The European Convention on Human Rights and the Investigatory Powers Tribunal: Rationalising a Law unto Itself

AuthorKathryn Wilson
PositionFirst-Class Honours graduate of the University of Glasgow in Law with French
Pages129-154
© 2020 Kathryn Wilson and Dublin University Law Society
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
AND THE INVESTIGATORY POWERS TRIBUNAL:
RATIONALISING A LAW UNTO ITSELF?
KATHRYN WILSON*
Introduction
Since the decision to hide the very existence of MI5, the history of the
British intelligence organs has been enshrined in secrecy and perhaps
with good reason. The notoriously complex role played by the British
intelligence service, both in gathering and producing intelligence, engages
the very essence of the security of the nation. Yet, in a democratic society
governed by the rule of law a means must be uncovered through which
these organs may be held accountable, in a way that complies with the
imperative standards of fairness. A justice hamstrung by considerations
of secrecy and national security risks being no justice at all, and thus
challenges arise from the State’s duty to the public interest and fair
procedures.
For the first few years following its inception in 2000,
1
the existence
of the Investigatory Powers Tribunal (IPT or ‘Tribunal’) was not
particularly well known. Its establishment coincided with that of the
Human Rights Act 1998 (HRA), as well as its implementing legislation, the
Regulation of Investigatory Powers Act 2000 (RIPA), both of which were
intended to secure compliance with the state’s convention obligations..
2
Its
existence, serving as the only forum in the UK to which human rights
* Kathryn Wilson is a First-Class Honours graduate of the University of Glasgow in Law
with French. She has served as Deputy Editor of the Glasgow University Law Review (2020,
Volume VII), and is currently studying the Diploma in Professional Legal Practice. With a
keen interest in human rights and public law, she is due to start work as a trainee for the
Council of Europe in Strasbourg in the coming months, prior to beginning her training
contract. The author would like to thank James Cronin, Celia Reynolds and the Editorial
Board for their assistance with this article.
1
Regulation of Investigatory Powers Act 2000, s 65 (1).
2
Rabinder Singh, ‘Holding the Balance: National Security, Civil Liberties and the Role of
the Investigatory Powers Tribunal’ (Kay Everett Memorial Lecture, 20 February 2019), 7.
kay-everett-memorial-lecture-holding-the-
balance-national-security-civil-liberties-and-the.html> accessed 17 February 2020.
Trinity College Law Review [Vol 23
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claims may be brought against intelligence bodies,
3
may be seen as
evidence of the country’s engagement with the rule of law.
4
Be that as it may, proceedings in the IPT are broadly regarded as
outright ‘secret justice’,
5
and critics have described its unique procedures
as ‘Kafkaesque’.
6
Much of this reproach emanates from a friction between
the need for intelligence activities to operate covertly, and the need for
lawful and transparent governmental accountability.
7
As a result of this
struggle, reforms in this area have tended to be ‘uniformly backward-
looking and begrudging’,
8
with the intent being on protecting
investigatory powers while barely meeting minimum human rights
requirements.
The IPT is charged with carrying out its functions in a manner that
gives weight to both the public interest and national security
considerations.
9
In a political landscape shaped by the war on terror,
national security is frequently considered so commanding a countervailing
consideration that it tends to pre-emptively discount human rights
concerns.
10
In such contexts, both the executive and the judiciary tend to
overvalue the immediate risk of terror,
11
whereby judicial deference is
owed to the executive in ceding to State claim’s that they have acted
proportionately and ought to be trusted.
12
Recent events, such as the
3
RIPA 2000, s 65(2) (a).
4
Singh (n 2) 2.
5
Bernard Keenan, ‘Contingency and Surveillance: Framing the Risk of Taking Risks’ (2014)
2(2) BBKLR 293, 299.
6
Big Brother Watch , ‘Big Brother Watch’s Response to the Government’s Consultation on
the Ruling of the Court of Justice of the European Union on 21 December 2016 regarding
the Retention and Acquisition of Communications Data’ (Independent Non- Profit Privacy
and Civil Liberties Organisation, January 2018), 18
content/uploads/2018/01/Big-Brother-Watch-Response-to-the-Watson-Consultation-Jan-
2018.pdf> accessed 15 November 2018.
7
Albert Meijer, ‘Understanding Modern Transparency’ (2009) 75(2) International Review of
Administrative Sciences 255, 256.
8
Benjamin Goold, ‘Liberty and Others v The United Kingdom: A New Chance for Another
Missed Opportunity’ (2009) Jan Public Law 5, 6.
9
The Investigatory Powers Tribunal Rules 2018, SI: 2018/1334, s 7(1).
10
Lucia Zedner, ‘Seeking Security by Eroding Rights: The Side-Stepping of Due Process’, in
Benjamin J Goold and Liora Lazarus (eds) Security and Human Rights (Hart Publis hing,
2007), 257.
11
Cass R Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge University
Press, 2005), 205-206, 215.
12
Secretary of State for the Home Department v Rehman [2003] 1 AC 153, 31-49.
2020] Rationalising a Law Unto Itself?
131
Snowden revelations,
13
have ultimately placed strain on this relationship
of trust.
14
Society has undergone a technological ‘sea change
15
in recent
years, vastly expanding the scope for investigatory powers and thus the
possibility of arbitrariness in modern surveillance. Such risks are vastly
greater now than they were during the Tribunal’s establishment, or
indeed during the landmark surveillance case, Klass and Others v
Germany,
16
at the European Court of Human Rights (ECtHR), decided four
decades ago.
It is against this background that the Tribunal finds its roots. The
result is a body whose procedures largely favour the protection of
investigatory powers over individual rights. This article seeks to assess
tribunal procedure and how it has served to undermine fair trial principles.
It will further delve into the Strasbourg Court’s jurisprudence, arguing
that it has facilitated the creation of ‘secret justice.’ Finally, it will follow
the IPT’s procedural development, noting how various reforms are
perhaps indicative of greater consideration by the Tribunal of civil liberties
concerns.
I. A Star Chamber?
17
A. Common Law Fairness
How then, may the Tribunal conduct proceedings justly, giving heed to
the principles of natural and open justice, when the very hearings it
conducts are so often in private? Open justice, hinging on transparency
in the performance of judicial function and constituting ‘a safeguard
13
Mark Ward, ‘Snowden leaks: US and UK crack online encryption’ BBC News (6 September
2013), us-canada-23981291> accessed 22 February
2019.
14
Directorate General for Internal Policies ‘National Security and Secret Evidence in
Legislation and Before the Courts: Exploring the Challenges, (European Parliament PE
505.991, 2014) 9
1_EN.pdf> accessed 2 March 2019.
15
Big Brother Watch and Others v United Kingdom, App nos. 58170/13, 62322/14, 24960/15
(ECtHR 13 September 2018) Partly Concurring, Partly Dissenting Opinion of Judge Koskelo,
Joined by Judge Turković [12].
16
(1978) Series A no.28.
17
The Star Chamber was an English Court which existed until the mid-17th century. It was
originally implemented as a guarantee of justice to such powerful individuals whom the
ordinary judiciary would have been disinclined to convict but began to represent the
arbitrary use of power.
Trinity College Law Review [Vol 23
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against judicial arbitrariness of idiosyncrasy’,
18
has long been central to
the common law. Likewise, natural justice, in seeking to provide
individuals fair representation and opportunity to influence the outcome
of a decision, runs contrary to the ostensible need to keep these
proceedings secret. These grounds of review are themselves influenced by
external considerations such as the ECtHR. The Tribunal’s progression
towards greater openness has been hastened by both these influences.
