 Lleidyddion gweithio, gweithio. I'm Carol Tan, y head of the School of Law here at SOAS. This evening is about Kay Everett, who, if you like, stopped off at SOAS for a year after leaving the city and before embarking on a new career after her LLM here. It was to be a new career in which she was a voice for the marginalised. The change of career, the type of change that she made, the fact that Kay learned Chinese even before she got to us, makes Kay very much a SOASian. We would recognise her a mile away as one of our students. You will see from the pamphlet that you were given on your way in that human rights, asylum, refugee and immigration, these are subjects very much at the heart of our research interests and also at the heart of our student activism and pro bono activities. This lecture series, coupled with the Kay Everett Prize for the best human rights law dissertation by a postgraduate student, came into being with the dual purpose of remembering Kay and inspiring the next generation. Now that next generation includes the young practitioners who are here this evening. It includes our current students and it includes our future students whom we've also invited to this event. So to this next generation and to Kay's family, her colleagues and her friends present here this evening, a very warm welcome from us at SOAS Law School. I would like to extend a particularly warm welcome to tonight's speaker and that is the right honourable Lord Justice Rabindaseng. Thank you very much for agreeing to give this lecture. The honour and privilege is mostly ours. Well, I will catch up with you at the end of this lecture and meanwhile I will hand you over to David Cherico of One Pump Court, known to many of you, of course, as a leading barrister in the field. David. So I am going to be short because I'm not the person that anyone's come to see. It is a great pleasure and a privilege to have been asked to take part in comparing this event and just to talk a little bit about the event and a little bit about Kay. I used to sit many years ago in a previous life looking out at this building from my office in Senate House when I was teaching at the School of Slavonic in East European Studies long before I came to the bar and did any of these things and so it's a pleasure and I'm very grateful to SOAS for having invited us all here and for having invited me. It's a privilege to be asked to participate in this which is the second edition of this memorial event which is organised by the School of Law here at SOAS and commemorates Kay. Kay who is just such an inspiring friend and such an inspiring colleague to so many of us here looking around the room. It's a privilege and it's also a pleasure to be taking part in this event. Kay would be perhaps a little amused and certainly very proud to have her name associated with this event with the prize giving and with the lecture which follows on from it. It's an event which recognises Kay's commitment to the use of law, the use of law as a tool in protecting and furthering the interests of vulnerable clients, the vulnerable clients to whom Kay was herself so committed and this event recognises Kay's commitment in three ways. It brings together three things, all of which absolutely reflect what we know about Kay and what Kay gave us. Firstly, there's the prize which Lord Justice Singh will be presenting when I finally finish and will be presenting to Cara de Lacey who's, I've just lost sight of, but that's, oh there we are. I've got the wrong glasses on so I've not put them on at all. That's the part of the event which honours, as Carol said it, honours real excellence in legal studies and in education, something that Kay would have so strongly supported and it encourages training and learning about law and the connection between law and human rights. That's the first thing. The second is that this is an event which brings all of us together, it brings us together as people who work with law and human rights law. It's an event which values our collectivity, it values the mutual support we give to each other as people working in the field of human rights law and that's whether we're working as case workers, as lawyers, as court staff in the judiciary and Kay was someone who had absolute respect for all of the different parts, all the different branches of law, whether those were parts of the law which were conducted by legal professionals or not and these are stressful times for all of us working in this area but it's always great to be involved in an event like this which brings us together. That's the second thing that this event represents and the third thing is the lecture itself. I'm not going to spoil the plot, in fact I don't know the plot but that's the opportunity for all of us to take some time out to listen to the law and for a lot of us here, maybe everyone, we are ground down by legal aid, other administration, day-to-day tasks, we're ground down by the fact that we're confronted by the needs of vulnerable clients by difficulties in the law, by difficulties with our jobs, we're tired and it's important to be reminded that as people working with law and human rights law we have a tool, we are equipped with a tool which we can use to make sure that the right balance or to help to make sure that the right balance is struck between the interests of the state and the interests of our clients and that's something which you see in the title of the lecture which Lord Justice Singh is going to be delivering when I finish but we have the tool, we're equipped with a tool which enables us to help to ensure that the right restraints are placed on the activity of the state and that's what when I get away from this lecture and you'll hear Lord Justice Singh investigatory powers tribunal and the role of that tribunal in ensuring that the balance is struck between those two sets of interests. So all of those things, the encouragement of new students and of students learning about the law are sharing and collaboration as people working in the field of human rights law. The valuing of law and us taking the time to be interested in the law as a tool for the protection of vulnerable individuals, all came together in