back to article Supreme Court says secret UK spy court's judgments can be overruled after all

Britain's Supreme Court said today that rulings from a secretive UK spy tribunal can now be appealed against after a legal challenge from pressure group Privacy International. Decisions of the Investigatory Powers Tribunal (IPT), which rules on legal cases involving surveillance powers and the British spy agencies (MI5, MI6 …

  1. Red Sceptic

    Thank you ...

    ... for “appealed against” rather than “appealed”.

    That’s all.

    1. Aladdin Sane Silver badge
      Coat

      Re: Thank you ...

      Howzat?!

    2. sed gawk Bronze badge

      Re: Judges

      If not for "the enemies of the people" (pulling the strings) we would be much further along the road to tyranny.

      Thankfully the judiciary maintain their independence for now.

      1. Mark 85 Silver badge

        Re: Judges

        If not for "the enemies of the people" (pulling the strings) we would be much further along the road to tyranny.

        Your court system flinched, did a good thing, and now you'll loose the race to the bottom. Congratulations.

        1. Jamie Jones Silver badge
          Happy

          Re: Judges

          Paaaaaah. Don't forget, we still have our 'tump' card (pun intended) :

          Brexit is still a thing, and people still take Farage, Johnson, and Rees-Mogg seriously. Some people even believe they are acting in the interests of the country!

          Your lot just want to keep Mexico out - our lot are going for most of Europe.

          You're no competition with your piddly trade wars and Alabama theocracy!

          1. steelpillow Silver badge

            Re: Judges

            Downvote for gratuitous mention of Brexit.

            1. Youngone Silver badge

              Re: Judges

              I upvoted it because of the Brexit mention.

              It seems to me that the key idea behind Brexit is for the born to rule crowd to have total control over the levers of power in the UK, and getting shot of pesky meddling foreigners with their European Court of Human Rights for example is one of their goals.

              Taking back control anyone?

              1. Ken Moorhouse Silver badge

                The Brexit Party

                Farage is being commended for calling the party what it sets out to achieve.

                If that is the case then The Conservative Party should be thinking of rebranding along similar lines.

                How about the "Nailing Jelly to the Wall" Party?

                1. Ken Moorhouse Silver badge

                  Re: The Brexit Party

                  There were a number of reports in the press yesterday about Farage having a milkshake thrown over him whilst out campaigning. Some of them added that he was "whisked away".

                  https://www.theguardian.com/politics/2019/may/20/nigel-farage-doused-with-milkshake-in-newcastle

              2. BristolBachelor Gold badge

                Re: Judges

                "getting shot of pesky meddling foreigners with their European Court of Human Rights for example is one of their goals."

                All very good, but the divorce is only from the economic side of Europe (EU). The ECHR is something entirely different, and as I understand it, the rules were basically set up by the UK and particularly the Conservatives, in order to avoid the nasties seen in Nazi Germany. Funny how they now complain that the rules are limiting them from doing what they want to do (looking at you Blunket, May, Rudd, etc.)

                1. Dan 55 Silver badge

                  Re: Judges

                  The divorce also includes Euratom and the ECHR whether by accident (it's got the word "Europe" in it, innit?) or design (overthrow by the born to rule crowd).

                  1. NeilPost

                    Re: Judges

                    Go look up Council of Europe where the ECHR comes from.

                    Much to the incredulity of Brexit nutters, it’s nothing to do with the EU (who are signatories to t, nothing else).

                    The Council Of Europe was setup in 1947 in London and is a pan-European body with reach outside to Japan/Canada and other countries signed up or observing the ECHR. It pre-dates the EU and EEC. The UK was a founding member and much of their output has much British law/conventions at the core of it.

                    https://en.m.wikipedia.org/wiki/Council_of_Europe

                    https://www.coe.int/en/web/portal

                    1. Dan 55 Silver badge

                      Re: Judges

                      Indeed, but that still doesn't affect the Tory party's stated policy for a decade of rescinding the 1998 Human Rights Act, meaning British courts won't have to take it into account into their rulings. People will have to exhaust all British court options before taking their case to the European Court of Humans Rights which takes years and is expensive.

