Case Commentary - Assessment Example PDF

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LW313

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Critical Introduction to Law

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R (on the application of Privacy International) v Investigatory Powers Tribunal and others’ impact on national security and ethnic minorities.

Intro The following commentary will explore the impact that the case of 1Privacy International v Investigatory Powers Tribunal (IPT) had on national security in the U.K. The general aspect of national security will be touched on, however more specifically the impact of national security on ethnic minorities, especially British Muslims. The commentary will discuss the significance of judicial review on cases associated with privacy and security as well as the need for change in polies regarding national security to encourage a higher sense of justice within our courts and in society. Case Summary The case of R (on the application of Privacy International) v Investigatory Powers Tribunal (IPT) concerned the issue of whether the High court (HC) had jurisdiction to judicially review decisions of the IPT. Additionally, whether section 267(8) of RIPA act 2000 “ousts” the 3 ‘supervisory jurisdiction of the High Court to quash a judgment of the IPT for error of law?’ The second issue regarded , by what means and principles could the parliament “oust” supervisory jurisdiction of the High Court to ‘quash the decision’ of an inferior tribunal. Privacy International are a U.K based charity who defend the public’s right to privacy, the IPT (established under the Regulation of Investigatory Powers Act (RIPA) 2000) are a tribunal set up to hear cases involving the conduct of security services towards members of the public, without risking national security. In 2016 Privacy International challenged IPT against surveillance carried out by GCHQ. The IPT ruled that these activities were in fact lawful under section 5 of the Intelligence Services Act 1994. Privacy International then sought to challenge their judgment as an 4‘error of law’ in front of the High Court. However, they were unsuccessful as the court ruled that s 67(8) of the RIPA act 2000 denies its jurisdiction to review decisions of the IPT. This decision was also held by the court of appeal which is why Privacy International then went on to appeal to the Supreme Court. The majority decision held that there was no 5‘’ouster’’ of the HC’s jurisdiction to review the judgment of the IPT for an error of the law. On the basis on 6R(Cart) v The Upper Tribunal they concluded that s 67(8) would have to include 7‘the most clear and specific words’ for judicial review to be ousted, for instance by mentioning 8‘’purported’’ determinations within the section. The majority view was held by Lord Carnwath, with whom Lady Hale and Lord Kerr agreed. Case law on ‘ouster’ clauses was traced back to Anisminic Ltd V Foreign Compensation Commission by Lord Carnwath he held that “on no ordinary view” could the construction of section 5 ISA 1994 be regarded as a decision “as to whether the IPT had jurisdiction” and, if

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R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC ibid 3 ibid 4 [2019] UKSC 2

5

6

ibid

2011] UKSC 28 [2019] UKSC 8 ibid 7

those words are read in the terms of Anisminic, the exclusion only applied to a 9“legally valid decision relating to jurisdiction” . Overall the majority ruled in favour of Privacy International with Lord Sumption and Wilson giving dissenting judgements. The impact of the case on national security Before looking into the impact this case had on national security it is important to understand what national security is. The idea revolves around protecting the security and defence of the nation state, including its citizens, and institutions. Privacy Internationals case has hopefully enlightened courts on how national security is dealt with in the U.K and where there are changes to be made. The outcome of the case introduced the idea that tribunals can be subjected to judicial review, this will hopefully ensure that decisions made by the IPT and other tribunals are in accordance with valid legal reasoning. Not permitting judicial review on issues such as national security makes it subjective to one court’s view whereas something as significant as national security should have input from superior courts if needs be. For example, in previous cases held before the IPT, such as 10Liberty v Government Communications Headquarters , human rights organisation: Liberty argued that intelligence -sharing activities between the US intelligence services and the UK services of private communications of individuals living in UK violated article 8 and 10 of the ECHR . Neither parties confirmed or denied these allegations. Unsurprisingly the IPT ruled in the respondent’s favour as they claimed their actions were lawful under the Security Service Act 1989 s.1. In addition there was no threat to national security so the distribution of private information was acceptable. However, I would argue it is unjust that a single tribunal has the power and authority to deem that private information of UK citizens can be shared with US authorities without the input of a superior court. Therefore, the significance of the case between Privacy International and IPT minimises the opportunity for the IPT to have sole control over important issues such as national security as more cases can now be open to judicial review. It is astounding that this case had to go all the way to the supreme court as the premise of the case goes against article 8 of the Human Rights act which protects our right to privacy and communications. Therefore, surely this was enough to grant judicial review for Privacy International. However, the reluctantly of judges to rule in favour of the appellants is shown by reasons given in Lord Sumption’s dissenting judgement in the Supreme Court decision. As he felt that section 67(8) was clear enough to oust the review of the IPT’s decision. Therefore, the disagreements between judges in this case was mainly due to their interpretation of the wording in section 67(8). It seems unbelievable that the manner in which words are interpreted can affect the way in which we handle vital issues such as national security in our country. It can be argued that the idea of protecting and regulating national security has become more known after incidents such as the Facebook and Cambridge Analytica scandal in 2018. It was made known that Cambridge Analytica had supposedly gained access to personal data of millions of Facebook users’ profiles without their consent, this was then used for advertising purposes and political propaganda. The threat this had on the national security of the US then led to Mark Zuckerberg’s Senate hearing later on in that year. The importance of protecting national security is showcased here, it can be argued that the influence of this case may have encouraged the supreme court to grant Privacy International permission to appeal their case in the same year. This is because the issue at hand affected national security and one single court could not determine the outcome , the whole American government had to be involved .Thus showing 9