the person of Kay and I can look around the room here and see the number of people who benefited from Kay's encouragement, we've been her colleagues, we've been her trainees, we have been perhaps courts who have benefited from the immaculate preparation and the respect which Kay paid to the legal system that she chose to practice in and so it is again a privilege to be asked to take part in this event. So now just a couple of words about tonight's speaker because we don't think that law justice thing needs much introduction. I'm certainly reluctant to plunge into it sort of this is your life. But just a few sort of keynote facts. He came to the bar in 1989 having studied at Cambridge University and then studied under Professor Frank Newman in the University of California at Barclay. He went on to teach law for a period at Nottingham University. In 2000 he was one of the founder members of Matrix Chambers. He became Reminder Singh QC in 2002. I'm sorry if I'm getting any of these dates wrong by the way but so far so good. In 2003 he was appointed as a deputy judge of the High Court. The time was the youngest ever High Court judge appointed as a full-time High Court judge in 2011 having also served as a recorder and of course was appointed a judge of the Court of Appeal in 2017 and now speaks to us as law justice sing. As a practitioner he had a reputation as one of the great experts on among other things discrimination law and in cases relating discrimination to civil rights. So he appeared for liberty in the Belmarsh cases in 2004. Appeared in the case of Gaydon and go down Mendoza on discrimination against same-sex partners. Appeared in all of the litigation dealing with the exclusion of asylum seekers from asylum support if they didn't make asylum claims sufficiently promptly and so on in the 2004-2005 and it's that experience which of course he brings to the judiciary since being appointed as a judge. He sat thinking of cases that the UK was particularly interested in in the High Court in cases relating to the inhuman and degrading treatment of immigration detainees in the UK and looked at equality act duties and the formulation of policies about detention of migrants, of immigrants. He's also much more recently looked at Delta in the Court of Appeal with the treatment of children trapped or children stuck in Calais and the duties of disclosure around that in a case which I think most people here will be familiar with. And it's against that background that that Lord Justice Singh now also sits as the and now comes to us to speak about the now's tribunal. I think I'll stop saying anything more about that because I think that you'll probably say more about that at that stage. What I would like to say before I close then is that there is a theme which runs through this evening. Cara Dillaisi's absolutely fascinating dissertation which I've been lucky enough to be able to read looks at the ways in which I summarise it so badly but it's an error of law I know nothing about and it looks at the ways in which human rights due diligence concepts can be applied in the context of globalised trade. So Cara takes as a starting point the deaths of fabric workers in Bangladesh when the Rana Plaza building collapsed and looks at the ways in which international human rights law and due diligence law can be expanded to ensure that the buyers of products made by fabric workers in Bangladesh will be protected by responsibility will be placed on the buyers for the safety of the workers who produce the products and that's the kind of innovative approach to human rights law which I know that Kay would have been delighted to have a name associated with and it represents also our need the fact that we need to look at the law that we are equipped to deal with and to be thinking about the ways in which we can apply it outside the box it's something that Kay was great at doing applying it outside the box and looking at ways in which we can use it to protect people who are not obviously protected by it and in a similar way the law on investigatory powers the law on surveillance is a law which is developing to deal with forms of potential intrusion into our privacy into our homes the drafters of human rights provisions the drafters of human rights sorry conventions would simply not have envisaged things that would not have been anticipated or in the minds of legislators 30 years ago even certainly not 60 years ago and the I'm sure that what you will be hearing today from Law Justice Singh will explore the ways in which legal principles about privacy and about the right to respect for the home can be developed and can be developed to enable the citizen to be protected adequately against the new intrusive powers of the state and Kay herself would be a great supporter of this she crossed over from corporate law into human rights law having crossed over into immigration law she was then part with James Elliott the setting up of the public law team in Wilson's solicitors she showed that she recognised the need to be learning new areas of law and innovating in areas of law and she would be delighted at the innovative approaches that are set out in Cara's dissertation and so at that point I would like to invite Cara up to receive the certificate the Kay Everett prize for the best postgraduate dissertation and the title of the dissertation is Corporate due diligence Corporate due diligence at accountability I'm not regret the stage management bit of this I'd now like to invite Law Justice Singh to come over and present the certificate so many people will want to read that dissertation it will be available online I'm assured on the Wilson's website so please do read it, it's absolutely fascinating it's a brilliant dissertation and as I say it's an area of law I was absolutely unfamiliar with I'm going to sit down now and with great pleasure I'd like to invite Law Justice Singh to deliver his speech Thank you very much for that kind introduction it's a genuine pleasure to give this year's Kay Everett memorial lecture Kay Everett was a truly remarkable person I doubt if there are many others who would have the courage to do what she did Midway through her career with a magic