                      Presumably Brexit makes it easier to do this because all new EU entrants have to have their courts take the European Convention of Human Rights into account in their rulings which is what the Tory party wants to wriggle out of.

            2. truetalk

              Re: Judges

              Ditto

    3. flayman

      Re: Thank you ...

      It's not really an appeal against. It's an appeal to. I don't really like how it sounds "the judgement was appealed against". "The judgement was appealed to the Supreme Court" is more like it.

  2. sabroni Silver badge

    re: "section 67(8) was clear...

    ... and that Parliament had obviously intended to ensure the IPT could not be judicially reviewed or otherwise appealed against."

    Precisely why we need to ensure that the IPT can be reviewed and appealed against.

    1. Jellied Eel Silver badge

      Re: re: "section 67(8) was clear...

      I think it's a supremacy thing. So Supreme Court being the higest body in the land except for that bit that involved secrecy. Which still involves a bunch of common (and less common) law. I think the judicial review was less significant given the IPT's a judicial body, but if the Supreme Court is meant to be the supreme arbiter on points of law, it makes sense that decisions could be appealed to the Supremes.. Who could then kick stuff back to Parliament politely pointing out that current legislation is flawed.

    2. Ian Bush

      Re: re: "section 67(8) was clear...

      Exactly. In an age were we have judgements which can't be appealed, and a government that believes it can rule by diktat without consulting the People's representatives, this is a glimmer of light.

      1. Jellied Eel Silver badge

        Re: re: "section 67(8) was clear...

        In an age were we have judgements which can't be appealed, and a government that believes it can rule by diktat without consulting the People's representatives, this is a glimmer of light.

        Ah, well.. Pre-Thatcher, some chap called Cromwell seperated the Lords, Commoners, Clegy and Judiciary. Sometimes permanently with the help of what would now be considered offensive weapons. Parliamentarians have long memories, and short necks, hence why there's a natural reluctance to allow any new New Model Army.

        Time passed, and the People's representatives, aided by very comfortable majorities passed legislation like RIPA, so the People's representatives were able to give it their full scrutiny. And not object to s.67(8), or related clauses like the Telecommunication's Act's wiretapping provisions.

        But then that's why we have a seperate judiciary that can review the consequences of the People's representative's Acts, and politely suggest they make amendments.. Which is also part of the great debate about grandfathering in legislation from Brussels, or quietly dropping chunks of it. Also the idea behind the IPT wasn't necessarily sinister (unless Mandy was behind it) given the UK's got a wide range of specialist courts to argue over their chosen subjects.

        Where it's perhaps more timely is looking over the pond though, and how various Federal agencies may have gotten a little too political with some investigations. But that's why we need safeguards, else who's really watching those watchmen?

  3. Trollslayer Silver badge
    Alert

    This particular slippery slope

    Is being dealt with but how many but how many others are there?

    1. Doctor Syntax Silver badge

      Re: This particular slippery slope

      There seems to be another every time the HO looses a case in court. Expect the next Bill dealing with this area as soon as Parliamentary time can be found.

      1. NeilPost

        Re: This particular slippery slope

        There is isles of Parliamentary time right now - literally nothing legislative is going through other than Brexit bollocks.

        1. Brewster's Angle Grinder Silver badge

          Re: This particular slippery slope

          And even Brexit bills aren't going through the Commons. Treading water would be productive compared to what parliament is doing at the moment.

  4. Velv Silver badge
    Big Brother

    "Dissenting from Lord Carnwath were Lords Sumption and Wilson, who said section 67(8) was clear and that Parliament had obviously intended to ensure the IPT could not be judicially reviewed or otherwise appealed against."

    And I think they are both right, it clearly was the intention of Parliament to put the IPT beyond review. That doesn't mean Parliament is right or should get away with it. Our legal structure has evolved over many hundreds of years to be as fair as possible to everyone and to remove those protections is itself criminal.

