Michaelmas Term [2009] UKSC 12 On appeal from: [2009] EWCA Civ 24


R (on the application of A) (Appellant) v B
Lord Phillips, President
Lord Hope, Deputy President
Lord Brown
Lord Mance
Lord Clarke
9 December 2009
Heard on 19 and 20 October 2009
Appellant Respondent
Gavin Millar QC Jonathan Crow QC
Guy Vassall-Adams Jason Coppel
(Instructed by Bindmans
(Instructed by Treasury
Intervener (Justice)
Lord Pannick QC
Tom Hickman
(Instructed by Freshfields
Bruckhaus Deringer LLP

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LORD BROWN, (with whom all members of the Court agree)
1. A is a former senior member of the Security Service, B its Director of
Establishments. A wants to publish a book about his work in the Security Service.
For this he needs B’s consent: unsurprisingly, A is bound by strict contractual
obligations as well as duties of confidentiality and statutory obligations under the
Official Secrets Act 1989. On 14 August 2007, after lengthy top secret
correspondence (and following final consideration by the Director General), B
refused to authorise publication of parts of the manuscript. The correspondence
(and annexures) described in detail the Security Services’s national security
objections to disclosure. On 13 November 2007 A commenced judicial review
proceedings to challenge B’s decision. He claims that it was unreasonable, vitiated
by bias and contrary to article 10 of the European Convention on Human Rights,
the right to freedom of expression. Is such a challenge, however, one that A can
bring in the courts or can it be brought only in the Investigatory Powers Tribunal
(the IPT)? That is the issue now before the Court and it is one which depends
principally upon the true construction of section 65(2)(a) of the Regulation of
Investigatory Powers Act 2000 (RIPA):
“(2) The jurisdiction of the Tribunal shall be –
(a) to be the only appropriate tribunal for the purposes of
section 7 of the Human Rights Act 1998 in relation to any
proceedings under subsection (1)(a) of that section
(proceedings for actions incompatible with Convention rights)
which fall within subsection (3) of this section;”
Subsection (3) provides that proceedings fall within this section if –
“(a) they are proceedings against any of the intelligence services;”
2. Collins J decided that the Administrative Court had jurisdiction to hear A’s
challenge: [2008] 4 All ER 511 (4 July 2008). The Court of Appeal (Laws and
Dyson LJJ, Rix LJ dissenting) reversed that decision, holding that exclusive
jurisdiction lies with the IPT: [2009] 3 WLR 717 (18 February 2009).
3. Before turning to the rival contentions it is convenient to set out the
legislative provisions most central to the arguments advanced. The Human Rights
Act 1998 (HRA) by section 7 provides:
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“(1) A person who claims that a public authority has acted (or
proposes to act) in a way which is made unlawful by section 6(1)
may –
(a) bring proceedings against the authority under this Act in the
appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal

but only if he is (or would be) a victim of the unlawful act.
(2) In subsection (1) (a) ‘appropriate court or tribunal’ means such
court or tribunal as may be determined in accordance with rules; and
proceedings against an authority include a counterclaim or similar
. . .
(9) In this section ‘rules’ means –
(a) in relation to proceedings before a court or tribunal outside
Scotland, rules made by . . . the Lord Chancellor or the Secretary of
State for the purposes of this section or rules of court.”
Pursuant to section 7(9), CPR 7.11 (introduced, like HRA, with effect from 2
October 2000) provides:
“(1) A claim under section 7(1)(a) of the Human Rights Act 1998 in
respect of a judicial act may be brought only in the High Court.
(2) Any other claim under section 7(1)(a) of that Act may be
brought in any court.”
4. The only tribunals upon whom section 7(1)(a) HRA jurisdiction has been
conferred by rules made under section 7(9) are the Special Immigration Appeals
Commission (SIAC) and the Proscribed Organisations Appeal Commission
(POAC) – not, contrary to the Court of Appeal’s understanding (see paras 20, 33
and 56 of the judgments below), the Employment Tribunal.
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5. I have already set out section 65(2)(a) of RIPA. Section 65(1) made
provision for the establishment of the IPT and schedule 3 to the Act provides for
its membership. Currently its President is Mummery LJ and its Vice-President,
Burton J. Section 67(2) provides:
“Where the tribunal hear any proceedings by virtue of section
65(2)(a), they shall apply the same principles for making their
determination in those proceedings as would be applied by a court on
an application for judicial review.”