circle firm of solicitors she decided to embark on an LLM here at SOAS on the subject of human rights law she then devoted her life and career to helping others by making use of that knowledge and experience her life was sadly cut short when she was only 43 but her memory lives on and inspires others the theme of my lecture this evening will be the work of the Investigatory Powers Tribunal or IPT I was appointed president of that tribunal in September last year I hope you will find it interesting to hear about the history and work of this tribunal it is a tribunal whose work is perhaps not as well known as it should be it is also a relatively rare kind of tribunal in that it's jurisdiction extends to all four constituent nations of the United Kingdom the activities over which the IPT has jurisdiction include surveillance interception of communications and the use of covert human intelligence sources or CHIS as they are known in the jargon or informants as they are known more colloquially the public authorities which are within its remit include the police local authorities and central government departments perhaps most significantly its jurisdiction includes complaints made by members of the public against one of the security and intelligence agencies the IPT has been described by one commentator Ian Cobain as the most secretive court in this country on the other hand the very fact that the IPT exists to review the legality of actions of bodies which necessarily have to operate in secret may itself be a tribute to the rule of law in this country as one academic commentator Paul F. Scott has put it in his recent study the national security constitution where the pursuit of national security ends reaches further into the constitutional landscape than was previously the case is often in large part the consequence of the having been formalised in law processes and actions which would previously not have taken place or would have happened without legal authority what is presented in his book as the emergence of a national security constitution he suggests is in many ways the consequence of developments which are themselves from the point of view of the rule of law unambiguously positive the IPT was created by the regulation of investigatory powers act 2000 it's frequently referred to as RIPA it's exceeded several earlier bodies including the interception of communications act tribunal which had been created in 1985 the IPT's first president was a court of appeal judge Mr Justice Mummary who served from its inception in 2000 until his retirement in 2013 its second president was a high court judge Mr Justice later Sir Michael Burton who served from 2013 until 2018 RIPA also makes provision for there to be a vice president a post which is currently vacant but which we hope will be filled in the near future in addition there are other members those other members include two serving high court judges from England and Wales a retired high court judge from Northern Ireland and senior practitioners from England and Wales and Scotland I'll begin with some history the history of spying long predates modern technology such as computers or even telephones the leading historian of intelligence matters Christopher Andrew suggests that the history of espionage can be traced back to Moses in the Old Testament in his recent magisterial history of intelligence he says that the first major figure in world literature to emphasise the importance of good intelligence was God after Moses had led his people out of captivity in search of the promised land he was told by God to send spies to the land of Canaan which I give unto the children of Israel in England by Elizabethan times if not before we can already see the phenomena of interception of communications and code breakers Francis Walsingham who was Queen Elizabeth the first principal secretary of state between 1573 and 1590 was particularly keen to keep a careful eye on what was being said in letters written by Mary Queen of Scots indeed it was a letter which had been intercepted and which appeared to endorse a suggestion that Queen Elizabeth should be assassinated that led to Mary's death warrant acording to Professor Andrew it was in 1592 in Shakespeare's play Richard the Third that the first use of the word intelligence is to be found in its modern sense of secret information during the brief time when England was a republic in the Commonwealth era after the Civil War a deciphering branch was created it was to last from 1653 until Victorian times the general post office was created in 1660 after the restoration of Charles II it seems clear that from its inception postal communications were liable to be intercepted by agents of the state this practice was recognized for the first time in an act of 1711 in the reign of Queen Anne in 1844 it was discovered after a scandal concerning the interception of the post of the Italian exile Giuseppe Mazzini that this practice was not uncommon there was outrage in the House of Commons that something so un-English could have been happening in this country this led to the abolition of the deciphering branch and the secret office of the post office according to Christopher Andrew this had the consequence that at the outbreak of the First World War Great Britain did not have a code-breaking facility it quickly found that it needed one in the meantime in 1909 there was established the secret service bureau of course its existence was not announced or even acknowledged for many decades at first it consisted of just two officers one responsible for domestic matters and the other for foreign intelligence the original officers Sir Vernon Kell and Sir Mansfield Cumming became respectively the first heads of the security service or MI5 and the secret intelligence service MI6 it's in honour of coming that to this day the chief of MI6 is known as C and not M as in the James Bond stories the third agency which now forms part of the UK intelligence community is the Government Communications Headquarters or GCHQ whose origins lie in the government code and cipher school created after the First World War and which famously worked at Bletchley Park during the Second World War although