be able to show that, due to their personal situation, they are potentially at
risk of being subjected to such measures.”51 In May 2016, the IPT agreed
with the Government and instituted this new test.52 The IPT has therefore
abandoned this Court’s description in Kennedy of “the extensive
jurisdiction of the IPT to examine any complaint of unlawful interception.
Unlike in many other domestic systems, any person who suspects that his
communications have been or are being intercepted may apply to the IPT.”
(§167).
98.
Second, during the course of another set of proceedings before the IPT, the
Government disclosed a document, which is partially redacted, entitled
“Visit of the IPT to Thames House – 28 September 2007”.53 The document
reveals that in 2007, MI5 briefed some of the members of the IPT in secret
at its headquarters. It further reveals that, during the course of the
briefing, MI5 informed the IPT that their existing (and intended future)
practice was neither to search nor disclose any bulk data holdings relating
to an applicant to the IPT. As a result, in cases where those datasets
include data relating to a particular complainant, MI5 would nevertheless
inform the IPT that it held no pertinent information. The members of the
IPT who attended the briefing include Mr Robert Seabrook QC, who also
sat on the IPT panel during the proceedings in this case.
99.
The briefing undermines the purported independence of the IPT. The role
of the IPT should be restricted to hearing evidence and argument in cases
brought before it. A secret briefing from the UK Intelligence Services,
outside the context of court proceedings, relating to the agencies’ response
Respondents’ Preliminary Submission in Response to Privacy International Campaign, 9 Dec.
2015. This case followed the judgments in the present case. The claim consists of 663 applicants
who are requesting the IPT to determine whether their communications, like those of Amnesty
International and the Legal Resources Centre in the present case, were unlawfully subject to
surveillance. Reply Annex No. 24.
52 Human Rights Watch Inc. et al. v. Secretary of State for the Foreign & Commonwealth Office et
al., [2016] UKIP Trib15-165-CH, 16 May 2016, para 46, available at http://www.iptuk.com/docs/Human_Rights_Watch_FINAL_Judgment.pdf.
53 Letter from Bhatt Murphy Solicitors to IPT, with attachments. Reply Annex, no. 34.
51
42