According to a recent finding by a panel of five tribunal judges, the Investigatory Powers Tribunal (IPT) has no statutory powers to impose financial sanctions against government agencies. In practice, this means that the IPT, which primarily hears complaints about surveillance by law enforcement agencies and intelligence services, cannot impose sanctions against them should they not comply with IPT orders to disclose relevant evidence.
This remarkable ruling follows an IPT finding that two police forces had unlawfully spied on two investigative journalists, Barry McCaffrey and Trevor Birney, who had investigated police corruption.
In particular, the tribunal found that the Police Service of Northern Ireland (PSNI) targeted McCaffrey and Birney, the producers of a 2017 film documentary No Stone Unturned, which exposed police collusion (by the Royal Ulster Constabulary – RUC) following the murder of six Catholics as they were watching the Republic of Ireland play in the 1994 World Cup on a pub television in the village of Loughinisland, County Down. In 2016, an Ombudsman report concluded that the RUC had protected informers by destroying evidence and failing to carry out a proper investigation.
As an independent public body that exercises judicial functions, the IPT was established in 2000. It occupies a unique role which is deemed to be vital in holding public authorities to account, particularly the security services, in their exercise of covert investigatory powers under the Regulation of Investigatory Powers Act 2000. Unlike most other courts and tribunals, the IPT has a UK-wide jurisdiction. It adopts a quasi-inquisitorial (rather than adversarial) process that includes the routine use of closed hearings.
The IPT is part of the Home Office, although according to the gov.uk website, it operates entirely independently of ministers and Parliament. This recent judges’ ruling, concerning the tribunal’s inability to award costs against government bodies that fail to disclose evidence, raises significant questions about its ability to make decisions that are entirely independent from government.
In recognising this deficiency, the tribunal have called for the Home Secretary to intervene in order to address the issue – either by introducing new appropriate rules or through the passing of primary legislation. Addressing the issue, the tribunal stated, “we do not regard the outcome as entirely satisfactory… the facts of the present case illustrate why it would be helpful at least in principle for this tribunal to have the power to award costs.”
It is therefore clear that the ITP has no capacity to penalise government agencies for their approach to disclosure by awarding costs – even if they have deliberately disobeyed the orders of the court. In the PSNI case, the tribunal confirmed that there were repeated failures to disclose crucial evidence, but simultaneously ruled that it had no power to award costs. This is a remarkable, almost farcical position: without the ability to impose financial sanctions, the IPT is effectively toothless.
So, what should happen next?
To prevent any further abuse of surveillance powers and the disclosure process, intervention by the Home Secretary is clearly necessary. Without any mechanism at their disposal to impose sanctions, it is imperative that new legislation or further powers are introduced quickly to ensure that the abuse of surveillance powers with impunity does not continue.
More widely, the PSNI case has also raised significant and serious concerns about the integrity of our legal system. If the police and government agencies with powers to spy on individuals are effectively given free rein to deliberately withhold evidence, safe in the knowledge that they can walk away from court without sanction, then public confidence in the legal systems in place to regulate such powers will erode – very rapidly.
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