Speech by Lord Justice Singh: The Investigatory Powers Tribunal
University College London
19 November 2025
The Investigatory Powers Tribunal: Reflections on Seven Years as its President
Introduction
1. It is a pleasure to give this lecture,[1] especially as I have just stepped down as President of the Investigatory Powers Tribunal (“the IPT” or “the Tribunal”) after seven years. When I was appointed in 2018 I was not sure exactly what to expect but it has turned out to be one of the most interesting and fulfilling things I have ever done. Shortly after I became President, I gave a lecture at SOAS called ‘Holding the balance: national security, civil liberties and the role of the IPT’.[2] At that time I was looking ahead to the challenges that my role as President would bring. This evening gives me the opportunity to set out reflections on what I have learnt in those seven years.
2. In this lecture I intend to speak about the structure, governance and working methods of the Tribunal rather than the substantive law.
3. The Tribunal occupies a unique position in the United Kingdom’s legal system. From its inception, it was clear that it was intended that the Tribunal would operate separately from other courts and tribunals.[3] It is, however, in substance a court. It is independent of the Government, the intelligence services, other public authorities such as the police and everyone else. Its members sit as judges, although some are full-time serving judges who sit in other parts of the legal system and some are part-time judges, usually senior practitioners.
4. The Tribunal was established by section 65 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) and replaced the Interception of Communications Tribunal, the Security Service Tribunal, the Intelligence Services Tribunal and the complaints provision of Part III of the Police Act 1997 (concerning police interference with property). It is not coincidental that it came into operation on 2 October 2000, the same date that the Human Rights Act 1998 (“HRA”) came into force. The Tribunal was intended to provide an effective remedy in domestic law for possible breaches of Convention rights.
5. The jurisdiction of the Tribunal is unusual in that it extends to the whole of the UK. I myself have sat as President not only in London but in Edinburgh and in Belfast. I am delighted that my successor as President is a Scottish judge, Lady (Ailsa) Carmichael. The current Vice-President is also Scottish, Lord (Colin) Boyd of Duncansby.
6. Unlike the Special Immigration Appeals Commission (“SIAC”), which is similarly concerned with considering sensitive material, the Tribunal does not have lay members who have prior knowledge and expertise in national security and international relations. All of its members are legally qualified. But it does have access to scientific and technical expertise, at least indirectly, because it can call on the Investigatory Powers Commissioner (“the IPC”) to provide it with assistance, and the IPC has a Technical Advisory Panel. As we shall see, the power to require assistance from the IPC is broad and general; it extends beyond technical assistance.
Overview
7. By way of overview, I would suggest that the following five key words characterise the IPT:
(i) Independence
(ii) Judicial
(iii) Effective
(iv) Fair
(v) Open.
8. Independence: The Tribunal is a court. It is independent of the parties and of the executive. It has operational independence although, like any court or tribunal, it requires funding, premises and staff to function. Those are provided by the Home Office but, during my term as President, a Framework Agreement has been put in place to underline the independence of the Tribunal.[4] Furthermore, appointments are now made on the recommendation of the Lord Chancellor, a minister with special responsibilities to uphold the rule of law and the independence of the judiciary.
9. Judicial: The Tribunal performs the traditional judicial function of adjudicating on disputes which are brought before it. It provides a fully-fledged judicial model for the resolution of disputes even in the most sensitive context of covert surveillance and national security. It also has an inquisitorial function.
