This is an appeal from the decision of a two judge Divisional Court (Sir Brian Leveson, President of the Queen’s Bench Division, and Leggatt J) on a preliminary issue in judicial review proceedings brought against the Investigatory Powers Tribunal (“the IPT” or “the Tribunal”). The IPT is a special tribunal which was established under the Regulation of Investigatory Powers Act 2000 (“RIPA”) with jurisdiction to examine, among other things, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters or “GCHQ” (together, “the intelligence services”).

The preliminary issue determined by the Divisional Court relates to whether the ouster clause in section 67(8) of RIPA has the effect of preventing a judicial review claim being brought against the IPT. Section 67(8) is as follows:

The Divisional Court made an order to the effect that by reason of section 67(8) a decision of the IPT is not amenable to judicial review. It did so in unusual circumstances, in that the court was divided in its view as to the effect of section 67(8). In the view of Sir Brian Leveson PQBD, for the detailed reasons set out in his judgment, section 67(8) does have the effect of exempting rulings by the IPT from judicial review by the High Court. Leggatt J inclined to the view that section 67(8) does not have that effect, for the countervailing detailed reasons set out in his judgment. Nonetheless, he was prepared to agree to make the order proposed by Sir Brian, since there was no point in having the issue re-argued before a different constitution of the Divisional Court where the order made could be taken forward to an appeal so that the issue could be considered and determined by this court.

On this appeal, the IPT itself was represented by Jonathan Glasson QC. Mr Glasson provided us with a helpful note on behalf of the IPT which explained its composition and functions. It also pointed out the practical difficulties which would arise in judicial review proceedings in relation to handling of sensitive confidential information if this court concludes that the appeal should be allowed and that the IPT is amenable to judicial review. However, the main burden of the submissions, both oral and written, in support of the order made by the Divisional Court was assumed by James Eadie QC for the interested parties.

In his judgment Sir Brian Leveson PQBD set out a helpful account of the structure and functions of the IPT. No-one has suggested it contains any errors. I gratefully adopt what he said, as follows:

It is a cardinal feature of the legislative regime which governs the IPT that its proceedings may be conducted in private and at certain stages in the absence of the complaining party: rule 9 of the Rules. The IPT is subject to a principle set out in rule 6(1):

The context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue and the public interests which may be jeopardised if it is disclosed. The intelligence services may have valuable sources of information about terrorist organisations, organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them. Human sources, such as informers, might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed. Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed. Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures. The aspects of the public interest which would be jeopardised if these things occurred, as referred to in rule 6(1), are of the most pressing importance.

Rule 6(1) requires the IPT to give overriding weight to protection of the specified aspects of the public interest in deciding how to conduct its proceedings. Given the context, it is easy to understand why this should be so. In contrast to what occurs in the ordinary courts when applications are made to withhold disclosure of evidence on grounds of public interest immunity, the IPT is not entitled to balance the public interest in non-disclosure against an individual litigant’s interest in having the evidence disclosed to him.

Where such a balancing exercise is undertaken in court proceedings, there is at least a possibility that the court might order disclosure, even though that could do harm to aspects of the public interest. That risk is all the greater because the ordinary courts do not have general powers to conduct examination of claims in closed proceedings from which an individual claimant is excluded: see Al-Rawi v The Security Service[2011] UKSC 34; [2012] 1 AC 531 and AHK v Secretary of State for the Home Department [2013] EWHC 1426 (Admin); [2014] Imm AR 32. Such powers were only introduced by the Justice and Security Act 2013, well after the enactment of RIPA. In ordinary court proceedings before the enactment of the 2013 Act, the choices for a public authority defendant and for the court were stark and it was difficult to reconcile competing aspects of the public interest. In the Al-Rawi litigation, for example, an application by the Security Service to be permitted to serve closed defences within a closed material procedure failed and the claims had to be settled without the merits being tested, because of the risk to national security if the litigation proceeded and orders were made for the disclosure of sensitive material.

The legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant, which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material. In this way, the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceeding.

