A v B

The cryptic title to this claim conceals the reality. The claimant is a former member of the Security Service who has written and wishes to publish a book which contains inter alia a description of his work for the Service. The defendant is the Director of Establishments of the Service. The claimant is bound by a duty of confidentiality that he cannot publish material relating to the Security Service or his experiences in it without the consent of the defendant. His application to publish has been refused. This claim seeks to overturn that refusal on the grounds that it was unreasonable, vitiated by bias and contrary to Article 10 of the ECHR (freedom of expression).

The defendant in his defence asserted that the court had no jurisdiction to deal with the claim, at least so far as the allegation of breach of Article 10 was concerned. It is said that the relevant provisions of the Regulation of Investigatory Powers Act 2000 (RIPA) and the Human Rights Act 1998 require that matters such as this claim raises should be dealt with by the Investigatory Powers Tribunal (IPT) which was set up by RIPA. In those circumstances, it seemed sensible to deal with this jurisdictional argument as a preliminary issue and I so ordered on 12 March 2008.

The defendant’s contention is based on s.65 of RIPA. This provides so far as material:-

“(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 provisions 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;

(b)

they are proceedings against any other person in respect of any conduct or proposed conduct by or on behalf of any of those 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 to his use of any postal service, telecommunications service or telecommunication system; and

(b)

… to have been carried out by or on behalf of any of the intelligence services.

(5)

… conduct falls within this subsection if (wherever it occurred) it is –

(a)

conduct by or on behalf of any of the intelligence services.”

Section 66(1) provides:-

“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.”

Any order is subject to an affirmative resolution of each House of Parliament.

The President of the IPT must be a person who holds or has held a high judicial office (Schedule 3 Paragraph 2). Other members must have had in England and Wales, Scotland or Northern Ireland a relevant legal qualification for at least 10 years. At present, the President of the IPT is Mummery LJ and the vice-president is Burton J.

Section 67 of RIPA contains provisions which establish how the IPT should exercise their jurisdiction. In proceedings under s.65(2)(a), they must ‘apply the same principles for making their determination … as would be applied by a court on an application for judicial review’ (s.67(2)). In dealing with complaints under s.65(2)(b), they must investigate whether the persons against whom the allegations are made have engaged in conduct falling within s.65(5) and what authority they had for such conduct and determine the complaints in the same manner as set out in s.67(2) (s.67(3)). Section 67(7) gives power to award compensation. S.67(8) provides:-

“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”

This ouster provision is only applicable to proceedings pursuant to s.65(2)(a) and (b) (s.67(9).

There is the usual rule making power conferred by the Act (s.69). Pursuant to the power, the Investigatory Powers Tribunal Rules 2000 (2000 No.2665) have been made. The Tribunal must ensure that no information which 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 is disclosed to anyone, including any complainant. (Rule 6(1)). There is no obligation to hold an oral hearing (Rule 9(2)). Any such hearing must be held in private (Rule 9(6)) and no person can be compelled to give evidence (Rule 11(3)).

In addition to the restrictions in the Rules, s.68(4) of the Act provides:-

“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 s.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.”

Rule 13(2) of the Rules requires the Tribunal, if they make a determination in favour of the complainant, to provide him with a summary of that determination including any findings of fact. But if the complainant loses, he does not know why and he has no right of appeal.

Section 7 of the Human Rights Act 1998 provides so far as material:-

“(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) [i.e. because it is incompatible with a human right] 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.”