Section 67(7) empowers the Tribunal “to make any such award of compensation or
other order as they think fit”. Section 67(8) provides:
“Except to such extent as the Secretary of State may by order
otherwise provide, 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.”
Section 68(1) provides:
“Subject to any rules made under section 69, the Tribunal shall be
entitled to determine their own procedure in relation to any
proceedings, complaint or reference brought before or made to
Section 68(4) provides:
“Where the Tribunal determine any proceedings, complaint or
reference brought before or made to them, they shall give notice to
the complainant which (subject to any rules made by virtue of
section 69(2)(i)) shall be confined, as the case may be, to either –
(a) a statement that they have made a determination in his
favour; or
(b) a statement that no determination has been made in his
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6. Section 69 confers on the Secretary of State the rule-making power
pursuant to which were made the Investigatory Powers Tribunal Rules 2000 (SI
No 2000/2665) (the Rules). Section 69(6) provides:
“In making rules under this section the Secretary of State shall have
regard, in particular, to –
(a) the need to secure that matters which are the subject of
proceedings, complaints or references brought before or made to the
Tribunal are properly heard and considered; and
(b) the need to secure that information is not disclosed to an
extent, or in a manner, that is contrary to the public interest or
prejudicial to national security, the prevention or detection of serious
crime, the economic well-being of the United Kingdom or the
continued discharge of the functions of any of the intelligence
7. Rule 13(2) provides that where the Tribunal make a determination in favour
of the complainant they shall provide him with a summary of that determination
including any findings of fact (to this extent qualifying section 68(4)(a) of the
Act). Rule 6(1) gives effect to section 69(6)(b) by providing that the Tribunal shall
carry out their functions in such a way as to meet the stipulated need with regard to
the non-disclosure of information. The effect of rules 6(2) and (3) is that, save with
the consent of those concerned, the Tribunal may not disclose to the complainant
or any other person any information or document disclosed or provided to them in
the course of any hearing or the identity of any witness at that hearing. Rule 9
provides that the Tribunal are under no duty to hold oral hearings and may hold
separate oral hearings for the complainant and the public authority against which
the proceedings are brought. Rule 9(6) provides that:
“The Tribunal’s proceedings, including any oral hearings, shall be
conducted in private.”
8. In Applications Nos. IPT/01/62 and IPT/01/77 (23 January 2003) the IPT
ruled on various preliminary issues of law regarding the legality of a number of the
rules. They held that rule 9(6) was ultra vires section 69 of RIPA as being
incompatible with article 6 of the Convention but that “in all other respects the
Rules are valid and binding on the Tribunal and are compatible with articles 6, 8
and 10 of the Convention” (para 12 of the IPT’s 83 page ruling which is itself the
subject of a pending application before the European Court of Human Rights
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(ECtHR)). Consequent on their ruling on rule 9(b) the IPT published the transcript
of the hearing in that case and now hear argument on points of law in open court.
9. A accepts that the legal challenge he is making to B’s decision is properly
to be characterised as proceedings under section 7(1)(a) of HRA within the
meaning of section 65(2)(a) of RIPA (and not, as he had argued before the judge at
first instance, that he should be regarded merely as relying on his article 10 rights
pursuant to section 7(1)(b) HRA), and that these are proceedings against one of the
Intelligence Services within the meaning of section 65(3)(a) (and not, as he had
argued before the Court of Appeal, against the Crown). He nevertheless submits
that he is not required by section 65(2)(a) to proceed before the IPT. His first and
main argument – the argument which prevailed before Collins J and was accepted
also by Rix LJ – is that he is entitled to proceed either by way of judicial review or
before the IPT, entirely at his own choice. Section 65(2)(a), he submits, excludes
the section 7(1)(a) jurisdiction of any other tribunal but not that of the courts. His
second and alternative argument (not advanced in either court below) is that, even
if section 65(2)(a) is to be construed as conferring exclusive section 7(1)(a)
jurisdiction on the IPT, it does so only in respect of proceedings against the
intelligence services arising out of the exercise of one of the investigatory powers
regulated by RIPA. This, of course, would involve narrowing the apparent width
of the expression “proceedings against any of the intelligence services” in section
65(3)(a) and, if correct, means that A here could not proceed before the IPT even if
he wished to do so.
10. Justice have intervened in the appeal in support of A’s submissions. Like A,
they urge us to adopt as narrow a construction of section 65 as possible, first, so as
not to exclude the jurisdiction of the ordinary courts and, secondly, to avoid a
construction which they submit will inevitably give rise to breaches of other
Convention rights, most notably the article 6 right to a fair hearing.
