Supreme Court rules surveillance tribunal decisions must be subject to High Court review, following Liberty intervention

• Parliament cannot put decisions of the Investigatory Powers Tribunal beyond the oversight of the High Court
• Liberty intervention helps ensure hugely important court decisions on surveillance and intelligence agencies can be challenged

The Supreme Court has this morning ruled that decisions of the Investigatory Powers Tribunal (IPT) – the court which hears cases on surveillance and the actions of the intelligence agencies – cannot be exempt from judicial review by the High Court.

Privacy International (PI) sought to issue a judicial review of a 2014 IPT decision over Government hacking, but this was stalled when the High Court ruled that the IPT could not be subject to judicial review. PI sought to overturn this decision and the Government has fought them at each step.

Liberty intervened on the grounds that, given the extremely broad range of important cases on surveillance and the intelligence agencies the IPT hears – potentially impacting many people – it would be wrong for ordinary courts to be unable to correct any errors that the IPT makes in its decisions.

The Court agreed that there was a need to make sure the IPT could not make law that was unreviewable by ordinary courts.

The Court also agreed with Liberty and rejected the government’s argument that only the IPT can hear cases related to surveillance and the intelligence agencies due to the need to keep information secret. Proceedings in ordinary courts can – if needed – be used to protect sensitive information, the Court ruled.

Megan Goulding, Lawyer at Liberty, said: “Putting oversight of the intelligence agencies – with their sweeping intrusive powers under the Snooper’s Charter – 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.”

The Government had sought to make the IPT exempt from the oversight of ordinary courts, arguing that this is what the Regulation of Investigatory Powers Act (RIPA) provides for. However, the Supreme Court held that decisions of the IPT should be able to be challenged in the High Court. It found that Parliament had not clearly expressed an intention to make the IPT exempt from challenge and that it would not be right for the IPT to be able to develop its own law.

BACKGROUND TO THE CASE

In May 2014, Privacy International brought a legal complaint to the IPT challenging GCHQ hacking under RIPA. In February 2016, the IPT held that GCHQ hacking is lawful under UK law and the European Convention on Human Rights.

Privacy International sought a judicial review of this decision in the High Court, where the Government argued that decisions of the IPT cannot be judicially reviewed. In February 2017, the High Court found in favour of the Government on this point, and the Court of Appeal subsequently upheld that decision.