    1. Long John Silver
      Pirate

      The road to Hell is paved with ...

      In recent months, to the disgust of the electorate, MPs have demonstrated utter inability to make clear their intentions.

      There's little point to a Supreme Court if it cannot vitiate legislation framed in a manner contradicting widely accepted legal principles and hard won 'rights'. Although we have a make it up as you go along non-Constitution, existence of a Supreme Court offers some stability to law by highlighting and correcting parliamentary ineptitude, and by curbing excessively authoritarian legislation which might trample on legitimate entitlements, e.g. those supported by human rights legislation and International agreements, of a minority.

      Unfortunately, serious legal rot set in when Blair assumed power and has been perpetuated by succeeding governments. Collective arrogance of the legislature and of many individual members, this coupled with deeply embedded corruption at all levels from ordinary MPs/Lords up to government ministers and with general incompetence in that which the Houses attempt to do honestly, has brought about widespread contempt for the creatures purporting to act on our behalf.

  5. adam payne Silver badge

    who said section 67(8) was clear and that Parliament had obviously intended to ensure the IPT could not be judicially reviewed or otherwise appealed against.

    No body should be able to do whatever they want without oversight. It just leads to abuse of the powers.

    That section shouldn't have been in there in the first place.

    1. Nick Kew Silver badge

      No body should be able to do whatever they want without oversight. It just leads to abuse of the powers.

      The Supreme Court can do exactly that.

      As can lower courts, in the absence of anyone with the resources to challenge them.

      Perhaps it's the complete absence of either democracy or accountability that enables them sometimes to do sensible things in matters of public policy.

  6. chivo243 Silver badge
    Thumb Up

    doing the right thing

    Pleasantly surprised the judges stepped up or in the right direction.

    1. jonathan keith

      Re: doing the right thing

      You really shouldn't be: they're about the only part of 'The Establishment' who are doing the right thing at the moment, hence the incoherent fury directed at them from the gutter Press.

      1. NeilPost

        Re: doing the right thing

        The same gutter press that will rail against RIP enabled councils snooping with outsourced dog-shit and minor littering Gestapo.

  7. This post has been deleted by its author

  8. amanfromMars 1 Silver badge

    High Flyers are Never Grounded and Earthed to Failed Political Puppets ....

    .... in/on Catastrophic Narrative Tales/Trails

    It is rather quaint and very appealing to think that MI5/MI6/GCHQ et al give a FFCUK about any Opposition and Competition or Supervision.

    Such would have them no more as cuckolds. Do you imagine them accepting that as their lot/role? Shadowy Spectator to Real Live ACTivIT?

    It is next to impossible to believe similar foreign national intelligence services worrying a jot about such after the fact intrusions and delusions of remote third party judicial control.

  9. flayman

    some errors in the article

    There are a few errors:

    1. "...the five strong judicial panel" It was a 7 judge panel. You can see that just by looking at the title page of the judgement.

    2. " Both the High Court itself and the Court of Appeal agreed with PI." Those courts agreed with the IPT and rejected the appeals. They probably could not have allowed the appeals because they were bound by Anisminic. The Supreme Court has made a landmark ruling, which is why it's getting such press interest.

    3. "Dissenting from Lord Carnwath were Lords Sumption and Wilson..." Lord Reed also dissents because he agrees with Lord Sumption. Therefore, we have a 4:3 majority. It's the slimmest of majorities, but for now it's precedent. Another case could find its way to the Supreme Court which alters the reasoning somewhat. This is what has happened now with Anisminic, though that case was House of Lords 1968 and referred to a different statutory body.

    1. Corp-Rat

      Re: some errors in the article

      5 strong... and 2 weak

      1. flayman

        Re: some errors in the article

        No, 4 and 3 by your reasoning.

  10. Moosh
    Facepalm

    Seriously?

    "Dissenting from Lord Carnwath were Lords Sumption and Wilson, who said section 67(8) was clear and that Parliament had obviously intended to ensure the IPT could not be judicially reviewed or otherwise appealed against."

