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Investigatory Powers Tribunal

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AbbreviationIPT
Formation2000
PurposeCourt which investigates and determines complaints about covert techniques used by public authorities.
President
Lord Justice Singh
Vice President
Lord Boyd of Duncansby
Websitewww.ipt-uk.com

In the United Kingdom, the Investigatory Powers Tribunal (IPT) is a judicial body, independent of the British government, which hears complaints about surveillance by public bodies—in fact, "the only Tribunal to whom complaints about the Intelligence Services can be directed".[1]

History

It was established in 2000 by the Regulation of Investigatory Powers Act 2000 (RIPA) and replaced the Interception of Communications Tribunal, the Security Service Tribunal, and the Intelligence Services Tribunal.

The IPT does not disclose its address; it uses a PO box in Nine Elms, London, close to the Secret Intelligence Building. Its website was created in 2003 by Tricorn Media, which has worked extensively for the police and Home Office.[2][3] The IPT and its shortcomings were discussed in a BBC Radio 4 File on 4 programme in September 2013.[4]

Certain European Court of Human Rights judgments said the IPT offers no human rights remedy on surveillance questions, in particular Burden v United Kingdom (2008) 47 EHRR 38 and Malik v United Kingdom (Application no.32968/11) [2013] ECHR 794 (28 May 2013).

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Regulation of Investigatory Powers Act 2000

Regulation of Investigatory Powers Act 2000

The Regulation of Investigatory Powers Act 2000 (c.23) is an Act of the Parliament of the United Kingdom, regulating the powers of public bodies to carry out surveillance and investigation, and covering the interception of communications. It was introduced by the Tony Blair Labour government ostensibly to take account of technological change such as the growth of the Internet and strong encryption.

Nine Elms

Nine Elms

Nine Elms is an area of south-west London, England, within the London Borough of Wandsworth. It lies on the River Thames, with Battersea to the west, South Lambeth to the south and Vauxhall to the east.

London

London

London is the capital and largest city of England and the United Kingdom, with a population of just under 9 million. It stands on the River Thames in south-east England at the head of a 50-mile (80 km) estuary down to the North Sea, and has been a major settlement for two millennia. The City of London, its ancient core and financial centre, was founded by the Romans as Londinium and retains its medieval boundaries. The City of Westminster, to the west of the City of London, has for centuries hosted the national government and parliament. Since the 19th century, the name "London" has also referred to the metropolis around this core, historically split between the counties of Middlesex, Essex, Surrey, Kent, and Hertfordshire, which since 1965 has largely comprised Greater London, which is governed by 33 local authorities and the Greater London Authority.

SIS Building

SIS Building

The SIS Building or MI6 Building at Vauxhall Cross houses the headquarters of the Secret Intelligence Service, the United Kingdom's foreign intelligence agency. It is located at 85 Albert Embankment in Vauxhall, a south western part of central London, on the bank of the River Thames beside Vauxhall Bridge. The building has been the headquarters of the SIS since 1994.

Home Office

Home Office

The Home Office (HO), also known as the Home Department, is a ministerial department of His Majesty's Government, responsible for immigration, security, and law and order. As such, it is responsible for policing in England and Wales, fire and rescue services in England, visas and immigration, and the Security Service (MI5). It is also in charge of government policy on security-related issues such as drugs, counter-terrorism, and ID cards. It was formerly responsible for His Majesty's Prison Service and the National Probation Service, but these have been transferred to the Ministry of Justice.

File on 4

File on 4

File on 4 is a current-affairs radio programme produced by BBC News and broadcast on BBC Radio 4. First broadcast from Manchester in 1977, it is produced in Salford by the BBC's Radio Current Affairs department. It has won more than forty awards, including a gold Sony Radio Award in 2003.

European Court of Human Rights

European Court of Human Rights

The European Court of Human Rights, also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the Convention or its optional protocols to which a member state is a party. The European Convention on Human Rights is also referred to by the initials "ECHR". The court is based in Strasbourg, France.

