhauling the tribunals system in the UK, designating the Upper Tribunal as a ‘superior court of record’ and omitting to carve out explicitly a continued role for judicial review, it was argued, Parliament had communicated an implied intention to oust review of the tribunals. The core point to be stressed about Cart however is that the Supreme Court clearly did not understand itself to be facing a binary choice between either reading the relevant legislation as excluding or as preserving judicial review. Each of the judges offering judgment in the case, rather, gave careful consideration to the question of what kinds of legal argument it would, in light of the legal context, be proper for the court to continue to hear. The answer reached by the unanimous Supreme Court was that while it was proper to read the legislation as excluding judicial review in many of its iterations, it was important that the courts retained the ability to hear a small cluster of fairly specific types of legal arguments. The ‘second appeals criteria’ were endorsed as a mechanism by which to strike this balance.

The second decision of the Supreme Court which is especially relevant to the Privacy International litigation is the recent decision of Lee v Ashers. In a unanimous judgment offered by Lord Mance the Supreme Court last month grappled with the question of whether a finality clause contained in Article 61(7) of the County Courts (Northern Ireland) Order 1980 rendered non-appealable a decision by the Court of Appeal of Northern Ireland (‘NICA’) that it was not required to comply with a direction issued by the Attorney-General under the Northern Ireland Act 1998. As I have emphasised elsewhere, Lord Mance in rendering judgment emphasised the importance of reading finality clauses in their legal context. In his Lordship’s view, while Article 61(7) clearly protected certain categories of decision by the NICA (namely, decisions on points of law appealed from the county courts) it did not prevent the Supreme Court from hearing challenges of other kinds (namely, challenges to decisions taken by the NICA concerning its own procedures).

Special Features of Privacy International

The third and final reason for not expecting that the Supreme Court will understand the central question raised by Privacy International in an all-or-nothing way is that there are certain special features of the Privacy International litigation which arguably open up to the judges a series of avenues for crafting a ‘mid-way’ solution. Two factors in particular are worthy of discussion.

The first concerns the specific ground on which the applicant seeks to rely in Privacy International. Very little attention has been paid in the course of the litigation so far to the specific nature of the challenge the applicant wishes to bring against the IPT’s decision. It is important to recognise, however, that this is no ‘run of the mill’ legal challenge. What the applicant seeks to argue, more particularly, is that the IPT has misconstrued the scope of power conferred by section 5(2) of the Intelligence Services Act 1994 and in doing so has wrongly concluded that the Secretary of State is authorised to issue highly general warrants. Against the background of the common law’s traditional antithesis to general warrants, as typified in such celebrated cases as Wilkes v Wood and Entick v Carrington, and the resurgence we have seen in the principle of legality in cases such as UNISON in recent years, it is somewhat surprising that this has not received more attention in the course of argument. It is interesting, for example, to postulate what the Supreme Court might make of an argument to the effect that, while section 67(8) may be effective in excluding many instances of judicial review, the presumption against general warrants is so firmly embedded in the common law that Parliament cannot be taken to have excluded the courts’ role in overseeing the use of warrants in the absence of explicit words to that effect.

The second special feature of the Privacy International litigation which potentially supplies the court with an avenue for concluding that the availability of judicial review falls somewhere between all or nothing concerns the power of the Secretary of State to make provision, by statutory order, for appeal from the IPT under section 67(8)-(9) of RIPA. The relevant parts of the provisions read as follows (emphasis added):

(8) Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to questioned in any court.

 (9) It shall be the duty of the Secretary of State to secure that there is at all times an order under subsection (8) in force allowing for an appeal to a court against any exercise by the Tribunal of their jurisdiction under section 65(2)(c) or (d).

As Sales LJ has explained in the Court of Appeal, these provisions serve to confer on the Secretary of State the power, and in relation to certain categories of case the duty, to put in place a Statutory Order making specific provision for appeals from the IPT. As Sales LJ pointed out ([11]) however ‘no such order has been made’ under section 67 to date.

This point has received relatively little attention in the course of the litigation to date which is, again, surprising. Sections (8) and (9) in particular appear to indicate that Parliament had a specific and narrow purpose in mind when it enacted the ouster clause in (8). Parliament’s aim, more particularly, seems evidently not to have been that of wholly immunising the IPT from judicial oversight of all kinds. On the contrary, Parliament quite clearly seems to have anticipated that at least sometimes there would be a route of upwards appeal from the IPT. In the course of passing RIPA itself, however, Parliament evidently felt unable to make specific provision for such a route of appeal. The reason for this, in all likelihood, was that Parliament believed that it might be proper for adjustments to the procedures of the ordinary courts to be made in some contexts but felt unable to work out the detail of the changes itself. Parliament’s preferred solution, accordingly, was to delegate the function of making provision for appeal to the Secretary of State. Against this background, the purpose of the ouster clause in (8) arguably becomes clear: the ouster was intended, not to immunise the IPT from judicial scrutiny of all kinds but simply to prevent challengers from being able to sidestep any special adjustments made to judicial procedure on appeal in an order made by the Secretary of State by proceeding against the IPT via an application for judicial review.

This understanding of the purpose of the ouster clause may be deeply important to the resolution of Privacy International. If the above is correct, more particularly, then it would seem to afford good reasons for reading the ouster clause as excluding certain iterations of judicial review. Had the Secretary of State, more particularly, enacted an order and stipulated for amendments to judicial procedure for the hearing of certain issues raised before the IPT it might be proper for a court to regard the ouster clause as excluding the possibility of an individual making use of the application for review procedure to circumvent those measures. Even in the context where no order had been made by the Secretary of State, (8) might be taken as denoting an intention on the part of Parliament that the judges ought not to afford oversight when their procedures are ill-suited to the resolution of the specific issues at hand. In a context, however, where both no order has been made and where there is no suggestion that the courts’ procedures are inappropriate for the resolution of the legal challenge in issue (of which Privacy International itself would seem to be one) it is far from clear that the rationale underlying the ouster clause necessitates that judicial review be excluded.  A focus on the purpose understanding, rather than the specific wording of, the ouster clause in (8), in other words, might lead the Supreme Court to the conclusion that its effectiveness is not all-or-nothing matter. The Supreme Court, rather, might be drawn to the view that the effectiveness of the ouster varies from case-to-case depending on the extent to which the Parliamentary purpose underlying it would be undermined by the court hearing the specific challenge the applicant seeks to bring to its attention.

Dr Joanna Bell is a Lecturer and Fellow at St John’s College, University of Cambridge.

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