Consultation outcome

Investigatory Powers Tribunal consultation: our response

Updated 11 October 2018

1. In November 2017, the Home Office consulted on the updated Rules governing proceedings and complaints at the Investigatory Powers Tribunal (the ‘Tribunal’). This consultation lasted 6 weeks and was UK wide.

2. Representations were welcomed from past, current or potential complainants and respondents at the Tribunal and their representatives, as well as professional bodies (legal and otherwise), interest groups and the wider public. Three substantive responses were received.

3. The Home Office, working closely with the Tribunal, has analysed these consultation responses and the Rules have been revised as necessary.

4. This document details the Home Office response to the consultation.

Background

5. The oversight framework for investigatory powers helps to ensure that public authorities act in ways that are compatible with the Human Rights Act 1998.

6. The Tribunal was established in October 2000 under the Regulation of Investigatory Powers Act 2000 (RIPA). It provides a right of redress for anyone who believes they have been a victim of unlawful action by a public authority improperly using covert investigative techniques. The Tribunal is also the appropriate forum to consider claims brought against the security and intelligence agencies alleging the infringement of human rights.

7. Section 69 of RIPA provides for the Secretary of State to make Rules regulating Tribunal proceedings, subject to approval by Parliament. The Investigatory Powers Tribunal Rules 2000 came into force on 2 October 2000.

8. The Investigatory Powers Act 2016 (IP Act) provides a new framework for the use of a number of crucial investigatory powers by the security and intelligence agencies, law enforcement and other public authorities. The IP Act also updates the oversight framework for the use of these powers more generally, including by making provision for a new Investigatory Powers Commissioner (IPC). The IPC has taken over the functions of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner.

9. The IP Act makes amendments to the RIPA provisions governing the Tribunal.

The Tribunal Rules

10. The Investigatory Powers Tribunal Rules 2000 set out, in greater detail than RIPA, the procedures the Tribunal should follow. They include further detail on:

• how the Tribunal should proceed in its investigations and determinations.
• how it should receive evidence.
• in what circumstances it may disclose material provided to it.
• how it should determine proceedings, including oral hearings.
• how it should notify a complainant of the outcome.

Subject to these Rules, the Tribunal can determine its own procedures.

The Consultation

11. Section 242 of the IP Act amends RIPA to provide a right of appeal from decisions and determinations of the Tribunal on points of law that raise an important point of principle or practice, or if there is some other compelling reason for granting leave to appeal.

12. Where permission to appeal is granted, they will be determined by either the Court of Appeal in England and Wales (CoA) or the Court of Session in Scotland (CoS). The Northern Ireland Assembly did not provide legislative consent to enable relevant appeals to be determined by the Court of Appeal in Northern Ireland (CoA NI), but RIPA, as amended by the IP Act, includes the power, which can be exercised with the consent of the Northern Ireland Assembly, to allow appeals to be heard in the CoA NI.

13. The Government believes it should update the Rules of the Tribunal, which have not been amended since 2000. Most obviously, the Rules need to be updated to reflect the fact that there will be a right of appeal once the relevant provision of the IP Act has been commenced. But the Rules are also out-of-date in a number of other ways. Through this consultation, the Government therefore intends to update the Rules more broadly so that they better reflect current Tribunal practice.

14. Parliament must approve the updated Rules before they come into force.

Main proposed changes to the Rules

• Rule 6 (existing rule 5) – This provides that further functions of the Tribunal may be exercised by a single member of the Tribunal.
• Rule 7 (existing rule 6) – The provision of a process for when a respondent refuses to consent to disclosure but the Tribunal considers disclosure is required.
• Rule 10 (existing rule 9) – Updated to reflect the existing practice that Tribunal hearings are held in open where possible, but retaining the ability to hold a hearing in absence of the complainant or respondent when it is in the public interest.
• Rule 12 – A new rule which sets out a non-exhaustive list of the functions the Tribunal may request Counsel to the Tribunal to perform, as well as functions that Counsel to the Tribunal must perform.
• Part 3 – Rules 16, 17 and 18 – This new part provides for the making and determination of applications to the Tribunal for leave to appeal, as well as determining the relevant appellate court, in preparation for the new right of appeal.

Consultation Responses

15. Below are the Government responses to the substantive points that were made in the consultation.

16. For each point raised in the consultation, it has been indicated whether this has been accepted or rejected by the Government, along with reasoning and an indication of where any changes have been made.

Rule 6

17. A respondent wrote regarding the new express power to determine preliminary issues in IP Act 2016 (Rule 6(h)). The respondent wrote that a preliminary issue must be decided by a Tribunal consisting of at least two Members but the effect of Rule 6(h) is that the summary of the decision on the preliminary issue may be produced by a single Member.

