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Investigatory Powers Tribunal declines to give general guidance on procedure for seeking statutory assistance from Investigatory Powers Commissioner

Published:

Re: Privacy International & Others v Secretary of State for Foreign and Commonwealth Affairs & others [2021] UKIPTrib IPT_17_86_

The Investigatory Powers Tribunal considered the “IPCO issue” concerning the mechanisms that the Tribunal should use when it seeks statutory assistance from the Investigatory Powers Commissioner (IPC) under section 232(1) of the Investigatory Powers Act 2016.

The IPCO issue arose in the context of the proceedings Privacy International v Secretary of State for Foreign and Commonwealth Affairs [2019] UKIPTrib IPT_17_186_CH, which considered the Security Service Act 1989 and undercover Security Service agents participating in criminality.

The Tribunal held it was not necessary or appropriate to give general guidance on the IPCO issue, in the interests of maintaining the Tribunal’s independence and fairness. The Tribunal emphasised the need to avoid any impression that might risk compromising the Tribunal’s independence, or even the appearance of independence, if a respondent becomes involved in the process by which requests for assistance are made by this Tribunal to the IPC and the response of the IPC. It was also considered a highly fact specific issue, to which it would be very difficult and undesirable to lay down any general rubric.

The Tribunal did however give guidance in relation to material held by the IPC which may be subject to legal professional privilege, where the privilege is that of the Respondents. Summarising the procedure, the Tribunal envisioned a system conducted entirely under the auspices of the Tribunal, to remove any direct communications between the Respondents and the IPC without the approval of the Tribunal. It was stressed that this guidance was not intended to constrain the case management powers of the Tribunal in individual cases.

 

Jonathan Glasson QC and Sarah Hannett QC were involved in this case.

The judgment can be found here.