Privacy International in the Court of Appeal: Anisminic distinguished — again

In the Privacy International case, the Court of Appeal accepted that an ouster clause precluded judicial review of the Investigatory Powers Tribunal. Sales LJ contended that the issue turned on ‘a short point of statutory construction’. The reality, however, is that such cases take the courts into the deepest of constitutional waters.

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Earlier this year, I wrote about the Divisional Court’s decision in R (Privacy International) v Investigatory Powers Tribunal [2017] EWHC 114 (Admin). The claimant, which lost, appealed, and the Court of Appeal has now given judgment: [2017] EWCA Civ 1868. Here is what I said in February, by way of setting out the key issue that is in play in the case:

The claimant wished to seek judicial review of a decision taken by the Investigatory Powers Tribunal (‘IPT’). However, section 67(8) of the Regulation of Investigatory Powers Act 2000 [(‘RIPA’)] provided that: ‘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 67(9) went on to require the Secretary of State to provide for appeals to a court in respect of the exercise of some of the IPT’s functions. However, section 67(9) was never brought into force, meaning that the Secretary of State was never required to provide for appeals; and the discretion to provide for appeals conferred by section 67(8) was not once exercised. (The position is now different, a statutory right of appeal having been created by the Investigatory Powers Act 2016.) Against this background, the Court had to determine whether section 67(8) really precluded judicial review of the IPT.

The Divisional Court held that judicial review was indeed precluded, albeit that Leggatt J, without going so far as to formally dissent, was clearly far from comfortable with that conclusion; indeed, had the case not been before a two-judge court, it seems that Leggatt J may well have dissented.

In contrast, Sir Brian Leveson P thought it important to distinguish between classical situations in which ouster clauses are involved — e.g. as in Anisminic, where a decision-making body appeared to be shielded from judicial review — and cases like this one. In particular, he argued that: ‘The need, and indeed the justification, for such judicial review is far less clear where the tribunal (here the IPT) is itself exercising powers of judicial review comparable to those of the High Court.’ On this view, the pull of the rule of law — as an agent that may cause the court to interpret the (apparent) ouster clause otherwise than on a plain-words basis — exerts a lesser force in cases where the ‘decision-maker’ concerned is itself a judicial body exercising a supervisory function.

The Court of Appeal’s judgment

Comparable considerations plainly weighed upon the Court of Appeal, in which the claimant once against lost. It is true that Sales LJ, with whom Flaux and Floyd LJJ agreed, said that the case ‘turn[ed] on a short point of statutory construction’, and that he paid considerable attention to drafting differences between the ouster clause at stake in the instant case and that which was considered by the House of Lords in Anisminic. In particular, Sales LJ set considerable store by the fact that section 67(8) of RIPA — unlike section 4(4) of the Foreign Compensation Act 1950 (‘FCA’), which was at stake in Anisminic — referred not only to ‘determinations’ etc, but also to ‘decisions as to whether [the Tribunal has] jurisdiction’. This, in Sales LJ’s view, closed off any possibility in Privacy International of doing what the House of Lords had done in Anisminic: namely, construing the ouster clause as shielding from judicial review only lawful determinations, while leaving ‘purported’ determinations — i.e. determinations outwith jurisdiction — vulnerable.

Sales LJ is clearly correct to say that section 67(8) of RIPA is drafted differently from section 4(4) of the FCA, and that this at least appears to make it more difficult in the instant case to adopt the interpretive route taken by the House of Lords in Anisminic. But the position is less straightforward than this analysis suggests. Indeed, precisely this point was made by Leggatt J in the Divisional Court. There, he said that while the drafting disclosed a ‘potentially relevant difference’, he found it hard to see how this could amount to a ‘critical difference’ — in part because the ‘underlying assumption that Parliament does not intend to prevent review of a decision which is unlawful’ remained in play. The application of that assumption, on Leggatt J’s analysis, may have been capable of yielding an Anisminic-style construction of section 67(8) of RIPA, drafting differences notwithstanding.

It is worth adding that, as a matter of language, there is no insuperable difficulty in regarding the category of ‘decisions’ as to whether the Tribunal has jurisdiction as being itself limited, such that the only ‘decisions’ protected by the relevant part of the ouster clause are decisions that yield lawful answers on questions pertaining to the extent of the Tribunal’s jurisdiction. Such an argument was advanced by Ben Jaffey QC in the Divisional Court, who, according to Sir Brian Leveson’s judgment, ‘submitted that the effect of these words is simply to make clear that a lawful decision by the IPT that it did or did not have jurisdiction in a particular case cannot be impugned, and that the words have no effect on the ability of the courts to review unlawful decisions’. It might be objected that such a construction would be strained, but it is not clear that it would be substantially more strained than that which was rendered in Anisminic itself. Moreover, the courts’ general modus operandi in cases concerning ouster clauses demonstrates that ‘strained’ constructions are (rightly) not necessarily considered inappropriate, given that the courts’ function in such circumstances involves what in essence reduces to a process of constitutional triangulation.

