18/19, K.Wilson, ‘The European Convention on Human Rights and The Investigatory Powers Tribunal: Rationalising a Law Unto Itself?’

Author: Kathryn Wilson

 

  1. Introduction

From the decision to hide the very existence of MI5, the history of the British intelligence organs has been enshrined in secrecy. And perhaps for good reason – their notoriously complex role in producing intelligence founded on state secrets engages the essence of the life of the nation. But in a democratic society engaged with the rule of law, a means must be uncovered by which these organs may be held accountable, and in such a way that the justice itself complies with the imperative standards of fairness. Yet, a justice founded on national security considerations is not really justice as one may know it, and thus challenges arise from the state’s obligation to have due regard both to the public interest and fair trial principles.

 

For the first few years following its inception into the judicial system in 2000, the existence of the Investigatory Powers Tribunal was not particularly well known. Its establishment was intended to secure compliance with the state’s convention obligations relating to investigatory powers. Its unique existence, serving as the only forum in the UK to which human rights claims may be brought against the intelligence bodies, may well be seen by some as evidence of the country’s engagement with the rule of law.

 

Be that as it may, proceedings in the IPT are broadly regarded as frankly Kafkaesque. Much of this reproach emanates from the friction that exists between the need for intelligence activities to operate covertly so as to prevent a limitation on their efficacy, and the concept that in order to secure lawful governmental accountability, transparency is indispensable. As a result, reforms in this area have tended to be uniformly backward-looking and begrudging, with the intent being on protecting investigatory powers while barely meeting minimum human rights requirements.

 

It is against this background that the tribunal finds its roots. The result is the creation of a body whose procedures largely favour the protection of investigatory powers over individual rights. This work will seek to assess tribunal procedure and how it serves to interact with fair trial principles, as well as delve into Strasbourg’s jurisprudence, which has arguably facilitated the creation of this secret justice.

 

  1. The Intrinsic Rights of Article 6

 

Existing as a body which determines civil rights and obligations, Article 6 § 1 of the ECHR is key for determining the approach taken by Strasbourg towards bodies of like standing to the IPT. A call for greater transparency remains at the centre of concerns surrounding the tribunal, despite it being held Article 6 compliant in Kennedy v. United Kingdom.[1] Yet, individually selected, its procedures erode the very boundaries of the convention.

 

Inherent to the fair administration of justice under Article 6 § 1 is the requirement that it be conducted via an open procedure. The right to a public hearing is drafted as absolute, but jurisprudence has recognised exceptions, meaning the limit by which it may become qualified is undetermined by the convention.[2] Strasbourg has accepted such qualifications particularly where there exist countervailing public interests, such as that of national security.[3] Under rule 10(4) of the 2018 Tribunal Rules, the IPT must operate with the intention of conducting proceedings in public and in the presence of the complainant, yet, it is under no duty to hold an open hearing itself.

 

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.[4] But Strasbourg has also reiterated the importance of public proceedings in protecting complainants against justice with no public scrutiny, and is the measure which ensures the preservation of trust in the courts.[5] This would seem to be particularly important in the tribunal’s case, where it has been said that it should find ways to make its business less opaque to the public. 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. But the recent institution of a right of appeal is evidential of a significant move out of the shadows and into transparency for the tribunal, and encompasses the trajectory towards openness that it has gradually undertaken since its inception. Rendering tribunal judgements amenable to review in itself generates greater involvement for the complainant in proceedings, and such a development provides a substantial guarantee that justice has been conducted fairly.

 

Comprised in the rights under Article 6 § 1, includes the court’s obligation to give sufficient reasons for its decisions. In proceedings in the IPT, the Neither Confirm nor Deny (NCND) principle is used, a mechanism which seeks to avoids potential risk to national security that either confirming or denying the information’s existence could provoke. The NCND principle acts as a limit to parties from obtaining reasons for the outcome of their case. The information’s very existence 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 plausibility that a court would doubt a national security concern on the grounds of minimal evidence to the contrary is next to none.

 

That is not to say that the disclosure of information which has a bearing on national security should be allowed, but rather that the presumption should be that NCND is to be treated as a coherent reference point, an annullable principle that may be invoked only should it be considered necessary. Centring on its exceptional use, it has been considered that the fact that it does not exist as a legal rule, but rather a ‘departure from procedural norms’ means that it ought to be subject to justification.[6]

 

However, following Rule 7(6) of the 2018 Rules, the tribunal has an explicit power to require the respondent to disclose the evidence to the complainant. Should the government refuse, the tribunal may, under Rule 7(b)(ii), direct that such evidence will not be relied upon in proceedings. Yet, these rules only came into force in December 2018, so it is accordingly much too early to predict their application in practice. However, they seem to set a course towards the attrition of the previously absolute NCND principle.

