General Overview and Background

General Overview

The Tribunal was established to ensure that the United Kingdom meets its obligations under Article 13 of the European Convention on Human Rights (ECHR). This Article states:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Tribunal is an independent court. It decides complaints under the Regulation of Investigatory Powers Act 2000 (RIPA) and claims under the Human Rights Act 1998 (HRA). It considers allegations of unlawful intrusion by public bodies, including the Security and Intelligence Agencies (SIAs), the Police and local authorities.

RIPA is the statute and 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 unlawfuly – the Tribunal. 

We can summarise the powers of intrusion like this:

  • 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, and the following factors should have been clearly identified and considered:

  • The purpose for which the powers may be used;
  • which authorities can use the powers;
  • Who should authorise each use of the power;
  • The use that can be made of the material gained; 
  • The availability of independent judicial oversight; and
  • A means of redress for the individual who has been subject to any abuse of these powers.

The security and intelligence agencies have other powers pursuant to Sections 5 and 7 of the Intelligence Services Act 1994, which the Tribunal can also consider, investigate and rule upon, if a complaint is made to it.

Independence

Judicial independence is officially enshrined in law under the Constitutional Reform Act 2005. No Government department, or indeed any organisation, can intervene in a Tribunal investigation or influence its decisions.

If a complaint is within the jurisdiction of the Tribunal  and is not ‘frivolous’ or ‘vexatious’ or out of time (see RIPA subsections 67(4) and (5)) or other express determination by the Tribunal, it has a duty to investigate that complaint and, following that investigation, to decide upon it by applying the same principles as a court on an application for judicial review. The Tribunal President has ultimate responsibility for all decisions. He is not required to seek approval from anyone outside the Tribunal or from Government Ministers.

Effective investigation and administration of complaints

In the performance of its duties, and uniquely to any court or tribunal, the Investigatory Powers Tribunal is empowered to develop its own practices and procedures, and has done so based on the principles of open justice throughout its history.

The Tribunal regularly inspects confidential and secret files but it also has the power, and has exercised it, to instruct (i) Counsel to the Tribunal – as an ‘amicus curiae’ – to advise the Tribunal; and, in appropriate circumstances, (ii) a Special Investigator to enquire into detailed facts and allegations and report to the Tribunal.

To assist in its investigation of complaints, RIPA stipulates that all organisations holding powers under the Act are required (by Section 68(6)) to provide any information the Tribunal requests. The Tribunal can also demand clarification or explanation of the information provided. The Interception of Communications Commissioner, the Intelligence Services Commissioner and all Surveillance Commissioners must also give the Tribunal such assistance as the Tribunal may require in investigating and determining complaints.The Tribunal receives full and frank disclosure of relevant, often sensitive, material from those bodies from whom it requests information. This is partly because of the strength of the procedures the Tribunal has in place to protect this material, and the confidence this inspires.

Background

Section 65 of RIPA establishes a Tribunal which will investigate, subject to its jurisdiction and relevant procedures, complaints and Human Rights Act claims against any public authority with RIPA Powers in England and RIPSA Powers in Scotland. In October 2000 the Investigatory Tribunal (IPT) replaced the Interception of Communications Tribunal Service Tribunal, the Intelligence Services Tribunal and the complaints provision of Part III of the Police Act 1997, concerning police interference with property. The IPT came into operation in October 2000 with the enactment of RIPA. At the same time its [Rules Link to the RULES section] were published. All activity which was covered by previous legislation, as well as some that was not, can be investigated under RIPA.

The Tribunal is a statutory body with limited jurisdiction. Its jurisdiction and powers are entirely governed by RIPA and the subordinate legislation made under it. These limitations are set out here. The Tribunal derives its powers from receiving a claim or complaint. It is a court and as with any court it can only consider the complaints that are brought before it. Once a complaint has been investigated, the Tribunal makes a determination by applying the same principles as a court on an application for judicial review.

Under Section 68 of RIPA, the Tribunal is entitled to determine its own procedures. The legislation that forms the basis of the Tribunal and the rules by which it operates are. The main purpose of RIPA is to ensure that relevant investigatory powers, many of which represent significant intrusions into the private lives of citizens, are used in accordance with human rights laws


Last updated: 5 Jul 16