Ouster clauses and constitutional adjudication

Indeed, the difference of view between Leggatt J and Sales LJ is telling, and points towards the fact that Sales LJ’s characterisation of the issue as one of statutory construction rather underplays what is going on in a case of this nature. In particular, while it is a truism that the matter is ultimately one of interpretation — and that, as Sales LJ rightly points out, the interpretative approach invited by ouster clauses engages the principle of legality, given the constitutional values that are implicated by such provisions — the process of construction is, or at least can, be informed by a variety of underlying constitutional and other considerations. This is neatly illustrated by the differences of emphasis that we find in the judgments of Leggatt J in the Divisional Court and Sales LJ in the Court of Appeal. The latter was evidently influenced not simply by the linguistic differences between the two ouster clauses mentioned above, but also by the broader context — not least ‘that Parliament’s intention in establishing the IPT and in laying down a framework for the special procedural rules which it should follow … was to set up a tribunal capable of considering claims and complaints against the intelligence services under closed conditions which provided complete assurance that there would not be disclosure of sensitive confidential information about their activities’. Facilitating judicial review of the IPT, said Sales LJ, would ‘subvert’ that purpose.

Different considerations, however, weighed upon Leggatt J in the Divisional Court. In particular, he was concerned that the rule of law may be compromised by total ouster of judicial review of the IPT. Judicial review, on Leggatt J’s analysis, is a critical bulwark of the rule of law both because it provides a means of ‘correcting legal error’ and requires that ‘the law should, so far as practicable, be consistently interpreted and applied’ — an objective that stands to be compromised if a given tribunal is permitted, through ouster, to operate as a ‘legal island’. This is not to suggest that Sales LJ was unconcerned about rule of law-oriented considerations: in fact, he acknowledged that ‘a provision which isolates a tribunal from any prospect of appeal through to this court and the Supreme Court on points of law which may be controversial and important … involves a substantial inroad upon usual rule of law standards in this jurisdiction’. Nevertheless, it is plain from their respective analyses that the competing claims of the rule of law and countervailing policy considerations played out differently for Leggatt J and Sales LJ. All of which demonstrates that when courts are required, as in this case, to confront ouster clauses, their task, while one of statutory construction, inevitably engages deeper questions of constitutional philosophy. The underlying issue is whether the language of the ouster clause and the statutory context in which it is situated are sufficient to displace the presumption that, as Leggatt J put it, ‘Parliament does not intend to prevent review of a decision which is unlawful’.

Beyond interpretation?

Of course, this mode of analysis presupposes that such questions fall to be decided on terrain that is purely interpretive in nature — an assumption upon which some senior judges, including the President of the Supreme Court when, in an earlier incarnation, she gave judgment in the Jackson case, have cast at least a degree of doubt. If, therefore, Privacy International ends up in the Supreme Court, it will be interesting to see what it makes of an ouster clause that — whether one agrees with Sales LJ’s analysis or not — is plainly more tightly drafted than that which was at stake in Anisminic, and which arguably at least narrows the scope of an interpretative way through the issues.

That said, this is unlikely to be the occasion on which the Supreme Court makes good on the sort of veiled threats issued by some of the Law Lords in Jackson concerning judicial retaliation against ouster clauses. For one thing, the fact that the IPT is (according to Laws LJ in R (A) v Director of Establishments of the Security Service) a judicial body ‘of like standing and authority to that of the High Court’ suggests that the factual matrix presented by Privacy International is some way from the most egregious forms of ouster that the Law Lords in Jackson likely had in mind. And, in any event, as noted above, there would certainly scope for dealing with this ouster interpretively, should the Supreme Court be so inclined. Nevertheless, if Privacy International does reach the Supreme Court, the resulting judgments may well constitute a useful barometer of where thinking lies at the highest judicial level on this most delicate of constitutional issues, more than ten years on from Jackson. And, in the meantime, the contrasting judgments of Leggatt J in the Divisional Court and Sales LJ in the Court of Appeal serve as a reminder that for all that ouster clauses require the courts to engage in statutory construction, that process is, in this context, merely the tip of a constitutional iceberg — and that there is no judicial unanimity about what lies beneath the interpretive surface.