 

Other implications arise from the IPT’s ability to institute closed proceedings. As the majority of proceedings in the tribunal involve sensitive evidence, hearings are commonly held in the absence of the complainant which is contrary to the equality of arms principle. This right has indicated that a party to civil proceedings is entitled to evidence in support of his case, and equal access to this evidence.[7] 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.[8]

 

The argument is often heard that while evidence may not be disclosed to the complainant, it is still reviewed by a judge. Yet, 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. While sole judicial oversight may prima facie appear neutral, Strasbourg too readily assumes a judge’s dual position in both judging and assessing the evidence sufficient to replicate an applicant’s adversarial role. 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, the risk of which is heightened by the applicant’s inability to challenge it themselves.[9]

 

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 absolute non-disclosure. In the dissenting judgement of Regner, the prospect that the applicant could have at least have been provided with a bare summary was considered.[10] This would correspond to those ‘balancing techniques’ referred to in Chahal v. United Kingdom,[11] that find an equilibrium between legitimate security concerns while still according adequate procedural fairness.

 

Indeed, 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. 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

 

At first glance, it would seem far-fetched that a body of such composition as the IPT could be rendered convention compliant. But such a finding is largely illustrated through the gradual subversion of Strasbourg jurisprudence in recent years. Fundamentally problematic to the court’s reasoning, is its holistic assessment of fairness, rendering the process an act of ‘counterbalancing’, meaning that where there exists ‘compensatory elements’ in the proceedings, the state may somewhat legitimise restrictions on fairness.

 

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.[12] 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. While it is true that there is not per se a standing requirement of applying to the IPT, Strasbourg has not foreseen the innate difficulties brought to traditional jurisdictional rationale by surveillance cases. Particularly problematic under this head, is extraterritorial jurisdiction.

 

It is important to contemplate at the outset that Strasbourg has not thus far decided a mass surveillance case concerning extraterritorial jurisdiction. The question therefore centres on the court’s approach to jurisdiction in other strands of case law. The court has, in recent years moved away from the ‘primarily territorial’ approach,[13] and proceeded towards a determination of the exceptions to this principle – the personal and spatial model.[14] The former involves control exercised by the state over an individual abroad, and the latter, control over an area. Yet, Jaloud v. The Netherlands,[15] demonstrates the judicial ambiguity in this area as the court struggled to separate these 2 principles.

 

The IPT in Human Rights Watch & Others v The Secretary of State for the Foreign and Commonwealth Office & Others,[16] negated the tribunal’s jurisdiction to individual’s subject to surveillance abroad. In this age of mass surveillance, to limit jurisdictional application geographically shows the tribunal to lack forethought for its purpose. 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.

 

This possibility for an avoidance of state accountability has been considered by the court in Issa and Others v. Turkey,[17] 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. Clearly the rationale of Human Rights Watch is in direct contravention of this notion, but Strasbourg’s cautionary jurisprudence has made for a quagmire of 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. Yet Strasbourg is treading carefully, aware that should it cast the jurisdictional net too far, this may rapidly multiply surveillance litigation for domestic courts. But, to cast it too thin as is the current formula, raises significant issues of accountability, as well as access to an effective remedy for individuals’ subject to surveillance beyond the territorial state.

 

Closely linked to the tribunal’s operation at a domestic level, as well as shedding light on the interplay between Strasbourg and the IPT, is its existence as an effective remedy. Further testimony to the convention existing as subsidiary to its contracting states, is the requirement that the applicant have attempted to put right their complaint at a domestic level before bringing proceedings to Strasbourg. In Kennedy v. United Kingdom, while the court held the IPT Article 6 compliant, it failed to establish it an effective remedy under Article 35 § 1. The court drew attention to the fact that the tribunal did not have the power to make a declaration of incompatibility, which despite various recommendations for it to so obtain,[18] has not been realised.

 

8 years’ post Kennedy, and the ECtHR has established the IPT an effective remedy in Big Brother Watch and Others v. United Kingdom. Consideration was given to the government’s practice of giving effect to the IPT’s findings of incompatibility with the convention, despite the fact that a binding legal obligation, actually requiring the government to effectuate such a recommendation, does not exist.[19] And yet this is the precise rationalisation that the court adopted in Burden and Burden v. United Kingdom,[20] that as a declaration of incompatibility under s4 HRA did not impose a ‘legal obligation’ on the minister to amend the provision found to be incompatible, such a remedy was ineffective.[21] To establish s4 as effective under Article 35 § 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.[22] In Big Brother Watch, using the example of Belhadj and Others v Security Service and Others, it was willing to accept GCHQ simply obliging to ‘review’ their policies as establishing a definitive practice of remedying incompatibilities.[23]

 

The judgement goes on to cite the Liberty[24] case as an example of the IPT’s elucidatory role. In these proceedings, the tribunal found that the fact that the information was released following legal action rendered the framework lawful; an entirely tenuous approach. The forced disclosure of a brief selection of rules is clearly not in line with the foreseeability requirement.[25] These elucidatory powers themselves shed little light on the tribunal’s capabilities to compensate a victim. Crucially, the court failed to give discussion to the fact that a finding in favour of the complainant has only been made in a handful of cases.[26] Furthermore, the reverence that Strasbourg expressed for the IPT suggests that in the future its decisions may well be acquiescent to those of the tribunal’s. Channelling complaints towards a body whose procedures remain vastly unknown, is telling of the reticent approach Strasbourg has taken in this age of subsidiarity.

