Investigatory Powers Tribunal Rules 2018

Baroness Williams of Trafford Excerpts

Wednesday 28th November 2018 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Rules laid before the House on 11 October be approved.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I am pleased to be given the opportunity to debate the updates to the Investigatory Powers Tribunal Rules in the House this afternoon. Before I address the updates to the rules, I will briefly cover the background to the Investigatory Powers Tribunal, as well as some key statistics.

The Investigatory Powers Tribunal, which I will refer to as the tribunal from now on, was established under the Regulation of Investigatory Powers Act 2000. The tribunal replaced the Interception of Communications Tribunal, the Security Service Tribunal, the Intelligence Services Tribunal and the complaints provision of Part III of the Police Act 1997, which concerned police interference with property. The tribunal investigates and determines complaints which allege that public authorities have used covert techniques unlawfully. It also investigates complaints against security and intelligence agencies for conduct which breaches human rights. There are presently 10 members of the tribunal, and the president is the right honourable Lord Justice Singh.

I will now address the updates to the tribunal rules. Under Section 68 of the Regulation of Investigatory Powers Act 2000, the tribunal is entitled to determine its own procedures. These proceedings are documented in the rules I am presenting here today. The rules have not changed since the tribunal was established 18 years ago. Therefore, it is now necessary that they be updated to better reflect current tribunal practice.

First, to improve the efficiency of decision-making in the tribunal, we have amended the rules to allow further functions of the tribunal to be exercised by a single member of the tribunal.

Secondly, to strengthen the power of the tribunal, we have added an explicit process for when a respondent refuses to consent to disclosure, but the tribunal considers disclosure is required.

Thirdly, the rules have been updated to make clear that the tribunal will hold open hearings, as far as is possible. For the first time, this puts in writing the tribunal’s commitment to transparency, where appropriate.

Fourthly, to assist complainants and respondents to the tribunal, we have provided details of the function of counsel to the tribunal, including by listing the functions the tribunal may require counsel to the tribunal to perform.

Finally, we have amended the rules to set out the process for the making and determination of applications to the tribunal for leave to appeal in specific circumstances, as well as determining in which court the appeal should be heard. This is in preparation for the new right of appeal, which is coming into force as a result of the Investigatory Powers Act 2016. The introduction of an appeals route will allow for greater levels of reassurance that justice has been done, as well as greater levels of transparency.

In bringing forward those updates to the tribunal rules, it was important that we consulted extensively on the proposed changes. We did that through a six-week public consultation in November 2017. Three substantive responses were received, within which 17 amendments were proposed. Officials considered the amendments carefully with colleagues across government, and five amendments were accepted and incorporated into the rules.

The updates to the rules make the work of the tribunal more transparent and efficient, as well as ensuring that the legislation accurately reflects how tribunal process and proceedings have evolved over time. I commend the rules to the House.

[Lord Rosser (Lab)]

We are not opposed to this statutory instrument, which updates the rules that govern procedures in the Investigatory Powers Tribunal, including those for a new right of appeal. The tribunal investigates and determines complaints that allege that public authorities have used covert techniques unlawfully and have infringed the right to privacy, as well as complaints against the security and intelligence agencies for conduct that breaches a wider range of human rights.

The Investigatory Powers Act 2016 introduced a right of appeal, which will be on a point of law, from decisions and determinations of the Investigatory Powers Tribunal. Leave to appeal will be granted only where the appeal raises an important issue of principle or practice, or for another compelling reason. Have there been any cases in which leave to appeal would have been granted had there been an appeals procedure, or is the appeals procedure being added because it is felt that it ought to be available rather than because there is evidence that its not being available has denied a right that ought to be there? How many cases is it anticipated might be appealed per year? How many determinations and decisions are made by the Investigatory Powers Tribunal each year, and is that number going up or down?

The tribunal rules are also being updated by this statutory instrument to provide, among other things, that further specified functions may be exercised by a single member of the tribunal. As a result of the public consultation, to which three substantive responses were received, 17 amendments were proposed, of which the Home Office accepted five. Those are listed in paragraph 10.3 of the Explanatory Memorandum. I am aware that the question was asked and answered when the rules were considered in the Commons, but it would nevertheless be helpful if the Minister could clarify for the record in our Hansard the reasons for not accepting the 12 amendments that have not been incorporated.

Could the Minister also give the reasons why it is proposed in the rules that further functions should be able to be exercised by a single member of the tribunal, and why in particular the listed functions in paragraph 7.5 of the Explanatory Memorandum? Did that proposed change arise from a proposition from the tribunal itself? If so, what reasons were advanced for going down that road, and did the tribunal ask for any other functions to be exercised by a single member to which the Government have not agreed?