The defendant appeared to be suggesting in his summary defence that the court’s jurisdiction was ousted only in respect of the Article 10 claim. This would give rise to the anomalous situation in which the court had jurisdiction in relation to the grounds relied on other than a breach of Article 10. In their skeleton argument, the defendant’s counsel submitted that those grounds could properly and should be heard by the IPT either as a component part of the s.7(1)(a) proceedings or because they fall within the scope of s.65(2)(b). In his submissions, Mr Havers, recognising the anomaly, submitted that all the conduct which was the subject of the claim fell within either s.65(2)(a) or s.65(2)(b) in that it was conduct on behalf of one of the intelligence services (s.65(5)(a) which had taken place in relation to the claimant (s.64(4)). Thus the appropriate forum in accordance with s.65(2) was the Tribunal and the fact that the wording of s.65(2)(b) was less prescriptive than that in s.65(2)(a) did not mean that there was any difference in their effect on the jurisdiction of the court. It was obviously unsatisfactory that there should be concurrent jurisdiction in relation to some grounds which were inextricably linked to another in respect of which the tribunal was the only appropriate forum.

There is no doubt that the language of s.65 is wide enough to encompass any conduct by or on behalf of any of the intelligence services which adversely affects any individual, whether an ordinary member of the public or a serving or ex-member of an intelligence service. As the IPT themselves have recognised, their main purpose is to ensure that the relevant investigatory powers conferred by RIPA are used lawfully and compatibly with Convention rights: see Paragraph 24 of the rulings by the President and vice President on Preliminary Issues of Law in applications Nos.IPT/01/63 and IPT/01/77 of 23 January 2003. In a decision of 14 November 2006 in application No. IPT/03/32/A, the Tribunal stated (Paragraph 19):-

“Means of redress for persons aggrieved by the use of investigatory powers are provided by the Tribunal, on which there is conferred jurisdiction to consider and determine proceedings and complaints. For the purposes of certain proceedings under s.7(1)(a) of the 1998 Act for actions incompatible with the Convention the Tribunal are the only available forum. They are also the appropriate tribunal to consider and determine various complaints made by people who are aggrieved by conduct of the kind for which a claim may be brought under s.7(1)(a) of the 1998 Act.”

However, in Paragraph 55 the Tribunal recognised that their procedural regime for hearings ‘departs significantly from the fair trial standards ordinarily required by Article 6 in terms of the open adversarial determination of issues.’

If the court’s jurisdiction is ousted in respect of any claim under s.7(1)(a) of the 1998 Act which relates to any conduct by or on behalf of any of the intelligence services, the result will be that some claims which have no need for any secrecy and are not even remotely concerned with the exercise of investigatory powers will have to be dealt with by the Tribunal. Thus, for example, a claim that a decision to evict a person from property owned by one of the intelligence services contravened Article 8 could not be entertained by a court nor, it seems, could a court entertain a counterclaim: see 1998 Act s.7(2).

The courts of this country have always recognised that the right of a citizen to access a court is a right of the highest constitutional importance and that legislation removing that right is prima facie contrary to the rule of law. This approach is recognised in decisions such as Anisiminic v Foreign Compensation Commission [1969] 2. A.C. 147. In R(Sivasubramanian) v Wandsworth County Court [2003] 1 W.L.R. 475, Lord Phillips, M.R., giving the judgment of the court, said in Paragraph 44:-

“The weight of authority makes it impossible to accept that the jurisdiction to subject a decision to judicial review can be removed by statutory implication.”

There must be ‘the most clear and explicit words’ if the court’s jurisdiction is to be taken away: see Re Gilmore’s Application [1957] 1 QB 574 at 583 per Denning LJ.

As was made clear in R(G) v IAT [2004] 3 All ER 286 as approved by the Court of Appeal in [2005] 2 All ER 165, the existence of a right to go to a tribunal does not of itself, in the absence of the clearest of statutory language, oust the jurisdiction of the court, but it is relevant to whether judicial review, which is a remedy of last resort, is needed. If Parliament has made clear that particular claims should in its view be dealt with through an alternative means, the court will only rarely entertain such a claim. In Sivasubramanian’s case at paragraph 44, Lord Phillips said:-

“[Authorities show that] judicial review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused.”

