BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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4. Counsel to the Tribunal
142. The IPT may appoint Counsel to the Tribunal to make submissions
on behalf of applicants in hearings at which they cannot be represented. In
the Liberty case, Counsel to the Tribunal described his role as follows:
“Counsel to the Tribunal performs a different function [from special advocates in
closed proceedings conducted before certain tribunals], akin to that of amicus curiae.
His or her function is to assist the Tribunal in whatever way the Tribunal directs.
Sometimes (e.g. in relation to issues on which all parties are represented), the Tribunal
will not specify from what perspective submissions are to be made. In these
circumstances, counsel will make submissions according to his or her own analysis of
the relevant legal or factual issues, seeking to give particular emphasis to points not
fully developed by the parties. At other times (in particular where one or more
interests are not represented), the Tribunal may invite its counsel to make submissions
from a particular perspective (normally the perspective of the party or parties whose
interests are not otherwise represented).”
143. This description was accepted and endorsed by the IPT.
E. Oversight
144. Part IV of RIPA provided for the appointment by the Prime
Minister of an Interception of Communications Commissioner and an
Intelligence Services Commissioner charged with supervising the activities
of the intelligence services.
145. The Interception of Communications Commissioner was
responsible for keeping under review the interception of communications
and the acquisition and disclosure of communications data by intelligence
agencies, police forces and other public authorities. He reported to the
Prime Minister on a half-yearly basis with respect to the carrying out of his
functions. This report was a public document (subject to the non-disclosure
of confidential annexes) which was laid before Parliament. In undertaking
his review of surveillance practices, the Commissioner and his inspectors
had access to all relevant documents, including closed materials, and all
those involved in interception activities had a duty to disclose to him any
material he required. The obligation on intercepting agencies to keep
records ensured that the Commissioner had effective access to details of
surveillance activities undertaken.
146. The Intelligence Services Commissioner also provided independent
external oversight of the use of the intrusive powers of the intelligence
services and parts of the Ministry of Defence. He also submitted annual
reports to the Prime Minister, which were laid before Parliament.
147. However, these provisions, insofar as they relate to England,
Scotland and Wales, were repealed by the Investigatory Powers Act 2016
(see paragraphs 195-201 below) and in September 2017 the Investigatory
Powers Commissioner’s Office (“IPCO”) took over responsibility for the