The judgment in the matter of applications IPT/01/62 and
IPT/01/77,
19
represented ‘the most significant case to come before the
Tribunal’
20
at that time, instigating the first wave of reform made since the
Tribunal’s creation. The IPT, for the first time, sat in public and published
the full transcript made at the oral hearing.
21
Fundamentally, it went on to
recognise that, constrained by the Secretary of State’s powers under
section 69(1), under 68(1) of RIPA, the IPT can determine its own
procedure.
22
The Tribunal stipulated that its operation ought to be construed
having regard to parliamentary intention, and where there is no explicit
language providing the converse, it should function according to open
justice.
23
This principle ought not be abridged to any degree more than is
required in the public interest. Notably, this judgment ostensibly ran
contrary to the absolute requirement under Rule 9(6),
24
that the Tribunal
may never sit in public. Since the principles of natural and open justice
may be derogated from where there exists statutory authority, and since
the IPT was created under RIPA, its procedures are not per se in breach of
these common law requirements. However, as the Tribunal itself noted,
these values should be and have been influential in the Tribunal’s
procedural development.
25
The absolute nature of Rule 9(6) further raised
issues of proportionality, whereby the Tribunal had been operating on the
18
Attorney General v Leveller Magazine Ltd [1979] AC 440, 450.
19
In the Matter of Applications Nos. IPT/01/62 and IPT/01/77 (unreported, 23 January 2003)
Investigatory Powers Tribunal,
accessed 5 January 2019.
20
ibid [10].
21
ibid [13].
22
ibid [36].
23
ibid [75], citing Scott v Scott [1913] AC 417, 438. The IPT has said these principles have
influenced its very evolution; Investigatory Powers Tribunal, ‘Report of the Investigatory
Powers Tribunal (2011-2015)’, [2.25]
uk.com/docs/IPT_Report_2011_15.pdf> accessed 29 January 2019.
24
The Investigatory Powers Tribunal Rules 2000, SI: 2000/2665.
25
In the Matter of Applications Nos. IPT/01/62 and IPT/01/77 (n 19) [75].
2020] Rationalising a Law Unto Itself?
133
premise that it was prohibited from disclosing all ‘particular matters’
under section 69(4)(d) RIPA.
26
Ultimately, such proportionality concerns, combined with, inter alia,
concerns for the rule of law, transparency and the preservation of public
trust, justified the Tribunal’s decision that rule 9(6) was incompatible with
open justice.
27
To prevent the Tribunal from holding all cases in public
would be to allow it to operate on an absolute premise, which was deemed
ultra vires of its competence to create its own rules. The IPT should have
discretion to assess the right of the parties to the proceedings to know
about the particularities of the case, in light of any public interest
considerations.
28
While the significance of such a ruling ought not be
overlooked, where an otherwise covert body chose to fetter its own
discretion in order to engage with fundamental liberties, it also
demonstrates that the framework on which the IPT was founded,
envisaged little in the way of procedural fairness for complainants.
B. A Rebalancing
While the Tribunal itself is unique, other procedures exist within the UK
judicial system that concern the protection of sensitive evidence in
proceedings, namely Closed Material Procedure (CMP) and Public Interest
Immunity (PII). By comparing IPT procedure with such common law
approaches, it is apparent how far such seemingly fair procedures have
deteriorated and the extensive discretion conferred on the executive in
national security matters.
The common law has, since 1942, provided for an exclusion to the
complete disclosure of evidence during proceedings where such evidence
is deemed sensitive.
29
PII is conducted on the basis of a balancing
exercise,
30
involving consideration of the pertinence of the material to the
proceedings and whether disclosure would severely harm a general
interest concern such as national security. Crucially, the call for non-
disclosure is balanced against the countervailing necessity of fair
procedures, as well as taking into account several other factors, including
alternatives to full disclosure, or ways to mitigate damage to the public
26
ibid [76-77].
27
ibid [76].
28
The Investigatory Powers Tribunal Closed and Open Procedures, (Last Updated 5 July
2016), accessed 10 January 2019.
29
Duncan v Cammell Laird [1942] AC 624.
30
R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] AC 274 [289].
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134
interest.
31
The IPT, on the other hand, is statutorily bound to conduct its
functions having regard first and foremost to the public interest,
32
whereby the scales thus frequently tip in favour of national security
considerations. Thus, while PII developed compatibly with natural justice
principles within the common law, enshrining IPT procedures within
statute facilitated disregard of the traditional norms of procedural fairness
and open justice.
Furthermore, when material is subject to PII, it is subsequently
declared inadmissible and will not be used in the court’s determination,
33
preventing the government from using national security as a means of
excluding the complainant from proceedings. There is no limitation to the
evidence which may be received by the IPT, and, consequently, that used
in the making of its decision.
34
It is apparent that, despite reforms in recent
years, the IPT was statutorily prescribed with both the accommodation of
secret justice and the utmost safeguard of investigatory powers.
II. The Intrinsic Rights of Article 6
One of the most significant forces acting on the Tribunal is the
jurisprudence emanating from the ECtHR. Article 6 section 1 reads ‘in the
determination of his civil rights and obligations […] everyone is entitled
to a fair and public hearing within a reasonable time by an independent
and impartial Tribunal established by law’. While other rights enumerated
may be derogated from, the text of 6(1) suggests the right to a fair and
public hearing by an independent and impartial Tribunal to be non-
derogable and absolute.
35
Yet, while the Court has recognised the distinguished role of such a
right within democratic society,
36
jurisprudence has developed allowing
national security considerations to exist as an exception, justifying the
IPT’s unique procedure. Lord Justice Brown, when describing a court’s
undertaking of a national security case, suggested that ‘the mere
incantation of the phrase of itself instantly discourages the court from
satisfactorily fulfilling its normal role of deciding where the balance of
31
Referred to in Al Rawi & Others v The Security Service and Others [2011]UKSC 34 [145].
32
RIPA 2000, s 69(6)(b).
33
Joint Committee on Human Rights, ‘The Justice and Security Green Paper’ (London, 4
April 2012) [91].
34
IPT Rules 2018 (n 9) Rule 13.
35
R v Forbes (Anthony Leroy) [2001] 1AC 473 [24]. It was noted that a fair trial is absolute,
but its subsidiaries are not.
36
Airey v Ireland [1979] 2 EHRR 305 [24].
2020] Rationalising a Law Unto Itself?
135
public interest lies’.
37
Recognising that both the executive and the
Contracting States themselves are best placed to make determinations of a
governmental nature, the ECtHR grants a wide margin of appreciation.
The Court’s margin of appreciation thus precludes itself from pronouncing
judgment in areas that involve detailed political consideration, which it is
not well-placed to understand.
38
A call for procedural improvement and greater transparency
remains at the centre of concerns surrounding the Tribunal, despite it
being held Article 6 compliant in Kennedy v United Kingdom.
39
Yet, as this
article will show, when examined individually, many of the IPT procedures
fundamentally erode the values of Article 6.
A. Open Hearings
Inherent to the fair administration of justice under Article 6 section 1 is
the requirement that it be conducted via an open procedure.
40
The right to
a public hearing is drafted as absolute, but the ECtHR’s jurisprudence has
recognised exceptions, meaning the limit by which it may become
qualified is undetermined by the convention.
41
The ECtHR has accepted
such qualifications, particularly where there exist countervailing public
interests, such as that of national security.
