Human Rights – s.7(1)(a), Human Rights Act – Jurisdiction – Investigatory Powers Tribunal – s 65(2)(a), Regulation of Investigatory Powers Act 2000 – Judicial review – Bias – Freedom of expression – Right to fair trial – Articles 6, 10, ECHR
A, a former senior member of the Security Service, sought to publish a book about his work, for which, due to strict contractual obligations as well as duties of confidentiality and statutory obligations owed under the Official Secrets Act 1989, he required the consent of B, the Director of Establishments. B refused to authorise the publication of parts of the manuscript. A sought to judicially review the decision claiming that the decision was unreasonable, vitiated by bias and contrary to Article 10. B contended that the Investigatory Powers Tribunal (IPT) had exclusive jurisdiction in the matter. Collins J found in A’s favour; the Court of Appeal in B’s. A appealed.
Whether A was entitled to have the decision judicially reviewed, or whether it was a matter exclusively for the Investigatory Powers Tribunal (IPT)
For the purposes of section 7 of the HRA, Parliament did not intend for a claimant to choose for him or herself whether to bring a claim in a court, by way of judicial review, or before the IPT. On a proper construction of s 65(2)(a) of RIPA the correct forum was the IPT, the jurisdiction of other courts or tribunals was excluded. Unlike ordinary courts the IPT has available to it an elaborate set of rules to govern proceedings against an intelligence service under s.7 of the HRA, none of which are available to ordinary courts. The construction is consistent with s.7(2) of the HRA which requires that a court or tribunal is designated as the appropriate forum, not that both are designated.
This decision is likely to mean that future decisions regarding the publication of matters regarding the security services will be heard by the IPT, whose unusual procedures involve sitting in secret; no rights for claimants to be present, represented or even aware that hearings are taking place, or to know the other side’s case; no reasons needing to be given for adverse decisions and no rights of appeal. However, as Lord Brown said at [31], “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.”