ibid [2014] 12 WLUK 225

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the importance of the outcome of Privacy International v IPT as the idea of judicial review in tribunals will be lawful and ensure a greater sense of justice within the courts by ensuring important issues such as national security are handled fairly by more than one court. Impact of national security policies on the integration of ethnic minorities The case of Privacy International v IPT showcased policies that intelligence agencies use in order to gain access to information. These policies were shown to be used in an unlawful manner and have an impact on how certain individuals are treated in our society in regards to being victims of these unlawful exploitations. For example, section 5 of the Intelligence Services Act 1994 gives the Secretary of State power to issue a warrant 11“authorising the taking of such action as is specified in the warrant in respect of any property so specified” if he considers such action to be necessary for assisting intelligence services. According to Privacy International the significance of this power became known when Sir Mark Waller (commissioner of intelligence services) disclosed in his report that the intelligence services were using warrants to authorise computer network exploitation, he expressed that the interpretation of the section may be too broad as it allowed such activity to take place. Therefore, Privacy Internationals case before the tribunal stated that section 5 should not permit the issue of ‘thematic’ warrants authorising such activity. They argued that this section must be constructed against common law to general warrants recognised in cases such as 12Entick v Carrington (1765). The concept of ‘thematic’ warrants simply means that the Secretary of State and a Judicial Commissioner do not approve each individual target of surveillance, but rather the security agencies can choose their targets without additional sign off. Meaning they can choose whoever they want, the issue with this is that ethnic minorities specifically British Muslims are targeted by intelligence agencies and they don’t have to ask permission from superiors to target them. After 9/11 and the post 7/7 period there have been many factors that have negatively impacted on British Muslims. Intelligence agencies have increased measures on anti-terrorism, greater policing powers and ethnic and racial profiling has now become a common concept within our criminal justice system. This has had a massive impact on community cohesion due to intelligence agencies targeting this specific ethnicity. This prejudice against Muslims has in turn affected national security in terms of immigration. Since the 1960s as discussed by 13Anwar et al the British government have shaped policy in relation to ethnic minority groups based on 14‘strategies of anti-immigration and anti-discrimination legislation’ on one hand but also aimed to assimilate and integrate on the other .However what 15‘permeates policy and practice’ is the assumption of the inevitable assimilation of migrant groups. With regards to British Muslims, this has not occurred to the extent hoped for. The Guardian reports that in the name of national security Muslims are 16‘42 times more likely to be stopped than white passengers’, although I am not a Muslim, I too am an ethnic minority that has personal experience of this. Of course, statistics do not exactly show the whole picture however they do indicate that polices regarding national security need more supervision; intelligence agencies must consult with superiors in regards to who they are targeting and give valid reasons why. Privacy 11

