Regulation of Investigatory Powers Act 2000
RIPA Part I is concerned with the interception of communications, their content and the acquisition and disclosure of communications data. The Interception of Communications Commissioner oversees these activities.
RIPA Part II allows for the authorisation and use of covert surveillance (both directed and intrusive) and anyone who becomes a covert human intelligence source (CHIS). RIPA Part II regulates the use of intelligence gathering techniques and provides safeguards for the public against unnecessary and disproportionate invasion of privacy.
RIPA Part III provides for law enforcement agencies to require the disclosure of protected and encrypted data, including encryption keys, or passwords. This came into force in 2007, after Parliament had approved a Code of Practice to cover the use of this power.
RIPA Part IV provides for the independent judicial oversight the investigatory powers available to the public authorities and includes the appointment of the Commissioners and the establishment and make-up of the Tribunal. When it comes to the Tribunal, Part IV covers the following, among other issues:
- What sort of cases the Tribunal can consider, its 'jurisdiction';
- The obligations of organisations and individuals to provide information to assist it in the Tribunal’s decision-making;
- The right of the Secretary of State to make Rules regarding the Tribunal;
- The disclosure of information to the Tribunal;
- Aspects of any hearings the Tribunal believes necessary;
- What the Tribunal must tell the person bringing the complaint.
Statutory Instrument 2000 No. 2665, made under Section 69 of RIPA, sets out:
- How the Tribunal should proceed in its investigations and determinations;
- How it should receive evidence;
- In what circumstances it may disclose material provided to it;
- How it should determine proceedings, including oral hearings;
- How it should notify a complainant of the outcome.
This Part also provides for Codes of Practice to regulate the exercise and performance of the various powers set out in Parts I-III (see below).
Part V deals with various miscellaneous and supplementary matters. The provision most relevant to the Tribunal is Section 74 which refers specifically to the requirement for proportionality, in that requests for authorisations must be proportionate 'to what the action seeks to achieve'.
Section 65 of RIPA – Legislation establishing the Tribunal
Complaints against public authorities with RIPA powers - extract from Section 65 of the Regulation of Investigatory Powers Act 2000 establishing the IPT:
(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.
(2) The jurisdiction of the Tribunal shall be-
(a) to be the only appropriate tribunal for the purposes of Section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;
(b) to consider and determine any complaints made to them which, in accordance with subsection (4) [or (4A)], are complaints for which the Tribunal is the appropriate forum;
(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; and
(d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order.
(3) Proceedings fall within this subsection if-
(a) they are proceedings against any of the intelligence services;
(b) they are proceedings against any other person in respect of any conduct, or proposed conduct, by or on behalf of any of those services;
(c) they are proceedings brought by virtue of Section 55(4); or
[(ca) they are proceedings relating to the provision to a member of any of the intelligence services of information recorded in an individual’s entry in the National Identity Register;
(cb) they are proceedings relating to the acquisition, storage or use of such information by any of the intelligence services; or]
(d) they are proceedings relating to the taking place in any challengeable circumstances of any conduct falling within subsection (5).
(4) The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes-
(a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunications service or telecommunication system; and
(b) to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services
[(4A) The Tribunal is also the appropriate forum for a complaint if it is a complaint by an individual about what he believes to be-
(a) the provision to a member of any of the intelligence services of information recorded in that individual’s entry in the National Identity Register; or
(b) the acquisition, storage or use of such information by any of the intelligence services.]
(5) Subject to subsection (6), conduct falls within this subsection if (whenever it occurred) it is-
(a) conduct by or on behalf of any of the intelligence services;
(b) conduct for or in connection with the interception of communications in the course of their transmission by means of a postal service or telecommunication system;
(c) conduct to which Chapter II of Part I applies;
[(ca) the carrying out of surveillance by a foreign police or customs officer (within the meaning of Section 76A);]
(d) [other] conduct to which Part II applies;
(e) the giving of a notice under section 49 or any disclosure or use of a key to protected information;
(f) any entry on or interference with property or any interference with wireless telegraphy.
(6) For the purposes only of subsection (3), nothing mentioned in paragraph (d) or (f) of subsection (5) shall be treated as falling within that subsection unless it is conduct by or on behalf of a person holding any office, rank or position with-
(a) any of the intelligence services;
(b) any of Her Majesty's forces;
(c) any police force;
[(d) the Serious Organised Crime Agency;
[(da) the Scottish Crime and Drug Enforcement Agency;] or]
[(f) the Commissioners for Her Majesty’s Revenue and Customs;]
(7) For the purposes of this section conduct takes place in challengeable circumstances if-
(a) it takes place with the authority, or purported authority, of anything falling within subsection (8); or
(b) the circumstances are such that (whether or not there is such authority) it would not have been appropriate for the conduct to take place without it, or at least without proper consideration having been given to whether such authority should be sought; but conduct does not take place in challengeable circumstances to the extent that it is authorised by, or takes place with the permission of, a judicial authority.
[(7A) For the purposes of this section conduct also takes place in challengeable circumstances if it takes place, or purports to take place, under Section 76A.]
(8) The following fall within this subsection-
(a) an interception warrant or a warrant under the Interception of Communications Act 1985;
(b) an authorisation or notice under Chapter II of Part I of this Act;
(c) an authorisation under Part II of this Act or under any enactment contained in or made under an Act of the Scottish Parliament which makes provision equivalent to that made by that Part;
(d) a permission for the purposes of Schedule 2 to this Act;
(e) a notice under Section 49 of this Act; or
(f) an authorisation under Section 93 of the Police Act 1997.
(9) Schedule 3 (which makes further provision in relation to the Tribunal) shall have effect.
(10) In this section-
(a) references to a key and to protected information shall be construed in accordance with Section 56;
(b) references to the disclosure or use of a key to protected information taking place in relation to a person are references to such a disclosure or use taking place in a case in which that person has had possession of the key or of the protected information; and
(c) references to the disclosure of a key to protected information include references to the making of any disclosure in an intelligible form (within the meaning of Section 56) of protected information by a person who is or has been in possession of the key to that information; and the reference in paragraph (b) to a person’s having possession of a key or of protected information shall be construed in accordance with Section 56.
(11) In this section "judicial authority" means-
(a) any judge of the High Court or of the Crown Court or any Circuit Judge;
(b) any judge of the High Court of Judiciary or any sheriff;
(c) any justice of the peace;
(d) any county court judge or resident magistrate in Northern Ireland;
(e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace.
Last updated: 5 Jul 16