HM Government accepts this point. Rule 6(h) has been deleted. Preliminary issues have invariably been decided by a panel of the Tribunal, usually sitting in a panel of five Members.

18. A respondent wrote regarding the extension of functions exercisable by a single Member of the Tribunal. The respondent felt that the powers listed from Rule 6(j) – (m) represents issues fundamental to access to justice.

HM Government rejects this point. The powers (such as extending time, lifting a stay, determining whether or not to strike out a complaint on the grounds of non-compliance with the Rules or with the Tribunal’s directions) are not so significant as to require them to be exercised by at least two Members. In order for the Tribunal to function efficiently it is sensible for single Members to be able to exercise these powers. This does not restrict access to justice.

Rule 7

19. A respondent wrote about the references to economic wellbeing in Rule 7(1) needing to be updated to reflect the narrower modern definition requiring a link to the interests of national security, as per the Investigatory Powers Act 2016.

HM Government rejects this point. References should align with UK Intelligence Community functions, not the IP Act (although the definition is consistent with the IP Act – see for example section 234(7)(c)). The current definition is also consistent with RIPA, which established the Tribunal’s jurisdiction.

20. A respondent wrote that, regarding Rule 7(2), the Tribunal should be permitted to make disclosures to the Investigatory Powers Commissioner, the Commissioner’s staff and to any witness who is authorised to view sensitive information.

HM Government rejects this point. Section 237 of the IP Act permits disclosure to the Investigatory Powers Commissioner, or another Judicial Commissioner, for the purposes of any of the Commissioners’ functions. Therefore, section 237 already provides that the Tribunal may disclose anything whatsoever to the Investigatory Powers Commissioner if that disclosure is for the purpose of any function of the Commissioner, including the Commissioner’s function of assisting the Tribunal. Express provision to this effect in the Rules is unnecessary. An explanation of this position has been added to the Explanatory Notes to the Rules.

Regarding HM Government’s position on witnesses, responses are provided in paragraphs 27 and 28 of this consultation response.

21. A respondent wrote that Rule 7(4)(a) excludes disclosure provided by a Commissioner under Rule 7(2)(c) and that the Tribunal needs to have power to disclose material provided to it by a Commissioner.

HM Government rejects this point. The Rules, as drafted, allow the Tribunal to consult with the Commissioner, reflecting current practice. Therefore, no change to the Rules is required. The Investigatory Powers Commissioner was consulted on this point and was content with the current drafting.

22. A number of respondents felt that Rule 7(6) did not go far enough and that the Tribunal has no power to enforce its directions for disclosure, even if it is satisfied that no harm to national security would flow from disclosure.

HM Government accepts this point. A proposed new Rule 7(7) has been added to provide the Tribunal with more power in this regard.

Rule 12

23. A respondent wrote that Rule 12(2) should be drafted so as to identify to Counsel to the Tribunal his or her functions, which should be carried out in each case where Counsel is appointed.

HM Government rejects this point. Not all of the functions of Counsel to the Tribunal will be relevant in every case. The Tribunal should have discretion as to which functions would assist Counsel to the Tribunal in each individual case.

24. A respondent wrote that there should be a presumption in favour of the appointment of Counsel in the circumstances set out in Rule 12(1)(a) – (c).

HM Government rejects this point. There should not be a presumption that Counsel to the Tribunal needs to be appointed in every case where the complainant is not legally represented. That would engage the vast majority of the complaints before the Tribunal despite the fact that very few would actually necessitate a hearing. A presumption in such cases that Counsel to the Tribunal should be appointed would significantly increase the workload (and cost) of the Tribunal without any corresponding advantage in “safeguarding the rule of law”.

Instances where there is to be a hearing in the absence of a complainant or where a respondent is objecting to disclosure will invariably prompt the Tribunal to consider whether Counsel to the Tribunal should be instructed without the new Rules imposing a presumption of appointment.

25. A respondent wrote that, regarding Rule 12(3), the Tribunal ought to be required to disclose to the complainant that an arguable error of law has been identified.

HM Government accepts this point. Rule 12(3) has been amended and a new Rule 12(4) has been proposed.

26. Respondents wrote that the Rules should set out the qualifications necessary to be appointed as Counsel to the Tribunal, and provide detail as to whether the complainant will have any choice in the appointment of Counsel. Respondents wrote that Counsel to the Tribunal should be appointed from the ranks of Special Advocates.

HM Government rejects this point. The duties of Counsel to the Tribunal are wider than those of a Special Advocate and there are advantages to the complainant of the Tribunal instructing Counsel to the Tribunal rather than asking the Attorney General to appoint a Special Advocate. As such, it is not appropriate for the complainant to choose Counsel to the Tribunal. It is not necessary for the new Rules to specify the qualifications of Counsel to the Tribunal and those who have been appointed have always possessed the necessary security clearance.

