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Investigatory Powers Tribunal Rules 2018 – Updated

The new Investigatory Powers Tribunal Rules 2018 came into force on 31 December 2018, revoking the 2000 rules: see here. The 2018 rules apply to all section 7 Human Rights Act 1998 proceedings before the Tribunal and all covert investigatory powers complaints under section 65 of the Regulation of Investigatory Powers Act 2000, including those which were made before the new rules came into force.

It remains the case that proceedings in the Tribunal are, broadly, part inquisitorial and part judicial-review. The Tribunal is required to investigate and determine complaints relating to the use of covert investigatory powers, and may make orders to quash authorisations, destroy records, award compensation and other orders. Generally the Tribunal must carry out its functions:

“… in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services” (rule 7(1))

Rules relating to disclosure, evidence, hearings and publication of reasons for determinations are therefore significantly different to those in the County Court and High Court.

The primary purpose of the 2018 rules is to provide an update, to reflect current Tribunal practice as it has evolved since 2000. For instance, rule 9 of the old rules provided that any oral hearing shall be conducted in private. But the Tribunal had decided, during the Kennedy and others litigation in 2003, that it should hold public hearings where possible. The former Independent Reviewer of Terrorism Legislation, David Anderson QC, referred to that ruling in his report “A Question of Trust” as the beginning of the Tribunal’s “journey out of the shadows”, para. 6.107.

The Tribunal’s procedures survived a challenge under Article 6 of the European Convention on Human Rights, the right to a fair trial, on appeal to the Strasbourg Court in Kennedy in 2010 – on the facts of that case (judgment here). But the Court reserved its position on general compliance.

Article 6 was in issue again, however, in the Big Brother Watch joined cases: a multi-faceted challenge to the United Kingdom’s regime for interception and access to electronic communications content and data. See the Strasbourg Court’s judgment here. The Court found breaches of Article 8 (right to respect for private and family life) and Article 10 (freedom of expression) in various respects, including the framework for access to communications data in Chapter II of RIPA, which was not in accordance with (European Union) law because it permitted access to retained data for the purpose of combating “crime”, rather than the higher threshold of “serious crime”. But, once again, the Tribunal’s procedures survived. More than survive, the Court effectively endorsed the balance struck by the Tribunal’s procedures in regulatory context, between the competing interests of maintaining the secrecy of surveillance methods and their operational effectiveness on the one hand, and the rule of law and open justice on the other. The Court held at para. 253:

“…in view both of the manner in which the IPT has exercised its powers in the fifteen years that have elapsed since [Kennedy] and the very real impact its judgments have had on domestic law and practice, the concerns expressed by the Court in Kennedy about its effectiveness as a remedy for complaints about the general compliance of a secret surveillance regime are no longer valid…”

But there are some new procedural developments in the Investigatory Powers Tribunal Rules 2018, following a Home Office consultation in November 2017, which improve transparency and scrutiny incrementally. You can read the Home Office’s consultation outcome (October 2018) here, which contains a pithy summary of the reforms.

One important change, in Part 3 of the rules, brought about by section 242 of the Investigatory Powers Act 2016, is the procedure for appeals to the Court of Appeal on points of law. And, importantly, where a complaint has been determined in whole or part in the absence of the complainant, counsel to the Tribunal has a role to play in seeking to identify any arguable error of law, which should generally be disclosed – and may lead to such an appeal: rule 12.

The new 2018 rules are not overly detailed and there is scope for the Tribunal to continue to develop its own procedures.