Members of 39 Essex Chambers in Landmark Constitutional Case

Last week, the Supreme Court handed down judgment in R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents) [2019] UKSC 22. The case concerned two primary issues: whether s. 67(8) of the Regulation of Investigatory Powers Act 2000 ('RIPA') was effective to oust the High Court's supervisory jurisdiction over decisions made by the Investigatory Powers Tribunal ('IPT') and whether Parliament was in fact able to legislate to oust the High Court supervisory jurisdiction over a decision of an inferior court or tribunal of limited statutory jurisdiction.

The Supreme Court ruled (a majority of Lady Hale, Lord Kerr, Lord Carnwath and Lord Lloyd-Jones) that s.67(8) was insufficiently clear in its formulation to exclude judicial review (per Lord Carnwath at [111] and Lord Lloyd-Jones at [167]).

Lord Sumption (with Lord Reed agreeing) dissented (Lord Wilson also dissented in a separate speech). Lord Sumption found that the words in s. 67(8) did exclude the jurisdiction of the High Court and that (at 172):

'the purpose of judicial review is to maintain the rule of law. But the rule of law is sufficiently vindicated by the judicial character of the Tribunal. It does not require a right of appeal from the decisions of a judicial body of this kind. For this reason section 67(8) is not an ouster of any jurisdiction which constitutional principle requires the High Court to have'

As to the second issue, Lord Carnwath noted (with Lady Hale and Lord Kerr agreeing but Lord Lloyd-Jones deciding not to comment on the second issue) that (at 144):

'although it is not necessary to decide the point, I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law'

The Interested Parties were represented by Sir James Eadie QC, Kate Grange QC, Catherine Dobson and James Bradford.

The judgment can be found here.