The question therefore is whether s.65(2) contains sufficiently clear and explicit words to require a construction that the courts’ jurisdiction is ousted. Certainly s.65(2)(b) does not produce that result. There is nothing said which indicates that the Tribunal is to have exclusive jurisdiction to deal with matters raised in complaints for which the Tribunal is the appropriate forum. S.65(2)(a) refers to the Tribunal as being the only appropriate tribunal to deal with a s.7(1)(a) claim. I am aware that the Tribunal has asserted in, for example, application No. IPT/03/01/CH of 31 March 2004 that they are “the only appropriate forum for the investigation of the complaints and for the determination of the claim”. The claim in question alleged a breach of Article 8 of the ECHR in a failure to give the complainant access to material he believed the security service retained relating to him or to admit that it did in fact have such material in its possession. However, the Tribunal were not concerned to consider the question before me. All they were concerned with was whether they had jurisdiction and they clearly did. But the 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. But no reference is made to exclusion of the court and I see no reason to imply it. It is, I think, significant that s.66 gives a power which may oust the court’s jurisdiction and does it by explicit reference to the exclusion of the jurisdiction of any court or tribunal. Similar language could have been used in s.65(2)(a).

In his submissions Mr Starmer, Q.C. relied particularly on R v Shayler [2003] 1 A.C. 247. The defendant, an ex-member of the Security Service who had signed a document agreeing not to disclose without authority information which came into his possession as a result of his employment in the security services, was prosecuted under the Official Secrets Act 1989 for such disclosure. An issue in the appeal was whether the bar on disclosure was proportionate and so the House considered what course an individual in the position of Mr Shayler (and the claimant is in the same position, albeit he has at all times behaved in a correct fashion in seeking authority from the defendant to publish having disclosed what he wishes to publish) should pursue if he wished to challenge a refusal to permit disclosure. Lord Bingham considered the Strasbourg jurisprudence on Article 10(2), which includes the right to restrict freedom of expression on grounds of national security. In Paragraph 27(Page 270B) he said:-

“The acid test is whether, in all the circumstances, the interference with the individual’s Convention right prescribed by national law is greater than is required to meet the legitimate object which the State seeks to achieve.”

Their Lordships’ conclusion was that it was not since, if there was a refusal to permit disclosure, recourse could be had to judicial review. In paragraphs 29 to 33, Lord Bingham said this:-

“29.

One would hope that, if disclosure were made to one or other of the persons listed above, effective action would be taken to ensure that abuses were remedied and offenders punished. But the possibility must exist that such action would not be taken when it should be taken or that, despite the taking of effective action to remedy past abuses and punish past delinquencies, there would remain facts which should in the public interest be revealed to a wider audience. This is where, under the OSA 1989 the second condition comes into play: the former member may seek official authorisation to make disclosure to a wider audience.

30.

As already indicated, it is open to a former member of the service to seek authorisation from his former superior or the head of the service, who may no doubt seek authority from the secretary to the cabinet or a minister. Whoever is called upon to consider the grant of authorisation must consider with care the particular information or document which the former member seeks to disclose and weigh the merits of that request bearing in mind (and if necessary taking advice on) the object or objects which the statutory ban on disclosure seeks to achieve and the harm (if any which would be done by the disclosure in question. If the information or document in question were liable to disclose the identity of agents or compromise the security of informers, one would not expect authorisation to be given. If, on the other hand, the document or information revealed matters which, however, scandalous or embarrassing, would not be appropriate. Consideration of a request for authorisation should never be a routine or mechanical process: it should be undertaken bearing in mind the importance attached to the right of free expression and the need for any restriction to be necessary, responsive to a pressing social need and proportionate.

31.

One would, again, hope that requests for authorisation to disclose would be granted where no adequate justification existed for denying it and that authorisation would be refused only where such justification existed. But the possibility would of course exist that authority might be refused where no adequate justification existed for refusal, or at any rate where the former member firmly believed that no adequate justification existed. In this situation the former member is entitled to seek judicial review of the decision to refuse, a course which the OSA 1989 does not seek to inhibit. In considering an application for judicial review of a decision to refuse authorisation to disclose, the court must apply (albeit from a judicial standpoint, and on the evidence before it) the same tests as are described in the last paragraph. It also will bear in mind the importance attached to the Convention right of free expression. It also will bear in mind the need for any restriction to be necessary to achieve one or more of the ends specified in Article 10(2), to be responsive to a pressing social need and to be no more restrictive than is necessary to achieve that end.

