The Investigatory Powers Tribunal explained
The Investigatory Powers Tribunal (IPT) is an unusual semi-secret judicial body based London, but also capable of sitting in Scotland or Northern Ireland. It carries out many of its functions secretly, including “closed” hearings from which the public and the press can be completely excluded.
Its specialist jurisdiction includes hearing complaints from individuals who believe they are under unlawful surveillance, hearing appeals from communication services providers against orders issued to them by the government, and reviewing the rules governing surveillance powers to ensure they comply with human rights law.
The tribunal’s president is currently Lord Justice Rabinder Singh, a judge of the Court of Appeal and a specialist in administrative and human rights law. Seven judges and four senior lawyers also make up the tribunal’s judicial panels.
The tribunal’s workload and importance has steadily increased in recent years. According to the most recent data available, it received over 400 cases in 2023, which is more than double the number received in 2017.
However, most of the complaints it receives are dismissed as “frivolous/vexatious”, which itself reflects the tribunal’s unique position as a structural coupling point between the legal system and the most secretive powers of the state, and the suspicion and paranoia that knowledge of such powers can generate.
Many complains to the tribunal are dismissed without public decisions being issued. Yet, in recent years, the tribunal has played an important role in some of the most sensitive and serious cases concerning UK surveillance powers.
These include a series of key judgments regarding the Snowden disclosures (discussed below) and the “Spycops” scandal in which undercover police unlawfully formed sexual relationships with women they were spying on, deceiving their way into people’s lives. In December 2024, the tribunal fined Police Service of Northern Ireland after making extensive findings about the unlawful surveillance of journalists in Northern Ireland.
The story of how this unusual judicial body emerged is just as interesting as the cases it determines.
The IPT’s origin is traceable to Britain’s ancient constitutional arrangements. In Britain, unlike countries that organise public powers by reference to written constitutional rules, the modern state emerged under the ancient symbolic authority of the Crown. Many of the government’s most intrusive capacities developed without the need for legislative authority and with no risk of judicial supervision.
As detailed in Interception, the priority of the government lay in ensuring that security and intelligence powers remained secret, while judges habitually deferred to the Crown on security-related questions. As a result, although private communications have been intercepted since the foundation of the Post Office in 1635, there was no clear legal basis for the use of such powers until the 1980s, and intercept material was never used as evidence in open court. Individuals had no grounds on which to challenge such powers before the courts.
The need to legislate was triggered when James Malone, a Surrey antiques dealer, discovered by chance in 1977 that the police had been secretly tapping his telephone under a warrant from the Home Secretary. He challenged the legality of the warrant in the High Court, where in 1979 the judge helped the police out by ruling that phone tapping was lawful simply because there was nothing to make it unlawful.
But the judge also observed that the UK’s position was likely incompatible with the European Convention on Human Rights, a view latter confirmed by the European Court of Human Rights in Strasbourg in the 1984 case of Malone v United Kingdom.
Hence in 1979, the Home Office convened an internal working group to plan for legislation. They knew the European Convention required some form of independent review of surveillance powers, but felt this “would be best framed in such a way as to avoid cases becoming justiciable as a result”.
They recommended creating a secret panel of “advisers to the secretary of state”. The advisers “would not be able to tell the individual whether or not his telephone had been tapped, but they would be able to assure him that if it had been tapped this had been done for good reason and the proper procedures followed”.
The Interception of Communications Tribunal (ICT) was duly created under section 7 of the Interception of Communications Act 1985, a minimalist piece of legislation that authorised vast surveillance powers.
The ICT never sat in public. Its members were empowered to “determine their own procedure”, meaning they could decide how to investigate complaints of unlawful surveillance, but this was limited by strict procedural rules devised to uphold government secrecy.
The ICT reviewed complaints received on paper and issued written decisions in response, telling complainants only whether their complaint was upheld (meaning there was unlawful surveillance taking place), or not upheld (meaning either that they were under surveillance in accordance with law, or not under surveillance at all).
The deliberate ambiguity was intended to prevent criminals, foreign agents or terrorists from using the tribunal to determine whether or not they were being observed. No further information was to be disclosed and decisions of the ICT were final.
As the barrister and Lib Dem MP Alex Carlile observed during Parliamentary debate, “the essence of the secrecy which underpins the tribunal is that it will have to defy the rules of natural justice”. No complaint to the ICT was ever upheld.
The ICT was the blueprint for the Investigatory Powers Tribunal (IPT), created by section 65 of the Regulation of Investigatory Powers Act 2000 (known as RIPA). As before, the tribunal was primarily intended to receive complaints from individuals who feared they were under unlawful surveillance.
Again, strict procedural rules required the IPT to operate behind closed doors and to issue ambiguous determinations so as to protect the government’s policy of providing ‘neither confirm nor deny’ (NCND) responses to questions about national security. This time, however, things took a surprising turn.
