Privacy International Wins Historic Victory at UK Supreme Court

Today, after a five year battle with the UK government, Privacy International has won at the UK Supreme Court. The UK Supreme Court has ruled that the Investigatory Powers Tribunal’s (IPT) decisions are subject to judicial review in the High Court. The Supreme Court's judgment is a major endorsement and affirmation of the rule of law in the UK. The decision guarantees that when the IPT gets the law wrong, its mistakes can be corrected.

Key point:

• UK Supreme Court rules that the UK spying tribunal - the IPT - cannot escape the oversight of the ordinary UK courts

The leading judgment of Lord Carnwath confirms the vital role of the courts in upholding the rule of law. The Government’s reliance on an ‘ouster clause’ to try to remove the IPT from judicial review failed. The judgment confirms hundreds of years of legal precedent condemning attempts to remove important decisions from the oversight of the courts.

Privacy International's case stems from a 2016 decision by the IPT that the UK government may use sweeping 'general warrants' to engage in computer hacking of thousands or even millions of devices, without any approval from by a judge or reasonable grounds for suspicion. The Government argued that it would be lawful in principle to use a single warrant signed off by a Minister (not a judge) to hack every mobile phone in a UK city - and the IPT agreed with the Government.

Privacy International challenged the IPT's decision before the UK High Court. The Government argued that even if the IPT had got the law completely wrong, or had acted unfairly, the High Court had no power to correct the mistake. That question went all the way to the UK Supreme Court, and resulted in today's judgment.

In his judgment, Lord Carnwath wrote:

"The legal issue decided by the IPT is not only one of general public importance, but also has possible implications for legal rights and remedies going beyond the scope of the IPT’s remit. Consistent application of the rule of law requires such an issue to be susceptible in appropriate cases to review by ordinary courts."

Caroline Wilson Palow, Privacy International's General Counsel, said:

"Today's judgment is a historic victory for the rule of law. It ensures that the UK intelligence agencies are subject to oversight by the ordinary UK courts. 

Countries around the world are currently grappling with serious questions regarding what power should reside in each branch of government. Today's ruling is a welcome precedent for all of those countries, striking a reasonable balance between executive, legislative and judicial power.

Today's ruling paves the way for Privacy International's challenge to the UK Government's use of bulk computer hacking warrants. Our challenge has been delayed for years by the Government's persistent attempt to protect the IPT’s decisions from scrutiny. We are heartened that our case will now go forward."

Simon Creighton, of Bhatt Murphy Solicitors who acted for Privacy International, said:

“Privacy International’s tenacity in pursuing this case has provided an important check on the argument that security concerns should be allowed to override the rule of law. Secretive national security tribunals are no exception. The Supreme Court was concerned that no tribunal, however eminent its judges, should be able to develop its own “local law”. Today’s decision welcomes the IPT back from its legal island into the mainstream of British law.” 

Notes to editors

• In 2014, following the Edward Snowden disclosures, it was revealed that the UK security and intelligence services use hacking techniques in bulk to gain access to potentially millions of devices, including computers and mobile phones. 
• Privacy International challenged these mass hacking practices in the IPT, which hears claims against the UK intelligence services. During the proceedings, the government asserted that it could rely on broad 'general warrants', not based on reasonable individual suspicion, to conduct hacking. The UK Government even argued that it would be lawful in principle to use a single warrant to hack every mobile phone in a UK city. In February 2016, the IPT held that this was lawful. 
• In May 2016, Privacy International challenged the IPT's decision in the UK High Court. The Government's response was to argue that Tribunal decisions were not subject to judicial review because the jurisdiction of the court was ousted by a provision of the Regulation of Investigatory Powers Act ("RIPA") 2000. 
• In February 2017, the English High Court agreed with the UK government's position, despite one of the judges expressing serious reservations and indicating that he would have dissented if the case was not being appealed anyway.
• PI appealed to the Court of Appeal in February 2017. In November 2017, the Court of Appeal dismissed the appeal, finding in favour of the government.
• In December 2017, Privacy International applied for and was granted permission to appeal to the Supreme Court. 
• The Supreme Court heard oral argument on 3rd - 4th December 2018.
• The Supreme Court's summary of the case, including recordings of the hearings, is available here.
• Privacy International's summary of the case, including the proceedings prior to the Supreme Court, is available here.
• UK Supreme Court judgment and press summary are available here and here.
• Privacy International's FAQ about the judgment and the case is available here. 
• Privacy International was represented by Simon Creighton and Mark Scott of Bhatt Murphy Solicitors and a team from Blackstone Chambers led by Dinah Rose QC and Ben Jaffey QC.