COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE DYSON
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for the Defendant/Appellant
Mr Gavin Miller QC and Mr Guy Vassall-Adams (instructed by Bindmans LLP) for the Claimant/Respondent
Hearing date: 24 November 2008G
Crown Copyright ©
Lord Justice Laws:
"65 The Tribunal
(1) There shall, for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.
(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;
(b) to consider and determine any complaints made to them which, in accordance with subsection (4), are complaints for which the Tribunal is the appropriate forum;
(d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order.
(3) Proceedings fall within this subsection if—
(a) they are proceedings against any of the intelligence services;
(4) The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes—
(a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunications service or telecommunication system; and
(b) to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services.
(5) Subject to subsection (6), conduct falls within this subsection if (whenever it occurred) it is—
(a) conduct by or on behalf of any of the intelligence services;
66 Orders allocating proceedings to the Tribunal
(1) An order under section 65(2)(d) allocating proceedings to the Tribunal—
(a) may provide for the Tribunal to exercise jurisdiction in relation to that matter to the exclusion of the jurisdiction of any court or tribunal; but
(b) if it does so provide, must contain provision conferring a power on the Tribunal, in the circumstances provided for in the order, to remit the proceedings to the court or tribunal which would have had jurisdiction apart from the order.
67 Exercise of the Tribunal's jurisdiction
(1) Subject to subsections (4) and (5), it shall be the duty of the Tribunal—
(a) to hear and determine any proceedings brought before them by virtue of section 65(2)(a) or (d); and
(b) to consider and determine any complaint or reference made to them by virtue of section 65(2)(b) or (c).
(2) 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.
68 Tribunal procedure
(1) 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.
(2) The Tribunal shall have power—
(a) in connection with the investigation of any matter, or
(b) otherwise for the purposes of the Tribunal's consideration or determination of any matter,
to require a relevant Commissioner appearing to the Tribunal to have functions in relation to the matter in question to provide the Tribunal with all such assistance (including that Commissioner's opinion as to any issue falling to be determined by the Tribunal) as the Tribunal think fit.
(4) 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.
(6) It shall be the duty of the persons specified in subsection (7) to disclose or provide to the Tribunal all such documents and information as the Tribunal may require for the purpose of enabling them—
(a) to exercise the jurisdiction conferred on them by or under section 65; or
(b) otherwise to exercise or perform any power or duty conferred or imposed on them by or under this Act.
(S.68(7) then sets out a list of persons. The first, at s.68(7)(a), is "every person holding office under the Crown".) S.69 empowers the Secretary of State to make rules regulating the IPT's exercise of its jurisdiction and other matters. Then s.70:
"70 Abolition of jurisdiction in relation to complaints
(1) The provisions set out in subsection (2) (which provide for the investigation etc. of certain complaints) shall not apply in relation to any complaint made after the coming into force of this section.
(2) Those provisions are—
(a) section 5 of, and Schedules 1 and 2 to, the Security Service Act 1989 (investigation of complaints about the Security Service made to the Tribunal established under that Act);
(b) section 9 of, and Schedules 1 and 2 to, the Intelligence Services Act 1994 (investigation of complaints about the Secret Intelligence Service or GCHQ made to the Tribunal established under that Act); and
(c) section 102 of, and Schedule 7 to, the Police Act 1997 (investigation of complaints made to the Surveillance Commissioners)."
"(1) The Tribunal [sc. the IPT] shall carry out their functions in such a way as 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.
(2) Without prejudice to this general duty, but subject to paragraphs (3) and (4), the Tribunal may not disclose to the complainant or to any other person:
(a) the fact that the Tribunal have held, or propose to hold, an oral hearing under rule 9(4);
(b) any information or document disclosed or provided to the Tribunal in the course of that hearing, or the identity of any witness at that hearing;
(c) any information or document otherwise disclosed or provided to the Tribunal by any person pursuant to section 68(6) of the Act (or provided voluntarily by a person specified in section 68(7));
(d) any information or opinion provided to the Tribunal by a Commissioner pursuant to section 68(2) of the Act;
(e) the fact that any information, document, identity or opinion has been disclosed or provided in the circumstances mentioned in sub-paragraphs (b) to (d).
(3) The Tribunal may disclose anything described in paragraph (2) with the consent of:
(a) in the case of sub-paragraph (a), the person required to attend the hearing;
(b) in the case of sub-paragraphs (b) and (c), the witness in question or the person who disclosed or provided the information or document;
(c) in the case of sub-paragraph (d), the Commissioner in question and, to the extent that the information or opinion includes information provided to the Commissioner by another person, that other person;
(d) in the case of sub-paragraph (e), the person whose consent is required under this rule for disclosure of the information, document or opinion in question.
(4) The Tribunal may also disclose anything described in paragraph (2) as part of the information provided to the complainant under rule 13(2), subject to the restrictions contained in rule 13(4) and (5)."
"(1) The Tribunal's power to determine their own procedure in relation to section 7 proceedings and complaints shall be subject to this rule.
(2) The Tribunal shall be under no duty to hold oral hearings, but they may do so in accordance with this rule (and not otherwise).
