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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> A, R (on the application of)v B [2009] UKSC 12 (09 December 2009) URL: https://www.bailii.org/uk/cases/UKSC/2009/12.html Cite as: [2010] 1 All ER 1149, [2010] HRLR 11, [2010] UKHRR 568, [2009] WLR (D) 356, [2010] 2 AC 1, [2010] 2 WLR 1, [2009] UKSC 12 |
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Michaelmas Term
[2009] UKSC 12
On appeal from: [2009] EWCA Civ 24
JUDGMENT
R (on the application of A) (Appellant) v B (Respondent)
before
Lord Phillips, President
Lord Hope, Deputy President
Lord Brown
Lord Mance
Lord Clarke
JUDGMENT GIVEN ON
9 December 2009
Heard on 19 and 20 October 2009
Appellant Gavin Millar QC Guy Vassall-Adams (Instructed by Bindmans LLP ) |
Respondent Jonathan Crow QC Jason Coppel (Instructed by Treasury Solicitors) |
|
Intervener (Justice) Lord Pannick QC Tom Hickman (Instructed by Freshfields Bruckhaus Deringer LLP |
LORD BROWN, (with whom all members of the Court agree)
"(2) The jurisdiction of the Tribunal shall be –
(a) to be the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;"
Subsection (3) provides that proceedings fall within this section if –
"(a) they are proceedings against any of the intelligence services;"
"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
(2) In subsection (1) (a) 'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.
. . .
(9) In this section 'rules' means –
(a) in relation to proceedings before a court or tribunal outside Scotland, rules made by . . . the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court."
Pursuant to section 7(9), CPR 7.11 (introduced, like HRA, with effect from 2 October 2000) provides:
"(1) A claim under section 7(1)(a) of the Human Rights Act 1998 in respect of a judicial act may be brought only in the High Court.
(2) Any other claim under section 7(1)(a) of that Act may be brought in any court."
"Where the tribunal hear any proceedings by virtue of section 65(2)(a), they shall apply the same principles for making their determination in those proceedings as would be applied by a court on an application for judicial review."
Section 67(7) empowers the Tribunal "to make any such award of compensation or other order as they think fit". Section 67(8) provides:
"Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders 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."
Section 68(1) provides:
"Subject to any rules made under section 69, the Tribunal shall be entitled to determine their own procedure in relation to any proceedings, complaint or reference brought before or made to them."
Section 68(4) provides:
"Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either -
(a) a statement that they have made a determination in his favour; or
(b) a statement that no determination has been made in his favour."
"In making rules under this section the Secretary of State shall have regard, in particular, to -
(a) the need to secure that matters which are the subject of proceedings, complaints or references brought before or made to the Tribunal are properly heard and considered; and
(b) the need to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services."
"The Tribunal's proceedings, including any oral hearings, shall be conducted in private."
Argument 1 – Section 65(2)(a) excludes only the jurisdiction of other tribunals
"It seems to me to be inherently unlikely that Parliament intended to create an elaborate set of rules to govern proceedings against an intelligence service under section 7 of the 1998 Act in the IPT and yet contemplated that such proceedings might be brought before the courts without any rules."
Argument 2 – Section 65(2)(a) confers exclusive jurisdiction on the IPT but only in respect of proceedings arising out of the exercise of one of the RIPA regulated investigatory powers
i. Ouster
"It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words."
Distinguishing Barraclough v Brown, Viscount Simonds pointed out that the statute there in question could be construed as merely providing an alternative means of determining whether or not the company had a pre-existing common law right to develop their land; it did not take away "the inalienable remedy . . . to seek redress in [the courts]". Before 2 October 2000 there was, of course, no pre-existing common law or statutory right to bring a claim based on an asserted breach of the Convention. Section 65(2)(a) takes away no "inalienable remedy".
"[S]tatutory measures which confide the jurisdiction to a judicial body of like standing and authority to that of the High Court, but which operates subject to special procedures apt for the subject matter in hand, may well be constitutionally inoffensive. The IPT . . . offers . . . no cause for concern on this score."
True it is that section 67(8) of RIPA constitutes an ouster (and, indeed, unlike that in Anisminic, an unambiguous ouster) of any jurisdiction of the courts over the IPT. But that is not the provision in question here and in any event, as A recognises, there is no constitutional (or article 6) requirement for any right of appeal from an appropriate tribunal.
"The need for a strict approach to the interpretation of an ouster provision . . . was famously confirmed in the leading case of Anisminic . . . This strict approach, however, is not appropriate if an effective means of challenging the validity of a maintenance assessment is provided elsewhere. Then section 33(4) is not an ouster provision. Rather, it is part of a statutory scheme which allocates jurisdiction to determine the validity of an assessment and decide whether the defendant is a 'liable person' to a court other than the magistrates' court."
ii. Convention rights
"The need to preserve the secrecy of information relating to intelligence and military operations in order to counter terrorism, criminal activity, hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 100-103; Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 48; Leander v Sweden (1987) 9 EHRR 433, para 59; Hadjianastassiou v Greece (1992) 16 EHRR 219, paras 45-47; Esbester v United Kingdom (1993) 18 EHRR CD 72, 74; Brind v United Kingdom (1994) 18 EHRR CD 76, 83-84; Murray v United Kingdom (1994) 19 EHRR 193, para 58; Vereniging Weekblad Bluf! v The Netherlands (1995) 20 EHRR 189, paras 35, 40. The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question. The acid test is whether, in all the circumstances, the interference with the individual's Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve. The OSA 1989, as it applies to the appellant, must be considered in that context."
"In this situation the former member is entitled to seek judicial review of the decision to refuse, a course which the OSA 1989 does not seek to inhibit."
In that case, however, the disclosures had been made before the enactment of RIPA and the creation of the IPT and it is plain that the House had not been referred to section 65(2)(a), still less had had occasion to consider its scope. It cannot sensibly be supposed that the case would have been decided any differently had it been recognised that after 2 October 2000 such a challenge would have had to be brought before the IPT.
iii. Anomalies
LORD HOPE
The Rules
Anomalies
"This section contemplates two ways in which a person may advance a contention that a public authority has acted in a way which is incompatible with his Convention rights: either by making a free standing claim based on a Convention right in accordance with section 7(1)(a) or by relying on a Convention right in proceedings in accordance with section 7(1)(b)."
In R v Kansal (No 2) [2002] 2 AC 69, 105-106 I said that section 7(1)(a) and section 7(1)(b) are designed to provide two quite different remedies. Section 7(1)(a) enables the victim of the unlawful act to bring proceedings under the Act against the authority. It is intended to cater for free-standing claims made under the Act where there are no other proceedings in which the claim can be made. It does not apply where the victim wishes to rely on his Convention rights in existing proceedings which have been brought against him by a public authority. His remedy in those proceedings is that provided by section 7(1)(b), which is not subject to the time limit on proceedings under section 7(1)(a) prescribed by section 7(5); see also Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, para 90. The purpose of section 7(1)(b) is to enable persons against whom proceedings have been brought by a public authority to rely on the Convention rights for their protection.