 

Conclusively, identifiable aspects of Strasbourg jurisprudence have arguably provided a long set foundation for a judicial body of this type to be held to be convention compliant. Substantial emphasis is placed on the circumstantial element, the 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 this unprincipled line of intuitive jurisprudence. 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. 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. Lord Hoffman noted in Secretary of State for the Home Department v MB,[27] that a failure to stretch the periphery of Article 6 to allow closed procedure would subvert full protection to security. Closed procedure becomes the sina qua non to safeguarding security, and little consideration is given to the correspondingly narrow protection given to fairness.

 

Yet, a rethinking of the court’s margin of appreciation would likely provoke contention among member states, but the opposite is failing to correctly hold governments accountable under irrefutable national security decisions. Strasbourg 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. But combine this with the deferential approach taken by the national judiciary, and accordingly, matters of this nature are subject to next to no judicial accountability.

 

  1. Conclusions

 

The tribunal’s sensitive mandate, an ever impediment to its evolution, has secured its function is tasked entirely in pursuit of public interest objectives, impeding fairness considerations. But increased litigation facilitated by recent light shed on modern surveillance powers has encouraged reform, which abrades the tribunal’s covert existence and prevents the outright exclusion of fairness in proceedings.

 

These exceptions to the tribunal’s previously absolute functions are indeed welcome. Even so, it remains uncertain how many of these changes will operate in practice, and the IPT’s role in the judicial system continues to be convoluted. Its retraction of jurisdiction for those bringing a complaint extraterritorially, yet assurance that all future complaints relating to the intelligence services be directed before it as an effective remedy, are two positions that are difficult to marry up. However, much of the tribunal’s progression has occurred in the last few years. The institution of a right of appeal indicates more change – and that of the kind taking heed of fundamental rights – is likely in years to come.

 

Still, the balance itself between convention enshrined rights and security in this modern era is a tenuous one. The ECtHR should operate as the principle 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 intended to provide. Such devaluation has itself normalised IPT procedure. Strasbourg must establish a discourse which respects the relationship of subsidiarity between European and domestic jurisdictions, while itself engendering engagement with human rights on national territories.

 

In a society where privacy has been labelled dead, the IPT’s responsibility is growing truly fundamental to the country’s engagement with the rule of law. But to truly conform to this doctrine means that such procedures too must comply with fairness. Progress has been made, but only time will truly define the course the tribunal is to take in the future, and its potentiality to strike the near irreconcilable balance between fairness and security.

 

[1] no. 26839/05, § 191, ECHR 2010.

[2] De Tommaso v. Italy [GC], no. 43395/09 § 163, ECHR 2017.

[3] B and P. v. United Kingdom, nos. 36337/97 and 35974/97, § 38-39, ECHR 2001-III.

[4] § 188, citing Jussila v. Finland [GC], no. 73053/01, § 41-42, ECHR 2006-XIII.

[5] Martinie v. France, [GC], no. 58675/00, § 39, ECHR 2006-VI.

[6] Mohamed Ahmed Mohamed and CF v Secretary of State for the Home Department [2014] EWCA Civ 559, [2014] 1 W.L.R. 4240, [20].

[7] Uzukauskas v. Lithuania, no. 16965/04, § 48-51, ECHR 2010.

[8] IPT Rules 2018, Rule 7(2).

[9] Al Rawi v The Security Service and Others [2011] UKSC 34, [93].

[10] Regner v. Czech Republic, Dissenting Judgement of Judge Serghides, § 93.

[11] 15 Nov. 1996, no. 22414/93, Reports 1996-V, § 131.

[12] Kennedy v. United Kingdom, §190.

[13] Bankovic and Others v. Belgium, (dec.) [GC], no. 52207/99, § 59, ECHR 2001-XII.

[14] Al Skeini and Others v. United Kingdom, [GC], no. 55721/07, § 136, ECHR 2011.

[15] no. 47708/08, § 140-153, ECHR 2014.

[16] [2016] UKIPTrib15_165-CH

[17] no. 31821/96, ECHR 2004, § 71.

[18] D. Anderson, ‘A Question of Trust, Report of the Investigatory Powers Review’, (London, June 2015), [33].

[19] Big Brother Watch and Others v. United Kingdom, § 262.

[20] no. 13378/05, ECHR 2006.

[21] Ibid., § 39.

[22] Ibid.

[23] Big Brother Watch and Others v. United Kingdom § 259.

[24] Liberty/Privacy International v Secretary of State and Others [2014] UKIPTrib 13 77-H, [2015] 1 CR. App. R. 24.

[25] Shimovolos v. Russia, no. 30184/09, § 68, ECHR 2011.

[26] The Investigatory Powers Tribunal, ‘Statistical Report’, (2016), [Figure 4]. [Available at: https://www.ipt-uk.com/docs/IPT%20Statisical%20Report%202016.pdf%5D, Accessed: 01.02.19.

[27] [2007] UKHL 46, [51].

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