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Former spy's human rights challenge collapses at Supreme Court

9 December 2009

A former senior MI5 agent has lost a legal challenge at the Supreme Court that would have enabled the courts to decide whether or not his book on the service should be published, rather than a specialist tribunal.

The former spy, known as ‘A’, is understood to have written a detailed account of the successes, failures and recruiting techniques of MI5 (see solicitorsjournal.com 22 July 2008).

He launched a judicial review at the High Court after ‘B’, the director of establishments at MI5, refused to authorise publication of parts of the manuscript under the Official Secrets Act 1989.

A argued that B’s decision breached his human right to freedom of expression under article 10 of the Convention. B argued that the Regulation of Investigatory Powers Act required that his challenge could only be heard by the Investigatory Powers Tribunal (IPT).

Hearings at the IPT are held in secret, following the preliminary hearing, and the complainant has no right to attend or find out the reasons why a complaint is rejected.

Mr Justice Collins ruled that the High Court had jurisdiction to hear the claim and not just the IPT. The Court of Appeal overturned this decision by a two to one majority.

Giving the leading judgment in R (on the application of A) v B [2009] UKSC 12, Lord Brown said: “I see no reason to doubt that the IPT is well able to give full consideration to this dispute about the publication of A’s manuscript and, adjusting the procedures as necessary, to resolve it justly.

“Quite why A appears more concerned than B about the lack of any subsequent right of appeal is difficult to understand. Either way, Parliament has dictated that the IPT has exclusive and final jurisdiction in the matter.”

Lord Brown dismissed A’s appeal, as did Lords Phillip, Mance, Clarke and Hope.

JUSTICE intervened in the case, represented on a pro bono basis by Lord Pannick and Freshfields.

Eric Metcalfe, director of human rights policy at JUSTICE, said: “Jeremy Bentham once said, ‘where there is no publicity, there is no justice’. The Investigatory Powers Tribunal is as secret as it gets.

“The Supreme Court’s decision makes it less likely that anyone with a complaint against the intelligence services will get a fair hearing. It also raises the chilling prospect that even more cases may end up in this black hole of secrecy.”

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