The New Rules introducing a Right of Appeal

New Tribunal Rules introducing a Right of Appeal

The new Tribunal Rules were laid before parliament and commenced on 31 December 2018 and revoked the Rules from 2000. They will apply to all proceedings and complaints currently before the Tribunal.

The Tribunal Rules

The Investigatory Powers Tribunal Rules 2018 set out, in greater detail the procedures the Tribunal should follow. They include further detail on:

  • 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.

Subject to these Rules, the Tribunal can determine its own procedures.

Summary of the main proposed changes to the Rules

  • Rule 6 (previous rule 5) – This provides that further functions of the Tribunal may be exercised by a single member of the Tribunal.
  • Rule 7 (previous rule 6) – The provision of a process for when a respondent refuses to consent to disclosure but the Tribunal considers disclosure is required.  
  • Rule 10 (previous rule 9) – Updated to reflect the existing practice that Tribunal hearings are held in open where possible, but retaining the ability to hold a hearing in absence of the complainant or respondent when it is in the public interest.
  • Rule 12 – A new rule which sets out a non-exhaustive list of the functions the Tribunal may request Counsel to the Tribunal to perform, as well as functions that Counsel to the Tribunal must perform.
  • Part 3 – Rules 16, 17 and 18 – This new part provides for the making and determination of applications to the Tribunal for leave to appeal, as well as determining the relevant appellate court, in preparation for the new right of appeal.

Right of Appeal 

Section 242 of the Investigatory Powers Act 2016 (IPAct) amends the Regulation of investigatory powers Act 2000 (RIPA) to provide a right of appeal from decisions and determinations of the Tribunal on points of law that raise an important point of principle or practice, or if there is some other compelling reason for granting leave to appeal.

Commencement 10 of the IPAct has also now been laid bringing into force s242 of the IPAct (inserting s67A into RIPA “Appeals from the Tribunal”) also on 31 December 2018. 

Commencement 10 includes a transitional provision making clear that decisions/determinations made before 31 December 2018 cannot be appealed. The appeal route does not apply retrospectively.

Where leave to appeal is granted, the appeal will be determined by either the Court of Appeal in England and Wales (CoA) or the Court of Session in Scotland (CoS) (the Tribunal will determine which is the appropriate appellate court). RIPA, as amended by the IP Act, includes the power, which can be exercised with the consent of the Northern Ireland Assembly, to allow appeals to be heard in the CoA NI. However, the Northern Ireland Assembly has not yet been in a position to provide legislative consent to enable relevant appeals to be determined by the Court of Appeal in Northern Ireland (CoA NI). In the meantime, legislation provides that appeals may be heard in the CoS and the CoA so that it is possible for an appeal regarding a matter that relates to Northern Ireland to be heard in eithr of thos courts.

The old Rules apply to all decisions made before 31 December 2018 and can be found here:

http://www.legislation.gov.uk/uksi/2000/2665/pdfs/uksi_20002665_en.pdf


Last updated: 8 Jan 19