Argument 1 – Section 65(2)(a) excludes only the jurisdiction of other tribunals
11. This argument focuses principally upon the use of the word “tribunal” in the
expression “only appropriate tribunal” in section 65(2)(a). A says it that it means
tribunals only and not courts; B says that it encompasses both. A says that if it was
intended to exclude courts as well as tribunals it would have used the same
expression, “the appropriate forum”, as was used in section 65(2)(b), 65(4) and
65(4A) of RIPA. B points out that those three provisions all deal with
“complaints”, for which provision had originally been made in the Security
Service Act 1989 and the Intelligence Services Act 1994 and which are not the
same as legal claims, “forum” being, therefore, a more appropriate term to
describe the venue for their resolution.
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12. Plainly the word “tribunal”, depending on the context, can apply either to
tribunals in contradistinction to courts or to both tribunals and courts. As B points
out, section 195(1) of the Extradition Act 2003 describes “the appropriate judge”
(a designated District Judge) as “the only appropriate tribunal” in relation to
section 7(1)(a) HRA proceedings. So too section 11 of the Prevention of Terrorism
Act 2005 describes “the court” (as thereafter defined) as “the appropriate tribunal
for the purposes of section 7 of the Human Rights Act”.
13. Section 7(2) of HRA itself appears to require that a court or tribunal is
designated as the “appropriate court or tribunal”, not that both are designated.
Couple with that the use of the word “only” before the phrase “appropriate
tribunal” in section 65 and it seems to me distinctly unlikely that Parliament was
intending to leave it to the complainant to choose for himself whether to bring his
proceedings in court or before the IPT.
14. There are, moreover, powerful other pointers in the same direction.
Principal amongst these is the self-evident need to safeguard the secrecy and
security of sensitive intelligence material, not least with regard to the working of
the intelligence services. It is to this end, and to protect the “neither confirm nor
deny” policy (equally obviously essential to the effective working of the services),
that the Rules are as restrictive as they are regarding the closed nature of the IPT’s
hearings and the limited disclosure of information to the complainant (both before
and after the IPT’s determination). There are, however, a number of
counterbalancing provisions both in RIPA and the Rules to ensure that proceedings
before the IPT are (in the words of section 69(6)(a)) “properly heard and
considered”. Section 68(6) imposes on all who hold office under the Crown and
many others too the widest possible duties to provide information and documents
to the IPT as they may require. Public interest immunity could never be invoked
against such a requirement. So too sections 57(3) and 59(3) impose respectively
upon the Interception of Communications Commissioner and the Intelligence
Services Commissioner duties to give the IPT “all such assistance” as it may
require. Section 18(1)(c) disapplies the otherwise highly restrictive effect of
section 17 (regarding the existence and use of intercept material) in the case of IPT
proceedings. And rule 11(1) allows the IPT to “receive evidence in any form, and
[to] receive evidence that would not be admissible in a court of law.” All these
provisions in their various ways are designed to ensure that, even in the most
sensitive of intelligence cases, disputes can be properly determined. None of them
are available in the courts. This was the point that so strongly attracted Dyson LJ
in favour of B’s case in the court below. As he pithily put it at [2009] 3 WLR 717,
para 48:
“It seems to me to be inherently unlikely that Parliament intended to
create an elaborate set of rules to govern proceedings against an
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intelligence service under section 7 of the 1998 Act in the IPT and
yet contemplated that such proceedings might be brought before the
courts without any rules.”
15. A further telling consideration against the contention that section 65(2)(a) is
intended only to exclude other tribunals with jurisdiction to consider section
7(1)(a) HRA claims is that there are in fact none such with section 7(1)(a)
jurisdiction over the categories of claim listed in section 65(3). As stated (at para 4
above), only SIAC and POAC have section 7(1)(a) jurisdiction and in each
instance that is with regard to matters outside the scope of section 65. The Court of
Appeal were under the misapprehension that the Employment Tribunal too had
section 7(1)(a) jurisdiction and were accordingly mistaken in supposing, as Rix LJ
put it at para 33, that “[t]herefore, section 65(2)(a) of the 2000 Act has content as
referring to the IPT as ‘the only appropriate tribunal’”.
