Investigatory Powers Tribunal Rules 2018

Lord Paddick Excerpts

Wednesday 28th November 2018 Lords Chamber

[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?

[Lord Paddick (LD)]

My Lords, I thank the Minister for introducing the rules. The right to appeal from decisions and determinations of the Investigatory Powers Tribunal is welcome, although yet again the changes will not take effect in Northern Ireland until the Northern Ireland Assembly has given its consent, an ongoing cause for concern.

Extending the range of functions that can be exercised by a single member of the Investigatory Powers Tribunal appears reasonable. Overall, there is a move in the direction of more openness and transparency so far as that is in the public interest, which is to be welcomed. That includes the tribunal’s power to order disclosure, and a presumption that hearings should be held openly unless it is in the public interest for the complainant or the respondent to be excluded. It is good to see that not only was there a public consultation on the new rules, but the Government listened and acted on some of the responses, and explained the rationale for rejecting other suggestions in their response to that consultation.

Overall, we support these rules and the clear way in which they set out the process by which complaints of unlawful action by a public authority improperly using covert investigative techniques, and claims brought against the security and intelligence agencies alleging the infringement of human rights, are to be handled. We have no questions and we support the draft rules.