27. A respondent wrote that the powers of Counsel to the Tribunal should be aligned with those of Special Advocates. In particular, Counsel to the Tribunal should have an express power to call witnesses.

HM Government rejects this point. Counsel to the Tribunal should not have the same powers as a Special Advocate (see paragraph 26), and the power to call evidence.

Rule 13

28. A respondent wrote that the power of the Tribunal to compel a witness to attend to give evidence should be made express.

HM Government rejects this point. A complainant is expressly not compellable under draft Rule 13(3). This reflects the correct approach bearing in mind that a complainant is often anxious as to his/her position in bringing a complaint. It is important to emphasise that the Tribunal operates not only in the area of national security but also (and more often) in the area of conflicts with third parties in the field of police and local authority investigation.

The Tribunal has functioned effectively without the power to compel witnesses to give evidence and it could be counter-productive for such a power to be given as the Tribunal has functioned on the basis of voluntary co-operation.

29. A respondent expressed concern that Rule 13(1) states that the “Tribunal may receive evidence in any form, and may receive evidence that would not be admissible in a court of law”.

HM Government rejects this point. It is important that the Tribunal has the flexibility to receive evidence in any form. However, admission of any evidence may be subject to challenge and it is inconceivable that a situation would arise wherein the admission of evidence that might have been obtained as a result of torture or inhuman or degrading treatment would not be subject to challenge – either by the complainant or by Counsel to the Tribunal.

Rule 15

30. A respondent wrote that, regarding Rule 15(4), there should be a strong presumption in favour of giving reasons. This would improve transparency and aid the effective administration of justice by reducing the number of groundless appeals. The Tribunal should submit the reasoning behind its decisions whenever possible, which would shift the presumption to be in favour of giving reasons, while not creating an unrealistic burden on the Tribunal.

HM Government accepts the principle behind the point. Whilst the Rule 15(4) (now 15(5)) remains similar, a new Rule 15(3) has been inserted to require the Tribunal, where it makes a determination that is not in favour of the complainant, to provide the complainant and respondent with a summary of its determination, if it considers it necessary in the interests of justice to do so

Rule 16

31. A respondent wrote that Rule 16(3)(c) should be disapplied where the application is made following disclosure under Rule 12(3). A complainant cannot give reasons when it has not seen a closed decision and is appealing only because Counsel to the Tribunal has indicated that there are arguable closed grounds of appeal.

HM Government accepts this point. New proposed Rules 12(4) and 16(4) have been inserted.

32. A respondent wrote that amendments will be required to the Civil Procedure Rules (CPR) to provide for a closed material procedure on appeal and for the role of Special Advocates and Counsel to the Tribunal.

HM Government rejects this point. Closed material procedures, in principle, would be available and the Civil Procedure Rules do not need to be amended to facilitate this.

Miscellaneous

33. A respondent wrote that the Rules should include an overriding objective (modelled on Civil Procedure Rule 1 or Rule 2 of the First-tier Tribunal Procedure Rules) and a duty of candour on all parties. In addition, the respondent wrote that there should be a requirement for the Tribunal to publish gists or summaries of the issues of law determined in its closed judgments.

HM Government rejects this point. Regarding the first point, it is not necessary to include such provisions in the Rules. The reasoning provided in support of the suggested change, to the effect that the Tribunal has encountered difficulties in securing the co-operation of respondents who are under a statutory duty to co-operate with the Tribunal, is not correct. Regarding the second point, this is a sensible suggestion in principle and it will be considered when the Tribunal’s next report is prepared.

Additional changes

34. Following the consultation, HM Government has engaged further with key stakeholders and made some additional proposed changes:

• Rule 1(2) and Rule 1(3) - Additional clarification over the commencement of the Rules and new appeal route.
• Rule 7(4) - Additional clarification concerning the disclosure of information.
• Rule 7(11) - Additional clarification concerning the disclosure of information.
• Rule 10(3) - Additional power for the Tribunal to direct the complainant to make representations on the reasons for requesting the Tribunal to hold an hearing in the absence of the respondent.
• Rule 11(2) - Additional clarification regarding when leave of the Tribunal is required.
• Rule 14(4) – Additional requirement that, when the Tribunal proposes to make any order, they must give the complainant the opportunity to make representations concerning it.
• Rule 17(3) – Provides that where the Tribunal refuses leave to appeal, they must as soon as practicable provide to the parties a record of the Tribunal’s decision.

Next Steps

35. The Government would like to thank all of those who responded to this consultation. The Rules will now be laid in Parliament.