10. Effective: The Tribunal has a broad discretion to award a wide range of remedies, including compensation, declarations and orders for the destruction of data which has been unlawfully obtained or retained: see section 67(7) of RIPA. In certain cases, it has a duty to report its findings to the Prime Minister: see 68(5) of RIPA. Although it does not have the power to issue a declaration of incompatibility, the European Court of Human Rights has rejected the argument that the absence of that power rendered the Tribunal an ineffective remedy.[5]
11. Fair: The Tribunal has a fair procedure, which inevitably sometimes requires it to conduct a hearing in closed session. This is usually mitigated by the instruction of Counsel to the Tribunal (“CTT”). Their role is similar to, though not exactly like that of Special Advocates, who have become a familiar part of our civil justice system since 1997, when they were first introduced in the context of SIAC. The closest analogy is probably with counsel to a public inquiry. The overall system in the Tribunal, including as it does the role of CTT when it sits in closed session, has been held by the European Court of Human Rights to provide an effective and robust remedy: see Big Brother Watch v United Kingdom (Grand Chamber).[6]
12. Open: Finally in this overview, the Tribunal seeks to be as open as it can be. It has its own website which contains the published judgments of the Tribunal as well as information about its work.[7] Although hearings are not obligatory and much of the work of the Tribunal is done on the papers (or these days in fact on computer), in many cases a hearing is held and, in such cases, the Tribunal has a statutory duty to endeavour to hold the hearing in public.[8] Its hearings are usually listed in advance and it is often possible to view hearings online. There are procedures in place for the media to obtain copies of documents that are referred to at open hearings, such as skeleton arguments. The so-called ‘Five minute rule’, which prohibits publication of what is said at an open hearing for five minutes, in case something is mentioned which should not have been in open, allows effective management of open hearings while protecting the public interest, including the interests of national security. Members of the public, including the media, are routinely present at open hearings and are able to use social media from the courtroom, subject to the five minute delay that I have mentioned.
Governance of the Tribunal
13. The first President of the Tribunal was Lord Justice Mummery, who served from the year 2000 until his retirement as a member of the Court of Appeal in 2013. The Vice-President during that period was Mr Justice Burton, who then became President and served until 2018, which is when I became President.
14. At its inception those were the only full-time judges on the Tribunal, together with Sheriff Principal McInnes, who was a member from Scotland. The other members tended to be senior practitioners either from the Bar or from the solicitors’ profession. I know of at least one Circuit Judge who was a member of the Tribunal before my time as President. Today, there are four High Court judges who are members of the Tribunal. There is also today a judge of the Upper Tribunal. There was previously a retired High Court judge from Northern Ireland and is now a senior practitioner from Northern Ireland. The Scottish judges have in recent years been members of the Inner House of the Court of Session, in other words the equivalent of Court of Appeal judges. There continue to be members who are not full-time judges and who are senior members of the legal professions. The balance of membership reflects the fact that the work has become more complicated and more high-profile. After all, the Tribunal replaces the High Court for certain purposes, in particular as it has exclusive jurisdiction over claims brought under the HRA against any of the intelligence services.[9] If the Tribunal did not exist, those claims would be brought in the High Court.
15. Section 65(1) of RIPA states that there shall be a Tribunal “consisting of such number of members as His Majesty may by Letters Patent appoint.”
16. Schedule 3 to RIPA sets out provisions in relation to the membership of the Tribunal. It sets out the formal requirements for membership: in essence a person must be someone who holds or has held high judicial office, or is a lawyer of seven years’ standing. A member of the Tribunal shall vacate office at the end of the period of five years beginning with the day of appointment but is eligible for reappointment. A member of the Tribunal may be removed from office by His Majesty on an address presented by both Houses of Parliament. This is similar to the legislation (going back to the Act of Settlement of 1701) which guarantees the security of tenure of senior judges in this country.
17. The President and Vice-President are appointed by His Majesty under distinct provisions in Schedule 3.
18. The Secretary of State is mentioned in Schedule 3 not specifically in the context of appointments but in relation to salaries and expenses, and the provision of “such officers as he thinks necessary for the proper discharge of their functions.” In practice the relevant Secretary of State within whose department the Tribunal sits is the Home Secretary. But it has been made clear that there must be “crucial operational and judicial independence of the IPT”: see e.g. a letter by the Security Minister (Dan Jarvis MBE MP) dated 30 April 2025, sent to the Chair of the Home Affairs Select Committee and the Chair of the Intelligence and Security Committee. That letter attached the first Framework Agreement between the Home Office and the IPT.[10] The letter also made reference to the appointments process for members of the Tribunal, stating that the Framework Agreement codifies the 2023 change of responsibilities between the Home Secretary and the Lord Chancellor for appointing members. As the letter states:
“This change was made to ensure continued public confidence in the IPT’s independence.”
19. As section 8 of the Framework Agreement makes clear, the Home Secretary is accountable to Parliament for all matters concerning the Tribunal except for the appointment of Tribunal members. The Secretary of State has powers to make secondary legislation and to make rules of procedure. As para 8.3 states:
“Primarily, the Home Secretary is responsible for ensuring the adequate resourcing of the Tribunal … and to ensure that it has the legislative powers to deliver its objectives.”
