Remedial bodies’ challenges: access to classified information and necessary expertise
established a special litigation procedure, through
which a specialised chamber (formation spécialisée)
of the Council of State has competence to decide on
complaints related to surveillance techniques. This
formation is composed of a president and four judgerapporteurs. Specific procedures were designed to
conciliate the obligation to respect the secrecy of the
files with the adversarial procedure.559
In the United Kingdom, between 2014 and 2017, the
IPT handed down seven judgments in relation to
intelligence and security services.560 The Independent
Reviewer of Terrorism Legislation recommended that
the IPT have its jurisdiction expanded, that it be given
the power to make declarations of incompatibility, and
that its rulings be subject to appeal on points of law.561
Of these recommendations, the Investigatory Powers
Act followed the suggestion regarding appeals on
points of law.562 However, applicants need to be given
permission (leave) to appeal by the IPT, or if that is
refused, by the relevant appellate court.563
This report’s findings confirm the FRA 2015 report’s
conclusions that quasi-judicial mechanisms contribute to
the development of expertise in this area, and reinforce
remedial actors’ access to classified information.564
559 France, Conseil d’Etat.
560 United Kingdom, IPT, Belhaj v. Straw, IPT/13/132-9H,
7 February 2014, Liberty, Privacy International, Bytes for
All and Amnesty v. UK, judgments of 5 December 2014 and
6 February 2015, Liberty & Others v. the Security Service,
SIS, GCHQ, IPT/13/77/H, 22 June 2015, Privacy International
and Greennet & Others v. the Secretary of State for Foreign
and Commonwealth Affairs and GCHQ, IPT 14/85/CH,
12 February 2016, Privacy International v. the Secretary of State
for Foreign and Commonwealth Affairs, GCHQ, MI5 and MI6,
IPT/15/110/CH, 17 October 2016, and Privacy International &
Others, [2016] UKIPTrib 15_110-CH, 8 September 2017.
561 Anderson, D. (2015), p. 305.
562 United Kingdom, Regulation of Investigatory Powers
Act 2000, Section 67A.
563 United Kingdom, Investigatory Powers Act 2016, s. 67A (6)
(b). Not yet into force and will be brought into force in due
course by means of regulations made by the Secretary of
State (See United Kingdom, Investigatory Powers Act 2016,
Explanatory Note).
564 FRA (2015a), pp. 68-69.
Number of complaints received by
specialised judicial or quasi-judicial bodies
In 2015, 35 % of the 251 complaints received by the IPT
were directed against intelligence services. The remaining
complaints were directed against other types of public authorities that fall under the mandate of the IPT, such as law
enforcement agencies (42 %); local authorities (12 %); and
other public authorities, such as the Department for Work
and Pensions (10 %). There are no specific statistics available in the IPT’s annual report as to how many of the complaints directed against an intelligence agency were actually upheld in 2015. General statistics on the outcomes of
2015 complaints indicate, however, that the IPT upheld the
complaint and ruled in favour of the complainant in eight of
251 cases (which covers all complaints resolved by the IPT
in 2015, including those carried over from previous years).
United Kingdom, IPT (2016), p. 22
In October 2016, the Council of State issued its first decisions. In March 2017, 146 complaints were registered (136
concerning intelligence files and 10 concerning intelligence measures). A total of 52 decisions delivered. Some
of these decisions highlighted the compatibility of the
procedure with the ECHR.
France, Council of State, Contrôle des techniques de renseignement,
19 October 2016, CNCTR (2016), pp. 91-93; and France, DPR & CNCTR (2017),
p. 37
Finally, individuals who are unsatisfied with the
decisions made by a judicial or non-judicial body may
appeal this decision. In some cases, individuals may
appeal a decision at national level: in Austria, for
instance, individuals may lodge a complaint to the
DPA following a decision made by the Legal Protection
Commissioner in cases where security is at stake.565
However, in most cases, the only route available will
be to apply to the ECtHR. In the United Kingdom, until
adoption of the Investigatory Powers Act in 2016, the
only route for appeal following a decision by the IPT
was the ECtHR. This absence of judicial review was
challenged in 2017, and the Divisional Court confirmed
that RIPA did not provide for appeal to the decision of
the IPT.566 Article 67A of the Investigatory Powers Act
has tackled this issue and now provides the possibility
for individuals to appeal any determination of the
Tribunal to either the Court of Appeal in England and
565 Austria, Police State Protection Act (5. Bundesgesetz
mit dem das Bundesgesetz über die Organisation,
Aufgaben und Befugnisse des polizeilichen Staatschutzes
(Polizeiliches Staatsschutzgesetz – PStSG) erlassen und
das Sicherheitspolizeigesetz geändert werden), BGBl. I
Nr. 5/2016, Art. 14.
566 United Kingdom, R (On the Application Of) v Investigatory
Powers Tribunal, Court of Appeal - Administrative
Court, February 02, 2017, [2017] EWHC 114 (Admin),
2 February 2017.
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