32.

For the appellant it was argued that judicial review offered a person in his position no effective protection, since courts were reluctant to intervene in matters concerning national security and the threshold of showing a decision to be irrational was so high as to give the applicant little chance of crossing it. Reliance was placed on Chahal V United Kingdom (1996) 23 EHRR 413 and Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249, in each of which the European Court was critical of the effectiveness of the judicial review carried out.

33.

There are in my opinion two answers to this submission. First the court’s willingness to intervene will very much depend on the nature of the material which it is sought to disclose. If the issue concerns the disclosure of documents bearing a high security classification and there is apparently credible unchallenged evidence that disclosure is liable to lead to the identification of agents or the compromise of informers, the court may very well be unwilling to intervene. If, at the other end of the spectrum, it appears that while disclosure of the material may cause embarrassment or arouse criticism, it will not damage any security or intelligence interest, the court’s reaction is likely to be very different. Usually, a proposed disclosure will fall between the two extremes and the court must exercise its judgment, informed by article10 considerations. The second answer is that in any application for judicial review alleging an alleged violation of a Convention right the court will now conduct a much more rigorous and intrusive review than was once thought to be permissible.”

He then cited passages from Lord Steyn’s speech in R(Daly) v Secretary of State for the Home Department [2001] 2 A.C. 532 at pp. 546-548. In paragraph 34, (p.274) Lord Bingham continued:-

“The appellant contended that even if, theoretically, judicial review offered a means of challenging an allegedly wrongful refusal of authorisation to disclose, it was in practice an unavailable means since private lawyers were not among those to whom disclosure could lawfully be made under section 7(3)(a), and a former member of the service could not be expected to initiate proceedings for judicial review without the benefit of legal advice and assistance. I would for my part accept that the fair hearing guaranteed by article 6(1) of the Convention to everyone in the determination of their civil rights and obligations must ordinarily carry with it the right to seek legal advice and assistance from a lawyer outside the government service. But this is a matter to be resolved by seeking official authorisation under section 7(3)(b). The service would at that stage, depending on the nature of the material sought to be disclosed, be fully entitled to limit its authorisation to material in a redacted or anonymised or schematic form, to be specified by the service; but I cannot envisage circumstances in which it would be proper for the service to refuse its authorisation for any disclosure at all to a qualified lawyer from whom the former member wished to seek advice. If, at the hearing of an application for judicial review, it were necessary for the court to examine material said to be too sensitive to be disclosed to the former member’s legal advisers, special arrangements could be made for the appointment of counsel to represent the applicant’s interests as envisaged by the Court of Appeal in Secretary of State for the HomeDepartment v Rehman [2003] 1 A.C. 153, 186-187, paras.31-32.”

Lord Hope (at paragraphs 72 and 79) and Lord Hutton (at paragraph 111), both of whom gave speeches agreeing with Lord Bingham, accepted that judicial review would provide the necessary safeguard. Lords Hobhouse and Scott agreed. Mr Havers, Q.C. asked me to reject their Lordships’ view that judicial review was the appropriate remedy because they were not referred to RIPA. It is noteworthy that the Secretary of State for the Home Department was represented by Mr Crow, who did not raise RIPA but accepted that judicial review was the appropriate remedy (p.255G-H). The Disclosures made by Mr Shayler antedated RIPA, but their Lordships were hearing the case in early 2002 and their observations related to the present and so post RIPA position.

