Government security decisions will in future be open to challenge in the courts after judges ruled that a secretive intelligence tribunal could not be exempt from legal action.
By a 4-3 majority, supreme court justices declared that the extent of GCHQ’s powers to hack into internet services should be subject to judicial review.
The judgment, in effect integrating the investigatory powers tribunal (IPT) into the existing hierarchy of court appeals, was welcomed by human rights groups as a victory for the rule of law.
Lord Carnwath, who delivered the majority judgment, said: “It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.”
He added: “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.”
The IPT, which conducts a significant part of its hearings behind closed doors, deals with complaints about the way MI5, MI6, GCHQ and the police exercise their security and surveillance powers. The government argued that the tribunal’s decisions could not be appealed against in the high court.
The case before the supreme court concerned a 2016 ruling by the IPT in which it declared that the hacking of computers, networks and smartphones in the UK or abroad by GCHQ staff did not breach human rights.
Computer network exploitation (CNE), the term used by intelligence agencies to describe hacking, may involve obtaining data as well as remotely activating microphones and cameras on electronic devices without the owners’ knowledge.
Privacy International, supported by Liberty, appealed against the IPT decision but lost in both the high court and the court of appeal. The supreme court has now reversed those decisions, finding in favour of the civil rights organisations.
Caroline Wilson Palow, Privacy International’s general counsel, said it was an “historic victory for the rule of law”. She added: “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. Today’s ruling is a welcome precedent for all of those countries, striking a reasonable balance between executive, legislative and judicial power.
“It paves the way for Privacy International’s challenge to the UK government’s use of bulk computer hacking warrants. Our challenge has been delayed for years by the government’s persistent attempt to protect the IPT’s decisions from scrutiny. We are heartened that our case will now go forward.”
Simon Creighton, of Bhatt Murphy Solicitors, which acted for Privacy International, said security concerns should not be allowed to override the rule of law. He said: “Secretive national security tribunals are no exception. The supreme court was concerned that no tribunal, however eminent its judges, should be able to develop its own ‘local law’. Today’s decision welcomes the IPT back from its legal island into the mainstream of British law.”
Megan Goulding, a lawyer at Liberty, said: “Putting oversight of the intelligence agencies … beyond the review of ordinary courts, is not just undemocratic, but a sinister attempt to reduce the safeguards that protect our rights.
“All state bodies, particularly those with the powers available to intelligence agencies, must be accountable, and subject to the highest levels of scrutiny to ensure that they are not above the law. And of course the IPT itself must be held to account in its decision making, given the importance of its role.”
But Professor Richard Ekins, of Oxford University who is head of the Judicial Power Project at the Policy Exchange thinktank, warned that the supreme court ruling “violated the sovereignty of parliament”. He said: “A majority of the court – four of seven judges – has chosen to misinterpret an ouster clause – the statutory provision which expressly limits the high court’s jurisdiction to review decisions of the Investigatory Powers Tribunal.
“Parliament chose to limit judicial review by creating a specialist tribunal to consider complaints against the intelligence services. It is not the supreme court’s place to unravel this choice by way of implausible and unreasonable statutory interpretation. To their credit, the three dissenting judges recognised this and would have given effect to parliament’s authoritative choice.”
‘Three of the four judges in the majority also “asserted an intention in the future openly to disobey statute”, he added, and “Any judge who acted on this intention would warrant removal from office in accordance with the terms of the Senior Courts Act 1981”.’
• This article was amended on 17 May 2019 to quote further from Professor Ekins in order to provide more context to his remarks.