42
Under the 2018 Tribunal Rules,
the IPT must ‘endeavour’, to the extent that is consistent with its public
interest mandate, to conduct proceedings in public and in the presence of
the complainant.
43
This is a significant step forwards from Rule 9(6) of the
2000 Rules, and is a direct result of its ruling in the case of application
numbers IPT/01/62 and IPT/01/77, as shown above. While the Tribunal
remains under no duty to hold an open hearing, this development shows
37
Simon Brown, ‘Public Interest Immunity’[1994] Public Law 579, 589.
38
Alan Reid & Nicholas Ryder, ‘For Whose Eyes Only? A Critique of the United Kingdom’s
Regulation of Investigatory Powers Act 2000’ (2001) 10(2) Information & Communications
Technology Law 201, 189.
39
App no 26839/05 (ECtHR, 18 Aug 2010) [191].
40
Goc v Turkey App no 36590/97 (Grand Chamber), 11 July 2002) [47].
41
De Tommaso v. Italy App no 43395/09 (Grand Chamber, 23 February 2017) [163]. This
case concerned the lack of a public hearing due to preventive measures being imposed on
the applicant. Despite the domestic court acknowledging a breach of Article 6 s 1 due to the
lack of public hearing, the ECtHR held there to be no violation on the grounds that the
proceedings ‘as a whole’ had been fair.
42
B and P v United Kingdom App no 35974/97 (ECtHR, 14 September 1999) [38-39]; Osinger
v Austria, App no. 54645/00 (ECtHR, 24 Mar 2005) [45].
43
IPT Rules 2018 (n 9), Rule 10(4).
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an attempt to prevent public interest considerations overriding individual
rights without a balanced consideration of both sides.
44
In Kennedy v United Kingdom, the ECtHR held that the
circumstances which allow for derogation on a public hearing are to be
decided by the relevant national court.
45
Yet, the ECtHR has also reiterated
the importance of public proceedings in protecting complainants against
justice with no public scrutiny, and emphasised that public proceedings
are the measure which ensures the preservation of trust in the courts.
46
This would seem to be particularly important in the Tribunal’s case, where
critiques have called for an overhaul, to make ‘its business less opaque to
the public’.
47
It is difficult to reconcile next to no scrutiny of the Tribunal’s
decision to derogate from an inter partes hearing, with the known
ramifications that this has for both public confidence in procedure, and the
standard of fairness protected under Article 6 section 1.
48
An integral aspect to Article 6 is the principle of equality of arms,
which renders it impermissible for any party to benefit from a procedural
advantage over the other,
49
and for a party to make pleadings to the court
to which the other party cannot respond.
50
Evidently, a closed hearing is
in breach of this principle, and thus hinders a complainant’s ability to
propound an effective case.
51
When discussing CMPs in Bank Mellat v HM
Treasury (No 1),
52
Lord Reed noted the prevailing presumption in favour of
open hearings, as it is strongly expected that parliament does not intend
to interfere with fundamental rights. That is not to say that the public
interest argument does not hold weight, as it may well be necessary in the
interest of justice, to conduct closed proceedings on occasion, but that such
44
ibid, Rule 10(1).
45
(n 39) [188] citing Jussila v Finland [GC], ECHR 2006-XIII [41-42].
46
Martinie v France App no 58675/00 (Grand Chamber, 12 April 2006) [39].
47
Royal United Services Institute, ‘A Democratic Licence to Operate: Report of the
Independent Surveillance Review’ (RUSI, July 2015)
15_a_democratic_licence_to_operate.pdf> accessed 11 January 2019, recommendation 11.
48
Axen v Germany (1983) Series A no 72 [25].
49
Feldbrugge v The Netherlands (1986) Series A no 99 [44].
50
APEH Üldözötteinek Szövetsége and others v Hungary App no 32367/96 (ECtHR, A15 April
2009), ECHR 200 0-X [42].
51
Gillian Ferguson & John Wadham, ‘Privacy and Surveillance- A Review of the Regulation
of Investigatory Powers Act 2000’ [2003] 1 EHRLR 101, 106.
52
[2013] UKSC 38, 135.
2020] Rationalising a Law Unto Itself?
137
a decision ought to be closely scrutinised to ensure that it is strictly
necessary under the convention,
53
and respects parliamentary intention.
In CMP proceedings special advocates, who represent the
complainant and may view the evidence on their behalf, are used. Their
role is to represent the interests of the party excluded to the proceedings.
54
By contrast, where special counsel have been appointed to the IPT, their
role has been described as ‘akin to that of amicus curiae’, meaning they
may assist the Tribunal as opposed to the complainant - in whatever way
it directs them.
55
While special counsel may assist the Tribunal on behalf
of the complainant, they ultimately have no clients and consequently, no
requirement to be partisan. As a result, complainants are consistently
under-represented in their applications to the IPT, meaning that, if a point
of law arises in proceedings, there is no individual external to the Tribunal
to propound the complainant’s side. While the use of special advocates in
the IPT in a manner similar to CMP proceedings has been recommended
56
and argued,
57
it has ultimately been ignored. A closed procedure has been
said to constitute an inequality of arms between the state and the
complainant ‘in every case.’
58
Such an imbalance becomes flagrant when
the complainant is both excluded from proceedings and obtaining
representation. Special advocates would thus help rebalance the equality
of arms between the parties by representing the complainant’s interests,
while operating in a tactful manner to afford public interest concerns
sufficient weight.
B. Giving Reasons
Included in the protections afforded under Article 6 section 1 is the duty
to give reasons for decisions.
59
While the specific requirements of this
obligation may vary according to the circumstances, where a party’s
pleading is conclusive to the outcome of the case, an explicit response is
53
John Sullivan, ‘Closed Material Procedures and the Right to a Fair Trial’ (2014) 29(12)
Maryland Journal of International Law 269, 291.
54
The difference between the two was outlined in Liberty/Privacy International v Secretary
of State and Others [2014] UKIPTrib 13 77-H, [2015] 1CR App R 24 [8].
55
Big Brother Watch (n 15) [142].
56
D. Anderson, ‘A Question of Trust, Report of the Investigatory Powers Review’
(Independent Reviewer of Terrorism Legislation, June 2015)
https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2015/06/IPR-
Report-Web-Accessible1.pdf> accessed 23 February 2019, [240].
57
Kennedy (n 39) [181].
58
Bank Mellat v HM Treasury (No 1) [2013] UKSC 38, 96.
59
H v Belgium (1987) Series A, no127-B [53].
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required.
60
In IPT proceedings, the ‘Neither Confirm nor Deny’ (NCND)
principle is used, a mechanism which seeks to avoid potential risks to
national security which either confirming or denying the information’s
existence could provoke.
In restricting the disclosure of information, the NCND principle acts
as a limit to parties obtaining reasons for the outcome of their case. As
Lord Phillips MR expressed in English v Emery Reimbold & Strick Ltd,
‘justice will not be done if it is not apparent to the parties why one has
won and the other has lost’.
61
But the Tribunal’s onerous responsibility
ought to be recognised; and that complaints against the intelligence
services simply cannot be met with equal standards of transparency as
other proceedings.
62
In these contexts, the extent to which any pre-existing
restriction is proportionate to the aim pursued is relevant,
63
as restrictions
have to be counterbalanced by judicial safeguards.
64
In the likes of PII,
special counsel and the judge are able to consider the material themselves
and whether it ought to be disclosed.
65
By contrast, according to the
NCND, the existence of this sensitive information is uncertain, meaning
that not only is the complainant’s capacity to examine the evidence
removed, but the court finds itself bound to make a decision based either
on a small amount of information, or the government’s affirmations. The
possibility that a court would doubt a national security concern on the
grounds of minimal contrary evidence is next to none.
