Investigatory Powers Tribunal Rules 2018

Lord West of Spithead Excerpts

Wednesday 28th November 2018 Lords Chamber

[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.