Prism / Upstream ~ decision of the Investigatory Powers Tribunal

The Investigatory Powers Tribunal (IPT) was created by Part IV of the Regulation of Investigatory Powers Act 2000 (RIPA).  It lies outside the general tribunal structure and is linked to the Home Office though it has an eminent membership including three High Court Judges.  The Tribunal's website contains much useful information.

The Tribunal has handed down judgment in relation to the legality of the regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications in a case brought against the intelligence agencies in respect of alleged interception activity involving UK and US access to communications. The Complainants are Liberty, Privacy International, Amnesty International and seven overseas human rights groups.

Liberty (The National Council of Civil Liberties) & Ors v The Secretary of State for Foreign And Commonwealth Affairs and Others [2015] UKIPTrib 13_77-H (06 February 2015)




FOR THE REASONS SET OUT IN THE TRIBUNAL'S JUDGMENT OF 5 DECEMBER 2014 ("THE FIRST JUDGMENT") AND THEIR JUDGMENT OF THIS DATE ("THE SECOND JUDGMENT") 

IT IS DECLARED

(i) THAT prior to the disclosures made and referred to in the First Judgment and the Second Judgment, the regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications of individuals located in the UK, which have been obtained by US authorities pursuant to Prism and/or (on the Claimants' case) Upstream, contravened Articles 8 or 10 ECHR, but

(ii) THAT it now complies with the said Articles.

Unhappiness remains!   Privacy International - GCHQ-NSA intelligence sharing unlawful, says UK surveillance tribunal - notes that:

"While we welcome today’s decision, Privacy International and Bytes for All disagree with the tribunal’s earlier conclusion that the forced disclosure of a limited subset of rules governing intelligence-sharing and mass surveillance is sufficient to make GCHQ’s activities lawful as of December 2014.  Both organisations will shortly lodge an application with the European Court of Human Rights challenging the tribunal’s December 2014 decision."

RIPA 2000 s67(8) is worth noting - "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."

Thus it appears that the decision on a question of law by this Tribunal is not subject to an appeal to either the Court of Appeal or to the UK Supreme Court.  The gateway to Strasbourg is open once all domestic remedies have been exhausted (Art 35 of the ECHR).  Whether it is always worthwhile entering those gates is another matter.


Links:


Liberty (The National Council of Civil Liberties) v The Government Communications Headquarters and Others [2014] UKIPTrib 13_77-H (05 December 2014)


Amnesty - Historic victory with today's GCHQ surveillance ruling