Mass surveillance and the Investigatory Powers Tribunal

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Sir Michael Burton, President of the Investigatory Powers Tribunal, shares his experience and views on the role of judiciary in overseeing the intelligence activities of the State. The article is part of his contribution to the Law Societies’ Brussels Office panel discussion on mass surveillance during the Computers, Privacy and Data Protection conference on 27 January.

I have been asked to explain the UK’s judicial system in this area. The Investigatory Powers Tribunal was founded in 2000 by the amalgamation of 3 previous Tribunals. I have been Vice-President since the beginning and President since 2013. There are normally 10 members including the President and Vice-President, being the “great and the good”, High Court Judges, and senior QCs, retired judges and senior Solicitors from all 4 jurisdictions of the UK. Its statutory basis is found in ss 65-69 of the Regulation of Investigatory Powers Act 2000 (RIPA).

Complaints can be made to the Tribunal by members of the public and NGOs about interception and surveillance by the police or other public authorities, or about any conduct by the Security Agencies. We have the power to investigate those complaints and to require disclosure of all or any documents or information by respondents to the Tribunal and to hold hearings both public and, where necessary in the interests of national security, in private. Our life has changed since Snowden, when the bringing of claims by NGOs increased substantially based upon his leaks.

Of the individual claims made, some require to be investigated, although many fall within the class of “frivolous and vexatious”; and most which are investigated can be resolved fairly easily. The possible results are a finding that (1) the conduct complained of never happened or (2) it did happen but it was lawful and proportionate, taking into account UK domestic law and the ECHR or (3) it did happen and was not lawful or not proportionate. In the latter case a determination will be made in the complainant’s favour and full reasons will normally be given. If – the substantial majority of cases – the result is one of the first two then the Tribunal is only entitled to say that it has made no determination in favour of the claimant – to comply with NCND (Neither Confirm Nor Deny): if in some cases allegations of interception etc. are denied, then it will be assumed in other cases that in the absence of such denial the conduct is taking place, but lawfully.

Particularly in cases brought by NGOs it has now become the practice of the Tribunal to hold open hearings, with full open argument, with eminent counsel expert in Human Rights law appearing before us. We are no longer “Britain’s most secret court”. We have developed a procedure in national security cases of assuming the facts in favour of the claimant. A claimant (including an NGO) is entitled to bring a claim without proof of what he alleges, simply on the basis of reasonable suspicion, and the facts are assumed in his favour, and the Tribunal then considers whether on those assumptions the conduct complained of is lawful. This gives us a considerable advantage over the statutory Commissioners and the Parliamentary Committee (ISC), because we can hear adversarial argument, balancing the public need for security against the need for public scrutiny, the interests of privacy and free speech. The Tribunal can thus give, after an open hearing, its decision in an open judgment, and the legal conclusion can then be applied to the actual facts, which it can subsequently consider in private, as necessary with the assistance of an independent Counsel to the Tribunal.

This procedure, with the assistance of such counsel, has in recent years had dramatic results. It has led to the public disclosure of much which was previously closed, particularly the rules and procedures under which the Agencies operated (subject to necessary redactions). Thus in recent cases the lawfulness of interception warrants pursuant to s8(4) of RIPA, the existence and lawfulness of the Harold Wilson doctrine, whereby it was said that parliamentarians were exempt from interception, and the legality of activities of GCHQ in carrying out ‘hacking’ and, most recently, of the collection by the Agencies of what is called Bulk Data (a practice only revealed in 2015) have been considered by us. As a result of those cases before us, all the underlying regulations under which the Agencies operated in that regard (redacted as necessary) have been disclosed for the first time. On the whole, the Tribunal has endorsed those procedures, at least since the date when they were for the first time disclosed to the public. In the case of Belhadj, in which the Claimant complained of interception of his legally privileged communications, after disclosure of the relevant procedures the Government conceded their inadequacy by reference to the ECHR, just prior to a planned hearing.

The Tribunal has become much busier in the last 2 or 3 years, not just because of Snowden but for a variety of reasons including publicity of the fact that the Tribunal can and does give remedies by way of making public otherwise secret procedures, quashing authorisations and in appropriate cases making orders for compensation. Its procedures were approved by the ECtHR in Kennedy v UK in 2010. The new Act does not affect the Tribunal, save that it introduces a route of domestic appeal in addition to Strasbourg.

Sir Michael Burton is the President of the Investigatory Powers Tribunal in the UK since 2013. Before that, since 2000 he was its Vice-President.

He was a scholar at Eton College and then at Balliol College, Oxford where he read Classics and then Law obtaining his MA. He was a lecturer in law at Balliol from 1970 to 1973. He was called to the Bar in 1970, became a QC in 1984, and was appointed a High Court Judge in 1998. He had a busy commercial practice in the Queen’s Bench Division, Chancery Division, Commercial Court and Employment courts, in a wide variety of fields of Law, and sat for many years as a Recorder and Deputy High Court Judge. He was Head of Littleton Chambers from 1991 to 1998.

During his tenure as a High Court Judge from 1998 until 2016 he sat in Queen’s Bench and Chancery Divisions, Commercial Court, Administrative Court, Family Division, Revenue List and the Employment Appeal Tribunal, of which he was President from October 2002 to December 2005. He was Chairman of the High Court Judges Association from 210-11. He has been since 2000 the Chairman of the Central Arbitration Committee, pursuant to the Employment Relations Act 1999. He was Treasurer of Gray’s Inn in 2012 and remains a Bencher, and is an Honorary Fellow of Goldsmiths College, University of London. He is editor of Civil Appeals (2nd Ed Sweet Maxwell) 2013.

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