No doubt it might have been helpful and perhaps desirable to have referred the House to RIPA and the existence and jurisdiction of the IPT. Nevertheless, their opinions provide a powerful indication that in a case such as this judicial review is the appropriate remedy. And it is indeed surprising that it occurred to no-one to consider s.65 of RIPA since it would have been a relevant argument that the existence of the Tribunal did now provide the necessary safeguard.

After the conclusion of the hearing, Mr Starmer drew my attention to the judgments of Moses J and the Court of Appeal in R v Shayler. Moses J referred to RIPA but only in the context of the establishment of one tribunal, namely the IPT, to replace the three tribunals which had hitherto existed. The Court of Appeal similarly referred to the IPT in the same context. There was no reference to s.65 and both Moses J and the Court of Appeal considered that judicial review was the appropriate remedy if there was a refusal to permit disclosure of information. It is clear that none of the courts dealing with Shayler’s case had their attention drawn to s.65 or were asked to consider whether the IPT provided the only means of dealing with a challenge to a refusal to permit disclosure. But the point could have been taken if anyone, whether judge or counsel, had thought it had merit since the establishment of the tribunal by RIPA was before the House.

Mr Starmer sought to avoid the argument that s.65(2)(a) applied by submitting that, since the claim contained grounds other than a breach of Article 10, it fell within s.7(1)(b) of the 1998 Act. The purpose behind the distinction between s.7(1)(a) and 7(1)(b) was referred to by Lord Hope in R v Kansal (No 2) [2002] 2 A.C. 69 at p.105 (Paragraph 60) in these terms:-

“Section 7(1)(a) and section 7(1)(b) are designed to provide two quite different remedies. Section 7(1)(a) enables the victim of the unlawful act to bring proceedings under the Act against the authority. It is intended to cater for free-standing claims made under the Act where there are no other proceedings in which the claim can be made. This provision also differs from that in section 7(1)(b), in that claims made under it are subject to the time limits prescribed by section 7(5). This subsection provides that proceedings under section 7(1)(a) must be brought before the end of the period of one year beginning with the date on which the act complained of took place or such longer period as the court or tribunal considers equitable, but subject to any rule imposing a stricter time limit in relation to the procedure in question. Among the remedies that may be obtained by this means against the public authority is that of damages: see section 8. Section 8(2) provides that damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. The purpose of this provision is to ensure that a claim for damages as a result of a criminal prosecution is brought in a civil court.”

Mr Starmer submits that this is not a free-standing claim. However, it clearly is so far as the issue whether the refusal was proportionate is concerned, and proportionality and irrationality shade into each other where human rights claims are in issue. Thus on any view the main thrust of this claim is at the very least to a large extent influenced by and indeed dependent on the Article 10 argument. There is an allegation of bias but that by itself would not be likely to produce a decision that the refusal was wrong, rather that it should be retaken by an unbiased person. Thus on the facts it seems to me that it is artificial to regard this as not being a s.7(1)(a) claim.

That that is in any event the correct approach is supported by the views of two members of the House of Lords in Somerville v Scottish Ministers [2007] 1 W.L.R. 2734. One issue in that case was whether the time limit of 12 months provided for by s.7(5) of the 1998 Act for proceedings under s.7(1)(a) was applicable in the circumstances. The majority decided it was not and so did not have to consider whether s.7(1)(a) applied. The minority (Lords Scott and Mance) did consider the point, since it was necessary for them to do so. In paragraph 71 (p.2759D-F) Lord Scott said:-