20. An important distinction is made in the Framework Agreement between that general responsibility and appointments to the Tribunal, which are covered by section 9. This makes it clear, at para 9.2, that members are appointed by HM The King after a recommendation from the Secretary of State for Justice, acting on the recommendation of an interview panel chaired by the President of the Tribunal.
21. The appointment of the President is not expressly governed by the Framework Agreement but, as a matter of practice, the panel which has made that recommendation to the Lord Chancellor has been chaired by the President of the King’s Bench Division.
22. The IPT President’s role and responsibilities are set out in section 27 of the Framework Agreement.
23. Section 21 of the Framework Agreement deals with the Head of the Tribunal Secretariat and makes it clear that they are recruited by the President of the Tribunal and are responsible on a day-to-day basis for the efficient running of the Tribunal to the President and Vice-President.
24. In summary therefore, the Framework Agreement ensures a balance between the responsibility for resourcing the Tribunal and its efficient operation and ensuring the complete independence of the Tribunal as a judicial body. This independence is recognised and valued by all the players involved, including the Home Office and the intelligence services.
25. Nonetheless, it can be observed that the legislative provisions governing the IPC and other judicial commissioners are much more detailed. They are to be found in Chapter 1 of Part 8 of the Investigatory Powers Act 2016 (“IPA”). Section 227 of that Act expressly provides that the Prime Minister appoints the IPC and other judicial commissioners. It lays down a detailed code for who is to be involved in the process for recommending the appointment of the IPC, including the Lord Chancellor, the Lady Chief Justice of England and Wales, the Lord President of the Court of Session, and the Lady Chief Justice of Northern Ireland. The Prime Minister must also consult the Scottish Ministers.
Jurisdiction of the Tribunal
26. The Tribunal has jurisdiction over two types of case under section 65 of RIPA. In some cases it has exclusive jurisdiction: this is where a claim is brought alleging a breach of the HRA by one of the three intelligence services of the UK.
27. Apart from human rights claims, the other main jurisdiction of the Tribunal is to investigate “complaints” under section 65(2)(b) of RIPA. To some extent, the Tribunal has (unusually in this country) an inquisitorial function, as it is required to carry out an “investigation” into a complaint.
28. The Tribunal must in each kind of case apply the principles of judicial review. Importantly, these can include breach of section 6(1) of the Human Rights Act.[11] However, equally importantly, the Tribunal has no jurisdiction to consider other civil claims such as torts.[12] Nor does it have a criminal jurisdiction.[13]
29. That all said, the breadth of the subject matter which has come before the Tribunal in just the seven year period when I have been President illustrates that the issues which can arise go well beyond the traditional areas of covert surveillance or the conduct of the intelligence services. They include:
(i) Interference Alert issued by MI5 to members of Parliament[14]
(ii) Investigation of journalistic sources[15]
(iii) Undercover policing[16]
(iv) An alleged failure to prevent the Manchester Arena bombing[17]
(v) The “authorisation” of potentially criminal conduct by CHIS (covert human intelligence sources)[18]
(vi) The alleged complicity of British intelligence services in the ill-treatment of two detainees by the Central Intelligence Agency of the United States, who are currently detained at Guantanamo Bay and were previously held at “black sites” in other parts of the world[19]
(vii) The vetting of potential recruits to the Civil Service and other public authorities.[20]
30. The Tribunal has a number of characteristics that distinguish it from other courts and tribunals. Since the jurisdiction of the Tribunal involves techniques that are covert, a complainant does not necessarily have to adduce evidence in support of their complaint. It is often sufficient that the complainant sets out what has happened to the best of their knowledge or belief.
31. The Tribunal is then able to investigate the complaint. Section 68(6) of RIPA imposes a duty on respondent authorities to disclose and provide documents and information which are required by the Tribunal in the exercise of its jurisdiction.
