West Law Report

A v B

Posted in Westlaw Reports by mrkooenglish on August 1, 2008

Queen’s Bench Division (Admin) Collins J July 4, 2008

Last Updated: 8:55PM BST 30 Jul 2008

Confidentiality – Freedom of expression – Investigatory powers tribunal – Jurisdiction – Security service – Statutory interpretation – Publication of material relating to security services – Ousting jurisdiction of court – Art. 10 European Convention on Human Rights – Regulation of Investigatory Powers Act 2000 – Human Rights Act 1998 – s. 65(2)(a) Regulation of Investigatory Powers Act 2000 – s. 65(2)(b) Regulation of Investigatory Powers Act 2000 – s. 65(2) Regulation of Investigatory Powers Act 2000 – s. 7(1)(a) Human Rights Act 1998 – s. 66 Regulation of Investigatory Powers Act 2000

FACTS

The court was required to determine, as a preliminary issue, whether it had jurisdiction to hear a claim by the claimant former member of the Security Service (X) to overturn the refusal of the defendant Director of Establishments of the Service to give consent for X to publish a book he had written. The book contained a description of X’s work for the Security Service. X was bound by a duty of confidentiality and could not publish material that related to the Security Service without the consent of the director. The director refused to give consent and X sought to overturn that refusal on the grounds that it was unreasonable, vitiated by bias and contrary to the European Convention on Human Rights 1950 art. 10. The director contended that the court had no jurisdiction to hear the matter as the relevant provisions of the Regulation of Investigatory Powers Act 2000 and the Human Rights Act 1998 required that such matters should be dealt with by the Investigatory Powers Tribunal. The director contended that the conduct complained of fell within either s. 65(2)(a) or s. 65(2)(b) of the 2000 Act and as such the appropriate forum under s. 65(2) was the tribunal.

ISSUE

Whether the court had jurisdiction to hear the matter as the relevant provisions of the Regulation of Investigatory Powers Act 2000 and the Human Rights Act 1998 required that such matters should be dealt with by the Investigatory Powers Tribunal.

HELD (preliminary issue determined in favour of claimant)

The claim was clearly a claim under s. 7(1)(a) of the 1998 Act and, as such, fell within the scope of s. 65(2)(a) of the 2000 Act, Somerville v Scottish Ministers [2007] UKHL 44, [2007] 1 WLR 2734 considered. The tribunal’s main purpose was to ensure that the relevant investigatory powers contained in the 2000 Act were used lawfully and compatibly with Convention rights. If the court’s jurisdiction was ousted in respect of any claim which related to any conduct by or on behalf of the intelligence services under s. 7(1)(a) of the 1998 Act, the result would be that some claims which had no need for secrecy and were not concerned with investigatory powers would have to be dealt with by the tribunal. An individual’s right of access to a court was a right of the highest constitutional importance and if a court’s jurisdiction was to be ousted it had to be done so using clear and explicit words. The existence of a right to go to a tribunal did not, in itself, in the absence of the clearest statutory language oust the jurisdiction of the court. Under s. 65(2)(a) of the 2000 Act no reference was made to exclude the court and there was no reason to imply it. The wording of the section made sense if it was intended to exclude the jurisdiction of any other tribunal that might have jurisdiction. Section 66 of the 2000 Act gave a power to oust the court’s jurisdiction by explicit language. Similar language could have been used in s. 65(2)(a) of the 2000 Act. Parliament clearly intended that claims raising matters in relation to surveillance, interception of communications and the use of material obtained, use of covert services and acquisition of means whereby electronic data could be decrypted should be dealt with by the tribunal. However, the circumstances of the instant case were different and whilst the tribunal undoubtedly had jurisdiction its procedures were less satisfactory and the issues wider than those for which the 2000 Act specifically required it to be established. Accordingly, the court had jurisdiction to hear the claim.

Keir Starmer QC and Guy Vassall-Adams (instructed by Bindman & Partners) for the claimant. Philip Havers QC and Jason Coppel (instructed by Treasury Solicitor) for the defendant.

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