Freedom of expression – Intelligence of services – Investigatory Powers Tribunal – Emanations of the Crown

A v B: CA (Civ Div) (Lords Justice Laws, Rix, Dyson): 18 February 2009

The appellant Director of Establishments of the Security Service appealed against a decision ([2008] EWHC 1512 (Admin), [2008] 4 All ER 511) that the Administrative Court had jurisdiction to hear the claim of the respondent (X) against the director alleging a breach of article 10 of the European Convention on Human Rights 1950.

X was a former member of the security service. He had written a book containing a description of his work for the service. He was bound by a strict duty of confidentiality and could not publish such material without the authority of the director. The director refused to consent to publication and X applied for permission to bring judicial review proceedings to challenge the director’s refusal of consent. X’s case was that the refusal violated his right of free expression guaranteed by article 10 of the convention. The director took the view that the Administrative Court had no jurisdiction to entertain the claim of violation of convention rights because, by virtue of section 65(2)(a) of the Regulation of Investigatory Powers Act 2000, the only judicial entity having jurisdiction to entertain the article 10 claim was the Investigatory Powers Tribunal. The judge held as a preliminary issue that the Administrative Court had jurisdiction to hear X’s claim. The director submitted that X’s claim pursuant to article 10 was a claim within section 7(1)(a) of the Human Rights Act 1998 and was therefore by that provision assigned exclusively to the ‘appropriate court or tribunal’, and where the claim was brought ‘against any of the intelligence services’ under section 65(3)(a) of the 2000 act, the ‘appropriate court or tribunal’ was the Investigatory Powers Tribunal by virtue of section 65(2)(a); in the circumstances the High Court never possessed any jurisdiction to be ousted. X submitted that section 65(2)(a) did not touch the jurisdiction of any court properly so-called, but merely assigned to the tribunal a class of case which would otherwise have been heard by another tribunal; and that the proceedings were in substance brought against the Crown, and therefore were not proceedings against any of the intelligence services within the meaning of section 65(3)(a) of the 2000 act, so that section 65(2)(a) was not engaged, and the Administrative Court was the appropriate court or tribunal for the purposes of section 7 of the 1998 act.

Held: (1) (Per Laws LJ) The director’s argument on section 65(2)(a) was correct, and the judge had been wrong to reject it. That provision referred to ‘any proceedings’ under section 7(1)(a). The expression was unqualified and plainly included proceedings such as the instant proceedings. There was nothing to show that its scope was in some way limited by reference to the jurisdiction of any other tribunals. The use in section 65(2)(a) of the term ‘tribunal’ was unsurprising and readily explained by reference to the fact that it was enacted only in the context of the jurisdiction of the Investigatory Powers Tribunal already assigned by that subsection. X’s interpretation of section 65(2)(a) produced anomalous results. (Per Dyson LJ) The creation of convention rights under the 1998 act and the assignment of disputes about them to the appropriate court or tribunal were all part of the same legislative scheme which came into force at the same time in 2000. The courts did not previously have the jurisdiction to determine proceedings under the 1998 act and no question of ouster of jurisdiction therefore arose. The fact that the relevant provisions of the 2000 act, the 1998 act and the Investigatory Powers Tribunal Rules 2000 were all enacted and came into force at the same time as part of a single legislative scheme was significant. The fact that the 2000 rules applied to proceedings before the tribunal, and there were no corresponding rules in respect of section 7 proceedings against an intelligence service in the courts, was a strong point in favour of the director’s case, which was not outweighed by the points relied on by X. (Per Rix LJ, dissenting) Rule 7.11 of the Civil Procedure Rules allocated section 7 proceedings in general to the courts and if an exception was to be carved out of that, even by primary legislation such as the 2000 act, such an exception had to be achieved plainly and expressly, and not uncertainly and by means of implication.(2) The security service was an emanation of the Crown, having no legal personality of its own. It was not clothed in legal personality by the Security Service Act 1989. Its functions were merely thereby placed on a statutory footing. All the intelligence services were emanations of the Crown. None had individual legal personality. It followed that the expression ‘intelligence services’ in section 65(3)(a) could not be intended to refer to bodies having distinct legal personalities of their own, for in that case it would have no content at all. It could only be intended to refer to what were admittedly emanations of the Crown. Accordingly, the fact that the Crown was the legal personality standing as it were behind the security service did not take the security service out of section 65(3)(a), nor therefore out of section 65(2)(a).

Appeal allowed.

Philip Havers QC, Jason Coppel (instructed by Treasury Solicitor) for the appellant; Gavin Miller QC, Guy Vassall-Adams (instructed by Bindmans) for the respondent.