32. Another mechanism available to the Tribunal to ensure that it has the complete evidence before it is to direct the IPC to conduct an inspection on its behalf under section 68(2) of RIPA and section 232 of the IPA. Where appropriate this can be an unannounced inspection, as the Tribunal mentioned in Beth v Security Service.[21] The Tribunal illustrated this by reference to an example which is in the public domain, which was referred to in the IPC’s Annual Report for 2019 (published in December 2020), at para 2.19(d), where reference was made to the fact that the IPT had sought assistance in verifying the assertion by a police force that it did not hold any relevant information. IPCO inspectors attended the force’s offices, interviewed staff and reviewed its records before providing a report to the IPT on their findings. As the Tribunal noted, it is the possibility that a respondent may be the subject of an unannounced inspection at the request of the Tribunal which provides an important safeguard both to prevent the risk of “tipping off”, and to maintain public confidence in the effectiveness of the system to supervise what public authorities do, particularly in a context where they are entrusted by the law with surveillance powers which frequently have to be exercised in secret. It is precisely because every respondent knows that it may be subject to an unannounced inspection that the integrity of the system overall can be secured. The public can therefore have confidence that the system of supervision by the Tribunal is effective.
33. Nevertheless it is important to bear in mind the nature of the information which is often in the possession of the Tribunal. The Tribunal has a duty to carry out its functions in such a way as to secure that information is not disclosed 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: see rule 7(1) of the IPT Rules 2018. While the Tribunal seeks to advance the principle of open justice wherever possible, it is also mindful of this obligation not to disclose information that ought not to be in the public domain.
Statistics
34. In 2001 under 100 complaints were received by the Tribunal. By 2015 this had gone up to 250. The caseload remained at that sort of level until 2020, when there was a significant spike up to more than 350 (probably caused by the Covid pandemic). The caseload then dipped slightly in 2022 and increased again to over 400 in 2023. The trend has continued to be upwards and will probably be about 450 this year. Last year there was a very large increase, to over 800 but that was because there were over 400 cases arising from one incident alone (the Manchester Arena bombing).
35. As recently as 2011 there were no Open hearings held in that year. The number of Open hearings remained below five per annum for the next couple of years but had increased to 15 or so by 2015. During the period that I was President from 2018 the number of cases which have required an Open hearing has increased significantly. This no doubt reflects the increasing complexity of a relatively small number of cases received by the Tribunal (in terms of its overall caseload) but which raise important issues, often affecting the general public interest and not only the interests of the particular parties.
36. The largest number of complaints are in fact not made against the intelligence services but against law enforcement agencies (“LEAs”). Roughly a third are against LEAs. Roughly another third are against the intelligence services and the final third are against local and other public authorities.
37. For a while after 2020 there was a backlog of cases that was created in large part by the pandemic but, as the most recent Tribunal report states, there is no longer a backlog. This is a tribute to the hard work which has been done by members of the Tribunal and the Secretariat.
38. The Tribunal produces a public report every few years. Before my time on the Tribunal there was a report covering the period 2011-2015. During my term as President there was a report covering the period 2016-2021, which was delayed by a year or so because of the pandemic. Since then the intention has been to produce a public report every two years. The latest one covers the period 2021-2023 and was published last year, in 2024.[22] In these reports the Tribunal seeks to set out not only statistical data about its work, for example dividing up the caseload as between the intelligence services and other public authorities such as the police, but also tries to summarise the most important legal developments which have taken place since the last report, in particular decisions of the Tribunal which are of some general importance. In this way it is hoped that the Tribunal can be as transparent as possible given the context in which it operates.
39. Another reform in this context has been that the Tribunal will put on its website the listing of hearings seven days before they are due to take place, whenever that is possible.
40. The Tribunal will provide remote access to Open hearings, where it is available in the relevant courtroom. The Tribunal has also used the Press Association’s alert service to give notice to their subscribing media organisations of issues which have arisen in the course of a hearing and which may affect the media’s rights under Article 10 of the European Convention on Human Rights. This allows representatives of the media to make submissions, in writing and orally, to the Tribunal on issues that affect them when they wish to report an Open hearing.
41. The vast majority of cases are dismissed as being, in the language of the statute, “frivolous or vexatious”.
42. A significant number are also rejected because they are out of time or outside the scope of the Tribunal’s jurisdiction.
43. Of the claims which are accepted, some result in “no determination in favour” of the complainant but that may be because they were not a subject of interest or it may be because they were a subject of interest but there was no unlawful conduct by the respondent authorities.
44. In a relatively small but nevertheless significant number of cases there is a determination in favour of a complainant, and this has led to sometimes high-profile judgments in favour of complainants, with remedies including compensation. In other cases some other order or a declaration that there has been unlawful conduct may be a sufficient remedy.