16. In the light of these various considerations it is hardly surprising that A
himself recognises that this construction produces “a slightly unsatisfactory
legislative outcome”, although he submits that “this is a small price to pay for
protecting the article 6 rights of claimants and respecting the principle that access
to the courts should not be denied save by clear words”, a submission to which I
shall come after considering A’s alternative contended-for construction.
Argument 2 – Section 65(2)(a) confers exclusive jurisdiction on the IPT but only in
respect of proceedings arising out of the exercise of one of the RIPA regulated
investigatory powers
17. Although this was not an argument advanced at any stage below, I confess
to having been attracted to it for a while. After all, in enacting RIPA, Parliament
must have had principally in mind the use and abuse of the particular investigatory
powers regulated by the Act and there would not appear to be the same need for
secrecy, the withholding of information and the “neither confirm nor deny” policy
in the case of an ex-officer as in the case of someone outside the intelligence
18. The difficulties of such a construction, however, are obvious and in the end,
to my mind, insurmountable. As already observed, it would involve reading into
section 65(3)(a) limiting words which are simply not there. This would be difficult
enough at the best of times. Given, however, that other paragraphs of section 65(3)
are in fact more obviously directed to complaints of abuse of the intelligence
services’ regulatory powers (see particularly section 65(3)(d) read with sections
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65(5)(a) and 65(7), none of which I have thought it necessary to set out), it seems
to me quite impossible to construe the section as this argument invites us to do.
19. Nor, indeed, on reflection, does it seem right to regard proceedings of the
kind intended here as immune from much the same requirement for non-disclosure
of information as other proceedings against the intelligence services. As B points
out, it is perfectly possible that the security service will ask the tribunal hearing
this dispute to consider additional material of which A may be unaware (and of
which the security service is properly concerned that he should remain unaware)
which leads it to believe that the publication of A’s manuscript would be harmful
to national security. On any view, moreover, the proceedings by which any
tribunal comes to determine whether the disputed parts of the manuscript can
safely be published would have to be heard in secret. Again, therefore, the
existence of the IPT Rules designed to provide for just such proceedings and the
lack of any equivalent rules available to the courts points strongly against this
alternative construction also.
20. Are there, however, sufficiently strong arguments available to A (and
Justice) to compel the court, with or without resort to section 3 of HRA, to adopt a
contrary construction of section 65? It is convenient to consider these arguments
under three broad heads.
i. Ouster
21. A and Justice argue that to construe section 65 as conferring exclusive
jurisdiction on the IPT constitutes an ouster of the ordinary jurisdiction of the
courts and is constitutionally objectionable on that ground. They pray in aid two
decisions of high authority: Pyx Granite Co Ltd v Ministry of Housing and Local
Government [1960] AC 260 and Anisminic Ltd v Foreign Compensation
Commission [1969] 2 AC 147. To my mind, however, the argument is
unsustainable. In the first place, it is evident, as the majority of the Court of
Appeal pointed out, that the relevant provisions of RIPA, HRA and the CPR all
came into force at the same time as part of a single legislative scheme. With effect
from 2 October 2000 section 7(1)(a) HRA jurisdiction came into existence (i) in
respect of section 65(3) proceedings in the IPT pursuant to section 65(2)(a), and
(ii) in respect of any other section 7(1)(a) HRA proceedings in the courts pursuant
to section 7(9) and CPR 7.11. True it is, as Rix LJ observed, that CPR 7.11(2) does
not explicitly recognise the exception to its apparent width represented by section
65(2)(a). But that is not to say that section 65(2)(a) ousts some pre-existing right.
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22. This case, in short, falls within the principle recognised by the House of
Lords in Barraclough v Brown [1897] AC 615 – where, as Lord Watson said at p
622: “The right and the remedy are given uno flatu, and the one cannot be
dissociated from the other.” – rather than the principle for which Pyx Granite
stands (p 286):
“It is a principle not by any means to be whittled down that the
subject’s recourse to Her Majesty’s courts for the determination of
his rights is not to be excluded except by clear words.”
Distinguishing Barraclough v Brown, Viscount Simonds pointed out that the
statute there in question could be construed as merely providing an alternative
means of determining whether or not the company had a pre-existing common law
right to develop their land; it did not take away “the inalienable remedy . . . to seek
redress in [the courts]”. Before 2 October 2000 there was, of course, no preexisting common law or statutory right to bring a claim based on an asserted
breach of the Convention. Section 65(2)(a) takes away no “inalienable remedy”.