this was kept secret for many decades after the war and incidentally if you haven't been there is a very good museum now at Bletchley Park where you can see how they deciphered the enigma code in particular what's happening for what's important for present purposes is that the security and intelligence agencies are subject to the law of the land including the requirements of RIPAA and the Human Rights Act by putting complaints under those acts against one of the agencies into the IPT Parliament has sought to ensure both that such complaints can be made to an independent judicial body and that the interests of national security are protected I'm going to turn now to the impact of the European Convention on Human Rights In 1979 in a case called Malone and Metropolitan Police Commissioner an action concerning interception of telephone calls pursuant to a warrant issued by the Home Secretary failed in the High Court on the simple ground that unlike interception of the post there was no interference with rights of property Sir Robert McGarry the Vice Chancellor held that there was no right to privacy at common law The case of Malone against United Kingdom went to the European Court of Human Rights where it succeeded in 1984 It was that decision which led to the first statute regulating the interception of telephone communications the Interception of Communications Act 1985 and it was the 1985 Act which established a tribunal which was one of the three predecessors to the IPT The law in this area was first developed by the European Court of Human Rights in the seminal case of class against Germany The court observed that powers of secret surveillance of citizens characterising as they do the police state are intolerable under the convention only in so far as strictly necessary for safeguarding democratic institutions The court stressed that although states need to be able to respond to threats of terrorism this does not mean that they enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance The court emphasised that surveillance poses the risk of undermining or even destroying democracy on the ground of defending it and so states may not in the name of the struggle against espionage and terrorism adopt whatever measures they deem appropriate It's important not to lose sight of the underlying values which are protected by the right to privacy As a recent academic article by Kirsty Hughes on mass surveillance and the European Court of Human Rights puts it, privacy is not only an individual right She says that it also has important societal benefits It acts as a bulwark against totalitarianism It provides the space in which ideas particularly controversial ideas can be formed, developed, explored and expressed It fosters social relations With respect to privacy we protect those that are typically subject to the most intrusive measures including ethnic and religious minorities and those of low socioeconomic status Thus privacy contributes to a democratic intellectually vibrant, harmonious and egalitarian society Let me say a word about the origin and history of the IPT The IPT was established under section 65 of RIPA That act came into force on the 2nd of October 2000 Many in this room will remember that day It is no coincidence that that was the same date on which the Human Rights Act came into full force This is because RIPA was intended to ensure compliance with this country's obligations under the ECHR so far as they relate to investigatory powers The Act therefore fits into the framework of human rights law which was created at that time Importantly, section 65-2 provides that the IPT is the only appropriate forum in relation to proceedings against any of the intelligence services for any acts alleged to be incompatible with the convention rights In the case of the intelligence services therefore the jurisdiction of the IPT is not confined to investigatory powers as such It covers all conduct of the intelligence agencies which is alleged to breach section 7 of the Human Rights Act Under section 67-2 and 3 the IPT must apply the principles applicable by court on an application for judicial review However, as has now become clear since 2000 the principles applicable on judicial review include an allegation that a public authority has acted unlawfully under section 6 of the Human Rights Act Accordingly, the IPT has the same jurisdiction to consider breaches of the convention rights as an ordinary court would do in a claim for judicial review However, the IPT does not have the power to make a declaration of incompatibility in respect of primary legislation This is because it is not a court within the meaning of section 4 of the Human Rights Act In his report of 2015, a question of trust David, now Lord Anderson QC did make a recommendation that consideration should be given to conferring the power to make a declaration of incompatibility on the IPT This was not accepted when Parliament enacted the Investigatory Powers Act 2016 That said, it should be noted that David Anderson felt that a possible alternative reform would be to introduce a right of appeal from the IPT which would then render it less important that the IPT itself may not grant a declaration of incompatibility That recommendation was accepted by Parliament in enacting section 242 of the 2016 Act Under section 67.8 of RIPA it had been provided that there was to be no appeal from a decision of the IPT except to such extent as the Secretary of State may by order otherwise provide No such order was made at the time However, an order has now been made bringing in to force the amendment made by section 242 The new appeal route was introduced from 31 December 2018 Since the courts to which an appeal will lie including the Court of Appeal of England and Wales do have the power to make a declaration of incompatibility it should not be a practical problem that the IPT does not have that power The question whether the jurisdiction of the IPT in relation to the conduct of the security and intelligence agencies is an exclusive one came before the Supreme Court in a case called A and Director of Establishments of the Security Service In that case the claimant was a former senior member