Human rights law was, once again, the catalyst for change. In 2002, lawyers representing two complainants to the IPT – one a former police officer, the other the civil liberties organisation Liberty – argued in a private hearing that the tribunal should exercise its statutory power to “determine their own procedure” in a manner compatible with human rights law. This argument was made possible thanks to the relatively new provisions of the Human Rights Act 1998, which incorporated the European Convention into domestic law.
The tribunal sat in public for the first time to hand down an open judgment on its own procedures. It found that the strict secrecy rules laid down by the home secretary went too far. Instead, in any case where the meaning of the law in a given case was unclear, the tribunal would sit in public, hear open legal arguments and publish legal rulings.
However, this rested on a strict theoretical separation of law from the facts. The facts of any given case of alleged surveillance were potentially matters of national security. Only the government can decide whether to make admissions of fact in public, because only the government is empowered to determine the risks of doing so. Therefore, the tribunal’s public function would be limited to making determinations of law only.
The separation of law from facts permits the government to maintain a position of “neither confirm nor deny” in public hearings where sensitive facts remain secret. The law is tested on the basis of “assumed facts”: rather than determining the facts, the IPT proceeds as if the complainant’s concerns are true and determines the legal implications hypothetically.
When the law has been publicly clarified, the tribunal then returns to its intended form, carrying out a top-secret inquiry with the relevant agencies to determine whether anything unlawful has indeed occurred, or whether the complaint is simply “not upheld”.
While the fact/law distinction seems workable in theory, in practice it has produced unexpected results. The 2013 disclosures of sensitive US and UK documents by
Between 2013 and 2015, various individuals, journalists, NGOs and civil liberties campaigners petitioned the IPT to investigate the legality of GCHQ’s practices. Despite the fact that different sources, including the US government, had corroborated the veracity of the documents, the UK government maintained the surreal stance of NCND during the first wave of hearings.
On the basis of euphemistic “assumed facts”, the tribunal heard arguments of extreme complexity on a wide range of issues that the government did not accept were true. This included spying on lawyers in their privileged communications with clients who were suing the government; GCHQ access to NSA data extracted directly from major American internet platforms, referred to as “intelligence sharing”; “hacking” of computer networks and devices; and the acquisition of communication records and personal data concerning millions of people in bulk quantities.
By early 2015, it was clear that the tribunal would not simply rubber-stamp the legality of whatever the government was “hypothetically” doing. Government policy pivoted from secrecy to a new form of limited transparency. The tribunal assisted this process by developing what the European Court of Human Rights later called the “elucidatory function”: it became the medium through which the government could make public material that was previously withheld “below the waterline” of secrecy.
At the same that the IPT cases were proceeding, the then-independent reviewer of terrorism legislation, David Anderson KC, was reviewing the range and scope of investigatory powers generally. In line with his recommendations, published in June 2015, the government formally avowed the use of all the powers that Snowden revealed and began a process of legal reform. The Investigatory Powers Act 2016 is far more detailed about the powers that it authorises and the safeguards that it places around them than its predecessors.
Today, the IPT is empowered to hold hearings at its own discretion, in the presence or absence of either party, wholly or partly in private. It must “endeavour” to conduct proceedings “in public and in the presence of the complainant”, insofar as it is possible without disclosing sensitive information.
The government retains the right to determine what information it withholds, but to the extent that it does, the IPT must be provided with reasons, and can prevent the government from relying on withheld information in a particular case. All decisions of the tribunal can be appealed to the Court of Appeal – another innovation that has improved transparency.
Since the reforms that were initiated in 2015, the IPT has regularly sat in public and delivered key judgments in important cases concerning the use and abuse of surveillance powers. Judgments from the European Court of Human Rights and the UK Supreme Court have further clarified its jurisdiction and powers – for instance, it must now consider complaints from individuals not located in the UK yet potentially subject to surveillance by UK agencies.
The structure of the IPT’s relationship to the secret intelligence agencies and its historical origins as a body intended to deflect legal liability from the state means that, despite its independence, some of its decisions will inevitably attract controversy and criticism.
Yet there is no doubt that, thanks to pressure from human rights campaigners, the media and some judicial creativity, it has transformed itself from a body intended to uphold and protect the secrecy of “investigatory powers” into a unique body capable of investigating state excesses, while informing the public of their rights.
Neither fully secret nor entirely transparent, it is today a selectively “translucent” judicial body that mediates complex surveillance-related issues between citizens, corporations and the state.
Bernard Keenan is a lecturer in law at UCL. His research focuses on surveillance, human rights and state power alongside the development of digital technology. He is the author of Interception, a book on the history of surveillance.
Read more about the Investigatory Powers Tribunal
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