Monday, 13 May 2019

Investigatory Powers Tribunal (IPT) ~ Judicial Review ~ Privacy International

The Investigatory Powers Tribunal (IPT) was created by Part IV of the Regulation of Investigatory Powers Act 2000 (RIPA) and it replaced a number of tribunals created by earlier legislation - e.g. under the Interception of Communications Act 1985 s.7 (as originally enacted).

Although its name includes the word "Tribunal" it lies outside the general tribunal structure .  The President of the IPT is Lord Justice Singh and there are nine other members including 2 High Court Judges - Edis and Sweeney JJ.  The qualifications for tribunal membership are set out in RIPA Schedule 3.

The Tribunal
came to public notice in 2010 with a ruling against Poole Council.  On 10 February 2009 the Tribunal received 5 almost identical complaints from 2 adults and 3 children of the same family.  The children were aged between 3 and 10.  The complaints were of unlawful directed surveillance between 10 February and 3 March 2008 carried out by Poole Council to identify the family place of residence on 11 January 2008 to determine if it was within a school catchment area.  The school was popular and oversubscribed.   The Council was unable to establish that the surveillance was necessary for the permitted purpose or was proportionate - see Paton v Poole Borough Council.

Investigatory Powers:

RIPA is the main source of law that establishes and regulates the power of public bodies to intrude upon the privacy of members of the public.  RIPA provides an avenue of complaint when these powers are believed to have been used unlawfully.

The Tribunal's website summarises investigatory powers as -
  • The interception of communications;
  • the acquisition of communications data, for example billing information;
  • directed surveillance, which means covert surveillance in the course of a specific investigation or operation;
  • intrusive surveillance, which means covert surveillance carried out in relation to anything taking place on residential premises or in a private vehicle;
  • the use of covert human intelligence sources such as agents, informants, and undercover officers. A covert human intelligence source is known as a ‘CHIS’.
RIPA provides that these powers may only be exercised if they are necessary, for example, in the interests of national security, for the purpose of preventing or detecting crime or disorder, in the interests of economic well being of the UK, or for the purpose of protecting public health. Moreover, before public authorities can exercise these powers their use must also be proportionate to the information to be obtained.

Creation of the IPT:

RIPA s.65(1) - There shall, for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.

The Explanatory Notes to RIPA  indicate that the main purpose of the Act is to ensure that the relevant investigatory powers are used in accordance with human rights.  

A number of bodies created in recent years have been classified by Parliament as "superior courts of record" - e.g. the Special Immigration Appeals Commission (SIAC) but that does not apply in the case of the IPT.  The meaning of "superior court of record" was considered by Laws LJ in R (Cart) v Upper Tribunal and SIAC [2009] EWHC 3052 (Admin).

IPT Jurisdiction:

RIPA s65(2) is a complicated and detailed section setting out the jurisdiction of the tribunal.  Essentially, the jurisdiction falls under 4 heads:

a) Human Rights Act - RIPA s65(2)(a) 

The Human Rights Act 1998 s.6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.   Under HRA s.7 - A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may - (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.

RIPA s65(2)(a) has the effect that the IPT is "the only appropriate tribunal" for HRA s.7 claims when the claim is either against any of the intelligence services etc - see s.65(3).

b) Complaints - s65(2)(b)

To consider and determine any complaints made to them which, in accordance with s65(4) are complaints for which the Tribunal is the appropriate forum;

c)  References - s65(2)(c)

To consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of section 17, on his relying in, or for the purposes of, any civil proceedings on any matter

RIPA as originally enacted contained section 17 which excluded certain matters from legal proceedings.  Under the Investigatory Powers Act 2016 s.243 the words "section 17" are now replaced by "section 56 of the Investigatory Powers Act 2016."  This change took effect in late June 2018.

d) Determine certain other proceedings

To hear and determine any other such proceedings falling within s65(3) as may be allocated to them in accordance with provision made by the Secretary of State by order.

Closed Material Procedures have been introduced in the civil courts in order to handle civil cases where the Government may need to rely on sensitive material to justify an executive action.  As a judicial body handling similarly sensitive material, the Tribunal’s policies and procedures have been carefully developed and have evolved with the aim of balancing the principles of open justice for the complainant with a need to protect sensitive material. The approach of hearing a case on the basis of assumed facts has proved to be of great value.

Assumed facts: This means that, without making any finding on the substance of the complaint, where points of law arise the Tribunal may be prepared to assume for the sake of argument that the facts asserted by the claimant are true; and then, acting upon that assumption, decide whether they would constitute lawful or unlawful conduct. This has enabled hearings to take place in public with full adversarial argument as to whether the conduct alleged, if it had taken place, would have been lawful and proportionate. Exceptionally, and where necessary in the interests of public safety or national security, the Tribunal has sat in closed, or private, hearings with the assistance of Counsel to the Tribunal to ensure that points of law or other matters advanced by the complainants are considered.