66
In Kennedy v United Kingdom,
67
the ECtHR considered the NCND
policy, noting that its use could be avoided if the complainant was advised
as to whether such sensitive information had been intercepted in the first
place or if the interception had been successful. This appears to be a wholly
circular approach; if the complaint is upheld, then the decision is
published.
68
It is in such cases, where the complainant is unsuccessful, that
the duty to give reasons is engaged, and failure to do so diminishes public
trust in the intelligence agencies to a greater extent.
60
Hiro Balani v Spain (1994) Series A no303-B [27-28].
61
62
R (A) v Director of Establishments of the Security Service [2009] UKSC 12; [2010] 2 AC 1, 26
per Lord Brown.
63
R v Shayler [2002] UKHL 11 [2003] 1 AC 247, 26, as per Lord Bingham and; Miryana
Petrova v Bulgaria, App no. 57148/08 (ECtHR, 21 July 2016) [41].
64
Rowe and Davis v United Kingdom [GC] ECHR 2000-II [61].
65
66
Aileen Kavanagh, ‘Constitutionalism, Counterterrorism, and the Courts: Changes in the
British Constitutional Landscape’ (2011) 9(1) IJCL 172199, 178.
67
(n 39) [189].
68
Investigatory Powers Tribunal (n 23) [2.22].
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139
That is not to say that the disclosure of information which has a
bearing on national security should be allowed in all circumstances, but
rather that the presumption should be that NCND is to be derogated upon
where the Tribunal determines that the issue being considered is a
significant one.
69
It should be treated as a coherent reference point, an
annullable principle that may only be invoked where considered
necessary. In Mohamed Ahmed Mohamed and CF v Secretary of State for the
Home Department, the Court of Appeal considered NCND’s existence as a
‘departure from procedural norms’, rather than a legal rule and therefore
ought to be subject to justification.
70
Such a development is welcomed,
where without such a requirement, the government could simply have
recourse to NCND as a ‘carte blanche.’ Conclusively, the disclosures made
in Belhadj and others v Security Service and Others, suggest that in certain
circumstances greater transparency can be achieved.
71
It is the mechanical
invocation of NCND that is detrimental to the fairness of proceedings, as
the principle may well be invoked in the absence of any real national
security concern and without true scrutiny given to the disclosure risk.
Most recently, the IPT Rules 2018 further modified the circumstances
under which NCND may be invoked. Per Rule 15(3), should a finding be
made against the complainant, the Tribunal must distribute a ‘summary of
the determination’ to both parties, if it is considered necessary in the
interests of justice to do so.
72
The strength of Rule 15(3) is bolstered under
Rule 7(6), whereby should the government refuse, the Tribunal may direct
that such evidence not be relied upon, in a manner comparable to the
inadmissibility of evidence subject to PII. While this represents a
significant shift in the Tribunal’s priorities, their recent implementation
suggests their ultimate effectiveness remains to be seen. Regardless, the
IPT 2018 Rules ostensibly set a course towards the attrition of the
previously absolute NCND principle, as well as a procedural safeguard of
the complainant’s right to obtain reasons where an adverse finding has
been made.
69
Justice, ‘To ‘Neither Confirm nor Deny’: Assessing the Response and its Impact on
Access to Justice’ (Feb. 2018) [49] https://justice.org.uk/wp-
content/uploads/2018/02/NCND-Brochure_FINAL_WEB_Spreads2.pdf> accessed 17 January
2019.
70
Mohamed Ahmed Mohamed and CF v Secretary of State for the Home Department [2014]
71
[2015] UKIPTrib 13_132-9H.
72
IPT Rules 2018 (n 9), Rule 15(3).
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C. Adversarial Proceedings and Secret Evidence
Other implications arise from the IPT’s ability to institute closed
proceedings. As the majority of proceedings in the Tribunal involve
sensitive evidence,
73
hearings are commonly held in the absence of the
complainant, such that they are restricted from making submissions on
evidence.
74
This right indicates that a party to civil proceedings is entitled
to use evidence that may support their case,
75
and equal access to this
evidence.
76
Procedure in the IPT allows for both information to be
withheld from the complainant and for this evidence to be used in the
determination of the complaint.
77
In Kennedy, the applicant claimed that he had been subject to secret
surveillance, but could not obtain access to documentation as to do so
would disclose its sensitive content. The court cited ‘compensatory
elements’ to justify non-disclosure; that the prohibition against disclosure
is not absolute, that the IPT has a large scope of access to these documents,
and that the protection of the sensitivity of the documents is unlikely to
be achievable by another means.
78
While the proceedings as a whole must
constitute a fair trial, its precise components are not categorical, and the
right to examine evidence is not absolute.
79
Such justifications suggest that
precedence is often given to national security concerns in the dismissal of
an applicant’s claim for fully adversarial proceedings,
80
or otherwise put,
the complainant’s opportunity to know and make observations on the
evidence or statements adduced by the respondent.
81
The use of such
elements undermines the principle that non-disclosure of evidence ought
to be ‘strictly necessary’
82
to be justified under Article 6. Consequently,
individuals applying to the IPT may be unable to review information vital
73
Investigatory Powers Tribunal (n 23) 3.
74
Ankerl v Switzerland ECHR 1996-V [38]. The imbalance created by a non-disclosure has
been held irreconcilable with the requirements of a fair trial: Reinhardt and Slimane Kaid
v France ECHR 1998-II [105].
75
De Haes and Gijsels v Belgium App no 19983/92 (ECHR, 24 February 1997) [55]-[59].
76
Uzukauskas v Lithuania App no 16965/04 (ECtHR, 6 Oct 2010) [48]-[51].
77
IPT Rules 2018 (n 9), Rule 7(2).
78
Kennedy (n 39) [187].
79
Edwards and Lewis v. United Kingdom App no 39647/98 (Grand Chamber, 27 October
2004) [46].
80
Regner v Czech Republic App no. 35289/11 (Grand Chamber, 19 Sep 2017) [152]-[162].
Ternovskis v Latvia App no. 33637/02 (ECtHR, 29 July 2014) [65]-[68].
81
Ruiz-Mateos v Spain (1993) Series A, no 262 [63].
82
Nikolova and Vandova v Bulgaria App no 20688/04 (ECtHR, 17 Dec 2013) [74]-[75].
2020] Rationalising a Law Unto Itself?
141
to the making of their case,
83
allowing the government to not only avoid
judgements against it easily, but to hide activity deserving of public
scrutiny.
84
The argument is often heard that while evidence may not be
disclosed to the complainant, it is still reviewed by a judge.
85
Yet, such an
assertion contravenes the revered principle that evidence ought to be
scrutinised by the opposing party. The absence of adversarial proceedings
subverts the judge’s ability to conduct a fair trial based on his acting as an
arbitrator between two competing lines of reasoning.3
In Regner v Czech Republic,
86
the applicant had worked for the
Ministry of Defence in a variety of high-profile positions. He later had his
security clearance revoked on the basis of intelligence, indicating that he
posed a security risk. The intelligence could not, however, be legally
disclosed to the applicant on grounds of security. While the applicant
complained that he was prevented from adequately defending himself, the
ECtHR found that the intrinsic rights of Article 6 were not absolute and
such an interference was balanced by the domestic court’s power to
examine the documents.
87
This bears resemblance to the compensatory
argument that the IPT's breadth of access to the evidence justified the
Article 6 interference in Kennedy v United Kingdom.
