Investigatory Powers Bill – in a Public Bill Committee am 3:15 pm ar 28 Ebrill 2016.
I beg to move amendment 843, in clause 208, page 160, line 13, after “determination”, insert
“or ruling or decision, including relating to a procedural matter” and leave out
“of a kind mentioned in section 68(4) or any decision of the tribunal or a kind mentioned in section 68(4C)”
This amendment makes clear that all decisions, determinations and rulings can be appealed on a point of law.
With this it will be convenient to discuss amendment 841, in clause 208, page 160, line 31, leave out subsection (6).
The Bill provides that an appeal on an error of law will only lie when an appeal raises an important point of principle or practice or there is another compelling reason to grant leave. This amendment would remove this restriction and create a right of appeal against any error in law.
The amendments relate to the grounds for appeal. The Bill provides that appeal on an error of law will only lie when an appeal raises
“an important point of principle or practice, or…there is another compelling reason to grant leave.”
The two amendments would remove that restriction and create a right of appeal against an error in law.
The history and background of this is that David Anderson raised the issue in his report last year. He suggested that appeals be permitted on an error of law. When it scrutinised the Bill at the tail end of last year and the beginning of this year, the Joint Committee agreed that an appeal should be permitted on any error of law. It is right that appeals should be allowed on errors of law, so that they can be corrected, and so that the right decision is arrived at on the right legal analysis.
The Government have refused to amend the Bill in the light of those recommendations, maintaining that there needs to be an important point of principle or practice or another compelling reason for granting leave. That is unpersuasive. David Anderson and the Joint Committee were absolutely clear—they were right—that an appeal should lie where there is an error of law.
I am afraid that I am not persuaded by the amendments. I am concerned that within the Bill the IPT and the appellate court already have the significant discretion necessary when granting permission to appeal. I am worried that the amendments will have a detrimental effect. There is a risk that we will end up with appeals in cases where there is no significant point of law, and that is frankly a waste of everyone’s time and resources.
I want to deal with the background to clause 208. The Bill represents a significant step. The only route of appeal currently available to complainants from decisions of the Investigatory Powers Tribunal is by reference directly to the European Court of Human Rights. For the first time, we have established a domestic right of appeal, which will enable parties to seek redress here in the UK court system. That will also enable appeals to be heard more quickly. I think we would all agree that that is a massive step forward. Appeals will be heard by the Court of Appeal of England and Wales, or the Court of Session in Scotland or the Court of Appeal in Northern Ireland, and ultimately it will be possible for appellants to seek permission to appeal from the appellant court to the Supreme Court.
I understand the sentiment behind the amendments, but there has to be balance and I think our approach is right. The Investigatory Powers Tribunal or relevant appellant court will be able to grant permission to appeal if it considers that it would raise
“an important point of principle or practice”,
or additionally, if there are any other compelling reasons to grant leave. That gives the courts an appropriately wide discretion when deciding whether permission should be granted. That makes it possible for any case that raises a significant point of law to be dealt with at appellate level.
As hon. Members are no doubt aware, this type of restriction is not unusual. Our approach in the Bill is directly modelled on restrictions that apply to judicial reviews from decisions of an upper tribunal—that is civil procedure rule 54.7A. I consider that the same restrictions should apply to appeals from the IPT.
It would be helpful for me to take the opportunity to put on record the number of cases that were considered by the IPT in 2015. Two hundred and nineteen cases were considered, of which 47%—nearly half—were deemed to be frivolous or vexatious; 30% were given a “no determination”; 17% were out of the IPT’s jurisdiction, withdrawn or not valid; 3% were out of time; and only 4% were found to have any merit to them.
Therefore, although creating an appeal route is very important—I am proud that we are doing that—not having any limits on that route would mean, I am afraid, a considerable amount of taxpayer money and court and agency time and resources frankly being wasted on continuing to manage and defend cases that, sadly, have no grounding in fact or merit in law. That is why I think the appeal route as currently delineated will still allow important cases that need further judicial scrutiny to progress.
