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R (Privacy International) v Investigatory Powers Tribunal [2019]

R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22 is a significant decision in UK constitutional and administrative law, especially concerning the extent to which the jurisdiction of the High Court can be excluded by statute.


The background to the appeal involves the Investigatory Powers Tribunal (IPT), which is a specialist tribunal established under the Regulation of Investigatory Powers Act 2000 (RIPA) to oversee the conduct of various UK intelligence services. The central legal issue arose from the IPT's interpretation of the Intelligence Services Act 1994 regarding the scope of thematic warrants, and whether its decisions, particularly errors of law, are immune from judicial review due to a statutory provision in RIPA.


The Supreme Court's decision allowed the appeal by a majority, holding that Section 67(8) of RIPA does not exclude the High Court's supervisory jurisdiction over errors of law made by the IPT. The judgment by Lord Carnwath emphasised the principle that legal determinations by any body, including the IPT, must be valid and not vitiated by errors of law to be beyond judicial review. By extension, decisions of public bodies that are made as a result of an error of law cannot be excluded from judicial review, even when there are ouster clauses that clearly reflect the intention of Parliament. This interpretation is supported by historical legal precedents that consistently limit statutory exclusions of judicial oversight unless explicitly stated by Parliament.


Lord Carnwath's judgment was buttressed by references to the Anisminic case, where it was established that erroneous decisions that are legally invalid are no decisions at all. This case illustrates the delicate balance between the powers conferred on tribunals and the overarching supervisory role of the judiciary, affirming that not even Parliament's express intentions can completely oust judicial review of administrative decisions on matters of law.


Dissenting opinions, such as those from Lord Sumption and Lord Wilson, argued that Section 67(8) should be read as excluding High Court jurisdiction over IPT decisions on substantive merits, not just procedural or jurisdictional errors. Their arguments reflected a broader interpretation of legislative intent and the judicial character of the IPT, suggesting that the IPT’s decisions should stand unless they fall outside the reasonable bounds of its jurisdiction.


Moreover, this case also touched upon the broader constitutional question of whether and how Parliament can limit the supervisory jurisdiction of the courts. This discussion is pivotal in understanding the separation of powers and the checks and balances essential to the UK’s legal framework. The majority’s view reinforces the principle that such limitations must be clear and unequivocal, and even then, they are interpreted narrowly to preserve judicial oversight over administrative actions.


This decision not only impacts the functioning of the IPT but also sets a precedent regarding the extent to which statutory bodies can be insulated from judicial review, highlighting the fundamental role of the judiciary in safeguarding the rule of law against potentially expansive interpretations of statutory powers.


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