Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
in the eighteenth century cases, on which the Claimant relied, and which related to truly
general warrants.
29.
Sir James submitted that the principle of legality is of no assistance in the present case.
The principle of legality is an important tool of statutory interpretation but no more than
that: the task of the court is always to decide what Parliament intended (AJA v
Commissioner of Police of the Metropolis [2013] EWCA Civ 1342, [2014] 1 WLR 285,
para 28, per Lord Dyson). The principle has no role where Parliament’s intention is
clear from the ordinary or natural meaning of a statutory provision read in the context
of the legislative scheme as a whole (R (Gillan) v Commissioner of Police of the
Metropolis [2006] UKHL 11, [2006] 2 AC 307, para 15, per Lord Bingham of Cornhill).
30.
As to Article 8 of the Convention, Sir James pointed to the considerable delay in
bringing this particular aspect of the challenge and to the considerable legislative and
other changes that have brought about a different landscape. There was no good reason
for the court to hear argument on historic matters. The Tribunal had considered all
relevant elements of the Article 8 claim and had reached conclusions that were
reasonably open to it. The Claimants had failed to identify a reviewable error of law.
The application to amend to allege breach of Article 8 before February 2015
31.
Having considered the oral and written submissions on this topic, we refuse permission
to amend. We do so because although the grounds of claim originally lodged raised a
number of Article 8 issues, this one was not raised until more than three years later and
more than four years after the period of alleged unlawfulness prior to February 2015.
The delay has been so substantial that the regime for granting warrants under section 5
of the 1994 Act is no longer in force in respect of CNE for the purpose of obtaining
information, having been materially replaced by provisions of the Investigatory Powers
Act 2016 with effect from 31 May 2018. We do not think that the court should give a
ruling on a complaint relating to a state of affairs which had ceased to exist more than
four years before the complaint was made. We also bear in mind that the Supreme Court
held that judicial review should only be granted in respect of decisions of the Tribunal
of general significance. Issue 9 is in our view of historical significance only.
Discussion of Issue 4
The relevant principles of statutory interpretation
32.
In construing the words of section 5(2), our task is to “ascertain the intention of
Parliament as expressed in the words it has chosen” (R (Quintavalle) v Secretary of
State for Health [2003] UKHL 13, [2003] 2 AC 687, para 38, per Lord Millett). The
court acts under the “banner of loyalty to the will of Parliament” in that its task is to
“give effect to the true meaning of what Parliament has said” (ibid, para 8, per Lord
Bingham of Cornhill).
33.
What Parliament has said will be derived from the meaning of individual words read in
the context of the enactment as a whole. Ascertaining the statutory context does not
involve an assessment of evidence relating to the asserted advantages of two competing
interpretations. We do not therefore regard GCHQ’s written evidence as to the national
security benefits of thematic warrants as a legitimate interpretative tool. Nor do we