Menu My portfolio: 0

Court: Investigatory Powers Tribunal

IPT rules by a majority in favour of MI5 in a case raising “one of the most profound issues which can face a democratic society governed by the rule of law”

Privacy International & Ors v Secretary of State for Foreign and Commonwealth Affairs & Ors IPT/17/86/CH, IPT/17/87/CH

The claimants, all non-governmental organisations, challenged a policy which they submitted purports to ‘authorise’ the commission of criminal offences by M15 officials and agents. They alleged this policy was unlawful, both as a matter of domestic public law and as being contrary to the Human Rights Act 1998, Sch 1.

The Tribunal dismissed the claim. It found that the Security Service does have the power to undertake the activities which are the subject of the policy under challenge as a matter of public law. This did not mean that the Security Service has any power to confer immunity from liability under either the criminal law or civil law on either its own officers or on agents handled by them. The Court held that it was clear from the wording of the policy that it does not confer any immunity from criminal prosecution on anyone. There is nothing improper or unlawful about the Security Service having such a policy. The oversight powers given to the IPC now, and previously to the ISC, do provide adequate safeguards against the risk of abuse of discretionary power. The Tribunal wasn’t convinced that the claimants had standing to rely on Convention rights and Convention rights didn’t arise as a matter of substance.

Bulk communications data sharing with foreign agencies etc compliant with ECHR, art 8

Privacy International v Secretary of State for Foreign and Commonwealth Affairs [2018] UKIP Trib IPT 15 110 CH

This case dealt with: (i) the Telecommunications Act 1984 s 94 relating to the obtaining of bulk communication data pursuant to directions given under that Act. “This issue was expressed as whether there had been unlawful delegation of the statutory powers of the Foreign Secretary under s 94, but it has been expanded so as […]

Reference to the EU court on legality of bulk communications data collection

Privacy International v Secretary of State for Foreign and Commonwealth Affairs & Ors IPT/15/110/CH

The tribunal considered whether the collection of Bulk Communications Data (BCD) and Bulk Personal Data (BPD) by the intelligence agencies fell within the scope of EU law and thus whether it was compliant. A reference was made to the European Court on the basis that it was unclear as to whether the use of such data for the purposes of national security was governed by EU law and subject to relevant requirements.

Met police obtained officer’s communications data unlawfully – compensation awarded

Andrew & Anor v Commissioner of Police of the Metropolis (IPT/390/16/CH & IPT/29/16/CH)

The Investigatory Powers Tribunal held that the MPS’ obtaining of the complainants’ communications data, following alleged misconduct, breached ECHR, art 8 rights. The authorisations were quashed and the communications data was ordered to be deleted. Compensation was to be paid to the first complainant.