88
While sole judicial
oversight may prima facie appear neutral, the ECtHR in this reasoning too
readily assumes a judge’s dual position in both judging and assessing the
evidence sufficient to replicate an applicant’s adversarial role.
89
An
undermining of the principle audi alteram partem may indeed cause judges
to - consciously or not - fail to truly challenge the veritable authenticity of
the evidence. By simply reading the evidence and not hearing submissions
challenging it, the judge’s oversight is unlikely to be truly scrupulous. This
has been noted in Al Rawi v The Security Service and Others,
90
where it was
stated that:
83
Dovydas Vitkauskus & Grigory Dikov, Protecting the Right to a Fair Trial under The
European Convention on Human Rights (2nd edn, Council of Europe 2012) [45].
84
Amnesty International, ‘Left in the Dark: The Use of Secret Evidence in the United
Kingdom’, (London, 2012), [39] > accessed 17 February 2020.
85
Fitt v United Kingdom App no 29777/96 (ECtHR, 16 Feb 2000) [42].
86
(n 80).
87
ibid [152].
88
ibid [190].
89
Gus Van Harten, ‘Weaknesses of Adjudication in the Face of Secret Evidence’, (2009),
13(1) E & P, 1-27, 10. See also Schatschaschwili v. Germany App no. 9154/10 (Grand
Chamber, 15 Dec 2015) [107].
90
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‘The central fallacy of the argument […] lies in the unspoken
assumption, that, because the judge sees everything, he is bound to
be in a better position to reach a fair result. That assumption is
misplaced. To be truly valuable, evidence must be capable of
withstanding challenge. Evidence which has been insulated from
challenge may positively mislead’.
91
Notwithstanding this proclamation, the examination of evidence by
the IPT alone provides the complainant with a certain level of scrutiny.
But the ECtHR itself has acknowledged the risk of arbitrariness rooted in
covert justice.
92
That is not to say that full disclosure should be used if it
would jeopardise national security. Rather, the quandary lies in an
assumption of non-disclosure. Compare this with PII, where if the
evidence cannot be disclosed in its entirety, the court can still require that
extracts or a summary are provided.
93
In the course of the dissenting judgment in Regner, issue was taken
with an absolute restriction on disclosure, and the prospect that the
applicant could at least be provided with a bare summary was considered.
94
This would correspond to the ‘balancing techniques’ referred to in Chahal
v United Kingdom,
95
that seek to find an equilibrium between legitimate
security concerns while still according adequate procedural fairness.
96
Such an approach prevents Member States from acting without judicial
accountability when they invoke national security concerns. Convolution
within the main judgment of Regner is demonstrative of the rife division
that exists within the ECtHR, where various paragraphs in the decision
pointed to the conclusion above on absolute non-disclosure, and that the
review carried out by the domestic court in Regner was lacking.
97
Indeed, an interpretation of fairness infers adherence to the rule of
law, general requirements of lawfulness, and a fortiori, respect for
Convention rights.
98
The willingness of the ECtHR to yield to member
states’ arguments denoting a non-violation of Article 6 seems to imply a
growing margin of appreciation in security matters. Failing to
91
ibid [93].
92
Pretto and Others v Italy (1983) Series A, no71 [21].
93
Al Rawi & Others v The Security Service and Others [2011]UKSC 34 [145].
94
Regner (n 80), Dissenting Judgment of Judge Serghides [93].
95
ECHR 1996-V.
96
ibid, [131]-[153].
97
Regner (n 80) [153]- [160].
98
Coëme and Others v Belgium ECHR 2000-VII [102].
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143
acknowledge the stretching limits of Article 6 means that the Court is
forsaking effective jurisprudential development, preventing it from
increasing restrictions in line with the incidental use of such ostensibly
untrammelled procedure by the Contracting States. There is no doubt that
the multifaceted forms of terrorism that currently threaten democracies
require states to do their utmost to combat these, but it cannot be
permitted that fundamental rights are repudiated in pursuit of this
struggle.
III. The Dilution of the Convention Machinery
A. Standing and Extraterritorial Jurisdiction
At first glance, it would seem far-fetched that a body of such composition
as the IPT could be rendered ECHR compliant. But such a finding is largely
illustrated through the gradual subversion of ECtHR jurisprudence in
recent years. Part III will explore distinct features of the IPT where this
dilution is particularly notable, and contemplate the convention’s own
limitations in practice.
Fundamentally problematic to the ECtHR’s reasoning is its
understanding of fairness, where through an act of counterbalancing,
‘compensatory elements’, or safeguards in the proceedings, may legitimise
restrictions on fairness.
99
Consequently, fairness becomes intertwined
with other complicated state objectives like national security,
100
which in
turn becomes a justification for a procedure that stretches the bounds of
Article 6. Where the intrinsic elements of Article 6 section 1 are
contravened, the ECtHR has justified a non-violation by reference to these
‘compensatory elements’.
101
The fact that the complainant need not
overcome any standing requirements nor evidential burden to apply to the
IPT are among the most significant relied on by the ECtHR.
102
Under Article 1 of the ECHR, states have an obligation to ensure that
Convention rights are guaranteed within the scope of their jurisdiction.
Jurisdiction is thus a threshold criterion which must be satisfied for an
individual to have standing.
103
While it is true that there is not per se a
99
A and Others v United Kingdom App no 3455/05 (Grand Chamber, 19 Feb 2009) [205].
100
Eva Nanopoulos, ‘European Human Rights Law and the Normalisation of the ‘Closed
Material Procedure’: Limit or Source?’ (2015) 78(6) MLR 913, 933.
101
Doorson v the Netherlands App no 20524/92 (ECtHR, 26 March 1996) [72].
102
Kennedy (n 39) [190].
103
Illascu and Others v Moldova and Russia App no 48787/99 (Grand Chamber, 8 July 2004)
[311].
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standing requirement of applying to the IPT, ECtHR jurisprudence has not
foreseen the innate difficulties brought to traditional jurisdictional
rationale by the surveillance cases the IPT presides over, which
undermines the Convention as a mechanism of accountability. Particularly
problematic under this head is the Tribunal’s approach to extraterritorial
jurisdiction.
It is important to contemplate at the outset that the ECtHR has not,
thus far, decided a case concerning extraterritorial jurisdiction under
Article 8 and the likely convoluted ramifications that mass surveillance
abroad will have on conventional jurisdictional application. The question
therefore centres on the court’s approach to establishing jurisdiction in
other strands of case law. The court has, in recent years, moved away from
the ‘primarily territorial’ approach
104
and proceeded towards a
determination of the exceptions to this principle the personal and spatial
model.
105
The former involves control exercised by the state over an
individual abroad, and the latter, control over an area. Yet, as demonstrated
by Jaloud v The Netherlands,
106
there still exists judicial ambiguity in this
area, where the Court has struggled to separate these two methodologies,
and suggesting that they ought not be separated at all.
107
This poorly
principled line of jurisprudence has thus broadened the scope for the
Tribunal to restrict standing, as demonstrated in Human Rights Watch &
Others v The Secretary of State for the Foreign and Commonwealth Office &
Others.
108
In this case, the Tribunal found that the Convention was not
applicable to individuals abroad who are subject to government
surveillance, therein negating the complainant’s jurisdiction. A conformist
approach was adopted, following Bankovic and Others v Belgium, where
the IPT was thus unwilling to ‘extend’ the borders of its jurisdiction under
Article 8.
