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The Court of Appeal has held that decisions of the Investigatory Powers Tribunal are immune from judicial review, as a result of the effect of a statutory ‘ouster’ clause in the Regulation of Investigatory Powers Act 2000.

It rejected an argument by Privacy International that, in view of the restrictive approach to the interpretation of such clauses (as embodied in numerous authorities including the seminal case of Anisminic v Foreign Compensation Commission [1969] 2 AC 147), the clause should not be construed as preventing the courts from intervening to correct an error of law by the IPT.

The judgment is constitutionally significant; it is the first time since Anisminic, and possibly ever, that a clause of this kind has been held to be effective to exclude judicial review altogether.

The underlying proceedings concern the IPT’s decision in February 2016 that section 5 of the Intelligence Services Act 1994 (which allows the Secretary of State to issue warrants authorising specified action in respect of specified property) in principle allows the Secretary of State to issue a warrant which in general terms authorises a broad class of possible activity in respect of a broad class of possible property.

The result of the Court of Appeal’s decision is that, subject to a successful appeal to the Supreme Court, the challenge to the IPT’s decision cannot proceed.

A copy of the judgment is available here.

Dinah Rose QC, Ben Jaffey QC and Tom Cleaver acted for Privacy International. James Eadie QC acted for the Secretary of State and GCHQ
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