23. Nor does Anisminic assist A. The ouster clause there under consideration
purported to remove any judicial supervision of a determination by an inferior
tribunal as to its own jurisdiction. Section 65(2)(a) does no such thing. Parliament
has not ousted judicial scrutiny of the acts of the intelligence services; it has
simply allocated that scrutiny (as to section 7(1)(a) HRA proceedings) to the IPT.
Furthermore, as Laws LJ observed at para 22:
“[S]tatutory measures which confide the jurisdiction to a judicial
body of like standing and authority to that of the High Court, but
which operates subject to special procedures apt for the subject
matter in hand, may well be constitutionally inoffensive. The IPT . . .
offers . . . no cause for concern on this score.”
True it is that section 67(8) of RIPA constitutes an ouster (and, indeed, unlike that
in Anisminic, an unambiguous ouster) of any jurisdiction of the courts over the
IPT. But that is not the provision in question here and in any event, as A
recognises, there is no constitutional (or article 6) requirement for any right of
appeal from an appropriate tribunal.
24. The position here is analogous to that in Farley v Secretary of State for
Work and Pensions (No. 2) [2006] 1 WLR 1817 where the statutory provision in
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question provided that, on an application by the Secretary of State for a liability
order in respect of a person liable to pay child support, “the court . . . shall not
question the maintenance assesment under which the payments of child support
maintenance fall to be made.” Lord Nicholls, with whom the other members of the
Committee agreed, observed, at para 18:
“The need for a strict approach to the interpretation of an ouster
provision . . . was famously confirmed in the leading case of
Anisminic . . . This strict approach, however, is not appropriate if an
effective means of challenging the validity of a maintenance
assessment is provided elsewhere. Then section 33(4) is not an
ouster provision. Rather, it is part of a statutory scheme which
allocates jurisdiction to determine the validity of an assessment and
decide whether the defendant is a ‘liable person’ to a court other than
the magistrates’ court.”
ii. Convention rights
25. A and Justice submit that to force this article 10 challenge into the IPT
would inevitably result in breaches of article 6. In support of this submission they
rely principally upon the following features of the IPT’s procedures: first, that the
entire hearing (save for purely legal argument) will be not only private but secret,
indeed claimants may not even be told whether a hearing has been or will be held;
secondly, that the submissions and evidence relied on respectively by the claimant
and the respondent may be considered at separate hearings; thirdly, that only with
the respondent’s consent will the claimant be informed of the opposing case or
given access to any of the respondent’s evidence; fourthly, that no reasons will be
given for any adverse determination. All of this, runs the argument, is flatly
contrary to the basic principles of open justice: that there should be a public
hearing at which the parties have a proper opportunity to challenge the opposing
case and after which they will learn the reasons for an adverse determination.
26. As, however, already explained (at para 14), claims against the intelligence
services inevitably raise special problems and simply cannot be dealt with in the
same way as other claims. This, indeed, has long since been recognised both
domestically and in Strasbourg. It is sufficient for present purposes to cite a single
paragraph from the speech of Lord Bingham of Cornhill in R v Shayler [2003] 1
AC 247, para 26 (another case raising article 10 considerations):
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“The need to preserve the secrecy of information relating to
intelligence and military operations in order to counter terrorism,
criminal activity, hostile activity and subversion has been recognised
by the European Commission and the Court in relation to complaints
made under article 10 and other articles under the Convention: see
Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 100-103;
Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 48;
Leander v Sweden (1987) 9 EHRR 433, para 59; Hadjianastassiou v
Greece (1992) 16 EHRR 219, paras 45-47; Esbester v United
Kingdom (1993) 18 EHRR CD 72, 74; Brind v United Kingdom
(1994) 18 EHRR CD 76, 83-84; Murray v United Kingdom (1994)
19 EHRR 193, para 58; Vereniging Weekblad Bluf! v The
Netherlands (1995) 20 EHRR 189, paras 35, 40. The thrust of these
decisions and judgments has not been to discount or disparage the
need for strict and enforceable rules but to insist on adequate
safeguards to ensure that the restriction does not exceed what is
necessary to achieve the end in question. The acid test is whether, in
all the circumstances, the interference with the individual’s
Convention right prescribed by national law is greater than is
required to meet the legitimate object which the state seeks to
achieve. The OSA 1989, as it applies to the appellant, must be
considered in that context.”