of the security service who had written a book about his work with the service and wished to publish it He was bound by strict statutory and contractual obligations as well as duties of confidentiality He was required to obtain the consent of the Director of Establishments before he could publish The director refused to give his consent to publish parts of the book The claimant commenced judicial review proceedings in the High Court alleging that this is contrary to his right to freedom of expression in article 10 of the CHR The Supreme Court held that only the IPT has jurisdiction to hear claims of the Section 71A of the Human Rights Act and that Section 65 of RIPER did not limit that exclusive jurisdiction to proceedings arising out of the exercise of regulated investigatory powers in that act The judgement of the court was given by Lord Brown He made the particular point that the doctrine of neither confirm nor deny or N-C-N-D meant that it is important that cases against the secret security and intelligence services should be brought not in the ordinary courts but in a specialist tribunal that has the appropriate procedures to handle such cases Furthermore, Lord Brown responded to the criticisms which were made of the IPT's procedures in particular the suggestion that they were flatly contrary to the basic principles of open justice when he said Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourg In that context, Lord Brown quoted what Lord Bingham had said in The Crown Against Shailer The need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity, hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individual's convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve Until very recently, the tribunal's procedural rules were though set out in the rules enacted at its inception in 2000 The language of Rule 96 of those original rules was clear and unqualified It stated The tribunal's proceedings, including any oral hearings shall be conducted in private That language was mandatory and on its face admitted of no exceptions Nevertheless, on the 23rd of January 2003 the tribunal gave its judgement in two applications which were rulings on preliminary issues of law As the tribunal observed this was the first occasion on which the tribunal sat in public As later became apparent the case was about a Mr Kennedy The relevant provision in the rules was challenged by Guardian newspapers under the Human Rights Act relying upon the right to fair and public hearing in article 6, as well as articles 8 and 10 The tribunal comprised the then-president Law Justice Mummery and vice-president Mr Justice Burton and they gave a joint judgement At that time, Rule 92 provided that the tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this rule and not otherwise The tribunal reached the conclusion that the absence from the rules of an absolute right to either an inter-party's oral hearing or failing that to a separate oral hearing in every case was within the rule-making power in RIPAA It was also compatible with the CHR However, when it came to the absolute requirement that hearings must be in private the tribunal concluded that this was ultra-viries being labelling power Accordingly, it did not bind the tribunal The tribunal concluded that there was no conceivable ground for requiring legal arguments on pure points of procedural law to be held in private The tribunal also concluded that unless and until the rules were amended the tribunal would have a discretionary power to hear legal argument in public This was subject to the important qualification that the tribunal continued to be subject to its duties in both RIPAA and Rule 6-1 Rule 6 required the tribunal to carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security or other interests specified in Section 69 There is now a similar provision in the 2018 rules in Rule 7 In its judgment in that early case the tribunal also referred to the inherently secret nature of much of its work It said that in general the work of the security services must be carried out in secret in order to safeguard national security National security may be compromised and harmed by the disclosure of the fact of surveillance It was for that reason that the tribunal concluded that the longstanding policy of successive governments that they neither confirm nor deny whether interception or surveillance has taken place was lawful and compatible with the Human Rights Act This flowed from the general and fundamental considerations which the tribunal described as follows Cases involving national security are at the cutting edge of convention rights One of the main responsibilities of a democratically elected government and its ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws including convention rights by undemocratic means Interception of communications and surveillance methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the convention To counterbalance those considerations the tribunal observed that as the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringement of their rights It is the function of the tribunal to inquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPAA and the rules as properly interpreted by the tribunal in the light of the convention requirements of fair trial and open justice Ever since this decision in Kennedy in 2003 the IPT has developed the practice of holding a hearing in public if that is possible and is compatible with the public interest In particular it will often hold a hearing in public to consider a question of law on the basis of assumed facts without at that stage deciding whether those facts are true or not Now I often get asked the question is the tribunal part of the tribunal system the IPT is not part of the general tribunal system in this country which was established by the courts tribunals and enforcement act 2007 That act implemented the proposals which had been made by Sir Andrew Legart in his review of tribunals in 2001 Sir Andrew specifically addressed the position of the IPT and said that this tribunal is different from all others in that its concern is with security for this reason it must remain separate from the rest and ought not to have