UK intelligence agencies may be subject to court oversight, Supreme Court rules

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The UK Supreme Court has ruled that the UK’s intelligence agencies may be subject to the oversight of ordinary UK courts.

In R (on the application of Privacy International) v Investigatory Powers Tribunal and others, the Supreme Court found that rulings of the Investigatory Powers Tribunal (IPT), the independent judicial body that hears complaints about surveillance by government agencies, can be subject to judicial review by the High Court.

The government argued that the High Court does not have jurisdiction over the IPT since the Section 67(8) of the Regulation of Investigatory Powers Act 2000, which established the tribunal, says that decisions of the body “shall not be subject to appeal or be liable to be questioned in any court.”

The Supreme Court determined whether the clause ousted the supervisory jurisdiction of the High Court to quash a judgment for error of law. It also resolved whether Parliament can oust the said jurisdiction, and if it can, what principles will apply.

“The legal issue decided by the IPT is not only one of general public importance, but also has possible implications for legal rights and remedies going beyond the scope of the IPT’s remit,” Supreme Court Judge Robert Carnwath, Lord Carnwath of Notting Hill, said in the lead judgment. “Consistent application of the rule of law requires such an issue to be susceptible in appropriate cases to review by ordinary courts.”

The ruling comes after a five-year battle spearheaded by advocacy group Privacy International. It said that the judgment is a “major endorsement and affirmation of the rule of law in the UK” and that it “guarantees that when the IPT gets the law wrong, its mistakes can be corrected.

“Today's judgment is a historic victory for the rule of law,” said Caroline Wilson Palow, Privacy International general counsel. “Countries around the world are currently grappling with serious questions regarding what power should reside in each branch of government. Today's ruling is a welcome precedent for all of those countries, striking a reasonable balance between executive, legislative and judicial power.”

She also said that the judgment helps the group’s challenge to the UK government's use of bulk computer hacking warrants.

“Our challenge has been delayed for years by the government's persistent attempt to protect the IPT’s decisions from scrutiny. We are heartened that our case will now go forward,” she said.

After the Edward Snowden disclosures in 2014, it was revealed that security and intelligence services of the UK use mass-hacking techniques that could gain access to potentially millions of devices.

The group challenged the practices in the IPT. The government said that it could rely on broad “general warrants” to conduct hacking and even argued that a single warrant can be used to hack all mobile phones in a UK city. The IPT ruled in favour of the government in February 2016.

Privacy International appealed the IPT decision in the High Court in May 2016. The government argued that the decisions of the tribunal are not subject to judicial review, and in February 2017, the High Court agreed. The group’s appeal similarly failed in the Court of Appeal in November 2017.