The claimant complained to the Investigatory Powers Tribunal that the Government Communications Headquarters had been conducting unlawful computer network exploitation activity. At the hearing of a preliminary issue on assumed facts, the tribunal ruled that, inter alia, section 5(2) of the Regulation of Investigatory Powers Act 2000 authorised the Secretary of State to issue warrants in general terms authorising a broad class of possible activity in respect of a broad class of possible property. As there was no right of appeal, the claimant brought judicial review proceedings against the tribunal challenging its interpretation of section 5. On a preliminary issue the Divisional Court of the Queen’s Bench Division determined that the decision of the tribunal was not amenable to judicial review, given that section 67(8) of the 2000 Act provided that except to such extent as the Secretary of State might by order otherwise provide, determinations, awards, orders and other decisions of the tribunal (including decisions as to whether they had jurisdiction) should not be subject to appeal or be liable to be questioned in any court.
On the claimant’s appeal—
Held, appeal dismissed. Read in its legislative context the language used in section 67(8) of the Regulation of Investigatory Powers Act 2000 clearly meant that all determinations, awards, orders and decisions of the tribunal should not be liable to be questioned in any court, including in the High Court on judicial review. That included those determinations and decisions which the tribunal might have made on the basis of what (if there were a judicial review or appeal) might have been found by a court to have been an erroneous view of the law (paras 26, 34, 45, 48, 49, 50, 51).
Dinah Rose QC, Ben Jaffey QC and Tom Cleaver (instructed by Bhatt Murphy Ltd) for the claimant.
Jonathan Glasson QC (instructed by Government Legal Department) for the tribunal.
James Eadie QC and Kate Grange QC (instructed by Government Legal Department) for the Secretary of State for Foreign and Commonwealth Affairs and the Government Communications Headquarters, interested parties.