The Tribunal recognises the potential and sometimes highly sensitive conflict between the interests of complainants in securing all relevant information and, where they arise, concerns of national security and other public interests. A proper balance must be struck between them. It therefore remains within the power of the Tribunal to hold separate open and closed hearings, should the circumstances, including the nature of the material, require it to do so.

IPT website - Closed and Open Procedures

Many reasoned judgments of the IPT are published by the British and Irish Legal Information Institute (Bailii).


The Investigatory Powers Act 2016 created, for the first time, certain rights of appeal on points of law from the IPT.  The right of appeal is in section 67A and this was inserted into RIPA from 31 December 2018.   Appeals go to the Court of Appeal (Civil Division) or, in Scotland, to the Court of Session. 

: Judicial Review - Ouster - Privacy International :

Judicial review:

It is trite law that any body with limited jurisdiction - e.g. the IPT - must keep within its jurisdiction.   Historically, the Court of King's Bench and later the High Court, developed supervisory jurisdiction to ensure that bodies with limited jurisdiction were kept within their powers.  The supervisory jurisdiction gradually expanded to embrace not just inferior courts but also other public bodies including Ministers, tribunals created by statutes, public bodies and local authorities.  Various prerogative writs existed for this purposes such as a Writ of Certiorari to quash decisions made by public bodies acting outside their jurisdiction.

The modern system of Judicial Review gained a statutory basis in the Supreme Courts Act 1981 s.31 (later renamed Senior Courts Act) and also note the Civil Procedure Rules.

Ouster of Judicial Review:

s.67(8) as originally worded stated - "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."

RIPA s67(8)  was amended by the Investigatory Powers Act 2016 and now states - "Except as provided by virtue of section 67A, 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."  This change came into effect on 31 December 2018.

Exclusion of judicial review could have the effect of enabling decision-makers to act on their own interpretation of the law and that interpretation could be markedly different to that which the judiciary might adopt  Attempts to exclude judicial review therefore go to the heart of any argument regarding the respective freedom of government to act and the right of the individual to seek the protection of rights through the courts.

Historically, the courts have leaned against exclusion of judicial review.  For example, in R v Medical Appeal Tribunal ex parte Gilmore [1957] 1 QB 574 the relevant legislation stated that 'the decision on any medical question by a medical appeal tribunal was final.'  The Court of Appeal held that the jurisdiction of the court was not ousted by those statutory words.  'The remedy of certiorari is never to be taken away by any statute except by the most clear and explicit words' - per Denning LJ.  The court held that certiorari could issue to keep the tribunals within their proper jurisdiction.

Attempts to exclude judicial review have been the subject of numerous decisions including the seminal case of Anisminic v Foreign Compensation Commission decided by the House of Lords in 1968.

Privacy International:

In 2016, Privacy International made a complaint to the IPT that GCHQ had been conducting unlawful computer network exploitation activity (i.e. hacking). One issue of the complaint was whether, if and to the extent that GCHQ had been carrying on computer hacking of the Appellant, it had done so pursuant to a lawful warrant issued by the Secretary of State.

The IPT gave a judgment holding that section 5 of the Intelligence Services Act 1994 ("ISA 1994"), which empowers the Secretary of State to grant warrants authorising only "specified" acts in respect of "specified" property, permits the grant of general warrants authorising a broad class of possible activity in respect of a broad class of possible property. 

That decision could only be challenged, if at all, by judicial review but did RIPA s.67(8) preclude judicial review of the IPT's decision?

On 9 May 2016, Privacy International commenced judicial review proceedings seeking to challenge the IPT’s decision.

On 2 February 2017, the Divisional Court decided that the judicial review claim was precluded by s67(8) of RIPA - Judgment [2017] EWHC 114 (Admin) Sir Brian Leveson P and Leggatt J.

Privacy International's appeal to the Court of Appeal was dismissed - R (Privacy International) v IPT [2017] EWCA Civ 1868 - Floyd, Sales and Flaux LJJ.

In 2016, s.67(8) was worded - "Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards 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."   As mentioned above, that is the original wording of s67(8).

An appeal to the Supreme Court of the UK was heard in December 2018.  Judgment will be handed down on Wednesday 15 May 2019.

Previous Post:

Law and Lawyers 24 November 2017 - Investigatory Powers Tribunal - Judicial Review Excluded

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