Therefore, to strike the right balance, having broken new ground with the domestic right of appeal, I commend the clauses unamended to the Committee and urge the hon. and learned Gentleman to withdraw the amendment.
The Solicitor General is right that this is an important step forward, but it also needs to be the right one. I am not convinced that the point about frivolous and vexatious applicants has any bearing or substance, because there has to be an appeal on a point of law and it can be allowed only on a point of law. Therefore, if it is on a point of law, it is difficult to argue that it is frivolous and vexatious. Of course, the amount of those should be reduced—they waste a great deal of time—but this amendment would not increase the number of frivolous and vexatious cases, nor would it give them any grounds for success.
This important point was pressed by David Anderson and the Joint Committee, and I wish to press this amendment to a vote.
I beg to move amendment 842, in clause 208, page 162, line 22, at end insert—
“(6) After section 68(1) of the Regulation of Investigatory Powers Act 2000, insert—
(1A) Any hearing conducted by the Tribunal must be conducted in public, except where a special proceeding is justified in the public interest.
(1B) Any determination by the Tribunal must be made public, except where a special proceeding may be justified in the public interest.
(1C) A special proceeding will be in the public interest only where there is no alternative means to protect sensitive material from disclosure.
(1D) Material will be sensitive material for the purposes of this section if its disclosure would seriously prejudice—
(a) national security, or
(b) the prevention and detection of crime.
(1E) Publication for the purposes of this section will be seriously prejudicial if it would lead to a significant threat to life or of a serious physical injury to a person.
(1F) The Tribunal shall appoint a person to represent the interests of a party in any special proceedings from which the party (and any legal representative of the party) is excluded.
(1G) Such a person will be known as a Special Advocate.”’
With this it will be convenient to discuss the following:
New clause 20—Power to make declaration of incompatibility with a Convention right—
“(1) Section 4 of the Human Rights Act 1998 is amended as follows.
(2) In subsection (5), after paragraph (f), insert—
‘(g) the Investigatory Powers Tribunal.’”
This new clause enables the IPT to make a declaration of incompatibility under the Human Rights Act.
New clause 21—Openness and the Investigatory Powers Tribunal—
“(1) Within 12 months of the coming into force of this Act, the Secretary of State must make arrangements for an independent review of the procedures of the Investigatory Powers Tribunal to be placed before Parliament.
(2) The Treasury will provide such funds, remuneration or allowances as necessary for the Independent Reviewer appointed to produce his report pursuant to section (1).
(3) The Independent Review in section (1) must consider—
(a) the capacity of the Tribunal to afford redress to individuals when compulsory powers are exercised unlawfully, including in a manner incompatible with Convention Rights protected by the Human Rights Act 1998, and
(b) the conduct of Tribunal hearings and the production of Tribunal decisions which are open, transparent and accessible, except in so far as can be justified in light of a serious risk to life or of physical injury of any person, seriously prejudicial to—
(i) national security, or
(ii) the prevention and detection of serious crime.”
We have a long-standing principle of openness and open justice in this country. Case law as long as my arm sets out the importance of open justice. I readily accept that that principle, which we all adhere to, is more difficult to achieve in this field than in other fields, but with these amendments we are really arguing about the default position, not the automatic position.
On page 240 of his report, David Anderson recommended that the IPT be changed—I recognise what the practice is—
“to make open hearings the default and disclose the fact that closed hearings have taken place”.
The Joint Committee on the Draft Investigatory Powers Bill recommendation 74 is that, when making a decision on whether part of a hearing should be open or not, the tribunal should apply a public interest test.
This amendment would make open hearings the default position, which was David Anderson’s preference, but to have a mechanism to change the default position to closed proceedings. It is important that we keep to the principle of open justice. People fought for it for many years, and it is one of the central planks of our justice system. A default position that proceedings are open is in keeping with that principle; the default position set out in the Bill is not. For those reasons, I will press this amendment.
New clause 20 deals with declarations of incompatibility, and speaks for itself. It would amend section 4 of the Human Rights Act 1998 to give the IPT the power to make a declaration of incompatibility. Where there is a problem with legislation and convention rights that cannot be resolved during interpretation, the IPT would have the power to make a declaration of incompatibility, which would then trigger a dialogue with Parliament about what, if any, modifications or alterations to legislation should follow. That has proved worthwhile and effective so far under the Human Rights Act 1998.
In prefacing my remarks on the hon. and leaned Gentleman’s arguments, I, too, pray in aid my strong and long-held commitment to open justice. Like him, I practiced it for many years, and I believe fundamentally in it. However, as a parliamentarian, I have come to accept that there are occasions, which need to be very carefully prescribed, when that principle has to be departed from, but that must only be in cases where there is a clear public interest and a necessity that everybody would understand. That is why every time these matters arise—whether it was when the Special Immigration Appeals Commission was created nearly 20 years ago, or when the Justice and Security Act 2013 created closed material proceedings three or four years ago—they are the subject of very intense debate and proper scrutiny. I therefore welcome the opportunity to look closely at the position with regard to the new provisions in the Bill.
The amendment seeks to amend section 68 of the Regulation of Investigatory Powers Act 2000 to provide that the Investigatory Powers Tribunal must hold its proceedings in public unless closed proceedings are in the public interest. As has been outlined, the amendment would restrict the circumstances in which that can take place and would require the appointment of special advocates.
First, on the necessity, we are in something of a transitional period, but I will give the Committee some reassurance. Rule 9 of the tribunal rules, pursuant to section 69 of RIPA, currently states that all proceedings, including oral hearings, should be held in private. The problem is that the rules have not been updated to take into account changes that were introduced by the tribunal many years ago. There was a ruling in the 2003 Kennedy case, which is reported at IPT/01/62 and IPT/01/77, that the tribunal has the discretion to order that hearings take place in public. Happily, since then, in practice the IPT have regularly held open hearings, and copies of their judgments delivered in open proceedings are publicly available on its website.
It is clear, and the hon. and learned Gentleman and all members of the Committee who are legal practitioners will be familiar with this, that the rules should have been updated in order to reflect practice. The Government are committed to reviewing and updating the tribunal rules early next year following the passage of the Bill. RIPA already gives us the power to do that, so there is no need for the amendments. Any amendment to the tribunal rules, including this one, I would imagine, will need detailed consideration. Section 69(8) of RIPA already requires that rules issued by the Secretary of State are subject to the approval of both Houses of Parliament. That ensures that we will have the opportunity to return to this issue and scrutinise amended rules in due course.
I hope I have set out what I would regard as the practical arguments to support my case, but there is a further argument that I want to advance, on which we will perhaps have further debate. While I accept that the tribunal should be able to order that hearings take place in public, and are doing so, I am worried that the amendment goes much further, and might actually damage the very public interest that we all seek to serve. I think the tribunal should have significant discretion when determining whether holding a hearing in public would be damaging to the public interest.
It is already best placed to review the various sensitive issues that are clearly relevant to such an important decision. I am worried that the amendment would serve only to limit that discretion by raising the public interest threshold to a position at which only the most serious threats to national security, or the most serious crime, could justify closed proceedings. There are good reasons why proceedings sometimes take place in private. For example, Her Majesty’s Government’s long-standing policy on neither confirming nor denying NCNDs—non-circumvention non-disclosure agreements, which are an old friend to many of us—to protect sensitive capabilities. I am afraid that restricting the public interest considerations in this way could prevent that from happening.
I will deal with the question of special advocates. I am always attracted to arguments about making sure that a point of view, position or interest is properly reflected, and very often advocates are the best people to do that. The special advocate system has worked very importantly in closed material procedures and proceedings under the Special Immigration Appeals Commission. In that particular instance, the tribunal already benefit from the appointment of counsel to the tribunal, who can and do act in the interest of all parties to a claim to ensure that justice is done. I am worried that adding more counsel and more lawyers to the process will only slow down matters and, perhaps more importantly, would be a duplication that I do not think any of us would want to see.
May I deal with the question of declarations of incompatibility? The hon. and learned Gentleman has outlined the powers under the Human Rights Act 1998 that enable a judge to issue a declaration that they consider either secondary or primary legislation incompatible with this country’s obligations under that Act, which incorporates the European convention on human rights into domestic law. That ability to make a declaration is properly reserved to a small number of specified courts: the Supreme Court; the Judicial Committee of the Privy Council; the Court Martial Appeals Court; the Court of Protection; the High Court and Court of Appeal in England, Wales and Northern Ireland; and in Scotland, the High Court and the Court of Session. No tribunals, either upper or lower, are able to issue declarations of incompatibility, and frankly, I cannot see any good reason for departing from that position.
As we discussed while debating the previous group of amendments, the fact that the Bill introduces a right of appeal against the decisions of the IPT means that such a change is simply unnecessary. Where the Government is a party to a proceeding and there is a challenge, it is more appropriately dealt with at the appellate level than by departing from the current structure and allowing this tribunal, uniquely among all tribunals, to have that power. In any case where a complainant considered that a declaration of incompatibility was required, they could seek to appeal on that basis. To me, it seems likely that an appeal on such a point would meet the criteria provided for in the Bill.
We are also thinking about what it means for complainants in terms of full and proper redress. Although declarations of incompatibility are important and I do not seek to minimise them, they will not in practice prevent the tribunal from offering full and proper remedy to those who have been wronged as a result of an error or something worse.
I am not sure that the Solicitor General is right about that. The declaration of incompatibility arises only where the primary legislation requires an outcome that is incompatible with the convention right. By definition, the legislation in place overrides the convention right, which is what bounces it back to Parliament. Technically, he is probably wrong about that. There cannot be a remedy; that is why the amendment is needed.
I am interested in that argument, although I am not entirely persuaded by it. I am afraid that the amendment would be a problem across the piece. If courts of lower record could issue declarations, obviously I would not be arguing the point. It would be unusual for us to single out the Investigatory Powers Tribunal as sui generis in this instance.
To return to the point that I was developing, under section 68(5) of the Regulation of Investigatory Powers Act 2000, the IPT is required to make a report to the Prime Minister in the event that it makes a determination in favour of a person that arises from any act or omission made by or on behalf of the Secretary of State. In such circumstances—this may be a helpful and practical point—the Government would of course be required to consider whether legislative change was needed. De facto, our position would be very similar to the result of the declaration of incompatibility.
For example, the IPT recently decided in the Belhaj and Saadi cases, both public judgments, that the regime for certain intrusive surveillance of legally privileged material contravened article 8. I know that this is a slightly different point from declarations of incompatibility pursuant to section 19, I think—I am sure Hansard will help me—of the Human Rights Act 1998. The tribunal is already making findings on the compatibility with rights under the convention.
Finally, I will deal with the question of review of the tribunal. As Committee members will know, the use of investigatory powers has been the subject of extensive reviews, to which we have referred repeatedly in this Committee’s deliberations. None of those reports recommended the wholesale change to how the IPT operates that the amendment suggests. Bearing in mind that we have ongoing and detailed scrutiny and important and recent reviews, I do not believe that we will get added value from a further review. The new clause would also require that any independent review must consider two issues.
The IPT can of course make clear any concerns that it might have about the operation of the tribunal. The tribunal published a report only recently, and it did not express any concerns about its effective operation, so I do not think that a further review will add anything. I believe that the key concerns identified in the amended clause have been and are being addressed. On reasons of lack of necessity, I therefore submit that the new clause would not take us any further. On that basis, I invite the hon. and learned Gentleman to withdraw the amendments and new clauses.
I will not press new clauses 20 and 21, but I will press amendment 842 to a vote on the open justice principle.