PRIVACY INTERNATIONAL AND OTHERS v. THE UNITED KINGDOM DECISION
“ouster” clause in section 67(8) of RIPA, which stated that decisions of the
IPT should not be subject to appeal or be liable to be questioned in any
court, was unconstitutional. That litigation was decided by the
Supreme Court in R (on the application of Privacy International)
(Appellant) v. Investigatory Powers Tribunal and others (Respondents)
([2019] UKSC 22) on 15 May 2019.
33. The Supreme Court found that the decisions of the IPT could be
subject to challenge. Lord Carnwath for the majority reasoned that the
drafter could have had no doubt that a determination vitiated by any error of
law, jurisdictional or not, was to be treated as no determination at all. The
reference to a determination was to be read as a reference only to a legally
valid determination. The exercise was not one of ordinary statutory
interpretation, as there was a common law presumption against ousting the
jurisdiction of the High Court. The plain words of the subsection had to
yield to the principle that such a clause would not protect a decision that
was legally invalid. Therefore the exclusion in section 67(8) of RIPA
applied only to determinations, awards or other decisions that were not
erroneous in law.
C. Other relevant provisions
34. For a summary of a report by the European Commission for
Democracy through Law (the Venice Commission) and other relevant
international texts see Szabó and Vissy v. Hungary, no. 37138/14, §§ 21-25,
12 January 2016.
COMPLAINTS
35. The applicants complained under Articles 8 and 10 of the
Convention that the power under section 7 of the Intelligence Services Act
1994 (“ISA”) was not in accordance with the law in the absence of a code of
practice governing its use. Moreover, they complained that that section
contained no requirement for judicial authorisation; there was no
information in the public domain about how it might be used to authorise
Equipment Interference; and there was no requirement for filtering to
exclude irrelevant material.
36. The applicants also argued under Article 13 of the Convention that
the IPT had not provided an effective remedy as it had not ruled on the
Section 7 regime in the domestic litigation.
THE LAW
37. Article 35 of the Convention reads as follows:
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