The Supreme Court handed down judgment in the case of R(A) v B [2009] UKSC 12 on 9th December 2009. The case concerned a claim for judicial review by A, a former senior member of the Security Service against the decision of B, the service’s Director of Establishments, refusing to authorise the publication of a book A intended to release about his work in the Security Service.

The question for the court was whether section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 (“RIPA”), conferred upon the Investigatory Powers Tribunal (“IPT”), an exclusive and final jurisdiction to hear the case. A had argued that on construction the expression that the IPT was the “only appropriate tribunal” excludes only the jurisdiction of other tribunals but not that of the courts. In the alternative A contended that even if section 65(2)(a) did confer exclusive jurisdiction on the IPT, this was only in respect of proceedings arising out of one of the RIPA regulated investigatory powers.

Confirming the decision of the Court of Appeal, dismissing the appeal, the Supreme Court held that given the use of the word “only” in section 65(2)(a), it was unlikely that parliament had intended to leave the choice as to forum to the complainant. Although admitting that a limited construction of the provision was appealing, the court, dismissing A’s alternative argument, held that this would involve reading into the section limiting words that were not there, given that other sections of the Act are more specifically directed to complaints as to investigatory powers.

Addressing the argument of the interested party Justice, that to ouster the ordinary jurisdiction of the courts would amount to a breach of article 6 of schedule 1 to the Human Rights Act 1998 c.42, the court emphasised that Strasbourg had recognised the special problems relating to claims against the intelligence services. Given the circumstances, the existence of adequate safeguards under the Investigatory Powers Tribunal Rules 2000 SI 2000/2665 to ensure the claim was “properly heard and considered”, and the lack of such availability in the courts, favoured the view that the IPT had the exclusive and final jurisdiction to hear such a claim. If such rules were incompatible with the Human Rights Act 1998 the solution was to amend the rules rather than limit the IPT’s jurisdiction by construction.