74
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
137. 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).”
138. The IPT considered that Rule 9 made it clear that oral hearings
could be held at its discretion. If a hearing was held, it had to be held in
accordance with Rule 9. The absence from the Rules of an absolute right to
either an inter partes oral hearing, or, failing that, to a separate oral hearing
in every case was within the rule-making power in section 69(1) of RIPA
and was compatible with the Convention rights under Article 6, 8 and 10.
The IPT explained that oral hearings involving evidence or a consideration
of the substantive merits of a claim or complaint ran the risk of breaching
the “neither confirm nor deny” policy or other aspects of national security
and the public interest. It was therefore necessary to provide safeguards
against that and the conferring of a discretion to decide when there should
be oral hearings and what form they should take was a proportionate
response to the need for safeguards.
139. The IPT found the language in Rule 9(6), which stipulates that oral
hearings must be held in private, to be clear and unqualified; it therefore had
no discretion in the matter. It concluded that the width and blanket nature of
the rule went beyond what was authorised by section 69 of RIPA and, as a
consequence, it found Rule 9(6) to be ultra vires section 69 and not binding
on it.
140. The IPT also considered the requirements in Rule 6 for the taking
of evidence and disclosure. It concluded that these departures from the
adversarial model were within the power conferred on the Secretary of State
and compatible with Convention rights in Articles 8 and 10, taking account
of the exceptions for the public interest and national security in Articles 8(2)
and 10(2), and in particular the effective operation of the legitimate policy
of “neither confirm nor deny” in relation to the use of investigatory powers.
It noted that disclosure of information was not an absolute right where there
were competing interests, such as national security considerations.
141. Finally, as regards the absence of reasons following a negative
decision, the IPT concluded that section 68(4) and Rule 13 were valid and
binding and that the distinction between information given to the successful
complainants and that given to unsuccessful complainants (where the
“neither confirm nor deny” policy had to be preserved) was necessary and
justifiable.