94.
On 27 January 2016, the Government published an amended Code of
Practice,50 which essentially incorporates the text of the “note” disclosed
during the IPT proceedings and provides no additional elaboration on any
“arrangements” governing intelligence sharing.
C.
Oversight mechanisms
95.
In its Observations, the Government relies upon several oversight
mechanisms. It submits that the IPT and the ISC provide oversight of
both the bulk interception and intelligence sharing regimes (Observations,
§6). It further submits that the IOCC “provides an important means by
which the exercise by the Intelligence Services of their interception powers
under RIPA may be subject to effective oversight whilst maintaining
appropriate levels of confidentiality” (Observations, §2.106).
1.
The Investigatory Powers Tribunal
96.
The Applicants note two factual developments with respect to the IPT,
which indicate that it is a flawed mechanism, ill-equipped to provide
effective oversight.
97.
First, the Government claims that “[a]ny person may bring a claim in the
IPT: and they need not be able to adduce any evidence that the Intelligence
Services have engaged in relevant ‘conduct’ in relation to them, in order to
have their complaint considered and determined.” (Observations, §3.25; see
also §§2.121-122, 4.39). Yet, in separate proceedings before the IPT, the
Government made a contradictory assertion, arguing that “individuals
cannot claim to be victims occasioned by the mere existence of secret
measures or of legislation pertaining to secret measures” and, rather, “must
50
Home Office, Interception of Communications Code of Practice, Jan. 2016 (“Jan. 2016 Code of
Practice”).
41