109
The claimant’s core submission was that the interception had
occurred on UK territory, rendering it insignificant that those whose rights
were interfered with were abroad.
110
The Tribunal’s response to this point
is lustreless:
104
Bankovic and Others v Belgium App no 52207/99 ( Grand Chamber, 12 December 2001)
[59].
105
Al Skeini and Others v United Kingdom App no 55721/07 (Grand Chamber, 7 July 2011)
[136].
106
App no 47708/08 (ECtHR, 6 October 2008) [140]-[153].
107
Lea Raible, ‘The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should be Read
as Game Changers’ (2016) 2 EHRLR 161, 164.
108
[2016] UKIPTrib 15 165-CH.
109
ibid [60].
110
ibid [56].
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145
‘neither of them allege that, at any material time, they enjoyed a
private life in the United Kingdom. Accordingly, under Article 1, the
United Kingdom was under no obligation to respect it. The analogy
with Bankovic is close’.
111
The Tribunal does not explain how the facts of Human Rights Watch
relate to Bankovic, and it ought to be noted that the latter may be
differentiated from the former on the basis that in Bankovic both the
violation and the victim were outside the Member State’s territory. In such
circumstances, there is a clearly absent jurisdictional link, whereas in
Human Rights Watch, the data was gathered from the UK. In the age of
technology, such geographical limitations of jurisdiction are no longer
tenable, particularly in surveillance cases. Moreover, the inverse of this
decision would be that where an individual is residing in one state, they
may be subject to unlawful surveillance by any other contracting state bar
the one that determines their territorial location. That individual would
then have no recourse at a domestic level.
This possibility for an avoidance of state accountability has been
considered by the court in Issa and Others v Turkey,
112
which held that
Article 1 cannot be read in such a way that permits states to commit
violations on territories which it could not sustain on its own.
113
Clearly
the rationale of Human Rights Watch is in direct contravention of this
notion, but the ECtHR’s cautionary case law has caused much confusion.
Jurisdiction in the sense of a state’s exercise of power is clearly the
preferable analogy, and prevents the circumvention of accountability on
extraterritorial jurisdictions.
To correctly delineate the scope of extraterritorial jurisdiction in the
field of mass surveillance will involve a rethinking of the Court’s
jurisdictional reasoning. As declared in Al Skeini and Others v United
Kingdom, the Court has ‘spawned a number of leadingjudgments based
on patchwork case-law at best. As the Court has always tailored its tenets
to sets of specific facts, it is hardly surprising that those tenets become
stretched when applied to sets of different facts.’
114
A clarification by the ECtHR is thus required, but a ruling may come
later than initially thought; the UK government did not raise a jurisdiction
111
ibid [58].
112
App no 31821/96 (ECtHR, 30 Mar 2005).
113
ibid [71].
114
Al Skeini and Others v United Kingdom App no 55721/07 (Grand Chamber, 7 July 2011)
[5].
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146
based objection in Big Brother Watch and Others v United Kingdom,
115
and
although the court could have raised it itself proprio motu (on their own
impulse) because it covers the Convention’s employment in practice,
116
it
refrained from doing so. Similarly, the ECtHR is clearly treading carefully,
aware that should it cast the jurisdictional net too far, surveillance
litigation may be drastically increased for domestic courts. Yet, in casting
it too narrowly, significant issues of accountability under the Convention
have been raised, as well as access to an effective remedy for individuals
subject to surveillance beyond the territorial state.
B. An Effective Remedy?
Member States have an obligation under the Convention to ensure that an
individual alleging a violation of human rights has access to a fair and
effective domestic remedy. Closely related to this provision is the
requirement that the applicant has attempted to remedy their complaint at
a domestic level before bringing proceedings to the ECtHR.
117
While in
theory the IPT intends to operate as an avenue for effective remedies to be
given, as shown above, it arguably fails to meet Convention standards. .
While the Court in Kennedy v United Kingdom held the IPT Article
6 compliant, it was also found to have failed in its provision of effective
remedies per Article 35 section 1.
118
While the applicant had effectively
challenged primary legislation, the Tribunal did not have the power to find
any interception of communications arising under RIPA, or provision
itself, to be incompatible with the Convention. Accordingly, it was
unlikely that any elucidation by the IPT which could assist the ECtHR in
its considerations, would result from a general challenge to the IPT.
119
The
court drew attention to the fact that the Tribunal did not have the power
to make a declaration of incompatibility,
120
which, despite various
recommendations for it to so obtain,
121
has not been realised.
115
(n 15) [271].
116
Registry of the Court, ‘Rules of Court’ (1 August 2018) [Rule 39]
accessed 12 June 2018.
117
Vuckovic and Others v Serbia App no 17153/11 (Grand Chamber, 25 Mar 2014), [70].
118
Akdivar and Others v Turkey ECHR 199 6-IV [66].
119
Kennedy (n 39) [110].
120
ibid [109].
121
D. Anderson, ‘A Question of Trust, Report of the Investigatory Powers Review’
(Independent Reviewer of Terrorism Legislation, June 2015)
https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2015/06/IPR-
Report-Web-Accessible1.pdf> accessed 23 February 2019 [33].
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147
Eight years post Kennedy, the ECtHR somewhat reversed their position,
noting that the IPT could provide an effective remedy in Big Brother Watch
and Others v United Kingdom.
122
It is clear that the court’s reluctance to
challenge legislation in abstracto where there exists a domestic forum
available to the applicants, weighed upon this judgment.
123
Consideration
was given to the government’s practice of giving effect to the IPT’s
findings of incompatibility of domestic law with the Convention, despite
the fact that a ‘binding legal obligation’, actually requiring the government
to effectuate such a recommendation, does not exist.
124
And yet this is the precise rationalisation that the court adopted in
Burden and Burden v United Kingdom,
125
that where a declaration of
incompatibility under section 4 HRA did not impose a ‘legal obligation’ to
amend the provision found to be incompatible, such a remedy was
ineffective.
126
To establish section 4 HRA as effective under Article 35
section 1, hinged on a ‘long standing and established’ practice of ministers
giving effect to these declarations and even then, that may only ‘be
sufficient to persuade’ the court.
127
By contrast, in Big Brother Watch, the
court seems positively content to accept a lower standard. Using the
example of Belhadj and Others v Security Service and Others, it was willing
to accept Government Communications Headquarters (GCHQ) simply
obliging to ‘review’ their policies as establishing a definitive practice of
remedying incompatibilities.
128
While the Court correctly considers the Tribunal’s significant role in
shedding light on intelligence powers,
129
the judgment cites the Liberty
130
case as a success noting that the IPT had discerned aspects of the
surveillance framework in need of elucidation and recommended the
disclosure of ‘below the waterline’ information.
131
In these proceedings,
the Tribunal found the UK/US framework for surveillance cooperation to
be Convention compliant, despite the transatlantic relationship being
axiomatically secretive. While such a framework is ostensibly contrary to
122
Big Brother Watch (n 15).
123
ibid [252].
124
ibid [262].
125
App no 13378/05 (ECtHR, 12 Dec 2006).
126
ibid [39].
127
ibid.
128
Big Brother Watch (n 15) [259].
129
ibid [255].
130
Liberty/Privacy International v Secretary of State and Others [2014] UKIPTrib 13 77-H
131
Big Brother Watch (n 15) [255].
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Article 8, the Court extraordinarily found that ex-post release of
information following legal action provided sufficient indication as to the
contents of that relationship.
132
The forced disclosure of a brief selection of rules is clearly not in line
with the foreseeability requirement,
133
and a skeletal description of such a
complex scheme in one paragraph of a detailed judgment ought not satisfy
the stringent conditions previously marked out in case law.
