Thursday, 5 August 2010

An important tribunal of which seems to be little known

The Investigatory Powers Tribunal (IPT) was set up by the Regulation of Investigatory Powers Act 2000 s. 65 - (often referred to as RIPA). Investigatory powers which may be authorised are:  interception of communications; acquisition and disclosure of communications data; surveillance and covert human intelligence sources and investigation of data protected by encryption.  The 2000 Act provides for some scrutiny over the use of these powers.  There is an Interception of Communications Commissioner; an Intelligence Services Commissioner and there is the Investigatory Powers Tribunal.  Numerous public authorities - including local councils - are entitled to use certain of the powers.  It is a matter of serious concern that so many public bodies are equipped with these powers and that they are frequently used for the investigation of relatively low level activity some of which may not even be unlawful.

The IPT has recently decided Paton v Poole Borough Council where a mother was secretly investigated in relation to what the Council perceived to be her attempt to avoid the Council's school allocation policy. The case is well-covered on the Panopticon Blog which is managed by barristers at 11 King's Bench Walk.   The investigation against Mrs Paton including monitoring movements of family members and their car and examining the contents of their rubbish.  The Tribunal ruled that investigating a potentially fraudulent school application was not a proper purpose for the use of the RIPA powers.

In late 2009, the Supreme Court ruled that, even where a challenge to the use of the investigatory powers is based on human rights grounds, the challenge must be taken to the IPT instead of via judicial review in the High Court - see R (A) v B [2009] UKSC 12 .  Given the secretive nature of the IPT this is regarded by many as inherently unjust and alien to the general English culture of open adjudication.

The Guardian 2nd August published an article arguing that it is time to Review the Tribunal.  Further information about the IPT may be read at Security Services.


  1. While I agree entirely with the concerns and sentiments you express, it is notable that both you and Panopticon, in common with very many other commentators, fall into the error of supposing that RIPA conferred the surveillance powers which in fact it merely regulates.

    A council could always have carried out surveillance of the kind in question under its general powers. What RIPA did was provide for the detailed subjection of those powers to constraints designed to give effect to the Human Rights Act.

    Whether it did so well enough is of course another question, deserving of some testing scrutiny. But that scrutiny will be more effective, and any resulting criticisms more effective, if the underlying law is properly understood.

  2. Nicholas - thank you and I readily acknowledge that RIPA did not actually create the various investigatory powers but provides for scrutiny over the use of these powers.

    As an example, we know that "interception of communications" was practised for many years. The late Lord Birkett of Ulverston conducted an inquiry into it - 1957 Comd 283 As might be expected from a judge of Birkett's eminence, the report contains much discussion about the origins of the right of the executive to intercept mail etc.

    Then there was the Malone v Metropolitan Police Commissioner case [1979] Ch D 344. What was especially interesting about Malone was the assertion by Megarry J that even government was entirely free to do that which was not actually prevented by law. In saying that he placed government on the same basis as the individual.

    After a trip to Strasbourg, the Interception of Communications Act 1985 came along but that is now mostly replaced by RIPA 2000. The Interception of Communications Commissioner dates from the 1985 Act.

    Thanks again Nicholas for your spot on comment.