At the relevant time there was no right of appeal from the IPT under RIPA, “Except to such extent as the Secretary of State may by order otherwise provide”: section 67(8). No such order had been made. This means that under the legislative regime in issue in these proceedings no question could arise on an appeal from the IPT to the High Court or this court as to whether or how the court should modify its usual procedures to take account of the need to examine highly sensitive confidential information which might have been in issue on the appeal. The existence and extent of a right of appeal under RIPA was made subject to provisions in any order which might be made by the Secretary of State, which meant that she would be able to ensure that the same strict safeguards as exist in relation to disclosure of sensitive information at IPT level would have to be applied by an appellate court before the possibility of an appeal was made available. (RIPA has now been amended by the Investigatory Powers Act 2016, which has created a right of appeal from the IPT on a point of law, under a new section 67A of RIPA).

In my view the procedural regime governing the IPT and its differences from that applicable to the ordinary courts at the time RIPA was enacted are significant features of the legal context in which section 67(8) of RIPA falls to be construed.

The appellant has made a complaint to the IPT that GCHQ, one of the intelligence services, has been conducting unlawful computer network exploitation activity. As convenient shorthand I will refer to this as computer hacking. The appellant believes it may have been the subject of computer hacking by GCHQ.

One issue in that complaint was whether, if and to the extent that GCHQ had been carrying on computer hacking of the appellant, it had done so pursuant to a lawful warrant issued by the Secretary of State for Foreign and Commonwealth Affairs. In order to secure the maximum scope for participation in its proceedings for the appellant, the IPT directed the hearing of a preliminary issue on assumed facts, in accordance with its procedure described above. This enabled it to consider certain relevant issues of law in an open hearing in which the appellant could participate and make full submissions, while at the same time ensuring that the ‘neither confirm nor deny’ policy which is adopted by the intelligence services and is reflected in RIPA could be respected, thereby avoiding possible damage to national security or other aspects of the public interest.

One of the preliminary issues on which the IPT ruled concerned the proper interpretation of section 5 of RIPA. Section 5(1) provides that “No entry on or interference with property or with wireless telegraphy shall be unlawful if it is authorised by a warrant issued by the Secretary of State under this section”. Section 5(2) provides that on an application by GCHQ the Secretary of State may issue a warrant authorising “the taking … of such action as is specified in the warrant in respect of any property so specified or in respect of wireless telegraphy so specified …”, if certain conditions are met. There was a dispute between the appellant and GCHQ and the Secretary of State regarding the degree of specification in a warrant which was required by this language. In a judgment promulgated on 12 February 2016 the IPT upheld the submission of GCHQ and the Secretary of State that section 5(2) authorises him to issue warrants in general terms authorising a broad class of possible activity in respect of a broad class of possible property, going beyond the more restrictive interpretation of the degree of specificity required which was urged by the appellant: see the discussion of so-called thematic warrants in Privacy International v Secretary of State for Foreign and Commonwealth Affairs and the Government Communications Headquarters [2016] UKIP Trib 14 at [31]-[47].

This is potentially of legal significance in two ways. First, if action of GCHQ to interfere with property is not protected by a warrant issued under section 5, it is likely that GCHQ would commit torts of interference with that property which would sound in damages. Secondly, if GCHQ takes such action to hack computers in circumstances where it is not protected by a warrant, it is likely that it would be liable in law for breaches of its obligation under section 6 of the Human Rights Act 1998 to act compatibly with Convention rights, since it would not be able to show that any interferences with rights to respect for the home, correspondence and private life were in accordance with the law, as required by Article 8(2) of the European Convention on Human Rights (as scheduled to the Human Rights Act as a Convention right).

The appellant wished to challenge the IPT’s ruling of law on the proper interpretation of section 5 of RIPA. There was no right of appeal, so the appellant commenced judicial review proceedings against the IPT. The Divisional Court ordered that the issue of the effect of section 67(8) of RIPA on those proceedings should be determined as a preliminary issue.

By its judgment herein on that preliminary issue the Divisional Court held that the decision of the IPT is not amenable to judicial review by reason of section 67(8). It made an order dismissing the appellant’s application for judicial review. The appellant now appeals to this court with permission granted by the Divisional Court.