134
Without
assessment by the IPT of the proportionality of such schemes, a
requirement of transparency simply becomes a facade for the government
to overcome, and permits the Tribunal to pay lip service to the rule of law.
The rationale that prior to disclosure, the arrangements contravened both
Articles 8 and 10 but now comply,
135
clearly stretches the ambit of the
Convention, and is paradigmatic of the government’s dilatory response in
this sphere - disclosure is made only because it is bound to do so and such
powers remain largely obscured to the public.
This scant divulgence has become the cornerstone of the IPT’s
‘elucidatory role’ under the Convention. Big Brother Watch in general
seems to hinge on the Tribunal in this capacity, and the ECtHR’s own
inability to conduct fact finding investigations or interpret domestic law,
particularly in the context of national security.
136
These elucidatory
powers themselves shed little light on the Tribunal’s capabilities to
compensate a victim of an impugned violation, nor the requirement that a
remedy must offer reasonable prospects of success.
137
While the provisions
provide the Tribunal with a wide compensatory power, allowing the IPT
to grant any order it deems suitable,
138
the Court still failed to discuss the
tendency to not to do so. In fact, such a finding in favour of the
complainant has only been made in a handful of cases.
139
Moreover, the reverence that the ECtHR expressed for the IPT
suggests that in the future its decisions may well be acquiescent to those
of the Tribunal’s. While the Court cannot opt for a maximalist approach
132
Liberty/Privacy International (n 130) [47] and [126].
133
Shimovolos v Russia App no 30184/09 (ECtHR, 28 Nov 2011) [68].
134
Malone v United Kingdom (1984) Series A no.82 [67]. Association for European Integration
and Human Rights and Ekimdzhiev v Bulgaria App no 62540/00 (ECtHR, 30 Jan 2008), [71].
135
Liberty/Privacy International v Secretary of State and Others [2014] UKIPTrib 13 77-H,
[2015] 1 CR App R [19]-[21].
136
Big Brother Watch (n 15) [256].
137
Sejdovic v Italy App no 56581/00 (Grand Chamber, 1 March 2006) [46].
138
Regulation of Investigatory Powers Act 2000, s 68(4).
139
The Investigatory Powers Tribunal, ‘Statistical Report’ (2016), [Figure 4],
, accessed 1
February 2019.
2020] Rationalising a Law Unto Itself?
149
that would wrongfully impose itself on domestic constitutional principles,
it must effectively protect rights on national territory. It is not entirely
cogent that acting essentially subordinate to a domestic judicial body
enshrined in secrecy, will allow the State to be held accountable. While it
may be that Tribunal procedure has advanced in some respects since
Kennedy v United Kingdom, channelling complaints towards a body whose
procedures remain both vastly criticised and unknown, is telling of the
reticent approach the ECtHR has taken in this age of subsidiarity.
140
C. Deconstructing the ECHR
As the court interprets its case law in light of a consensus among European
governments, there comes a point when the law will seek to evolve itself
rather than impede governmental interests.
141
The Convention operates
under the ‘living instrument’ doctrine,
142
the principle that it ought to be
interpreted with respect to evolving conditions and interpretations within
Member States. At present, restrictions on Article 6 in favour of national
security concerns permeate judicial systems across Europe,
143
and ceding
such civil and political rights to the call of emergency has become
normalised by ECtHR jurisprudence.
As has been seen above, IPT procedure has been easy to reconcile
where the ECtHR has focused their assessment of proceedings as a
whole,
144
rather than the particular aspects of, a procedure which may be
objectionable.
145
Substantial emphasis is further placed on the
circumstantial element, the undefined and subjective notion that the very
facts outlining the circumstances will play a role in the Court’s definition
of the right. Fairness is indeed a variable concept, but it has, too readily,
been overcome by the recent and unprincipled line of ‘intuitive
jurisprudence.’
146
Where the circumstances of a case involve a national
security element, the minimum standard is lowered still, meaning that
little protection is de facto granted. In Big Brother Watch, the court
140
Robert Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of
Subsidiarity’, (2014) 14(3) HRL Rev487, 491.
141
Stefan Thiel, ‘Is the Living Instrument Approach of the European Court of Human
Rights Compatible with the ECHR and International Law?’ (2017) 23(3) EPL 587, 590.
142
Tyrer v United Kingdom (1978) Series A no 26 [31].
143
Europ ean Par liament (n 14) 7.
144
Golder v United Kingdom (1975) Series A no 18 [36].
145
Asnar v France (No.2) App no 12316/04 (ECtHR 18 Oct 2007) [26].
146
Laura Hoyano, ‘What is Balanced on the Scales of Justice? In Search of the Essence of
the Right to a Fair Trial’ (2014) 1 CrimLR 4, 5.
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150
reaffirmed the Article 6 compliance of Kennedy, asserting that any limits
on procedure were proportionate to the purported aim,
147
a manifestly
arbitrary mode of assessment.
The protections of the ECHR are further deconstructed by the
doctrine of the separation of powers within Member States, whereby
matters evaluating national security and complex forms of terrorism have
long been regarded non-justiciable question[s]’.
148
Consequently, little
judicial scrutiny can be given to such cases, and with the onus of proof on
the State being minimal, derogation from individual rights is virtually
always accepted.
149
It is doubtless that recent terrorism and insurgency
threaten state security, but to invoke such a concept so willingly has bred
uncertainty as to how the infringement of individual rights truly protects
the security of the State.
Criticising ebbing protections of fairness has been central to this
article, yet the scope of derogation under national security, or indeed
public interest is largely unknown. This is rooted primarily in the fact that
rights are a judicial concept and are thus subject to interpretation, erosion
and indeed, expansion in scope. National security considerations remain
untouched as political concepts, and thus fall within the executive remit.
As both domestic courts and the ECtHR know little of the magnitude of
threats facing the nation, they respectively resort to judicial deference and
the margin of appreciation doctrine. An infringement with individual
rights is presented as the only achievable means by which state security
can be guaranteed, and the incantation of compensatory requirements
wrongly leads individuals to believe that fairness has been achieved. The
danger lies in falsely claiming to protect substantive rights while creating
avenues for derogation through procedural safeguards. Lord Hoffman
demonstrated this very risk in Secretary of State for the Home Department
v MB,
150
pronouncing that a refusal to stretch the periphery of Article 6 to
allow closed procedure would be to subvert full protection to security.
Swiftly, closed procedure becomes the sine qua non to safeguarding
security, and little consideration is given to the correspondingly narrow
protection given to fairness.
147
Big Brother Watch (n 15) [251].
148
R v Secretary of State for the Home Department, ex parte Cheblak [1991] 1 WLR 890, 902,
412.
149
R v Jones [2006] UKHL 16, [2007] 1 AC 136, per Lord Bingham [30].
150
[2007] UKHL 46, per Lord Hoffman [51].
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151
Yet unfortunately, a rethinking of the Court’s margin of appreciation
would likely provoke contention among member states,
151
- even where
the opposite is failing to correctly hold governments accountable under
irrefutable national security decisions. The ECtHR has repeatedly held that
it is within the sole remit of the domestic courts to evaluate a national
security risk by assessing the evidence before them.
152
However, where
the courts are bound to be strictly deferential, Strasbourg scrutiny ceases,
and matters of this nature are subject to next to no judicial accountability.
