92
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A Democratic Licence to Operate
The independent IPT was set up to consider complaints against the SIAs, particularly in
light of the HRA 1998. The Tribunal investigates and determines two types of application:
•
•
Interference complaints against a broad range of public authorities using covert
techniques regulated under RIPA. A complaint can be about any interference that
the claimant believes has taken place against them. This includes interception,
surveillance and interference with property. The public authorities include
UK intelligence, military and law-enforcement agencies as well as a range of
government departments, regulators and local authorities
Human-rights complaints. Claims can relate to the use of covert techniques
by intelligence, military and law-enforcement agencies and to a wider range
of human-rights breaches the claimant believes have been committed by the
intelligence agencies.54
4.86
There is no right of appeal on the Tribunal’s decisions, other than to go to the European
Court of Human Rights. This presents a dilemma of the British government being bound
by the rulings of the supranational ECtHR as a higher court, despite appeals being heard
on the basis of less evidence – the British intelligence and security services will not
submit to foreign judges sitting at the ECtHR the same material they would submit to
the IPT, even if the Court were willing to consider evidence in secret. Any ECtHR hearing
would therefore have to proceed on the evidence available and presumed fact, which
might actually weaken the British government’s case and prevent it from providing
factual details and background to cases.55
4.87
Evidence to the ISR Panel indicates that the IPT is a work in progress. The commissioners
can identify errors in their inspections, but have no legal basis on which to refer files to
the IPT (despite their best efforts). Under Section 19 of RIPA, the content of interception
warrants cannot be disclosed, even by the commissioners, so they are unable to notify
the subject of wrongful interception in cases where this can be done without harming
the public interest.
4.88
Cases at the IPT therefore have in the past tended to be triggered by individuals or
organisations that have felt unjustly under surveillance. Information disclosed by
Snowden has also triggered civil-liberties organisations to take a number of cases to the
IPT. However, simply responding to accusations is not a helpful or just arrangement for
either party. In order to be effective, the system must be able to regularly ‘self-correct’
by resolving any errors or injustices openly in court.56
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Only select rulings are published by the IPT. In the past, as one academic has framed
it, the procedures of the IPT were often opaque and did not ‘accord with standards
54. Investigatory Powers Tribunal, ‘Functions – Key Role’, <http://www.ipt-uk.com/section.
aspx?pageid=1>.
55. ISR legal round-table, March 2015.
56. Ibid.