--- Later in debate ---

[Baroness Williams of Trafford]

I thank both noble Lords for their comments. The question from the noble Lord, Lord Rosser, on the number of cases that have and might come forward is, at this stage, impossible to answer, given that there has not been an appeals route before. It is not possible to say at this point.

The public rely on a small number of bodies, of which the tribunal is one, to ensure that public authorities are using their investigative powers in accordance with the law. The tribunal’s work in this regard is vital, so it is equally vital that it can operate under up-to-date rules. This is why noble Lords’ support is so important and welcome.

I will go into more detail about the updates to these rules, address the issues raised, address the Government’s response the consultation and outline which amendments we accepted and why we rejected those that we did. Between November and December 2017 we held a six-week public consultation. Representations were welcomed from past, current or potential complainants and respondents at the tribunal and their representatives, as well as from professional bodies, interest groups and the wider public. As I said in my opening speech, we received three substantive responses, and of the 17 amendments proposed five were accepted.

On the amendments we accepted, we removed the ability of a single member of the tribunal to decide preliminary issues. We provided the tribunal with the power to make directions if, following a direction from the tribunal, the respondent elects not to disclose to a complainant documents or information, or a gist or summary of the documents or information. This includes the power to direct that the respondent must not rely on anything that the tribunal directed the respondent to disclose.

We provided that, where an arguable error of law is identified by counsel to the tribunal relating to any decision or determination made by the tribunal consequent upon a hearing held in the absence of a complainant, counsel to the tribunal must notify the tribunal and the tribunal must then disclose to the complainant the arguable error of law. We required the tribunal, where it makes a determination not in favour of the complainant, to provide the complainant and respondent with a summary of its determination if it considers it necessary and in the interests of justice to do so. Finally, we removed the requirement for an application for leave to appeal to state the ground of appeal where counsel to the tribunal has notified the tribunal of an arguable error of law and the tribunal has not disclosed it to the complainant.

I will go through some of the amendments we rejected and give the reasons why. We rejected the suggestion that an amendment should be made to allow the tribunal to make disclosures to the IPC, since Section 237 of the IP Act already permits disclosure to the IPC. We rejected the suggestion that counsel to the tribunal’s functions should be specifically identified in the rules because not all the functions of counsel to the tribunal will be relevant in every case, and the tribunal should have discretion as to which functions would assist counsel to the tribunal in each individual case.

We rejected the suggestion that the tribunal should compel witnesses to attend to give evidence. It could be counterproductive for such a power to be given, as the tribunal has functioned on the basis of voluntary co-operation. We rejected the use of special advocates in the tribunal, as there are considerable benefits to the tribunal employing its own counsel. Indeed, counsel to the tribunal is provided with specific functions that are more suited to the work of the tribunal.

Finally, we sought to allay concerns that the tribunal can receive evidence that would not be admissible in a court of law. In the consultation response we stated that, while it is important that the tribunal has flexibility to receive evidence in any form, it is inconceivable that a situation would arise wherein the admission of evidence that might have been obtained as a result of torture or inhuman or degrading treatment would not be subject to challenge, either by the complainant or by counsel to the tribunal.

The noble Lord, Lord Paddick, mentioned Northern Ireland. The IP Act does not allow for appeals to be heard in the Court of Appeal in Northern Ireland. That omission is the result of legislative consent not being obtained for the IP Act in Northern Ireland. However, the Act contains a power, to be exercised with the consent of the Northern Ireland Assembly, to provide that appeals can be heard in the Court of Appeal for Northern Ireland. We have discussed this with officials in the Northern Ireland Office and agreed that, as it is not currently possible for the Assembly to consent to appeals being heard in Northern Ireland, it is appropriate to proceed with the current wording in the rules. These are that,

“the relevant appellate court is the appellate court in the jurisdiction with the closest and most substantial connection”.

This allows any appeals that relate to Northern Ireland to be heard in either the Court of Appeal in England and Wales or the Court of Session in Scotland. The Permanent Secretary of the Department of Justice, Northern Ireland, has confirmed that the Department of Justice will seek consent from the Assembly once it is up and running again. He has also confirmed that the Lord Chief Justice of Northern Ireland is content with this approach.

[Lord West of Spithead (Lab)]

My Lords, I think we should be very pleased with what the Government have done here. These are all very important minor things that make quite a difference and add to what is probably the best bit of legislation relating to this very difficult area of endeavour anywhere in the world. This adds to it and the Government should be congratulated.

[Baroness Williams of Trafford]

I thank the noble Lord for that. The tone of the debate this afternoon shows clearly that the Government have addressed some of the outstanding concerns.

Motion agreed.