The courts adopt a highly restrictive approach to the interpretation of statutory provisions which purport to oust the jurisdiction of the High Court. The classic case is Anisminic Ltd v Foreign Compensation Commission[1962] 2 AC 147 but there are many other authorities which illustrate the approach. For a recent discussion in the Supreme Court, see R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663. It is an approach which reflects the fundamental importance of the rule of law in our legal and political system. If an individual cannot get before a court or tribunal to determine a complaint that a public authority has engaged in unlawful conduct, the rule of law will be defeated. The law will not be applied as it should be.

Ms Rose QC for the appellant accepts for the purposes of the appeal to this court that it is in principle open to Parliament to exclude a right to apply to the High Court for judicial review, if it does so in terms which are sufficiently clear. She submits, however, that section 67(8) is not drafted in terms which are clearly to this effect. The IPT is not itself part of the High Court, but is an inferior tribunal. In line with established principle, section 67(8) should be read in a narrow and restricted way, with the result that it cannot be found to mean that it excludes recourse to ordinary judicial review in the High Court in relation to the IPT. To give section 67(8) such a meaning would immunise decisions of the IPT on points of law from all review and the possibility of correction by the higher courts, from the High Court up to the Supreme Court. Parliament cannot have intended such a result.

Ms Rose submits that the restrictive approach to interpretation of ouster clauses which is illustrated by Anisminic is an example of the application of the principle of legality: compare R v Secretary of State for the Home Department, ex p. Simms[2000] 2 AC 115. I think that is right. The principle of legality is an approach to statutory interpretation in the light of a strong presumption that in promulgating statutes Parliament intends to legislate for a liberal democracy subject to the rule of law, respecting human rights and other fundamental principles of the constitution. The rule of law and the ability to have access to a court or tribunal to rule upon legal claims constitute principles of this fundamental character.

In Ms Rose’s submission, by reason of the established restrictive approach to construction of an ouster clause of this kind, if it had been intended that section 67(8) should oust the judicial review jurisdiction of the High Court it would have needed to say in terms that “determinations and purported determinations” would not be liable to be questioned in any court, in order to take account of the decision in Anisminic itself; it would also have needed to say in terms that not being liable to be questioned in any court included being questioned in judicial review proceedings; and furthermore it would have needed to say in terms that this exclusion of judicial review applied even if the IPT had made an error of law.

Against this, Mr Eadie QC for the interested parties submits that there are different ways in which and degrees to which the principle of the rule of law and the right to have access to a court or tribunal might be brought into question by an ouster clause in a statute, depending on the context. On the one hand, if it is said that a provision should be construed as having the effect of excluding the possibility of judicial review in relation to an act of the executive, that would impact upon the usual principle of the rule of law in an especially intrusive way and the drafting required to achieve that effect would correspondingly need to be especially clear. On the other hand, if it is contended that a provision ousts the jurisdiction of the High Court in relation to judicial review but in the context of provision of a right of access to another court or tribunal, the rule of law would still be capable of being vindicated by an independent and impartial judicial body, even if not the High Court. The impact upon the rule of law would be far reduced and accordingly the courts should be more ready to find that the language of what appeared to be an ouster provision was indeed effective to achieve that result. In this case the IPT is an independent and impartial judicial body, presided over by a High Court judge. Mr Eadie submitted that in both types of case it is the substantive effect of the language used which is important, rather than the use of any particular formula. He contends that section 67(8) is in clear terms and should be construed to mean that there is no right to apply for judicial review in the High Court in relation to decisions and determinations of the IPT.

Although a lot of authorities were cited to us, this case turns on a short point of statutory construction in relation to RIPA.

I can see force in the general thrust of the submission made by Mr Eadie about the variable impact of the principle of legality. Nonetheless, it has to be recognised that a provision which isolates a tribunal from any prospect of appeal through to this court and the Supreme Court on points of law which may be controversial and important – which is a significant effect of reading section 67(8) as Mr Eadie contends – also involves a substantial inroad upon usual rule of law standards in this jurisdiction. That is particularly so where what is in issue is judicial determination of claims regarding the lawfulness of action taken by the intelligence services, the police and others.