Counsel to the Tribunal
45. One distinctive feature of the way in which the Tribunal works is that it may appoint CTT to assist in its consideration of a complaint in any circumstances where the Tribunal considers it appropriate to do so: see rule 12 of the 2018 Rules. This includes (1) where a complainant is not legally represented, (2) where the respondent objects to the disclosure of evidence, and (3) where the Tribunal intends to hold a hearing, either in whole or in part, in the absence of a complainant.
46. The role of CTT is to perform any function that would assist the Tribunal, including (1) to identify documents or parts of documents that may be disclosed to a complainant, including making a gist of the non-disclosed part, (2) to make submissions to the Tribunal on what documents ought to be made available to the complainant and the general public in accordance with the principle of open justice, (3) to cross-examine witnesses in closed session, and (4) to ensure that all the relevant arguments are placed before the Tribunal.
47. CTT must also identify any arguable error of law in relation to any decision or determination made by the Tribunal following a hearing which has been held (in whole or in part) in the absence of the complainant.
Challenging decisions of the IPT
48. Two important procedural changes have occurred during my time as President. The first is that it has become possible to appeal from the Tribunal on a point of law: see section 67A(1) of RIPA. This provision was brought into force at the end of 2018. It does not cover all decisions of the Tribunal, only “any determination” of a kind mentioned in section 68(4) or “any decision” of a kind mentioned in section 68(4C). Essentially those are a determination that the Tribunal has made a determination in a complainant’s favour or a statement that no determination has been made in their favour; or a “final decision of a preliminary issue” which is not “a decision relating to a procedural matter”.
49. In those cases where an appeal is not available, in principle a decision of the Tribunal may be amenable to judicial review. This is the second major procedural change which has occurred during my time as President. This results from the decision of the Supreme Court in 2019 in Privacy International,[23] which concerned the ouster clause in section 67(8) of RIPA. This was held not to preclude all applications for judicial review. The effect is now that, where, for example, the Tribunal is alleged to have made an error of law in a procedural decision, it may be that a person can seek judicial review, even though an appeal is not available. In those cases where in principle an appeal is available, the Administrative Court will no doubt refuse permission to bring a claim for judicial review on the ground that there is an adequate alternative remedy available.
50. In practice I am only aware of one case which has to date gone on appeal to the Court of Appeal of England and Wales. That was the “Third Direction” case. The appeal was dismissed[24] and the Supreme Court refused permission to appeal from the Court of Appeal.
51. There have been some claims for judicial review, although often permission is refused and the case does not proceed to a substantive hearing in the Administrative Court. The Divisional Court has considered some substantive claims for judicial review of the Tribunal, including in the Privacy International case itself, where the claim was granted, the decision was quashed and the case was remitted to the Tribunal.[25] Ultimately the Tribunal made no determination in favour of the complainants in that case and there was no subsequent challenge to that decision.[26]
52. I have mentioned that the Tribunal has a UK-wide jurisdiction. This has the consequence that the relevant appellate court may not be the Court of Appeal of England and Wales. In an appropriate case it would be the Inner House of the Court of Session in Scotland, although I am not aware of any appeals actually being heard by that Court (there have been some applications for permission to appeal to that Court). For the time being an appeal to the Court of Appeal of Northern Ireland is not available. This is to do with the devolution arrangements, although in principle that Court could be designated as an appropriate appellate court by legislation. The Tribunal has had some cases involving public authorities in Northern Ireland, in particular the Police Service of Northern Ireland. In such cases the relevant appellate court has been designated to be the Court of Appeal of England and Wales.
The principle of open justice
53. Rule 10(1) of the 2018 Rules provides that the Tribunal is under no duty to hold a hearing but may do so. Rule 10(2) provides that such a hearing may be held wholly or partly in private. Rule 10(4) provides that, in exercising their discretion to hold a hearing under paragraph (1), the Tribunal must endeavour, so far as is consistent with the general duty imposed on the Tribunal by rule 7(1), to conduct proceedings, including any hearing, in public and in the presence of the complainant.
54. In a seminal decision in 2003, the Tribunal struck down the previous rule, which had prohibited any hearing from ever being held in public, even on a pure issue of law.[27]
55. In a case about vetting,[28] the Tribunal said:
“Open justice is a foundational common law principle.”
