Spy court challenge succeeds

The Supreme Court has held that rulings of the secretive Investigatory Powers Tribunal (IPT) can be challenged.

The IPT rules on legal cases involving surveillance by MI5, MI6, GCHQ, and has so far been immune from challenge due to an ‘ouster’ clause, s 67(8) of the Regulation of Investigatory Powers Act (RIPA) 2000, which states that IPT decisions ‘shall not be subject to appeal or be liable to be questioned in any court’.

R (Privacy International) v Investigatory Powers Tribunal & Ors [2019] UKSC 22 arose from an IPT decision in 2016 that the government can lawfully use a single warrant signed off by a minister to hack thousands of mobile phones and other devices in a UK city without a judge’s approval or reasonable grounds of suspicion. Civil rights group Privacy International challenged the IPT’s decision before the High Court by seeking a judicial review.

The government argued that, even if the IPT was wrong, the High Court had no power to correct the mistake.

However, this argument was rejected by five of the seven Supreme Court Justices hearing the case, and Privacy International says it will now proceed with the judicial review.

Giving the lead judgment, Lord Carnwath said: ‘The legal issue decided by the IPT is not only one of general public importance, but also has possible implications for legal rights and remedies going beyond the scope of the IPT’s remit.

‘Consistent application of the rule of law requires such an issue to be susceptible in appropriate cases to review by ordinary courts.’

He said the common law has a strong presumption against ‘ouster’ clauses.

Caroline Wilson Palow, Privacy International's general counsel, said the judgment ‘is a historic victory for the rule of law.

‘It ensures that the UK intelligence agencies are subject to oversight by the ordinary UK courts. Countries around the world are currently grappling with serious questions regarding what power should reside in each branch of government.

‘[This] ruling is a welcome precedent for all of those countries, striking a reasonable balance between executive, legislative and judicial power.’

The use of UK security and intelligence services of bulk hacking techniques came to light in 2014, following the disclosures of US whistleblower Edward Snowden.