27. In one of the Strasbourg cases there referred to, Esbester v United Kingdom,
and indeed in a series of other cases brought against the UK at about the same
time, the Strasbourg Commission rejected complaints as to the form of
proceedings adopted by the Security Service Tribunal and the Interception of
Communications Tribunal, not least as to the absence of a reasoned determination.
28. I acknowledge that later in his opinion in Shayler (at para 31) Lord
Bingham, contemplating the possibility that authority to publish might have been
refused without adequate justification (or at any rate where the former member
firmly believed that no adequate justification existed), said:
“In this situation the former member is entitled to seek judicial
review of the decision to refuse, a course which the OSA 1989 does
not seek to inhibit.”
In that case, however, the disclosures had been made before the enactment of
RIPA and the creation of the IPT and it is plain that the House had not been
referred to section 65(2)(a), still less had had occasion to consider its scope. It
cannot sensibly be supposed that the case would have been decided any differently
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had it been recognised that after 2 October 2000 such a challenge would have had
to be brought before the IPT.
29. Admittedly the Esbester line of cases were decided in the context of article
8 (rather than article 10) and, understandably, Strasbourg attaches particular
weight to the right to freedom of expression. Neither A nor Justice, however, were
able to show us any successful article 10 cases involving national security
considerations save only for Sunday Times v UK (No. 2) (1991) 14 EHRR 229
(Spycatcher) where, of course, the disputed material was already in the public
30. For my part I am wholly unpersuaded that the hearing of A’s complaint in
the IPT will necessarily involve a breach of article 6. There is some measure of
flexibility in the IPT’s rules such as allows it to adapt its procedures to provide as
much information to the complainant as possible consistently with national
security interests. In any event, of course, through his lengthy exchanges with B, A
has learned in some detail why objections to publication remain. Article 6
complaints fall to be judged in the light of all the circumstances of the case. We
would, it seems to me, be going further than the Strasbourg jurisprudence has yet
gone were we to hold in the abstract that the IPT procedures are necessarily
incompatible with article 6(1). Consistently with the well known rulings of the
House of Lords in R (Ullah) v Special Adjudicator [2004] 2 AC 323 para 20 and R
(Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153 paras 105, 106, I
would decline to do so, particularly since, as already mentioned, the IPT’s own
decision on its rules is shortly to be considered by the ECtHR.
31. Over and above all this is the further and fundamental consideration, that
even if the IPT’s Rules and procedures are in any way incompatible with article 6,
the remedy for that lies rather in their modification than in some artificially limited
construction of the IPT’s jurisdiction. It is, indeed, difficult to understand which of
the appellant’s contended-for constructions is said to be advanced by this
submission. On any view the IPT has some jurisdiction. Yet the argument involves
a root and branch challenge to its procedures in all cases.
iii. Anomalies
32. The Court of Appeal’s construction of section 65(2)(a) is said to give rise to
a number of anomalies. Under this head I shall touch too upon certain other points
advanced variously by A and Justice.
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33. The first anomaly is said to be that while section 7(1)(a) HRA proceedings
have to be brought before the IPT, other causes of action or public law grounds for
judicial review need not. This point troubled Rix LJ who asked ([2009] 3WLR
717, para 39): “what is so special about section 7 proceedings under the 1998 Act
against the intelligence services . . .?” The answer surely is that such claims are the
most likely to require a penetrating examination of the justification for the
intelligence services’ actions and, therefore, close scrutiny of sensitive material
and operational judgment. But it may well be (as, indeed, Rix LJ foresaw) that
section 65(2)(d) of RIPA will be brought into force so that the Secretary of State
can allocate other proceedings too exclusively to the IPT. Meantime, subject
always to the court’s abuse of process jurisdiction and the exercise of its discretion
in public law cases, proceedings outside section 7(1)(a) can still be brought in the
courts so that full effect is given to the preservation of such rights by section 11 of
34. It is similarly said to be anomalous that whereas A, responsibly seeking
prior clearance for the publication of his manuscript, is driven into the IPT,
someone in a similar position, although perhaps facing injunctive proceedings for
having sought to publish without permission, would be entitled pursuant to section
7(1)(b) HRA to rely in those ordinary court proceedings on their article 10 rights.
Whilst I readily see the force of this, the answer to it may be that defences were
not sufficiently thought through at the time of this legislation and that more, rather
than fewer, proceedings involving the intelligence services should be allocated
exclusively to the IPT.