The Tribunal noted that in Dring v Cape Intermediate Holdings Ltd,[29] Lady Hale PSC emphasised that the principle of open justice applies to all courts and tribunals exercising the judicial power of the state and that the purposes served by the principle go beyond enabling public scrutiny of the way in which courts decide cases, and extend to enabling the public to understand how the justice system works and why decisions are taken.
56. This also means that, ordinarily, courts and tribunals have power to allow members of the public to access material held in court records, if they can show a legitimate interest in doing so which advances the open justice principle and subject to a balancing by the court of that interest against any countervailing interests (such as national security, the protection of privacy and the protection of commercial confidentiality).
57. Nevertheless, the Tribunal went on to note that the legislative context in which it has to operate is very different from that which governs ordinary civil proceedings. For example, it does not usually hold a hearing at all. Rule 15 now imposes duties and confers powers to provide determinations or summaries, together with reasons in certain cases but the Tribunal does not publish every such determination. Most of the judgments and decisions which have been published have been rulings on preliminary issues of law decided after Open hearings or after considering Open submissions. Therefore, a person considering bringing a complaint in the Tribunal would not necessarily expect their identity to become public as a matter of course. This is not decisive but nevertheless the Tribunal considered that this was a relevant factor to be weighed in the balance conducting the balancing exercise envisaged by Dring.
58. The Tribunal had to return to the principle of open justice in Lee & Anr v Security Service (No. 2).[30] In that case an application was made for disclosure of certain documents in the Open hearing bundle to third parties. The Tribunal made the observation that, by reason of the nature of the work which it does, its process is often necessarily conducted in secret or at least in private. Sometimes it is secret, even from at least one of the parties, but in other cases it is private in the sense that only the parties are aware of the process followed and the determination of the Tribunal. At the end of that process, the Tribunal must give notice to the complainant and the respondent of their determination or a statement that no determination has been made in the complainant’s favour. Rule 15(1) requires the Tribunal to provide information to the complainant and respondent. Rule 15(2) provides that, where they make a determination in favour of the complainant, the Tribunal must provide the complainant and respondent with the determination, including any findings of fact. Rule 15(3) provides that, where they make a determination which is not in favour of the complainant, the Tribunal must, if they consider it necessary in the interests of justice to do so, provide the complainant and respondent with a summary of the determination. Nevertheless, rule 15(6) makes it clear that the duty to provide information is in all cases subject to the general duty imposed on the Tribunal by rule 7(1). In practice therefore the Tribunal may in some cases be unable to provide any reasons to the complainant, as it would breach rule 7(1) to do so.
59. The Tribunal said that, in those cases where there is no hearing, there can be no question of a third party having the right to disclosure of documents provided to the Tribunal. Nevertheless, the Tribunal would have the power to grant an application for disclosure to a third party (in particular the media) but this would be highly unusual and would have to be subject to the requirements of rule 7.
60. Furthermore, the Tribunal said, it is obvious that, in those cases where the Tribunal has to hold a Closed hearing, there can be no question of a third party having the right to documents which have been considered by the Tribunal. Indeed, it is inherent in the scheme of the Rules and the nature of the Tribunal’s work that even the complainant and their representatives will not have access to Closed documents. The unfairness that this would otherwise cause is mitigated by the Tribunal’s power to appoint CTT.
61. The Tribunal said that there is an important distinction which may need to be drawn between two principles which often overlap but are not the same. The first principle is the principle of procedural fairness, in particular fairness to the complainant, who may otherwise be in the dark about the case against them. The other principle is the principle of open justice. Often the two principles coincide but this will not always be so. There may be situations in which a respondent is willing, in the interests of fairness, to disclose certain documents or information to the complainant and their representatives, but where it would not be appropriate for those matters to be disseminated more widely or made public.
62. The Tribunal then considered the situation where it has been able to conduct an Open hearing and for that purpose there will often be an Open bundle of documents. In those situations, the Tribunal said that it must conduct a fact-specific exercise in accordance with the principles set out by the Supreme Court in Dring. In applying those principles to the specific context of the Tribunal, it must comply with the provisions of rule 7(1) but must seek to implement the principle of open justice so far as it is possible to do so.