In my judgment, however, on its proper construction, section 67(8) does clearly mean that all determinations, awards, orders and decisions of the IPT “shall not … be liable to be questioned in any court”, including in the High Court on judicial review. This includes those determinations and decisions which the IPT may 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. This interpretation is given clearly, in my view, by the language used in the provision as read in its legislative context.

Ms Rose relies strongly on the speeches in the Anisminic case itself in relation to the meaning of the word “determination” in the statutory provision in that case. The provision in issue in Anisminic was section 4(4) of the Foreign Compensation Act 1950, which applied in relation to determinations as to compensation made by the Foreign Compensation Commission. It provided:

The House of Lords held that the word “determination” in this provision “means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity”, as would be the case if the commission had made an error of law in its determination ([1969] 2 AC 147, 170A per Lord Reid, and see his discussion at pp. 170A-171F; also pp. 199E-200A per Lord Pearce; pp. 207D-208C per Lord Wilberforce; and p. 215A-D per Lord Pearson).

In O’Reilly v Mackman[1983] 2 AC 327, at 278C-F, Lord Diplock (with whom the other members of the appellate committee agreed) referred to the “landmark decision” of Anisminic and said that it had “liberated English law from the fetters that the courts had theretofore imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned, by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction”; now, any error of law by the tribunal would be taken to go to its jurisdiction.

In R v Lord President of the Privy Council, ex p. Page[1993] AC 682 the House of Lords affirmed the view, as derived from Anisminic, that after that decision “it was to be taken that Parliament had only conferred the decision-making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires”; with the consequence that “in general any error of law made by an administrative tribunal or inferior court can be quashed for error of law” and regarded as a nullity: see, in particular, pp. 701F-702B per Lord Browne-Wilkinson.

Baroness Hale of Richmond JSC and Lord Dyson JSC made observations to similar effect in R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663. At [18] Baroness Hale said that in Anisminic “the House of Lords effectively removed the distinction between error of law and excess of jurisdiction”; see also [39]-[40] in her judgment. At [111] Lord Dyson described the distinction between jurisdictional error and other error as “artificial and technical” and agreed with the editors of De Smith’s Judicial Review, 6^th ed (2007), who said at para. 4-046 that it was unlikely that the distinction could be regarded as satisfactory, and that instead “all administrative actions should be simply, lawful, whether or not jurisdictionally lawful”.

Relying in particular on Barras v Aberdeen Steam Trawling and Fishing Company Ltd [1933] AC 402 at 411,Ms Rose submits that the word “determination” in section 67(8) of RIPA must be given the same interpretation as the same word was given by the House of Lords in Anisminic when it was used in section 4(4) of the 1950 Act, to mean real determinations by the IPT and not purported determinations arrived at as a result of an error by the IPT which took it outside its jurisdiction, including an error of law by it. Similarly, the word “decision” in section 67(8) means a real decision, not a purported decision which is in fact a nullity because made as a result of an error of law.

In my judgment, however, the language used in section 67(8) is materially different from that in section 4(4) of the 1950 Act. The context for the two provisions is also materially different.

In Anisminic, the word “determination” was taken to exclude purported determinations made in excess of jurisdiction, where the excess of jurisdiction arose because of (among other things) an error of law made by the Foreign Compensation Commission in arriving at its determination. But the drafter of section 67(8) has expressly adverted to the possibility of the IPT making an error of law going to its jurisdiction or power to act, by the words in parenthesis in that provision: “including decisions as to whether they have jurisdiction”. Therefore, at least so far as the word “decision” is concerned, it is not tenable to apply the simple distinction relied upon in Anisminic in the context of section 4(4) of the 1950 Act between a “determination” and a purported determination, in the sense of a determination made without jurisdiction. In section 67(8), the word “decision” is stated to include a decision which (if judicial review or an appeal were available) might be found to have been made without jurisdiction because of an error of law on the part of the IPT – that is to say, if one wants to use this phrase, a purported decision.