any relationship with other tribunals It is wholly unsuitable both for inclusion in the tribunal system and for administration by the tribunal service We have accordingly come to the conclusion that this tribunal should continue to stand alone I want to turn to a different topic now which is the role of council to the tribunal Over the last 12 years or so the tribunal has developed the practice of instructing council to the tribunal Not in every case it's important to note that council to the tribunal does not represent any of the parties in a case but nor is he or she a special advocate of the kind that is now familiar for example from the Special Immigration Appeals Commission The closest analogy is probably with council to a public inquiry The original tribunal rules of 2000 made no mention of council to the tribunal Nevertheless the tribunal has since 2006 used its broad powers to regulate its own procedure to instruct council to the tribunal The first occasion on which I'm aware this happened was a case called C against the police and secretary of state for the home department in which the tribunal had to consider whether it had jurisdiction to deal with police employment related surveillance cases The Attorney General was asked to appoint an advocate to the tribunal This followed the practice and procedure which is now familiar from a memorandum of 2001 and of course the term advocate to the court has replaced what used to be called the amicus curiae Since that time the practice has developed whereby the tribunal simply instructs council to assist it without the need for appointment by the Attorney General In a case in 2014 Liberty and Privacy International and Secretary of State and others council to the tribunal who was on that occasion Martin Chamberlain QC made written submissions which are recorded in the tribunal's judgment in which he set out the role of council to the tribunal and distinguished it from the role of a special advocate He said A special advocate is appointed to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions if any as they consider will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all then the proper course is applying to make submissions even though this leaves the tribunal without assistance Council to the tribunal performs a different function akin to that of Amicus Curie His or her function is to assist the tribunal in whatever way the tribunal directs Sometimes the tribunal will not specify from what perspective submissions are to be made In these circumstances the tribunal will make submissions according to his or her own analysis of the relevant legal or factual issues At other times in particular where one or more interests are not represented the tribunal may invite its council to make submissions from a particular perspective normally the perspective of the party whose interests are not otherwise represented That description of the role of council to the tribunal has formed the basis for the definition of such council which is now to be found expressly in Rule 12 of the 2018 procedure rules That provides that the tribunal may appoint council where the complainant is not legally represented the respondent objects to the disclosure of documents or information to the complainant the tribunal intends to hold a hearing in the absence of the complainant or in any other circumstance in which the tribunal considers it appropriate to do so The rule now provides that the tribunal may request council to perform various functions which are listed they include cross-examination of a witness called by the respondent in the absence of the complainant to ensure that all the relevant arguments on the facts and the law are put before the tribunal and generally to perform any function that would assist the tribunal Interestingly in the context of the new appeal procedure to which I will refer later council to the tribunal now has the role made mandatory in the rules to seek to identify any arguable error of law in relation to any decision or determination made by the tribunal consequent upon a hearing in whole or in part in the absence of the complainant it provides that where council to the tribunal does identify an arguable error of law council must notify the tribunal and when so notify the tribunal must subject to its general obligation to protect the public interest disclose that arguable error of law to the complainant there have been suggestions that in the IPT there should be the opportunity to have a special advocate whose function would be to represent the complainant at least in addition to council to the tribunal whose function as I have mentioned is primarily to assist the tribunal and is not to represent the complainant in a partisan way the recent judgement of the Strasbourg court in the big brother watch case noted it would appear with approval the role of council to the tribunal and how it can help to ensure that the overall procedure is fair I'll now turn to that judgement in some more detail this is the big brother watch case the European Court of Human Rights considered the role of the IPT in secret surveillance cases in Kennedy against United Kingdom in 2010 the court held that proceedings before the IPT had been compliant with article 6 since any procedure or restrictions were proportionate to the need to keep secret sensitive and confidential information and did not impair the very essence of the right to a fair trial however the court expressed some concerns about whether proceedings before the IPT should be regarded as an effective remedy so as to require the procedure to be exhausted under article 35 of the ECHR before an application could be made to Strasbourg in its recent judgement in big brother watch the court returned to these issues it observed that the IPT's ruling in Kennedy had come very early in its history in fact as I have mentioned it was the first time that the IPT had sat in public in the 15 years which had passed since that time the court considered that the experience of the IPT and the very real impact its judgements have had on domestic law in practice meant that the concerns expressed in Kennedy about its effectiveness as a remedy for complaints about the