35. A further anomaly is said to be that Special Branch police officers and
Ministry of Defence special forces may well carry out work of comparable
sensitivity to that undertaken by the intelligence services and yet section 7(1)(a)
HRA claims brought against them would proceed in the ordinary courts and not in
the IPT. Part of the answer to this is to be found in “the special position of those
employed in the security and intelligence services, and the special nature of the
work they carry out” (Lord Bingham’s opinion in Shayler at para 36); the rest in
the same response as to the earlier points: perhaps the IPT’s exclusive jurisdiction
should be widened.
36. Sitting a little uneasily alongside the last suggested anomaly is the
contention that section 65(2)(a) vests in the IPT exclusive jurisdiction over various
kinds of proceedings against people quite other than the intelligence services
which may involve little if anything in the way of sensitive material – for example,
pursuant to section 65(3)(c), proceedings under section 55(4) of RIPA with regard
to accessing encrypted data. Whatever view one takes about this, however, it is
impossible to see how it supports either of the alternative constructions of section
65 for which A contends.
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37. In short, none of the suggested anomalies resulting from the Court of
Appeal’s construction seems to me to cast the least doubt on its correctness let
alone to compel some strained alternative construction of the section.
38. I see no reason to doubt that the IPT is well able to give full consideration
to this dispute about the publication of A’s manuscript and, adjusting the
procedures as necessary, to resolve it justly. Quite why A appears more concerned
than B about the lack of any subsequent right of appeal is difficult to understand.
Either way, Parliament has dictated that the IPT has exclusive and final
jurisdiction in the matter. I would dismiss the appeal.
39. I agree with Lord Brown’s opinion. I wish only to add a few brief footnotes.
The Rules
40. As Lord Brown has explained (see para 14, above), among the factors that
reinforce the conclusion that is to be drawn from the terms of the statute that
Parliament did not intend to leave it to the complainant to choose for himself
whether to bring his proceedings in a court or before the IPT are the provisions
that RIPA contains about the rules that may be made under it. In Hanlon v The
Law Society [1981] AC 124, 193-194 Lord Lowry set out the circumstances in
which a regulation made under a statutory power was admissible for the purpose of
construing the statute under which it was made. The use of the rules themselves as
an aid to construction, in addition to what RIPA itself says about them, needs
however to be treated with some care.
41. In Deposit Protection Board v Dalia [1994] 2 AC 367 the issue was as to
the meaning of the word “depositor”, and the regulations that were prayed in aid
were made four years after the date of the enactment. At p 397 Lord BrowneWilkinson said that regulations could only be used an aid to construction where the
regulations are roughly contemporaneous with the Act being construed. In Dimond
v Lovell [2000] QB 216, para 48 Sir Richard Scott VC said that he did not think
that the content of regulations which postdated the Consumer Credit Act 1974 by
some nine years could be taken to be a guide to what Parliament intended by the
language used in the Act. One must also bear in mind, as Lord Lowry said in
Hanlon at p 193-194, that regulations cannot be said to control the meaning of the
Act, as that would be to disregard the role of the court as interpreter.
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42. In this case the statute received the Royal Assent on 28 July 2000. The
Investigatory Powers Tribunal Rules 2000 (SI 2000/2665) were made on 28
September 2000 and laid before Parliament the next day. The interval was so short
that, taken together, they can be regarded as all part of same legislative exercise.
But, as Mr Crow QC for B submitted, it is not the content of the rules as such that
matters here. Rather it is the fact that the Act itself put a specialist regime in place
to ensure that the IPT was properly equipped to deal with sensitive intelligence
material. Section 68(4) of RIPA limits the information that the Tribunal may give
to a complainant where they determine any complaint brought before them to a
statement that a determination either has been or has not been made in the
complainant’s favour. Section 69(4) states that the Secretary of State’s power to
make rules under that section includes power to make rules that limit the
information that is given to the complainant and the extent of his participation in
the proceedings. Section 69(6)(b) states that in making rules under that section the
Secretary of State shall have regard in particular to the need to secure that
information is not disclosed to an extent that is contrary to the public interest or
prejudicial to national security.
43. The fact that this regime was so carefully designed to protect the public
interest by the scheme that is set out in the statute is in itself a strong pointer to the
conclusion that Parliament did not intend by section 65(2)(a) that the jurisdiction
of the IPT in relation to claims of the kind that A seeks to bring in this case was to
be optional. I do not think that it is necessary to go further and look at the Rules
themselves, as the indication that the statute itself gives is so clear on this point.
