• Elena Handtrack

Privacy International: Everything You Need to Know About the Case for your Exams

R (Privacy International) v Investigatory Powers Tribunal [2017] EWCA Civ 1868

In order to understand the importance of the Privacy International case, we first need to examine the significance of ouster clauses and how they have been treated by the courts in cases before Privacy International.


Ouster clauses are clauses that exclude judicial review in respect of certain disputes. The courts have done their best to construe (interpret) ouster clauses in a way that prevents the clauses from doing exactly that. The prime example for this is Anisminic. The ouster clause in question in Anisminic is section 4(4) of the Foreign Compensation Act 1950 which reads that “determination by the commission of any application made to them under this Act shall not be called in question in any court of law.” On a first read of the clause, it is pretty hard to imagine that the House of Lords found a way around this clause. But they did and here is how: the House of Lords construed the meaning of “determination” to encompass only valid determinations and not determinations based on errors of law since those would be null. Therefore, the ouster clause did oust judicial review for correct determinations, but not for incorrect ones since those were not determinations at all.


Fast forward a few decades from the Anisminic case and we arrive at the Privacy International case. The case has already been heard by the Supreme Court, but no judgement has been handed down yet. Therefore, the Privacy International case we are discussing here is the Court of Appeal case. The ouster clause in question in Privacy International is section 67(8) of the Regulation of Investigatory Powers Act 2000. Section 67(8) reads that “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.” The text in brackets is very important for this ouster clause: the question whether a court has jurisdiction or not can, if wrongly answered by the court, be an error of law. An error of law is traditionally a ground for judicial review of a decision. But this clause prevents that from happening. Therefore, even ‘false’ determinations would be valid since the tribunal would have the authority to decide about its jurisdiction and its decision could not be called into question.


Unlike in Anisminic, the court gave this ouster clause effect. It is important to note that this is not the final word on the case since the Supreme Court still has to decide on the appeal. But should the ouster clause remain effective, section 67(8) of the Regulations of Investigatory Powers Act 2000 would become a draft for future ouster clauses since Parliament would finally have found a way through which it can effectively prevent judicial review.

Robert Craig argues that it is less about the phrasing of section 67(8) and much more about its context: the relevant decision-maker (the Tribunal mentioned in section 67(8) is acting in a judicial capacity, unlike the decision-maker in Anisminic who acted in an executive capacity. Therefore, the wording of section 67(8) may not always be effective - the courts would decide about its effectiveness depending on the context it is used in.


Why is the Privacy International case so important? Judicial review is one way through which the courts can keep executive actions in check. If the executive finds a way to oust judicial review effectively, this oversight may be lost for certain decisions, resulting in less accountability.


If you would like to watch the hearings of the case before the Supreme Court, you can find them here.


Cases

R (Privacy International) v Investigatory Powers Tribunal [2017] EWCA Civ 1868

Anisminic v Foreign Compensation Commission & Another [1969] 2 AC 147


Legislation

Foreign Compensation Act 1950

Regulation of Investigatory Powers Act 2000


Academic Writing

Craig, R. (2018). Robert Craig: Privacy International Symposium – Privacy International and the Separation of Powers. [online] Admin Law Blog: Administrative Law in the Common Law World. Available at: https://adminlawblog.org/2018/11/23/robert-craig-privacy-international-symposium-privacy-international-and-the-separation-of-powers/ [Accessed 3 May 2019].