Seabrook QC). Had it not been for the other IPT proceedings, this
would never have been known.
(3)
282.
This is contrary to the Article 6 requirement for independence.
In addition, however, there is the issue of the protocol itself. If this
protocol was applied in the present case then the IPT would be entirely
unable to determine the question whether information had been obtained
and stored (but not accessed) and whether that was proportionate. Under
the protocol, the IPT would never be told. It could not even determine
whether such data had been held too long, and in breach of the security
services’ own internal arrangements.
283.
For this reason the Government has been asked whether the protocol was
applied in this case. The Government’s response is that it would not have
been reasonable or proportionate to search “unselected section 8(4) data”,
and this is to the “evident satisfaction” of the IPT. The Applicants
disagree, and the Applicants have not even been heard on the issue. This
is plainly unfair.
284.
Another issue casting doubt on the IPT’s effectiveness concerns how it
came to make a determination in favour of the wrong applicant. By way of
recap:
(1)
Prior to the third judgment formally being handed down, the
Applicants and the Respondents received an embargoed copy of the
draft judgment. Both sides submitted a list of suggested corrections
at the request of the IPT. The Respondents did not identify any
error in relation to the identity of the parties in whose favour the
IPT had made a determination.
110