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The Claimants’ submissions
The Claimants’ submissions
The Claimants submit that the IPT’s answers to the questions are wrong in law. The Claimants rely, in particular, on four main arguments.
Noonan does not decide that a separate reporting restriction is required to prohibit the publication of a judgment given in private. All it decided was that publication of what had happened in a private hearing was not a contempt of court. The court left open whether there were other remedies for unauthorised disclosure or publication.
Noonan strongly indicates that there is a prohibition on publication. While it is not express, it may be enforceable by other means. The IPT did not ask for submissions on Noonan, which the parties had not relied on in their arguments to the IPT.
The IPT was wrong to suggest that an action for breach of confidence was the only remedy for disclosure of information from a private hearing. An injunction, including from the court concerned, might be available.
The IPT was wrong to suggest that its ruling on privacy would only be undermined if Decision 1 were published in full or that the Administrative Court was better placed than it was to decide whether the Claimants should benefit from the privacy ruling in the proceedings in the Administrative Court. The Claimants relied on six further arguments in support of that proposition.
The IPT has exclusive statutory jurisdiction over complaints and human rights claims relating to the use of covert powers, which has implications for the principle of open justice (Lee Wilkes v Security Service [2024] 4 All ER 510).
The IPT granted the Claimants’ application for privacy (ie a private hearing) in the context of their evidence and a special statutory framework which does not apply to the Administrative Court.
The IPT decided not to revisit that ruling in Decision 1.
That ruling would be ‘as much undermined’ if the content of Decision 1 ‘were published in full nor is it in any case clear what the distinction is’.
The Claimants have a reasonable expectation that having got the ruling, which has not been appealed, revoked or varied, they were and are entitled to rely on it’.
The Claimants having got a ruling that ‘the proceedings they brought before the IPT be conducted in private, they are entitled to rely on that ruling before other Courts without it being effectively varied or revoked by those courts.
In her able oral submissions Ms Kilroy expressed some further concerns about the Decision. She submitted that parts of the reasoning of the IPT were ambiguous, or not clear enough, for example, a passage in paragraph 20 of the Decision. She contended that the IPT’s answers were not sufficient. She expressed a worry that the route for challenging the Decision was not clear. She expressed a further concern that if the Claimants did not challenge the Decision by applying for judicial review, they would be unable to challenge it later in the Administrative Court, because such a challenge would be a collateral challenge to the Decision. The Decision had been published on the website, and might have implications for other cases.
In her oral submissions, Ms Kilroy also made nine frank concessions. All those concessions were rightly made, in the proper discharge of her duties to the court.
She accepted that the claims in the IPT and in the claim in the Administrative Court were different and that they raised separate considerations. She submitted, however, that they were ‘inextricably intertwined’.
She accepted that in making a decision about whether and if so to what extent the proceedings should be private, the Administrative Court would be engaged in a different exercise from the IPT when it decided about privacy in its proceedings. Her proviso, similarly, was that the Administrative Court’s task would be difficult because the issues were all linked.
She accepted that the Administrative Court could in principle re-visit the Privacy Order (which provides that all proceedings in the claim should be in private). She submitted that the relevant test was not met, however (see Tibbles v SIG Plc [2012] EWCA Civ 518; [2012] 1 WLR 2591).
She accepted that the question whether and if so to what extent the proceedings in the Administrative Court should be in private was for the Administrative Court and not for the IPT.
She accepted that the Judge would not be bound by the reasoning of the IPT when he considered whether, and/or the extent to which, the proceedings in the claim should continue to be in private, and that he could, in principle, re-visit those questions. She nevertheless suggested that the Administrative Court was likely to be influenced by the reasoning of the IPT in the Decision, unless there was a challenge to its validity, that is, by a successful application for judicial review of the Decision.
She accepted that her clients could and would put all the available arguments to the Administrative Court when it considers whether or not, and if not, to what extent, to continue the Privacy Order.
She accepted that if the Administrative Court erred in law in its decision about privacy in the claim ‘a’ route to challenge that error would be an appeal to the Court of Appeal.
She accepted that if the IPT had said, in paragraph 20 of the Decision, that it was for the Administrative Court to decide what the implications of its order were for the Administrative Court proceedings, (1) that would not be controversial and (2) ‘We would not be here’.
Her primary submission was that the hearing of the claim should stay private. If that submission was rejected, she accepted that there could, in theory, be a compromise which would respect the privacy of the IPT proceedings while allowing as much of the Administrative Court proceedings to be in public as was possible consistently with that respect.