“Section 7(1) enables a person who complains that a public authority has acted in a way made unlawful under section 6(1) and who is a victim of the unlawful act complained of either to bring proceedings against the authority or to “(b) rely on the Convention right or rights concerned in any legal proceedings”. There has been some discussion in the hearing of this appeal about the scope of the respective alternatives offered by section 7(1). For my part, I think their effect is clear. The victim can rely on the alleged unlawfulness either in proceedings against the authority that he, the victim, has brought – either by commencing an action or by making a counterclaim in an action the authority has commenced – (subsection (1)), or as a defence in proceedings commenced by someone else, usually but not necessarily the authority, in which he, the victim, has become a party, usually but not necessarily as a defendant: subsection (2). Subsection (5) of section 7(1)(a) provides a time limit. Proceedings brought by the victim under subsection (1)(a) must be commenced within one year of the date on which the act complained of took place, or such longer period as the court may consider it equitable to allow; n.b. that reference to an ‘act’ includes a ‘failure to act’: see section 6(6). Mr O’Neill, counsel for the petitioners, had a late new point, namely that proceedings claiming relief against a public authority for an alleged breach of the Convention rights could be brought free from the time limits prescribed by section 7(5) provided it were combined with some other claim. In such a case, he suggested, the proceedings would fall under section 7(1)(b), not under section 7(1)(a). I am afraid that, like most last-minute thoughts, this was a bad one. It is section 7(1)(a) that enables claims against public authorities for breach of Convention rights to be brought, whether that claim stands alone or is joined with other claims. The restraints imposed by s.7(5) cannot be so easily side-stepped.”

Lord Mance dealt with the point in more detail in Paragraphs 172 – 175 (pp.2754-5). He said this:-

“172.

It is convenient to take this new point first. In Mr O’Neill’s submissions, the only proceedings falling within section 7(1)(a) are proceedings for breach of Convention rights alone. Any other proceedings fall, in his submission, within section 7(1)(b), even though they include a claim which, pursued by itself, would fall within section 7(1)(a). here, the claims were brought by way of judicial review, and included claims for declarators as well as damages and expenses. Hence, he submits they fell within section 7(1)(b). If that were right, it would often make it a matter of chance, or choice for a claimant, whether the time limit applied. By formulating his claim to include a claim for judicial review or declarator or a common law claim, a claimant could ensure that it would fall outside section 7(1)(a) and section 7(5).

173.

I cannot accept Mr O’Neill’s argument. Proceedings against a public authority under the Human Rights Act may be brought by simple claim without more, but not infrequently they involve an application for judicial review of some decision, with damages being claimed as consequential relief in respect of any breach of Convention rights: see, e.g. Lester & Pannick, Human Rights Law and Practice (2000), Paragraph 2.7.3, Clayton & Tomlinson, The Law of Human Rights (2000) Paragraph 21.101 (referring in the English context to what is now CPR Pt 54) and Feldman, English Public Law (2004), Paragraph 19.09. The provisions of section 7(3)(4)(5) and of section 9 confirm that judicial review was envisaged as the procedure by which claims could be brought under section 7(1)(a). The references in section 7(3)(4) to ‘proceedings … brought’ and ‘proceedings … made’ echo the phrase ‘bring proceedings’ in section 7(1)(a). Section 9(1) expressly refers to proceedings being brought under section 7(1)(a) in respect of a judicial act by way of an application (in Scotland a petition) for judicial review. The concluding words of section 7(5) contemplate that proceedings under section 7(1)(a) may involve a procedure imposing a stricter time limit than the one-year limit which the subsection introduces. The most obvious example of a procedure with a stricter time limit is English judicial review.

174.

Mr O’Neill referred to Pepper v Hart [1993] A.C. 593 and to ministerial statements in Parliament by Lord Irvine of Lairg LC, Hansard (H.L. Debates), 3 November 1997, col.1232, and Mr O’Brien, Under-Secretary of State for the Home Department, Hansard (HC Debates), 24 June 1998, cols 1055-1058 and 1094-1095. neither the circumstances nor the citations appear to me to satisfy the tests for use of Pepper v Hart. The statute is not open to real doubt, and the statements are not clear, consistent or of any real assistance to Mr O’Neill’s argument. A distinction between reliance on an existing cause of action and proceedings on Convention grounds alone does not take proceedings for judicial review of an act, as being incompatible with Convention rights, outside section 7(1)(a). Proceedings based on Convention rights alone are quite capable of including claims advanced under the concluding words of section 7(5), be subject in England to the shorter, three-month time limit prescribed by CPR r 54(5) was in fact mentioned by Mr O’Brien on 24 June 1998, col 1095, in a passage not quoted in Mr O’Neill’s submissions. Mr O’Brien stated specifically that ‘the most obvious … case’ of proceedings under section 7(1)(a) attracting the shorter time limit under section 7(5) was judicial review. This (although not easy to reconcile with an earlier statement by Mr O’Brien on the same day, at col 1056) is inconsistent with Mr O’Neill’s argument.

