GCHQ, MI5 decisions can now be challenged in court

Supreme court decision brings secretive Investigatory Powers Tribunal into scope of appeals court

Aerial shot of GCHQ's building

Decisions relating to the UK's security agencies will now be open to challenge after supreme court justices ruled that the secretive Investigatory Powers Tribunal could no longer be exempt from legal appeals.

In accordance with the Investigatory Powers Act 2016, government intelligence and security agencies such as GCHQ, MI5 and MI6 can invoke permissions to hack into internet services to gain intelligence relating to illegal activity such as anti-terror and other matters of national security.

Advertisement - Article continues below

Instances of government surveillance are sometimes questioned and receive complaints which are dealt with by the Investigatory Powers Tribunal (IPT) which acts as a mediator for the agencies. Any complaints against the agencies are ruled upon behind closed doors, decisions which the government has maintained could not be challenged in the High Court.

However, following a 4-3 majority, the supreme court ruled that the scope of GCHQ's powers should be open to judicial review, effectively allowing decisions by the IPT to be openly challenged.

The case follows a ruling made by the IPT in 2016, which stated that the hacking of computers, smartphones and networks in the UK or abroad didn't breach human rights. The case was originally appealed by Privacy International and Liberty at the high court, and then later at the court of appeals, both of which ruled in favour of the IPT. The case was eventually escalated to the supreme court, which sided with the civil rights groups.

Advertisement
Advertisement - Article continues below
Advertisement - Article continues below

"It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review," said Lord Carnwath, who delivered the majority judgment.

"The legal issue decided by the IPT is not only one of general public importance, but also has possible implications for legal rights and remedies going beyond the scope of the IPT's remit," he added. "Consistent application of the rule of law requires such an issue to be susceptible in appropriate cases to review by ordinary courts."

The investigatory powers used by government agencies first drew attention after the Snowden leaks in 2015, which sparked outrage from privacy and human rights advocates alike.

Snowden said GCHQ had the power to deploy smurf' tools which would grant the agency access to a smartphone's location while also being able to turn the phone off and monitor conversations made over the device.

Advertisement - Article continues below

Speaking to The Guardian in response to the supreme court ruling, Caroline Wilson Palow, Privacy International's general counsel, said it was a "historic victory for the rule of law" and "it ensures that the UK intelligence agencies are subject to oversight by the ordinary UK courts".

The ruling will now set a legal precedent in the UK whereby any and all IPT rulings will theoretically be subject to challenge and legal appeal.

"The Investigatory Powers Tribunal forms an important part of this oversight and, through the Investigatory Powers Act, we strengthened this by introducing a statutory route of appeal, said a government spokesperson. "We will now consider the implications of the court's decision carefully."

Featured Resources

The case for a marketing content hub

Transform your digital marketing to deliver customer expectations

Download now

Fast, flexible and compliant e-signatures for global businesses

Be at the forefront of digital transformation with electronic signatures

Download now

Why CEOS should care about the move to SAP S/4HANA

And how they can accelerate business value

Download now

IT faces new security challenges in the wake of COVID-19

Beat the crisis by learning how to secure your network

Download now
Advertisement

Recommended

Visit/security/encryption/355820/k2view-innovates-in-data-management-with-new-encryption-patent
encryption

K2View innovates in data management with new encryption patent

28 May 2020
Visit/software/video-conferencing/355410/zoom-50-adds-256-bit-encryption-and-ui-refresh
video conferencing

Zoom 5.0 adds 256-bit encryption to address security concerns

23 Apr 2020
Visit/security/hacking/355382/whatsapps-flaw-shoulder-surfing
hacking

WhatsApp flaw leaves users open to 'shoulder surfing' attacks

21 Apr 2020
Visit/security/cyber-security/355368/microsoft-builds-ai-to-detect-security-flaws-with-99-accuracy
cyber security

Microsoft AI can detect security flaws with 99% accuracy

20 Apr 2020

Most Popular

Visit/operating-systems/microsoft-windows/355812/microsoft-warns-against-installing-windows-10-may-2020
Microsoft Windows

Microsoft warns users not to install Windows 10's May update

28 May 2020
Visit/infrastructure/server-storage/355785/dell-emc-poweredge-r7525-review-an-epyc-core-density-to-make
Server & storage

Dell EMC PowerEdge R7525 review: An EPYC core density to make Intel weep

26 May 2020
Visit/infrastructure/network-internet/355792/intel-releases-wi-fi-and-bluetooth-driver-updates-for
Network & Internet

Intel releases Wi-Fi and Bluetooth driver updates for Windows 10

26 May 2020