24
KENNEDY v. THE UNITED KINGDOM JUDGMENT
d. The practice of the IPT
88. In its joint ruling on preliminary issues of law (see
paragraph 16 above), the IPT clarified a number of aspects of its procedure.
The IPT sat, for the first time, in public. As regards the IPT procedures and
the importance of the cases before it, the IPT noted:
“10. The challenge to rule 9(6) [requiring oral hearings to be held in private] and to
most of the other rules governing the basic procedures of the Tribunal have made this
the most significant case ever to come before the Tribunal. The Tribunal are left in no
doubt that their rulings on the legal issues formulated by the parties have potentially
important consequences for dealing with and determining these and future
proceedings and complaints. Counsel and those instructing them were encouraged to
argue all the issues in detail, in writing as well as at the oral hearings held over a
period of three days in July and August 2002. At the end of September 2002 the
written submissions were completed when the parties provided, at the request of the
Tribunal, final comments on how the Rules ought, if permissible and appropriate, to
be revised and applied by the Tribunal, in the event of a ruling that one or more of the
Rules are incompatible with Convention rights and/or ultra vires.”
89. The IPT concluded (at paragraph 12) that:
“... (a) the hearing of the preliminary issues should have been conducted in public,
and not in private as stated in rule 9(6); (b) the reasons for the legal rulings should be
made public; and (c) in all other respects the Rules are valid and binding on the
Tribunal and are compatible with Articles 6, 8 and 10 of the Convention.”
90. Specifically on the applicability of Article 6 § 1 to the proceedings
before it, the IPT found:
“85. The conclusion of the Tribunal is that Article 6 applies to a person's claims
under section 65(2)(a) and to his complaints under section 65(2)(b) of RIPA, as each
of them involves 'the determination of his civil rights' by the Tribunal within the
meaning of Article 6(1).”
91. After a review of the Court's case-law on the existence of a “civil
right”, the IPT explained the reasons for its conclusions:
“95. The Tribunal agree with the Respondents that there is a sense in which the
claims and complaints brought by virtue of s 65(2) of RIPA fall within the area of
public law. They arise out of the alleged exercise of very wide discretionary,
investigatory, state powers by public authorities, such as the intelligence and security
agencies and the police. They are concerned with matters of national security, of
public order, safety and welfare. The function of the Tribunal is to investigate and
review the lawfulness of the exercise of such powers. This is no doubt intended to
ensure that the authorities comply with their relevant public law duties, such as by
obtaining appropriate warrants and authorisations to carry out interception and
surveillance.
96. The public law element is reinforced by the directions to the Tribunal in
sections 67(2) and 67(3)(c) of RIPA to apply to the determinations the same principles
as would be applied by a court in judicial review proceedings. Such proceedings are
concerned with the procedural and substantive legality of decisions and actions of
public authorities.