Confidentiality

The subject matter of complaints to the Tribunal often trigger statutory limitations which are placed upon the information that it may or may not disclose. These limitations may make it difficult to provide the insight into the work of the Tribunal; but these restrictions enable the Tribunal to review highly sensitive material which cannot be in the public domain. Stringent confidentiality restrictions are set out in Section 69(6)(b) of RIPA which preclude the Tribunal disclosing sensitive information. Tribunal Rule 6 also contains express restrictions on the disclosure of information to any third party. Its main provisions are: 

"Disclosure of Information.

Rule 6–(1) The Tribunal shall carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.

(2) Without prejudice to this general duty, but subject to paragraphs  (3) and  (4), the Tribunal may not disclose to the complainant or to any other person:

(a) the fact that the Tribunal have held, or propose to hold, an oral hearing under rule 9(4);
(b) any information or document disclosed or provided to the Tribunal in the course of that hearing, or the identity of any witness at that hearing;
(c) any information or document otherwise disclosed or provided to the Tribunal by any person pursuant to Section 68(6) of the Act (or provided voluntarily by a person specified in Section 68(7));
(d) any information or opinion provided to the Tribunal by a Commissioner pursuant to Section 68(2) of the Act;
(e) the fact that any information, document, identity or opinion has been disclosed or provided in the circumstances mentioned in sub-paragraphs (b) to (d).

(3) The Tribunal may disclose anything described in paragraph (2) with the consent of:

(a) in the case of sub-paragraph (a), the person required to attend the hearing;
(b) in the case of sub-paragraphs (b) and (c), the witness in question or the person who disclosed or provided the information or document;
(c) in the case of sub-paragraph (d), the Commissioner in question and, to the extent that the information or opinion includes information provided to the Commissioner by another person, that other person;
(d) in the case of sub-paragraph (e), the person whose consent is required under this rule for disclosure of the information, document or opinion in question."

The Tribunal is therefore restricted in what it can disclose during the course of its investigations. The Rules state that no information or documents provided to the Tribunal, or the fact that they have been provided, can be disclosed. This is an essential component of the protection of the most secret of Government material. The Tribunal is therefore limited to giving assurance to complainants that an investigation is ongoing.

To balance this, however, the same confidentiality restrictions extend to complainants. During its inquiries, the Tribunal can only disclose the complainant’s name, address, and date of birth to the organisation they are complaining about. It needs to disclose this information to enable record searches to be made to see if the relevant organisations hold any relevant  information. The Tribunal needs the complainant’s permission to disclose any further details about their complaint. The complainant can give this permission by ticking the relevant confidentiality box on the IPT complaints forms. Although complainants do not have to give this permission, the Tribunal Members may not be able to conduct as thorough an investigation as they would wish, if they do not consent to these details being disclosed.

Where the Tribunal makes a determination in favour of a complainant it will, subject to the general duty imposed by Rule 6(1), provide a summary of that determination to the complainant including any findings of fact.

Neither Confirm nor Deny policy (NCND)

GCHQ has explained the policy as follows: “It has been the policy of successive UK Governments to neither confirm nor deny whether they are monitoring the activities of a particular group or individual, or hold information on a particular group or individual, or have had contact with a particular individual. Similarly, the long-standing policy of the UK Government is to neither confirm nor deny the truth of claims about the operational activities of the Intelligence Services, including their intelligence-gathering capabilities and techniques.” This NCND response, where appropriate, is well established and lawful. Its legitimate purpose and value has been ratified by the Courts, and re-iterated by this Tribunal in the cases of IPT/01/77 and IPT/06/81.

The justification for this policy is that if allegations of interception or surveillance are made, but not denied, then, in the absence of the NCND policy, it is likely to be inferred by a complainant that such acts are taking place. This is especially so if other complainants are being told that they have no cause for complaint, because no such acts are, or have been, taking place in relation to them. If criminals and terrorists became aware, or could infer the possibility, of covert activities, they are likely to adapt their behaviour accordingly. The likely outcome of this is that the all-important secrecy would be lost and with it the chance of obtaining valuable information needed in the public interest or in the interests of national security.

It is therefore not within the remit of the Tribunal to confirm or deny whether or not a warrant or authorisation has been issued against a member of the public, unless it is subsequently found to be unlawful.  The purpose of the Tribunal is to ascertain whether legislation has been complied with and whether organisations have acted reasonably. If a complaint is upheld, the Tribunal may decide to disclose details of any conduct. If a complaint is not upheld, complainants will not be told whether or not any action has been taken against them.

 

Last updated: 5 Jul 16