IV. Long-Termism
The key inhibition to profound reform in this area is that it has invariably
been generated retrospectively. In the past, the Tribunal’s responsibility
has been labelled ‘a particularly anxious one’,
153
accentuated by the fact
that its rulings were not within the competence of other courts to review.
But the recent institution of a right of appeal
154
shows the government’s
willingness to reinforce the IPT’s engagement with fundamental rights.
155
In R. (on the application of Privacy International) v Investigatory
Powers Tribunal,
156
the Tribunal was rendered sovereign, raising concerns
regarding its lack of supervisory jurisdiction, and whether section 67(8)
RIPA constituted an effective ouster clause. Sir Brian Leveson P noted that
the way in which the IPT conducts itself has been specifically designed to
suit the covert affairs over which it presides. As the IPT was already in
itself exercising supervisory jurisdiction, and because of the sensitive
material it judges, it was held that it could not be adjudicated in the main
judicial branch.
157
Parliamentary intention suggests that it was intended
that the IPT be capable of making errors of law within its own jurisdiction.
Legatt J in his dissent considered that the morality of the legal
system would be subverted if the IPT were to function as a ‘legal island’
151
See the prisoner voting saga; Georgina Bryan, ‘Lions under the Throne: The
Constitutional Implications of the Debate on Prisoner Enfranchisement’, (2013) 2(2) CJICL
274.
152
Edwards v United Kingdom (1992) Series A no 247-B [34].
153
In the Matters of Applications Nos. IPT/01/62 and IPT/01/77 (n 19) [14].
154
Investigatory Powers Act 2016, s 142.
155
Joint Committee on Human Rights, ‘Legislative Scrutiny: The Investigatory Powers Bill’,
(HL Paper 6, HC 104,2 June 2016),
https://publications.parliament.uk/pa/jt201617/jtselect/jtrights/104/104.pdf> accessed 17
February 2020, [7].
156
157
R (on the application of Privacy International) v Investigatory Powers Tribunal [2019]
UKSC [22]-[41].
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with no means of accountability to the higher courts.
158
The High Court’s
supervisory function is intended to ensure that the tribunals and courts
comply with the rule of law by providing a means of remedying legal
inaccuracies. Legatt J was accordingly reluctant to accept that no review
of the IPT would be possible until a statutory right of appeal had been
provided.
The Court thus approached the issue as following parliamentary
intention. This is accordant with the sovereignty of parliament, as the
ruling respects the statutory intention of the provision, but permits
parliament to interfere with the rule of law. To entail true attachment to
parliamentary intention, the courts held section 67(8) sufficient to exempt
the Tribunal from judicial review too, making the situation more
ambiguous.
It is uncertain whether parliament would have envisioned such an
absolute exclusion of judicial supervision. While the Tribunal’s covert
policies would subvert the effectiveness of judicial review in some
circumstances, this is not necessarily sufficient to exclude jurisdiction as a
matter of principle.
159
The implications were recondite; if the Tribunal had
made a ruling on something over which it had no jurisdiction, misapplied
the law, or acted contrary to its own rules, the judiciary would have no
means by which it could ensure the Tribunal complied with the very law
governing it, a true law unto itself.
Yet, in determining the extent to which it was willing to protect the
ouster clause, the Divisional Court assessed the Tribunal’s qualities. The
Court’s semi-judicial procedure bolstered its legitimacy, giving force to the
vie that the provision’s intention was to designate power to the relevant
and suitable decision making body, the IPT. Judicial oversight was not
precluded, as the underlying acts were considered by this specialist
Tribunal itself, demonstrating a certain impression of trust in this unique
body. This statutory right of appeal is evidential of a significant move out
of the shadows and into transparency for the Tribunal.
160
Rendering
Tribunal judgments amenable to review in itself generates greater
involvement for the complainant in proceedings
161
and hopefully provides
a guarantee that justice will be conducted fairly.
158
ibid [49].
159
R. (on the application of Haralambous) v St Albans Crown Court [2018] UKSC 1 [47]-[55].
160
Hansard, ‘Investigatory Powers Tribunal Rules’ (House of Lords Debate, Motion to
Approve 28 November 2018) [Volume 794, Column 657].
161
IPT Rules 2018, s 12(4).
2020] Rationalising a Law Unto Itself?
153
Conclusion
It is clear that the Investigatory Powers Tribunal of today has undergone
significant procedural development since its inception nineteen years ago.
While its unique undertaking guarantees that it will never resemble a
standard court, the question remains as to whether its reforms have
plateaued. While the government would seek to argue that major
concessions have been made and that the IPT now bears the closest
relationship to the main judicial branch possible,
162
there are still
significant concerns of fairness in other aspects of its procedure.
The Tribunal’s sensitive mandate has been a constant impediment
to its evolution. It has secured its function, as tasked, and operates almost
entirely in pursuit of national security and public interest objectives,
163
impeding fairness considerations. Increased litigation advanced by the
recent light shed on modern surveillance powers has encouraged reform.
This abrades the Tribunal’s covert existence and facilitates the institution
of safeguards, preventing the outright exclusion of fairness in proceedings.
These exceptions to the Tribunal’s previously absolute functions are
indeed welcome; the right to a closed hearing is no longer absolute, and
the NCND principle may be derogated from where a determination is
made against the complainant, provided it is in the interests of justice.
Moreover, the Tribunal’s previously unique jurisdiction is now supervised
by a right of appeal. Even so, it remains uncertain how many of these
changes will operate in practice, and the IPT’s role in the judicial system
remains convoluted. Its retraction of jurisdiction for those bringing a
complaint extraterritorially in Human Rights Watch, whilst assuring in Big
Brother Watch that all future complaints relating to the intelligence
services be directed before it, are one example of two positions that are
worryingly contradictory in an era of global surveillance.
The balance between Convention enshrined rights and security in
the modern era is a tenuous one. With the advancement in such intrusive
technologies comes the requirement for supplementation by more
substantial safeguards. The ECtHR should operate as the principal driver
of change in this area, but its willingness to deviate to diluted versions of
fundamental rights, has led to the erosion of the protection it is meant to
162
Home Office, ‘HM Government Transparency Report 2018: Disruptive and Investigatory
Powers’, (CM 9609,
2018)
ment_data/file/727961/CCS207_CCS0418538240-
1_Transparency_Report_2018_Web_Accessible.pdf> accessed 17 February 2020, [68-69].
163
IPT Rules 2018 (n 9), s 7(1).
Trinity College Law Review [Vol 23
154
provide. Such devaluation has normalised IPT procedure. A margin of
appreciation must go ‘hand in hand with European supervision’,
164
and yet
such exigent oversight cannot be revoked at the government’s mere
utterance of national security. The ECtHR must, not only, establish a more
balanced mode of assessment in such cases, but also find a satisfactory
compromise between respecting the relationship of subsidiarity between
European jurisdictions and engendering engagement with human rights
on national territories.
165
In an era of increasingly intrusive surveillance, the Tribunal’s role
as an accountability mechanism suggests it will become more central to
the UK’s engagement with the rule of law in the future. While the Tribunal
has made headway in providing complainants with an effective means of
redress and ensuring procedural fairness, it will primarily be the
responsibility of the ECtHR to influence its future course, and the need to
strike a near irreconcilable balance between fairness and security will
become ever more necessary.
164
Paraskevopoulos v. Greece App no 64184/11 (ECtHR, 28 Sep 2018) [30].
165
Gertrude Lübbe-Wolff, ‘How Can the European Court of Human Rights Reinforce the
Role of National Courts in the Convention System?’ (2012) 32 HRLJ 11 [12].

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