MR JUSTICE BURTON
Approved Judgment
significant fact is that they are subject to oversight and investigation, namely by the
ISC and the Commissioner, as appears in paragraphs 23 and 24 above.
45.
They are now in the process of challenge before this Tribunal. As accepted in
Kennedy at paragraph 167, and as pointed out in Telegraaf Media Nederland v
the Netherlands [2012] 34 BHRC 193 at paragraph 98, this Tribunal, albeit that it
has a different role from the Commissioner, who has power to make roving
inspections, has a distinct role to play in oversight by way of investigating
complaints made to it, and has its own rules to facilitate that investigation. These are
founded upon the obligation of the Respondents to provide all relevant material to
the Tribunal pursuant to s.68(6) of RIPA. The Tribunal has the power to operate its
own procedures pursuant to the Rules (the Investigatory Powers Tribunal Rules
2000) which have been made under s.69(6) of RIPA, which have regard, in
particular, to:
“(a) the need to secure that matters which are the subject of
proceedings, complaints or references brought before or made
to the Tribunal are properly heard and considered; and
(b) the need to secure that information is not disclosed to an
extent, or in a manner, that is contrary to the public interest or
prejudicial to national security, the prevention or detection of
serious crime, the economic well-being of the United Kingdom
or the continued discharge of the functions of any of the
intelligence services.”
Rules 6 and 9 permitted and facilitated the following of the procedure set out in
paragraph 10 above (particularly as set out in paragraph 19.3 there cited).
46.
The Tribunal has in our judgment very distinct advantages over both the
Commissioner and the ISC, some of which are set out in paragraphs 70 to 76 of the
Respondents’ Response. In particular:
i)
It can hold this hearing and have the benefit of inter partes argument at which
forceful legal submissions can be made on behalf of Claimants who seek to
criticise the system. This is and was not available to the ISC or to the
Commissioner. Ms Brimelow for Amnesty highlighted a number of matters
which she submits were either missed or not dealt with by the ISC: all of
those matters have now been addressed before us in depth.
ii)
It can hold a public hearing on assumed facts, as it has done in this case, i.e.
facts which are asserted by the Claimants, and would otherwise be the subject
of NCND, without the Claimants needing to present an arguable case that they
are the subject of interference (see paragraph 4(ii) above).
iii)
It has access to all secret information, and can adjourn into closed hearing in
order to assess whether the arrangements (a) do indeed exist as asserted by Mr
Farr, (b) are adequate to do the job of giving the individual “adequate
protection against arbitrary interference”.