    It doesn't matter if that's what was intended if its against the law and outside due process - that's literally the argument of PI and what the majority agreed with. Its a literal non-argument.

    1. flayman

      Re: Seriously?

      The majority judgement says that the language of the ouster clause is not clear enough. If it had explicitly forbade any court from reviewing even a purported determination by the tribunal, than that could have stood. The reasoning is that Parliament must deal with the political ramifications of any law it enacts and probably a stricter ouster would not have passed scrutiny. Parliament is sovereign and can make whatever law it likes. With specific enough language, it can allow a lower court's judgements to be non-reviewable even where there is a gross error of law. The only thing Parliament doesn't have the power to do is enact a law that it would be unable to repeal in the future.

      A barrister's write-up of the judgement here: https://ukhumanrightsblog.com/2019/05/15/anisminic-2-0

      1. Moosh

        Re: Seriously?

        I guess it was just the summation in the article then; thanks for the response, super interesting.

        1. flayman

          Re: Seriously?

          I agree. It is interesting. The ouster clause of the RIPA Act reads like this:

          "Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court."

          The brackets "(including decisions as to whether they have jurisdiction)" is there to deal with the problem presented by Anisminic where the HoL determined that the ouster clause of the relevant legislation such that the "determination by the Commission of any application made to them under this Act shall not be called in question in any court of law" did not prevent judicial review on errors of law. In that case the Lords found that the Commission had gone outside its jurisdiction, and so they had failed to make a true determination. As a matter of law, the decision by the Commission was a nullity.

          In the Privacy International case, jurisdiction is not at issue. Lord Carnwath suggests that an extreme ouster on reviewing any decision which is "a nullity by reason of lack of jurisdiction, error of law, or any other matter," as failed to get through Parliament when clause 11 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003 was introduced, would probably not have survived here. There will be many lawyers who disagree with this analysis. Indeed three of the most senior judges in the country disagreed. Some may say that the Supreme Court has made an error of law. But unless it involves EU law (for now) or Human Rights Law, there is no other judicial body that can review their decision. The same might have been said for the IPT before yesterday.

          1. Intractable Potsherd Silver badge

            Re: Seriously?

            Lord Carnwath also said, obiter*, that he doesn't think that the rule of law makes such that no ouster clause would never be allowed to stand if it purported to exclude review on the grounds of error of law, no matter how well-crafted the section in the Act, regardless of the supposed supremacy of Parliament. This accords with what my public law lecturers taught me back in the day, and it seems incontrovertible to me. The courts do stand against abuse of Parliamentary power, and for the rule of law.

            * "obiter dicta" is the name for things the judge says that are not part of the actual logic of the decision ("ratio decidendi"). Comments made obiter can be very powerful in the future, so Lord Carnwath was drawing a line in the sand with regard to future cases of this type.

            1. flayman

              Re: Seriously?

              It's obiter and not agreed by Lord Lloyd-Jones, whose concurring opinion expressly declines to comment on it. It's less of an issue now because, as Lord Sumption points out, Section 242 of the Investigatory Powers Act 2016 amended the original legislation to allow for appeal, though that doesn't apply to the present case. He then goes on to examine the roots of ouster clauses and the differences between excess of jurisdiction and errors of law or fact within jurisdiction. It would be interesting* to see what the Supreme Court would make of it if Parliament ever actually managed to enable a statutory decision maker with such an extreme ouster clause.

              *in the sense that constitutional crises are rarely boring

  11. Jake Maverick

    um...all well and good but what is the point when some of us can't even get them into court in the first place? and how many people have been sentenced without trial to long spells in mental prisons when they find the cameras and other devices in their bedrooms/ bathrooms....? like i did....but i didn't really tell anybody, so how did they know, never mind pretend it's a delusion that needs to be cured with anal rape?

POST COMMENT House rules

Not a member of The Register? Create a new account here.

  • Enter your comment

  • Add an icon

Anonymous cowards cannot choose their icon

Biting the hand that feeds IT © 1998–2019