CHAPTER 14: EXPLANATIONS
appeals involving closed materials. It is desirable that human rights cases should be
finally determined in the UK if possible; and if not, that the ECtHR should have the
benefit of views reached after the benefit of argument in more than one court, and
expressed at a very senior judicial level within the UK.
14.106. My fourth recommendation concerns declarations of incompatibility
(Recommendation 115). HRA 1998 section 4(5) allows the higher courts to declare
that a provision of primary legislation is incompatible with a Convention right,
triggering the section 10 power to take remedial action. Consideration should be given
to granting the IPT the same power, though this recommendation might be considered
less important if my third recommendation is adopted, because there could then
(depending on the basis of the decision) be the possibility of appeal to a court entitled
to make a declaration of incompatibility.
14.107. Finally, it is important that the resources of the IPT should continue to be
independent of those allocated to the Commissioners and to the ISC
(Recommendation 116), and that it should be able to call on the assistance of ISIC as
it has done the IOCC and ISCommr in recent years (Recommendation 117).
14.108. I decided not to make any recommendations concerning IPT procedures, despite the
calls to make available to it the procedures for dealing with closed material by the use
of a security-cleared special advocate to represent the interests of the affected
person. Such a procedure was first rolled out in the Special Immigration Appeals
Commission (“SIAC”) and more recently, by the JSA 2013, in the ordinary courts. But
it can be argued that the nature of IPT cases reduces the need for an advocate to be
able to take instructions on behalf of a claimant. There was also a strong belief in
some quarters that counsel to the tribunal (whose role was described in the Liberty
IPT Case)80 is capable of having more influence in IPT closed procedures than would
be attainable by a special advocate. So without dismissing the suggestion, I leave it
for another forum or another day.
Intelligence and Security Committee
14.109. Recommendation 118 emphasises the importance (as did the recent Venice
Commission report: 14.44(b) above) of having a parliamentary oversight committee in
place. The future of the ISC is a matter for Parliament, and I am concerned only to
ensure that its functions do not overlap with those of ISIC (Recommendations 119
and 120).
TRANSPARENCY (Recommendations 121-124)
14.110. As recognised in Recommendation 121, there are limits to how far transparency can
go where operational matters are concerned.
14.111. My recommendations regarding transparency, which are important and selfexplanatory, are at Recommendations 122-124.
80
Judgment of 5 December 2014, paras 8-10.
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