general compliance of a secret surveillance regime were no longer valid the court was influenced by the consideration that the IPT was the only tribunal with jurisdiction to obtain and review what has become known in the jargon as below the waterline material the court said that an examination of the IPT's extensive case law since Kennedy demonstrates the important role it can and does play in analysing and elucidating the general operation of secret surveillance regimes it noted that in the liberty proceedings IPT played a crucial role first in identifying those aspects of a surveillance regime which could and should be further elucidated and then recommending the disclosure of certain below the waterline arrangements in order to achieve that goal furthermore the court noted that it would appear that where the IPT has found a surveillance regime to be incompatible with the ECHR the British government has ensured that any defects are rectified and dealt with so the court concluded that as a general rule the IPT has shown itself to be a remedy available in theory and practice which is capable of offering redress to applicants complaining of both specific incidences of surveillance and the general compliance of surveillance regimes with the ECHR as a consequence applicants to Strasbourg will normally be expected to exhaust their domestic remedies by pursuing the opportunity to bring proceedings in the IPT first nevertheless in the special circumstances of the cases before it and given what the court had earlier said in Kennedy the court was prepared to hold that the particular applications before it were not inadmissible under article 35 the court went on to consider whether proceedings before the IPT comply with article 6 it noted that neither the commission nor the court has found today that article 6 applies to proceedings relating to a decision to place a person under surveillance it noted further that the IPT has gone further than the Strasbourg court in this regard in its joint ruling on preliminary issues of law in the British Irish rights watch case the IPT accepted that article 6 does apply to a person's claims under section 65 to A and to his complaints under section 65 to B of RIPR since each of them involves the determination of civil rights the European court itself found it unnecessary to reach any firm conclusion on the applicability of article 6 since it concluded that the complaint was manifestly ill-founded in any event therefore the complaint under article 6 was held to be inadmissible but the court reaffirmed what it had said in Kennedy namely that the procedures that the IPT are compatible with article 6 since any restrictions on the applicants rights are both necessary and proportionate and do not impair the very essence of article 6 in particular the IPT had deployed its extensive powers to ensure the fairness of the proceedings there was scrutiny of all the relevant material open and closed material was only withheld from the applicants where the IPT were satisfied that there were appropriate public and national security reasons for doing so and finally as I have noted the IPT had appointed council to the tribunal to make submissions on behalf of the applicants in closed proceedings a big brother watch UK was a decision of a chamber of the European court of human rights earlier this month on the 4th of February the court decided that the case should be referred to the grand chamber and we await the judgment of the grand chamber with interest as I have mentioned for the first time since its creation in 2000 the IPT's procedure rules were recently revised and are now to be found in the 2018 rules the old rule which had required all hearings to be in private has been abolished rule 10 now provides that the tribunal is under no duty to hold a hearing but may do so and that it may be held holy in private rule 13 provides that the tribunal may receive evidence in any form and may receive evidence that would not be admissible in a court of law rule 11 provides for representation at hearings and as I have mentioned rule 12 expressly refers for the first time to council to the tribunal rule 7 1 retains the provision and I quote the tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the UK or the continued discharge of the functions of any of the intelligence services under section 67 7 of RIPR the IPT has a broad power to grant such remedies as it thinks fits and they include the quashing of a warrant and the award of compensation an important change has been made by rule 15 and makes detailed provision for those circumstances in which a notification of a decision by the IPT may contain reasons this duty remains subject to a general duty in rule 7 1 where the IPT make a determination in favour of the complainant they must provide the complainant and respondent with the determination including any findings of fact where the tribunal make a determination which is not a determination in favour of the complainant the tribunal must if they consider it necessary in the interest of justice to do so provide the complainant and respondent with I quote a summary of the determination as I have mentioned the 2016 act amends RIPR to create for the first time the opportunity to appeal against decisions of the IPT the 2018 rules give effect to this in rule 16 to 18 the appropriate appellate court will be in England and Wales the court of appeal in Scotland it will be the inner house of the court of session at present it will not be possible for there to be an appeal to the court of appeal of Northern Ireland but such appeals may go to another appropriate appellate court this is because there is currently no devolved administration in Northern Ireland and its consent would be required to bring this legislation into force in respect of Northern Ireland the grounds on which an appeal may be made with the leave either of the IPT or the relevant appellate court are that there is an error of law which raises an important point of principle or practice or that there is some other compelling reason for granting leave the introduction of the possibility of an appeal does not have retrospective effect it only applies to decisions taken since