In the context of section 67(8) it makes no sense to distinguish the position in relation to a “determination” from that in relation to a “decision”. In the first place, the language of section 67(8) indicates that the drafter regarded “determinations” as a form of “decision”, because the word “decisions” is at the end of the list of “determinations”, “awards” and “orders” and is introduced by the word “other”. The concept of a “decision” is not a specific term of art in the context of RIPA, but is a compendious concept which covers all the things the IPT might decide. In that respect it is unlike the other items in the list. The concept of a “determination” marries up with section 67(1) and (2) and section 68(4), and means a final decision in relation to a claim or a complaint. The concept of an “award” marries up with section 67(7), and is the formal outcome of a decision as to what compensation should be granted. The concept of an “order” marries up with section 67(6) and (7), and is the formal outcome of a decision regarding any other relief which should be granted.

Further, the IPT might make a discrete decision on some preliminary point of law on its way to making its determination on a claim, or it might deal with the point of law and decide it in the determination itself. As a matter of ordinary language one would say that the IPT has made a decision on the point of law in both these cases. Indeed, the procedure adopted by the IPT in this case and others of giving a ruling on issues of law on the basis of assumed facts in advance of making its final determination of a claim, so as to allow for argument on issues in the most open way possible which is consistent with its obligation under rule 6(1), means that it is very likely that the relevant decision on an issue of law will be in a ruling at the preliminary stage. Moreover, there is nothing to indicate that Parliament intended there to be any difference in the availability of a judicial review challenge as between these two situations and it is very difficult to see any reason why there should be.

The same reasoning applies in relation to other decisions the IPT might make. For example, one party might object to a particular member of the IPT sitting in a case on the ground that there were circumstances in relation to him which gave an objective appearance of bias, and the IPT would have to decide whether that member should recuse himself or whether it could proceed with him sitting as a member of the constitution which makes the final determination. Or the IPT might have to decide what fairness or natural justice requires in relation to some aspect of its procedure on its way towards making a final determination, which was a type of situation which the House of Lords in Anisminic remarked upon in the context of the procedures which might be adopted by the Foreign Compensation Commission. There, the members of the appellate committee considered that if the commission made a determination following a procedure which did not properly comply with the rules of natural justice, it would be a purported determination, not a real one, and judicial review would be available notwithstanding section 4(4) of the 1950 Act. But in the context of section 67(8) of RIPA, the IPT’s decision on the point would be a decision as to whether they had jurisdiction to proceed in the particular way in issue, which could not be questioned in any court.

It is implicit in reading section 67(8) in this way that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it. There is nothing implausible about this. The quality of the membership of the IPT in terms of judicial expertise and independence is very high, as set out in Schedule 3 to RIPA, so it is a fair inference that Parliament did intend that this should be the position. The IPT has been recognised to be “a judicial body of like standing and authority to that of the High Court”: see R (A) v Director of Establishments of the Security Service [2009] EWCA Civ 24; [2010] 2 AC 1, at [22] per Laws LJ; and see [57] per Dyson LJ and [32] per Rix LJ.

It might be objected that the phrase “decisions as to whether they have jurisdiction” in section 67(8) could be taken to suggest that it is only where the IPT gives its attention to a particular issue affecting its jurisdiction and reaches a considered view on it that it has made a decision as to whether it has jurisdiction. However, two points can be made. First, this is what has happened in this case: the IPT heard submissions about the meaning and effect of section 5 of RIPA and reached a reasoned decision on that point in the course of moving towards its determination of the appellant’s claim. So even if this interpretation of section 67(8) were correct, it would not assist the appellant in the present case.

Secondly, however, I do not consider that this interpretation is correct. Again, there is no good reason for reading section 67(8) in this narrow way. It would create an unjustified distinction between advertent and inadvertent errors of law or in procedure which has never been part of public law. It would also lead to excessively subtle arguments about whether errors of law or in procedure were or were not the product of a considered view being reached by the IPT. Parliament, in legislating against the background of basic principles of public law as articulated in Anisminic, O’Reilly v Mackman and ex p. Page, did not intend to introduce a new form of esoteric distinction of this kind. In my view, the phrase “decisions as to whether they have jurisdiction” has the following straightforward meaning, appropriate in this public law context: “decisions in relation to their jurisdiction”.

