Investigatory Powers Tribunal Rules 2018: in force from 31st December 2018

December 17, 2018

The Investigatory Powers Tribunal Rules 2018 SI 2018/1334 come into force on 31 December 2018  and/or the day on which section 242 of the Investigatory Powers Act 2016 comes into force for all purposes. The Rules set out procedures and practices to be adopted by the Investigatory Powers Tribunal, which was established under Part 4 of the Regulation of Investigatory Powers Act 2000.

The Tribunal investigates and rules on complaints that public authorities have used covert techniques and infringing individuals’ right to privacy, as well as claims against the security and intelligence agencies for conduct which breaches a wider range of human rights.

The new rules regulate the exercise of the jurisdiction conferred by paragraphs (a) and (b) of subsection (2) of section 65 of the Act:

(a) proceedings brought under section 7(1)(a) of the Human Rights Act 1998 for which the Tribunal is the appropriate tribunal;

(b) complaints for which the Tribunal is the appropriate forum.

Rule 6 lists certain functions that may be exercised by a single member of the Tribunal. Otherwise (as provided for by rule 5) the functions of the Tribunal may be carried out by any two or more members of the Tribunal.

Rule 7(1) imposes a general duty on the Tribunal to carry out all of their functions in such a way that information is not disclosed to the extent, or in a manner, that is contrary to the public interest or prejudicial to other listed matters. While that general duty continues to apply, rule 8 then provides for more specific restrictions on the disclosure, by the Tribunal, of information or documents provided to the Tribunal. However, the effect of section 237 of the Investigatory Powers Act 2016 is that a disclosure to a Judicial Commissioner for the purposes of any function of the Commissioner does not breach the restrictions in this rule.

Part 2 sets out rules regarding proceedings and complaints. Rules 8 and 9 provide for how proceedings and complaints, respectively, are to be brought, including the information that must be provided. Rule 10 concerns the discretion the Tribunal has to hold hearings, including hearings in the absence of the complainant or the respondent. Rule 11 deals with who may make representations to the Tribunal. Rule 12 gives the Tribunal the power to appoint Counsel to assist the Tribunal in their consideration of any complaint or proceedings and sets out the functions that Counsel to the Tribunal may be requested to carry out. Rule 13 provides that the Tribunal may receive evidence in any form, including evidence that would not be admissible in a court. Rule 14 requires the Tribunal to invite representations before awarding compensation or making an order.

Rule 15 concerns notification to the complainant and respondent. Section 68(4), (4A) and (4C) of the Act provides for notice to be given in certain circumstances. Section 68(4), (4B) and (4D) provide that notice must be confined to a statement that the Tribunal has made a determination in the claimant’s favour or not made a determination in the claimant’s favour, or a statement as to what the Tribunal’s decision is. However, those restrictions on what the Tribunal can disclose are subject to rules made under section 69(4) of the Act and rule 15 provides that in certain circumstances the Tribunal must provide additional information.

Part 3 makes provision for the making and determination of applications to the Tribunal for leave to appeal. Rule 16 imposes requirements on an applicant for leave to appeal and rule 17 deals with the process for the Tribunal’s consideration of the application. Before making a decision or determination that could be subject to an appeal, section 67A of the Act requires the Tribunal to specify the court which would have jurisdiction to hear an appeal. Rule 18 sets out criteria the Tribunal must apply when specifying the court.