Jurisdiction

The tribunal has jurisdiction to consider complaints about the use of surveillance by any organisation with powers under the Regulation of Investigatory Powers Act. It is also the only judicial body with the power to investigate the conduct of the Security Service (MI5), the Secret Intelligence Service (MI6) and the Government Communications Headquarters (GCHQ).[5][6]

Organisations under the IPT's jurisdiction must provide details to the IPT of any activity that is being complained about.[7] The IPT will only decide whether any surveillance that is being carried out is lawful—i.e., that it has been appropriately authorised and is being conducted in accordance with the applicable rules. If it investigates a complaint and finds that surveillance is being carried out but is lawful, it will not confirm to the complainant that they are under surveillance, merely state that their complaint has not been upheld. The IPT is exempt from the Freedom of Information Act 2000 so information made available to it in the course of considering a complaint cannot be obtained under a freedom of information request.[8][9]

Complaints may be dealt with on paper or by oral hearing, at the IPT's discretion.[7]

A complaint about surveillance being conducted by a private person or a company cannot be heard by the IPT.[8]

The legislation originally provided for no avenue to appeal, other than to take the case to the European Court of Human Rights.[10] However, despite legislation in the Regulation of Investigatory Powers Act 2000 that sought to prevent any appeal or questioning of a judgement, the Supreme Court found in R (Privacy International) v Investigatory Powers Tribunal that errors in law made by the court may be subject to judicial review.[11] Further legislation was subsequently introduced in the Investigatory Powers Act 2016 to codify in law the findings and allow for appeals on a point of law to the Court of Appeal in England and Wales or the Court of Session.[12][13]

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MI5

MI5

The Security Service, also known as MI5, is the United Kingdom's domestic counter-intelligence and security agency and is part of its intelligence machinery alongside the Secret Intelligence Service (MI6), Government Communications Headquarters (GCHQ), and Defence Intelligence (DI). MI5 is directed by the Joint Intelligence Committee (JIC), and the service is bound by the Security Service Act 1989. The service is directed to protect British parliamentary democracy and economic interests and to counter terrorism and espionage within the United Kingdom (UK).

Freedom of Information Act 2000

Freedom of Information Act 2000

The Freedom of Information Act 2000 is an Act of the Parliament of the United Kingdom that creates a public "right of access" to information held by public authorities. It is the implementation of freedom of information legislation in the United Kingdom on a national level. Its application is limited in Scotland to UK Government offices located in Scotland. The Act implements a manifesto commitment of the Labour Party in the 1997 general election, developed by David Clark as a 1997 White Paper. The final version of the Act was criticised by freedom of information campaigners as a diluted form of what had been proposed in the White Paper. The full provisions of the act came into force on 1 January 2005.

Freedom of information in the United Kingdom

Freedom of information in the United Kingdom

Freedom of information (FOI) in the United Kingdom refers to members of the general public’s right to access information held by public authorities. This right is covered in two parts:Public authorities must regularly publish updates and information regarding their activities, and Members of the public can make requests for information and updates regarding the activities of public authorities.

European Court of Human Rights

European Court of Human Rights

The European Court of Human Rights, also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the Convention or its optional protocols to which a member state is a party. The European Convention on Human Rights is also referred to by the initials "ECHR". The court is based in Strasbourg, France.

Regulation of Investigatory Powers Act 2000

Regulation of Investigatory Powers Act 2000

The Regulation of Investigatory Powers Act 2000 (c.23) is an Act of the Parliament of the United Kingdom, regulating the powers of public bodies to carry out surveillance and investigation, and covering the interception of communications. It was introduced by the Tony Blair Labour government ostensibly to take account of technological change such as the growth of the Internet and strong encryption.

Supreme Court of the United Kingdom

Supreme Court of the United Kingdom

The Supreme Court of the United Kingdom is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the United Kingdom’s highest appellate court for these matters, it hears cases of the greatest public or constitutional importance affecting the whole population.

R (Privacy International) v Investigatory Powers Tribunal

R (Privacy International) v Investigatory Powers Tribunal

R v Investigatory Powers Tribunal [2019] UKSC 22, is a judgment of the Supreme Court of the United Kingdom.

Judicial review

Judicial review

Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

Investigatory Powers Act 2016

Investigatory Powers Act 2016

The Investigatory Powers Act 2016 is an Act of the Parliament of the United Kingdom which received royal assent on 29 November 2016. Its different parts came into force on various dates from 30 December 2016. The Act comprehensively sets out and in limited respects expands the electronic surveillance powers of the British intelligence agencies and police. It also claims to improve the safeguards on the exercise of those powers.

Court of Appeal (England and Wales)

Court of Appeal (England and Wales)

The Court of Appeal is the highest court within the Senior Courts of England and Wales, and second in the legal system of England and Wales only to the Supreme Court of the United Kingdom. The Court of Appeal was created in 1875, and today comprises 39 Lord Justices of Appeal and Lady Justices of Appeal.

Court of Session

Court of Session

The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh and is both a trial court and a court of appeal. Decisions of the court can be appealed to the Supreme Court of the United Kingdom, with the permission of either the Inner House or the Supreme Court. The Court of Session and the local sheriff courts of Scotland have concurrent jurisdiction for all cases with a monetary value in excess of £100,000; the plaintiff is given first choice of court. However, the majority of complex, important, or high value cases are brought in the Court of Session. Cases can be remitted to the Court of Session from the sheriff courts, including the Sheriff Personal Injury Court, at the request of the presiding sheriff. Legal aid, administered by the Scottish Legal Aid Board, is available to persons with little disposable income for cases in the Court of Session.

Members

The IPT's ten members are appointed by the Queen for five-year terms, after which they may "stand down or declare themselves available for reappointment".[14] The President and Vice President must both hold or have previously held senior judicial posts. The current President is Sir Rabinder Singh, a Lord Justice of Appeal who was appointed to the IPT in 2016 and became president on 27 September 2018.[15] All the other members must be experienced barristers or solicitors.[16]

As of November 2019, they are:[15]

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Monarchy of the United Kingdom

Monarchy of the United Kingdom

The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the constitutional form of government by which a hereditary sovereign reigns as the head of state of the United Kingdom, the Crown Dependencies and the British Overseas Territories. The current monarch is King Charles III, who ascended the throne on 8 September 2022, upon the death of his mother, Queen Elizabeth II.

Judge

Judge

A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility and arguments of the parties, and then issues a ruling in the case based on their interpretation of the law and their own personal judgment. A judge is expected to conduct the trial impartially and, typically, in an open court.

Rabinder Singh (judge)

Rabinder Singh (judge)

Sir Rabinder Singh KC, styled The Rt. Hon. Lord Justice Singh, is a British Court of Appeal judge and President of the Investigatory Powers Tribunal, formerly a High Court judge of the Queen's Bench Division, a King's Counsel and barrister, formerly a founding member of Matrix Chambers and a legal academic.

Barrister

Barrister

A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching the law and giving expert legal opinions.

Solicitor

Solicitor

A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and enabled to practise there as such. For example, in England and Wales a solicitor is admitted to practise under the provisions of the Solicitors Act 1974. With some exceptions, practising solicitors must possess a practising certificate. There are many more solicitors than barristers in England; they undertake the general aspects of giving legal advice and conducting legal proceedings.

Colin Boyd, Baron Boyd of Duncansby

Colin Boyd, Baron Boyd of Duncansby

Colin Boyd, Baron Boyd of Duncansby, is a Scottish judge who has been a Senator of the College of Justice since June 2012. He was Lord Advocate for Scotland from 24 February 2000 until his resignation on 4 October 2006. On 11 April 2006, Downing Street announced that Colin Boyd would take a seat as a crossbench life peer; however, he took the Labour whip after resigning as Lord Advocate. He was formally introduced in the House of Lords on 3 July 2006. On the day SNP leader Alex Salmond was elected First Minister of Scotland, it was reported that Boyd was quitting the Scottish Bar to become a part-time consultant with public law solicitors, Dundas & Wilson. He told the Glasgow Herald, "This is a first. I don't think a Lord Advocate has ever done this—left the Bar and become a solicitor."

Nigel Sweeney

Nigel Sweeney

Sir Nigel Hamilton Sweeney KC, styled The Hon. Mr Justice Sweeney, is a High Court judge.

Cases

Only select IPT rulings are published. Statistics concerning complaints dealt with by the IPT are published each year in the Annual Report of the Interception of Communications Commissioner. Those statistics shows that very few complaints about surveillance have been upheld; from 2000 to 2009, five out of at least 956 complaints have been upheld, as shown in the table below.

IPT Complaints vs Complaints Upheld 2001-2008
IPT Complaints vs Complaints Upheld 2001-2008
Year Total complaints Complaints upheld Source
2000/01 102 0 [17]
2002 130 0 [18]
2003 109 0 [19]
2004 90 0 [20]
2005 80 1 [21]
2006 86 0 [22]
2007 66 0 [23]
2008 136 2 [24]
2009 157 1 [25]
2010 164 6 [26]
2011 180 0 [27]
2012 168 - [28]
2013 205 - [29]
2014 215 8 [30]
2015 251 8 [31]
2016 209 15 [32]
Total 2,258 40

One of the IPT's few published rulings concerns the high-profile case of a family who were placed under surveillance by Poole Borough Council in order to investigate claims that the family were not living in the school catchment area which they claimed. The IPT ruled that the use of covert surveillance by the council was not appropriate.[33][34]

In 2010, the IPT produced an annual report for the first time. The report provided statistics relating to the outcomes of complaints. It was stated that 210 complaints were considered in 2010 (including some carried over from the previous year) but 105 (50%) of these cases were inadmissible and were not investigated. This includes cases which were withdrawn, malformed, out of time, out of jurisdiction or, most commonly, "frivolous or vexatious". Sixty-five cases were considered by the IPT to be frivolous or vexatious—generally either obviously unsustainable or repeats of previous complaints.[35]

In 2012, the IPT provided statistics relating to the number of new complaints received and those considered over the course of the year, but did not specify whether any had been upheld.[36]

Following the global surveillance disclosures by Edward Snowden in 2013, the British government submitted documents to the tribunal which showed for the first time that its intelligence services could access raw material collected in bulk by the National Security Agency (NSA), and other foreign spy agencies, without a warrant. This appeared to contradict assurances given in July 2013 by the Parliamentary Intelligence and Security Committee which stated that in all cases in which GCHQ obtained intelligence from the US a warrant was signed by a minister.[37][38]

On 6 November 2014, official documents disclosed to the IPT by the intelligence agencies revealed that their guidance policies allowed staff to access confidential communications between lawyers and their clients. This privileged relationship is usually strictly protected under British law, and leading campaigners said the disclosures had "troubling implications for the whole British justice system". The release of the documents resulted from a claim brought on behalf of two Libyan men who had sued the British government for alleged complicity in their detention and subsequent rendition to the Libyan authorities. The British government refused to make a full statement concerning the revelations contained in the documents, saying only that it did not comment on ongoing legal proceedings.[39]

The IPT ruled in December 2014 that GCHQ did not breach the European Convention on Human Rights, and that its activities are compliant with Articles 8 (right to privacy) and 10 (freedom of expression) of the European Convention of Human Rights.[40] However, in February 2015, the tribunal refined its earlier judgement and ruled that aspects of the data-sharing arrangement that allowed UK Intelligence services to request data from the US surveillance programmes Prism and Upstream did contravene said Articles and, as such, were illegal between – at least - 2007, when Prism was introduced, and 2014,[41] when two paragraphs of additional information, providing details about the procedures and safeguards, were disclosed to the public in December 2014.[42][43]

Furthermore, the IPT ruled that the legislative framework in the United Kingdom does not permit mass surveillance and that while GCHQ collects and analyses data in bulk, it does not practice mass surveillance.[40][44][45] This complements independent reports by the Interception of Communications Commissioner,[46] and a special report made by the Intelligence and Security Committee of Parliament.[47]

In 2015, three parliamentarians took a case to the IPT that the Wilson Doctrine, that parliamentarians' communications should not be tapped, was being broken.[48][49][50] The IPT panel, headed by two senior High Court judges, found the Wilson Doctrine is not enforceable in law and does not impose any legal restraints on the intelligence agencies. They said MPs have the same level of legal protection as the general public when it comes to interception of their communications, and that only lawyers and journalists have more protection due to human rights law.[51][52] Subsequently, the Prime Minister and the Home Secretary said in Parliament that the protection of MPs communications from being intercepted still applies but does not extend to a blanket ban on surveillance.[53][54][55] Section 26 of the Investigatory Powers Act 2016 placed the Wilson Doctrine on a statutory footing for the first time.[56]

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Interception of Communications Commissioner

Interception of Communications Commissioner

The Interception of Communications Commissioner was a regulatory official in the United Kingdom, appointed under section 57 of the Regulation of Investigatory Powers Act 2000, and previously under section 8 of the Interception of Communications Act 1985.

Poole Borough Council

Poole Borough Council

Poole Borough Council was the unitary authority responsible for local government in the Borough of Poole, Dorset, England. It was created on 1 April 1997 following a review by the Local Government Commission for England (1992), becoming administratively independent from Dorset County Council, and ceased to exist on 1 April 2019. Its council comprised 16 wards and 42 councillors and was controlled by a Conservative administration before it was merged into Bournemouth, Christchurch and Poole Council.

Global surveillance disclosures (2013–present)

Global surveillance disclosures (2013–present)

Ongoing news reports in the international media have revealed operational details about the Anglophone cryptographic agencies' global surveillance of both foreign and domestic nationals. The reports mostly emanate from a cache of top secret documents leaked by ex-NSA contractor Edward Snowden, which he obtained whilst working for Booz Allen Hamilton, one of the largest contractors for defense and intelligence in the United States. In addition to a trove of U.S. federal documents, Snowden's cache reportedly contains thousands of Australian, British, Canadian and New Zealand intelligence files that he had accessed via the exclusive "Five Eyes" network. In June 2013, the first of Snowden's documents were published simultaneously by The Washington Post and The Guardian, attracting considerable public attention. The disclosure continued throughout 2013, and a small portion of the estimated full cache of documents was later published by other media outlets worldwide, most notably The New York Times, the Canadian Broadcasting Corporation, the Australian Broadcasting Corporation, Der Spiegel (Germany), O Globo (Brazil), Le Monde (France), L'espresso (Italy), NRC Handelsblad, Dagbladet (Norway), El País (Spain), and Sveriges Television (Sweden).

National Security Agency

National Security Agency

The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collection, and processing of information and data for foreign and domestic intelligence and counterintelligence purposes, specializing in a discipline known as signals intelligence (SIGINT). The NSA is also tasked with the protection of U.S. communications networks and information systems. The NSA relies on a variety of measures to accomplish its mission, the majority of which are clandestine. The existence of the NSA was not revealed until 1975. The NSA has roughly 32,000 employees.

Intelligence and Security Committee of Parliament

Intelligence and Security Committee of Parliament

The Intelligence and Security Committee of Parliament (ISC) is a statutory joint committee of the Parliament of the United Kingdom, appointed to oversee the work of the UK intelligence community.

Legal professional privilege in England and Wales

Legal professional privilege in England and Wales

In England and Wales, the principle of legal professional privilege has long been recognised by the common law. It is seen as a fundamental principle of justice, and grants a protection from disclosing evidence. It is a right that attaches to the client and so may only be waived by the client.

Extraordinary rendition

Extraordinary rendition

Extraordinary rendition is a euphemism for state-sponsored forcible abduction in another jurisdiction and transfer to a third state. The phrase usually refers to a United States-led program used during the War on Terror, which had the purpose of circumventing the source country's laws on interrogation, detention, extradition and/or torture. Extraordinary rendition is a type of extraterritorial abduction, but not all extraterritorial abductions include transfer to a third country.

European Convention on Human Rights

European Convention on Human Rights

The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity.

Upstream collection

Upstream collection

Upstream collection is a term used by the National Security Agency (NSA) of the United States for intercepting telephone and Internet traffic from the Internet backbone, meaning major Internet cables and switches, both domestic and foreign. Besides the Upstream collection, NSA also gathers information from Internet communications through arrangements with Internet companies under the program codenamed PRISM. Both the Upstream programs and PRISM are part of the Special Source Operations (SSO) division, which is responsible for collection in cooperation with corporate partners.

Wilson Doctrine

Wilson Doctrine

The Wilson Doctrine is a convention in the United Kingdom that restricts the police and intelligence services from tapping the telephones of members of the House of Commons and House of Lords. It was introduced in 1966 and named after Harold Wilson, the Labour Prime Minister who established the rule. Since it was established, the development of new forms of communication, such as mobile phones and email, has led to extensions of the doctrine. However, it was never extended to cover members of the new devolved legislatures.

Investigatory Powers Act 2016

Investigatory Powers Act 2016

The Investigatory Powers Act 2016 is an Act of the Parliament of the United Kingdom which received royal assent on 29 November 2016. Its different parts came into force on various dates from 30 December 2016. The Act comprehensively sets out and in limited respects expands the electronic surveillance powers of the British intelligence agencies and police. It also claims to improve the safeguards on the exercise of those powers.

Source: "Investigatory Powers Tribunal", Wikipedia, Wikimedia Foundation, (2023, February 4th), https://en.wikipedia.org/wiki/Investigatory_Powers_Tribunal.

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References
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