This article seeks to consider the functioning of the Investigatory Powers Tribunal (IPT); arguing that the tribunal is not fit for purpose in a so called democratic state which prides itself on upholding and promoting the rule of law.
The IPT has recently hit the headlines as on the 6th February 2015 it handed down a judgment whereby it held that GCHQ’s spying activities, prior to December 2014, were unlawful. The judgment has been said to mark a new era in the Tribunal’s history as since its inception, in 2000, it has never ruled against any intelligence agency. However, whilst the judgment, prima facie, has been welcomed, a deeper analysis reveals that it is not quite as ground-breaking as it may have been hoped to be; or, as the media have reported it to be. Whilst a meaningful critique of the judgment is outside the scope of this article, such analysis can be found here.
The Tribunal was established in October 2000 by a highly controversial piece of legislation, the Regulation of Investigatory Powers Act 2000 (RIPA). By way of the Tribunal’s role, its own webpage states that: ‘It provides an opportunity to seek redress to anyone who believes they have been the subject of covert action which is unlawful, either because it has not been authorised when it should have been or because the activity is not necessary or proportionate.’
Whilst the Tribunal’s role is not in contention per se, it must be considered how the role is exercised, having regard to the reasons as to why the Tribunal was set up, specifically in relation to the need to uphold the rule of law. It is submitted that the IPT is flawed as the ways in which it goes about fulfilling its role are, in themselves, contrary to the rule of law. This is so for a number of reasons; three of which will now be considered.
First, the IPT has a rather unusual status of being, effectively, un-appealable. Section 67(8) of RIPA directs that ‘except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.’ Whilst of course this does not rule out any appeal to the European Court of Human Rights, it effectively serves to elevate the IPT’s status, in the United Kingdom, to that of the Supreme Court, for the areas of its jurisdiction. This is highly concerning considering that the Tribunal has only ever upheld a total of 10 complaints; giving claimants so far a success rate of a mere 0.5%.
Moreover, Rule 6(1) of the IPT Rules 2000 pushes the boundaries even further. Under this rule, the IPT may prevent the disclosure of evidence that may act in any way ‘contrary to the public interest or prejudicial to national security’. It has been argued that ‘the fact that this is not balanced against concerns of open justice creates a system of disclosure unduly weighted in favour of the government.’ That indeed it does; however, the same rule provides that such a disclosure of evidence may be made with the consent of the security services. It is submitted that it is wholly absurd to allow the defendant in a set of proceedings to dictate what should, and should not, be disclosed, especially in light of Lord Neuberger’s dicta in Binyam Mohamed, where he stated that ‘while significant weight must be given to the reasons given by the executive for not disclosing information, the final arbiter must be a court’.
Finally, the fact that the majority of the Tribunal’s hearings are conducted in private must be considered. Rule 9(6) of the IPT Rules 2000 states that ‘the Tribunal’s proceedings, including any oral hearings, shall be conducted in private’. The open nature of the court system is a fundamental aspect of the rule of law. In relation to closed hearings, Lord Hope said the adoption of such hearings would ‘cut across absolutely fundamental principles such as the right to a fair trial, the right to be confronted by one’s accusers and the right to know the reasons for the outcome’. Further, Lord Dyson similarly described the adoption of a closed material procedure as ‘an invasion of … fundamental common law principles’. Whilst even the IPT itself, recognised the problem with Rule 9(6), when conceding that it does have the discretion to sit in public, this still only happens in a rare number of cases; the majority still take place contrary to the rule of law.
The counter arguments in defence of the IPT will always weigh heavy in the hearts and mind of the nation, rendering them significant: the threat to national security, including that of terrorism, should mean that it is vital that the security services are given freedom to protect the interests of national security. This results in a difficult balancing exercise between this need for such freedom and the protection of human rights and the rule of law. It is submitted that the IPT, as it stands, operates contrary to the rule of law, therefore, resulting in it undermining the very same doctrine for which it was intended to uphold; by providing redress to those who have been the subject of unlawful state action. As a result, the Tribunal cannot be considered fit for purpose.
For anyone taking an interest in this balancing act, as well as the fierce debate which has been sparked about the lengths a state can, or should, go to in order to protect itself from new global threats; Urban Lawyers invites you to its latest free event at Doughty Street Chambers on the 25th February 2015, to consider the following question:
Does a state which ignores Human Rights to fight terrorism devalue its moral status?
Consisting of a panel of leading barristers including Kirsty Brimelow QC and Courtenay Griffiths QC; these pressing issues will be discussed. The speakers will be followed by a question and answer session.
LLB (Hons) (1st)
 JUSTICE, Freedom from Suspicion at para 358.
 R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd and others intervening)  EWCA Civ 158;  QB 218  – .