(3) The Tribunal may hold, at any stage of their consideration, oral hearings at which the complainant may make representations, give evidence and call witnesses.
(4) The Tribunal may hold separate oral hearings which:
(a) the person whose conduct is the subject of the complaint,
(b) the public authority against which the section 7 proceedings are brought, or
(c) any other person specified in section 68(7) of the Act,
may be required to attend and at which that person or authority may make representations, give evidence and call witnesses.
(5) Within a period notified by the Tribunal for the purpose of this rule, the complainant, person or authority in question must inform the Tribunal of any witnesses he or it intends to call; and no other witnesses may be called without the leave of the Tribunal.
(6) The Tribunal's proceedings, including any oral hearings, shall be conducted in private."
Paragraph 13 is headed "Notification to the complainant". It provides:
"(1) In addition to any statement under section 68(4) of the Act, the Tribunal shall provide information to the complainant in accordance with this rule.
(2) Where they make a determination in favour of the complainant, the Tribunal shall provide him with a summary of that determination including any findings of fact.
(3) Where they make a determination:
(a) that the bringing of the section 7 proceedings or the making of the complaint is frivolous or vexatious;
(b) that the section 7 proceedings have been brought, or the complaint made, out of time and that the time limit should not be extended; or
(c) that the complainant does not have the right to bring the section 7 proceedings or make the complaint;
the Tribunal shall notify the complainant of that fact.
(4) The duty to provide information under this rule is in all cases subject to the general duty imposed on the Tribunal by rule 6(1).
(5) No information may be provided under this rule whose disclosure would be restricted under rule 6(2) unless the person whose consent would be needed for disclosure under that rule has been given the opportunity to make representations to the Tribunal."
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
(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.
(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act."
"(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."
THE DIRECTOR'S CASE
THE CLAIMANT'S ORIGINAL CASE
THE ORIGINAL CASE CONSIDERED
"[T]he words used in s.65(2)(a) make sense if it is intended to exclude the jurisdiction of any other tribunal which might have jurisdiction in particular circumstances, for example, an employment tribunal."
It is clear that Crown servants whose work is or was in one of the intelligence services may bring proceedings in the employment tribunal. The Employment Tribunals (Constitution & Rules etc) Regulations 2004 contain special procedural provisions for the protection of national security where that falls for consideration: see paragraph 54 and Schedule 2. But these circumstances, in my judgment, offer no material assistance to Mr Millar. If an employment claim against one of the intelligence services were to involve an allegation falling within HRA s.7(1), then, certainly, it would have to be brought in the IPT by force of RIPA s.65(2)(a). But that of course is only because all claims against the intelligence services involving such an allegation must be brought in the IPT. I can see that, without the possibility of employment claims being diverted to the IPT by force of RIPA s.65(2)(a), on Mr Millar's argument the only claims so diverted would be claims already assigned to the IPT by s.65(2)(b) – for the reasons I have given in paragraph 19; and therefore the possibility of employment claims being so diverted at least gives some content to s.65(2)(a) beyond claims which are, in truth, already assigned to the IPT by s.65(2)(b). That may soften the gross anomaly which Mr Millar's case produces; but it is a case that remains wholly eccentric.
THE NEW POINT
"(2) The function of the Service shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.
(3) It shall also be the function of the Service to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands."
"The Director-General shall be responsible for the efficiency of the Service and it shall be his duty to ensure—
(a) that there are arrangements for securing that no information is obtained by the Service except so far as necessary for the proper discharge of its functions or disclosed by it except so far as necessary for that purpose or for the purpose of preventing or detecting serious crime..."
The giving or withholding of consent to a proposed publication written by a former member of the Service is in my judgment incidental to these functions. Accordingly, the claimant's submission on this new argument leads to the conclusion that "proceedings against any of the intelligence services" in s.65(3)(a) – certainly so far as the phrase relates to the Security Service, and I can discern no distinction for this purpose between that Service and the other intelligence services – is an empty category. But the statute cannot be construed so as to provide for such a result.
Lord Justice Rix:
"(2) In subsection (1)(a) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules".
CPR 7.11 provides that claims in respect of judicial acts must be brought in the High Court but –
"Any other claim under section 7(1)(a) of that Act may be brought in any court."
Thus, subject to the phrase in question in section 65(2)(a) of RIPA, section 7 proceedings against a public authority may be brought in any court.
(1) Section 65(2)(b) and section 65(4) each speaks of IPT as "the appropriate forum" for complaints by a person aggrieved by conduct falling within section 65(5).
(2) Section 65(2)(d) says that IPT has jurisdiction to hear and determine "any other such proceedings" (ie proceedings other than under section 7(1)(a) of HRA) falling within section 65(3) "as may be allocated to them in accordance with provision made by the Secretary of State by order". We have been told that no such order is as yet in force. Section 66(1) provides that any such order made under section 65(2)(d) "may provide for the Tribunal to exercise jurisdiction in relation to that matter to the exclusion of the jurisdiction of any court or tribunal", but that if it does so it must also confer a power on the IPT to remit the proceedings "to the court or tribunal which would have had jurisdiction apart from the order".
Lord Justice Dyson: