Resources
Tribunal rules
The Investigatory Powers Tribunal Rules 2018 came into effect on 31 December 2018. They replaced the Investigatory Powers Tribunal Rules 2000. Apart from providing rules giving effect to the new right of appeal, they also brought in some other significant changes, some reflecting the Tribunal’s evolving practice.
Public hearings
The 2018 Rules recognise what had already been established by the Tribunal’s case law, that hearings should be held in public unless there is good reason not to do so. The Rules make provision for both open and closed sessions (rule 10).
Provision of reasons
For the first time, the Rules (rule 15) provide for the provision of reasons to the complainant where the Tribunal’s determination is not in their favour. That is subject to the general duty imposed on the Tribunal by Rule 7 not to disclose information that is contrary to the public interest.
Counsel to the Tribunal
The role of counsel to the Tribunal (CTT) was one which had evolved since the Tribunal’s inception without any formal recognition in the Rules. Rule 12 now makes provision for the appointment of CTT and for the role they are to adopt. The Tribunal may appoint CTT to assist the Tribunal’s consideration of a complaint in any circumstances the Tribunal considers it appropriate to do so. This includes:
- where a complainant is not legally represented;
- where the respondent objects to the disclosure of evidence;
- where the Tribunal intends to hold a hearing, either in whole or in part, in the absence of the complainant (a closed hearing)
The role of CTT is to perform any function that would assist the Tribunal including:
- to identify documents or parts of documents that may be disclosed to a complainant, including making a gist of the non-disclosed part;
- to make submissions to the Tribunal on what documents ought to made available to the complainant and the general public in accordance with the principle of open justice;
- to cross examine witnesses;
- to ensure that all the relevant arguments are placed before the Tribunal.
Counsel must also identify any arguable error of law in relation to any decision or determination made by the Tribunal following a hearing held (in whole or in part) in the absence of the complainant.
The Rules include further detail on
- how the Tribunal should proceed in its investigations and determinations.
- what must be contained in the form bringing a s.7 claim (HRA) (rule 8)
- what must be contained in the form bringing a complaint (rule 9)
- how it should receive evidence (rule 13)
- what functions may be exercised by a single member (rule 6)
- in what circumstances the Tribunal may disclose material provided to it (rule 7)
- how it should determine proceedings, including oral hearings (rule 10)
- the role of Counsel to the Tribunal (rule 12)
- how it should notify a complainant of the outcome (rule 15).
- the right of appeal (rules 16-18).
S.68 RIPA provides that, subject to these Rules, the Tribunal can determine its own procedure.
The old Rules apply to all decisions made before 31 December 2018 and can be found here:
www.legislation.gov.uk/uksi/2000/2665/pdfs/uksi_20002665_en.pdf
