R (on the application of A) (Appellant) v B (Respondent)

Supreme Court

Cite as: [2009] UKSC 12

Hand-down Date: December 09, 2009

Linked as:

Extract

R (on the application of A) (Appellant) v B (Respondent)

Michaelmas Term [2009] UKSC 12

On appeal from: [2009] EWCA Civ 24

JUDGMENT

R (on the application of A) (Appellant) v B (Respondent)

before

Lord Phillips, President Lord Hope, Deputy President Lord Brown

Lord Mance

Lord Clarke

JUDGMENT GIVEN ON

9 December 2009

Heard on 19 and 20 October 2009

Appellant Respondent Gavin Millar QC Jonathan Crow QC Guy Vassall-Adams Jason Coppel (Instructed by Bindmans

LLP )

(Instructed by Treasury Solicitors)

Intervener (Justice) Lord Pannick QC

Tom Hickman (Instructed by Freshfields

Bruckhaus Deringer LLP

LORD BROWN, (with whom all members of the Court agree)

1. A is a former senior member of the Security Service, B its Director of Establishments. A wants to publish a book about his work in the Security Service. For this he needs B's consent: unsurprisingly, A is bound by strict contractual obligations as well as duties of confidentiality and statutory obligations under the Official Secrets Act 1989. On 14 August 2007, after lengthy top secret correspondence (and following final consideration by the Director General), B refused to authorise publication of parts of the manuscript. The correspondence (and annexures) described in detail the Security Services's national security objections to disclosure. On 13 November 2007 A commenced judicial review proceedings to challenge B's decision. He claims that it was unreasonable, vitiated by bias and contrary to article 10 of the European Convention on Human Rights, the right to freedom of expression. Is such a challenge, however, one that A can bring in the courts or can it be brought only in the Investigatory Powers Tribunal (the IPT)? That is the issue now before the Court and it is one which depends principally upon the true construction of section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 (RIPA):

"(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 199...

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