the 31st of December last year accordingly for those decisions which were made before that date it may still be important to know whether the IPT is amenable to judicial review that question is currently the subject of an appeal being considered by the Supreme Court whose judgement is awaited both the divisional court and the court of appeal held that judicial review is not available because there is an effective register clause in RIPAA that was in the case brought by privacy international whatever the outcome of the case in the Supreme Court it is worth noting what was said by law justice sales in the court of appeal about the general features of the nature of litigation before the IPT he said that the context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue and the public interests which may be jeopardised if it is disclosed the intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them human sources might be killed or threatened with serious harm if even the possibility of their existence were revealed he said in that judgement that the legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed bodies at the same time subject to an imperative overriding rule which forbids it from requiring disclosure in this way the regime provides a guarantee that the important aspects of the public interest are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of relevant evidence I turn at finally to that general question of the statutory regulation of the intelligence agencies as we have seen the existence of the various intelligence agencies in this country was not publicly acknowledged until the 1980s times have changed greatly since then in 1989 the security service act placed MI5 on a statutory footing five years later the intelligence services act 1994 placed both MI6 and GCHQ on a statutory footing the 1994 act also established a parliamentary committee the intelligence and security committee to monitor the work of all three intelligence and security agencies for the first time members of both houses of parliament were to be involved in the scrutiny of the expenditure administration and policy of the secret agencies that committee is currently chaired by the former attorney general Dominic Grieve QCMP Sir David Omond has held various offices including permanent secretary at the home office and the cabinet office and also director of GCHQ since retirement from public service he has been a visiting professor at King's College London and has contributed to bringing the field of intelligence studies into the academic world in particular through his book Securing the State in that book he quotes one British ambassador from 1785 who wrote to the secretary of state in London about his involvement with secret agents I abhor this dirty work but when one is employed to sweep chimneys one must black one's fingers Sir David Omond welcomes the fact that the intelligence agencies must operate within the law in particular respecting human rights he says human rights are a public good as is security the balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured the balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and one's family is an important right that in some circumstances must be given more weight than other rights such as the right of privacy this is a choice that society is able to make when there is a serious terrorist threat in those circumstances checks and balances of good government should come into play to provide confidence that the balance is a genuine one and that red lines are not being crossed remaining within the framework of rights is important not least as a constant reminder that there are rights such as the right not to suffer torture which cannot be delegated the framework of supervision also includes the office of the investigatory powers commissioner which was created by the investigatory powers act 2016 the first holder of that office is Sir Adrian Fulford a serving judge of the court of appeal Sir Adrian leads a team of 15 judicial commissioners and a larger team of staff and has a technical advisory panel the commissioners have various roles under the 2016 act including the grant of judicial warrants where the act requires them in addition to warrants issued by the secretary of state for various investigatory practices the commissioners duties are however essentially administrative and their decisions are subject to review by the IPT it can therefore be seen that each of the three branches of the state Parliament the executive and the judicial branch has a role to play in the legal regulation and supervision of the intelligence agencies as Sir David Ohman puts it I quote I have argued that intelligence gathering recognised a vowed activity of government but there is a need to balance secret actions for the good of the city with upholding the reputation of being the city of the good there has to be a level of public acceptance of the activity and how it is conducted and more importantly perhaps public acceptance that there is regulatory mechanism that can prevent excesses and abuses and processes for a rapid independent way of putting things right when they go wrong it will be a matter for others to judge but I would hope that the IPT plays its part in that process of reassuring the public and maintaining the rule of law in this country Thank you Thank you very much Lord Justice saying we are now in a minority of persons I'm sure who know more about the IPT than the rest of the world but in order that we don't remain such a tiny minority this lecture has been video recorded and will be available in a few days so I hope very much that this will be a long association with the SOAS Law School and I hope you'll allow me to present to you with a token of our appreciation it is the most recent issue of the SOAS Law Journal it is a student run law journal and has been going for a number of years now even though we probably didn't expect it to have longevity because it's entirely dependent on who we get who is interested amongst the student body in keeping this going from year to year and I think it's entirely appropriate that I ask the editor-in-chief to present it to you tonight this is a he-masha, we're a puliga