Intelligence Services Act 1994 , (s5) [1765] EWHC 13 Tabar Abbas , Muslim Minorities in Britain: Integration, Multiculturalism and Radicalism in the Post7/7 Period (2008) 14 ibid 15 ibid 16 https://www.theguardian.com/politics/blog/2011/may/24/airport-security-checks-terrorismact . Accessed at 8.02.20 12

International supports this idea their campaign: 17Protecting migrants at borders and beyond this aims to prevent public authorities and the government for using invasive techniques for immigration control. They want to ensure authorities are open about the technological way they make decisions about migrants such as through the use of databases and watchlists they hope that immigration policies in the future will be based on principle of fairness and respect for human rights. Although the case of Privacy International shows judicial review is needed in order to ensure issues such as national security are dealt with in a just manner, it can be argued that it is not the process of judicial review alone that will change this. In the case of 18Gillan, Regina v Commissioner of Police for the Metropolis the appellants (both from ethnic minority backgrounds) were detained for no specified reason, for 20mins whilst innocently attending demonstrations in London. They claimed that the terms of the 2000 act were too broad and 19 ‘infringed on their human rights’. The court of appeal denied their claim and stated 20‘the authorisation had been considered and proportionate to the threat to the capital’. Again, we see due to the notion of national security human rights are being disregarded. Thus, showing that judicial review is not the only means of ensuring decisions are made fairly in regards to national security but the policies themselves need to be adjusted to accommodate for the ethnic minorities that are suffering. Conclusion To conclude the case of Privacy International v IPT has showcased how national security is dealt with in our country. Before this case the IPT had sole jurisdiction over cases regarding security and surveillance which are key issues that should not be controlled by a single tribunal. The outcome of this case will hopefully ensure that cases regarding important issues such as national security will be dealt with fairly and will have input from superior courts as well as the tribunal itself. The case introduced us to polices such as section 5 of the Intelligence Services Act 1994 which showed that again there was a lack of authority over who was under surveillance. Policies like these make ethnic minorities especially British Muslims vulnerable to investigation as unfortunately there is a national prejudice against them with regards to being a danger to society. This makes them victims of continuously being under surveillance and targeted especially in airports. Overall the case does show that our government has come far in acknowledging that judicial review is necessary in regards to cases associated with privacy and security however policies still need to be changed to ensure that intelligence agencies are collecting and using private information lawfully.

Bibliography 17

https://privacyinternational.org/campaigns/protecting-migrants-borders-and-beyond Accessed at 11.02.20 18 [2006] UKHL 12 19 20

ibid ibid

Journals 1. Abbas T, Muslim Minorities in Britain: Integration, Multiculturalism and Radicalism in the Post-7/7 Period (2008) 2. Kuneer C, International Data Privacy Law, Volume 8, Issue 1, February 2018, Pages 1–3 Articles 1. Airport security checks: More offensive to some than to others https://www.theguardian.com/politics/blog/2011/may/24/airport-security-checksterrorism-act . Accessed at 8.02.20 2. Case Comment: R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22- http://ukscblog.com/case-comment-ron-the-application-of-privacy-international-v-investigatory-powers-tribunal-andothers-2019-uksc-22/ . Accessed at 05.02.20 3. The 10 Biggest Revelations From Edward Snowden's Leaks – https://mashable.com/2014/06/05/edward-snowden-revelations/?europe=true. Accessed at 07.02.20 4. The role of international human rights law in the protection of online privacy in the age of surveillance- Eliza watts https://ccdcoe.org/uploads/2018/10/Art-06-TheRole-of-International-Human-Rights-Law-in-the-Protection-of-Online-Privacy-in-theAge-of-Surveillance.pdf Accessed at 10.02.20 5. Police acted 'unlawfully' in data case, says tribunal https://www.bbc.co.uk/news/uk-scotland-37014822 Accessed at 10.02.20 6. Protecting migrants at borders and beyond https://privacyinternational.org/campaigns/protecting-migrants-borders-andbeyond Accessed at 11.02.20 Cases 1. Entick v Carrington [1765] EWHC 2. Liberty v Government Communications Headquarters [2014] 12 WLUK 225 3. R (on the application of Gillan v. Commissioner of Police for the Metropolis and another [2006] UKHL 12 4. R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22...