I also think that the use of the word “determination” elsewhere in the regime under sections 67 and 68 of RIPA tends to indicate that Parliament intended it to mean both a real determination and a purported determination (in the Anisminic sense of those terms): see section 68(4) and (5), where the word is used to refer to determinations in both senses.

These linguistic points are strongly supported by the statutory context in which section 67(8) appears, to which I have already referred. It is clear that Parliament’s intention in establishing the IPT and in laying down a framework for the special procedural rules which it should follow, including the Rules, was to set up a tribunal capable of considering claims and complaints against the intelligence services under closed conditions which provided complete assurance that there would not be disclosure of sensitive confidential information about their activities.

Interpretation of section 67(8) as set out above gives it a meaning which promotes this purpose. To construe section 67(8) as allowing judicial review of determinations and decisions of the IPT would subvert it. It would mean that despite the elaborate regime put in place to allow the IPT to determine claims against the intelligence services in a closed procedure while guaranteeing that sensitive information about their activities is not disclosed, judicial review proceedings could be brought in which no such guarantee applied.

It is worth emphasising how far the subversion of Parliament’s purpose would go, if the construction urged by the appellant were correct. There is no neat, absolute division between points of law and points of fact in judicial review proceedings. For example, it is open to a claimant who brings such proceedings to allege that a public body has made a decision which is irrational or disproportionate, having regard to all the evidence in the case. It is open to a claimant to allege that a decision has been made which is unsupported by any evidence or which is contradicted by evidence in the case. Such claims may require the reviewing court to examine all the evidence which was before the decision-making body. As observed above, the operation of the rules on public interest immunity in court proceedings does not afford the same guarantee of non-disclosure of information damaging to the public interest as rule 6(1) of the Rules.

Sir Brian Leveson PQBD gave great weight to this legislative context in arriving at the interpretation of section 67(8) which I consider is correct, and rightly so in my opinion: see [40]-[44] of the judgment below.

It is a feature of the IPT regime which was emphasised both by this court and by the Supreme Court in the authority which is most relevant for the question of construction of RIPA with which we are concerned, namely R (A) v Director of Establishments of the Security Service[2009] EWCA Civ 24 and [2009] UKSC 12; [2010] 2 AC 1. Both courts held that section 65 of RIPA conferred on the IPT exclusive jurisdiction to hear claims under section 7 of the Human Rights Act 1998 against any of the intelligence services. In this court, Laws LJ observed that the IPT was a judicial body “of like standing and authority to that of the High Court” and which “operates subject to special procedures apt for the subject matter in hand” ([22]); and Dyson LJ said this at [48]:

All the members of the Supreme Court agreed with the judgment of Lord Brown of Eaton-under-Heywood JSC. At [14] Lord Brown explained the special problems to which claims against the intelligence services give rise, referred to relevant restrictive provisions of RIPA and the Rules “regarding the closed nature of the IPT’s hearings and the limited disclosure of information to the complainant (both before and after the IPT’s determination)”, and said:

Lord Brown also referred at [23] to section 67(8) of RIPA, and expressed the view that this was an ouster of any jurisdiction of the courts over the IPT and that it was, unlike the ouster clause in Anisminic, “an unambiguous ouster” of that jurisdiction. It is true that this is an obiter dictum, but it was a considered view expressed as part of a very careful analysis of the IPT regime established by RIPA and the Rules. It is also a view which fits closely with the rest of Lord Brown’s analysis of that regime, and in particular what he said at [14] about what the regime was intended to achieve in terms of allowing claims against the intelligence services to be determined on the basis of full evidence about their activities whilst also ensuring that sensitive confidential information about those activities would not be disclosed. Unless section 67(8) is interpreted as Lord Brown indicated, it would permit the special procedural regime established for the IPT to be bypassed at the stage when judicial review proceedings in respect of its decisions are brought in the High Court, as explained above. That would undermine the coherence of Lord Brown’s reasoning at para. [14] of his judgment. In my view, Lord Brown’s view at [23] about the proper interpretation and effect of section 67(8) is of powerful persuasive authority. I agree with it.

For these reasons, I would dismiss this appeal.

I agree.

I also agree.