44. Although he adopted a different stance before Collins J, as the judge
recorded in para 20 of his opinion [2008] EWHC 1512 (Admin), A now accepts
that the legal challenge that he is making to B’s decision is properly to be
characterised as proceedings under section 7(1)(a) of the Human Rights Act 1998
and not under section 7(1)(b) of that Act. Section 7(1)(a) of the 1998 Act provides
that a person who claims that a public authority has acted (or proposes to act) in a
way which is made unlawful by section 6(1) may “bring proceedings against the
authority under this Act in the appropriate court of tribunal”. Section 7(1)(b)
provides, in the alternative, that he may “rely on the Convention right or rights
concerned in any legal proceedings”.
45. As Clayton & Tomlinson, The Law of Human Rights, 2nd ed (2009), para
22.03, puts it:
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“This section contemplates two ways in which a person may advance
a contention that a public authority has acted in a way which is
incompatible with his Convention rights: either by making a free
standing claim based on a Convention right in accordance with
section 7(1)(a) or by relying on a Convention right in proceedings in
accordance with section 7(1)(b).”
In R v Kansal (No 2) [2002] 2 AC 69, 105-106 I said that section 7(1)(a) and
section 7(1)(b) are designed to provide two quite different remedies. Section
7(1)(a) enables the victim of the unlawful act to bring proceedings under the Act
against the authority. It is intended to cater for free-standing claims made under the
Act where there are no other proceedings in which the claim can be made. It does
not apply where the victim wishes to rely on his Convention rights in existing
proceedings which have been brought against him by a public authority. His
remedy in those proceedings is that provided by section 7(1)(b), which is not
subject to the time limit on proceedings under section 7(1)(a) prescribed by section
7(5); see also Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, para 90.
The purpose of section 7(1)(b) is to enable persons against whom proceedings
have been brought by a public authority to rely on the Convention rights for their
46. The fact that section 65(2)(a) requires proceedings under section 7(1)(a) to
be brought before the IPT, while relying on section 7(1)(b) was not subject to this
requirement, was said by Mr Millar QC to be anomalous. Why, he said, should a
claim be so restricted when a defence relying on Convention rights to injunctive
proceedings by a public authority, or a counterclaim, was not? I am reluctant to
conclude that the omission of a reference to section 7(1)(b) was due to an
oversight, and I do not think that when regard is had to the purpose of these
provisions there is any anomaly.
47. I would reject the suggestion that a counterclaim against a public authority
on the ground that it has acted (or proposes to act) in a way that is made unlawful
under section 6(1) of the 1998 Act should be regarded as having been made under
section 7(1)(b). This issue is not to be resolved by reference to the procedural route
by which the claim is made but by reference to the substance of the claim. A
counterclaim against a public authority for a breach of Convention rights is to be
treated as a claim for the purposes of section 7(1)(a): see section 7(2) which states
that proceedings against an authority include a counterclaim or similar
proceedings. It will be subject to the time limit on proceedings under that provision
in section 7(5).
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48. As for defences, the scheme of the 1998 Act is that a person who is (or
would be) a victim of an act that it is made unlawful by section 6(1) because the
public authority has acted (or proposes to act) in that way is entitled to raise that
issue as a defence in any legal proceedings that may be brought against him.
Section 7(1)(b) contemplates proceedings in which it would be open to the court or
tribunal to grant relief against the public authority on grounds relating to a breach
of the person’s Convention rights, such as those guaranteed by article 6. The scope
for inquiry is relatively limited in comparison with that which may be opened up
by a claim made under section 7(1)(a).
49. It is possible, however, to envisage a situation in which a defence to an
application for injunctive relief by the intelligence services would open up for
inquiry issues of the kind that section 65(2)(a) of RIPA reserves for determination
by the IPT if they were to be subject of a claim under section 7(1)(a), the
disclosure of which would be contrary to the public interest or prejudicial to
national security. It is true that the legislation does not address this problem,
perhaps because it was thought inappropriate to reserve to the IPT proceedings that
were initiated by and in the control of the intelligence services or any other person
in respect of conduct on their behalf. But the situation that this reveals is, I think,
properly to be regarded as a product of the way the legislative scheme itself was
framed. It does not provide a sound reason for thinking that Parliament intended to
leave it to the complainant to choose whether to bring his proceedings in a court
rather than before the IPT.
50. Like Lord Brown, I can find nothing in this alleged anomaly, or in any of
the others that have been suggested, that supports the construction of section
65(2)(a) for which A contends.