175.

the position under the Human Rights Act is thus, I consider, as follows. Section 7(1)(a) and consequently section 7(5) apply to claims brought for breach of Convention rights, by whatever procedure they are pursued and whether or not they are pursued alone or in conjunction with other claims. In so far as any common law claim existing independently of the Human Rights Act is conjoined with a claim within section 7(1)(a), it will have its own separate limitation period, which will continue to apply. Section 7(1)(b) enables reliance on Convention rights in situations not within section 7(1)(a), as where a Convention right is relied upon in defence in civil or criminal proceedings brought by a public authority or in the development or application of common law principles. It is understandable that the Human Rights Act should not contain any time limit for reliance under section 7(1)(b). Civil proceedings against the person relying on Convention rights will be subject to ordinary time limits, such as those prescribed under the Limitation Act 1980 or equity. Some criminal proceedings are subject to statutory time limits. Assuming such proceedings to be in reliance on Convention rights to defend them. As to reliance by a claimant on Convention rights in the development or application of common law principles in civil proceedings brought for a cause of action not arising under the Human Rights Act, again that cause of action will have its own limitation period.”

Lord Hope (paragraph 44 p.275) said that, if he had had to consider the point, he would have favoured the answer which Lord Mance had given, but that he reserved his opinion as to the precise relationship between the two paragraphs in the context of an argument about the scope of the s.7(5) time limit.

Since the time limit for judicial review is 3 months (although there is, as there is in s.7(5), a discretion to extend it), the s.7(5) issue is of no relevance. But the reasoning of the minority, supported to a considerable extent by Lord Hope, is persuasive. I have no doubt that s.7(1)(a) is applicable and so the Article 10 claim falls within s.65(2)(a).

While R v Shayler suggests that judicial review is the correct remedy in circumstances such as arise here, I have not heard any argument on whether, notwithstanding that the jurisdiction exists, it should be exercised or the claimant should be left to his remedy in the tribunal. The decision challenged is dated 14 August 2007 and so the 12 month limit for complaints to the Tribunal has not expired.

I have no doubt that claims raising matters in relation to surveillance, interception of communications and use of material obtained thereby, the use of covert services, the acquisition of means whereby protected electronic data can be decrypted should be dealt with by the Tribunal. It is difficult to envisage circumstances in which such claims would properly be dealt with by the court since Parliament has clearly intended that the Tribunal should deal with them. Nothing I have said should encourage anyone who is concerned that his rights have been infringed by any such matters to seek redress through the court rather than the Tribunal. Any such attempts are likely to fail. But the circumstances of this case are somewhat different and, although the tribunal undoubtedly has jurisdiction, its procedures are less satisfactory and the issues are wider than those for which RIPA specifically required it to be established.

Judges of the Administrative Court have experience in dealing with security issues. They deal with Control Orders and some have sat in or presided over SIAC. Indeed, Burton J is himself a nominated judge. Procedures can be put in place, as Lord Bingham recognised in R v Shayler, so that there is no disclosure of material to anyone who should not see it because of concerns about the security of the state. Further, the Court has power pursuant to s.70 of the Supreme Court Act 1981 to obtain the assistance of an expert in security matters if it considers it expedient to do so.

Accordingly, I reject the contention of the defendant that the court has no jurisdiction to deal with this claim. I shall consider what directions are appropriate for the further progress of this claim, including the possibility of a submission that the Court should decline to exercise its jurisdiction if the defendant wishes to make such a submission.