Power to award costs
63. In McCaffrey & Anr v Chief Constable of the Police Service of Northern Ireland & Ors (No. 2)[31] the Tribunal held that it does not have the power to make an order for costs. It also held that it would not be appropriate in effect to circumvent the absence of that power by disguising an award of costs as an adjusted award of compensation. The Tribunal held that, if there is to be a jurisdiction to award costs, it would be better for this to be achieved either by rules made by the Secretary of State under section 69(1) of RIPA or in primary legislation enacted by Parliament. This would have the merit of creating legal certainty, so that everyone concerned would know what the criteria are for the award of costs. It would make it clear whether the power to award costs could only be exercised against respondents or whether it would also be available against complainants. It would also make it clear whether the Tribunal should have a general discretion to award costs or whether it should be confined to situations where a party had acted unreasonably. Finally, it would have the merit that any legislative change would only be made after there had been the opportunity for public consultation.
64. In a postscript, the Tribunal said that the outcome was not entirely satisfactory. The Tribunal saw force in the submission that there is a need for it to have the power to award costs, in particular against respondents, where there has been expenditure wasted as a result of their conduct and where, in particular, orders of the Tribunal are persistently breached. But, the Tribunal said, that will be a matter for the Secretary of State or for Parliament.
The doctrine of precedent in the Tribunal
65. In McCaffrey the Tribunal also set out what should be its practice in relation to past decisions of the Tribunal itself. The Tribunal noted that rule 6 of the 2018 Rules sets out specific powers and duties which may be exercised or performed by a single member of the Tribunal, for example the power to invite or direct the complainant to supply information or make representations, the power to extend time for a claim brought under section 7 of the HRA and so on. Where one of those specific provisions does not apply, the Tribunal said, the jurisdiction of the Tribunal may only be exercised by at least two members. The practice has developed that, at least in substantive hearings, the Tribunal sits as a panel of three members. Before the right of appeal was introduced in 2018, it was common practice for the Tribunal to sit as a panel of five members. That was because, as the Tribunal had noted in the Kennedy decision in 2003, there was at that time no opportunity available to appeal or otherwise challenge a decision of the Tribunal. That of course has fundamentally changed in the last few years.
66. Nevertheless, the issue of costs in McCaffrey itself illustrates the sort of situation where the Tribunal will still wish to sit as a panel of five members: where the Tribunal is reviewing a long-standing and important issue of law on which there have been previous decisions of the Tribunal and it seeks to set out the legal position authoritatively.
67. The Tribunal concluded that in general the Tribunal should from now on follow its own previous decisions unless it is convinced that they are wrong. That is the position in the High Court, including the Divisional Court.[32] The Tribunal continued that, in principle, there is no distinction between different panels of the Tribunal but, in practice, it anticipated that the Tribunal is likely to give special weight to a decision reached by a five member panel and/or a panel in which the President and/or Vice-President have sat.
The future
68. The Tribunal is still, after 25 years, a world leader in this field. So far as I am aware there is no other equivalent fully-fledged judicial body with the power of adjudication in this context in other democratic countries.[33]
69. Yet there is room for improvement and the system can undoubtedly be made better for the future.
70. The Tribunal Procedure Rules may need to be reviewed, e.g. the absence of a power to award costs in any circumstances.
71. Last but not least I wish my successor, Lady Carmichael, well in her role as President of the IPT.
[1] I would like to thank Jonathan Glasson KC for his comments on an earlier draft of this lecture. Any errors are mine.
[2] R Singh, The Unity of Law (Bloomsbury, 2021), p. 229
[3] Report of the Review of Tribunals by Sir Andrew Leggatt: ‘Tribunals for Users – One System, One Service’, August 2001, para 3.11
[4] https://www.gov.uk/government/publications/home-office-framework-documents/investigatory-powers-tribunal-framework-document-accessible
[5] Big Brother Watch and Ors v United Kingdom (Applications Nos . 58170/13 62322 /14 and 24960/15), (2018) (2018) 168 NLJ 7810, [2018] ECHR 58170/13, [2018] All ER (D) 22 (Sep), para 264
[6] (2022) 74 EHRR 17, paras 413-415 and 467
[7] https://investigatorypowerstribunal.org.uk/
[8] Investigatory Powers Tribunal Rules 2018, r. 10(4)
[9] Section 65(2)(a) and (3)(a) of RIPA; R (A) v Director of Establishments of the Security Service [2009] UKSC 12, [2010] 2 AC 1
[10] https://www.gov.uk/government/publications/home-office-framework-documents/investigatory-powers-tribunal-framework-document-accessible
[11] Lee & Anr v Security Service (No.3) [2024] UKIPTrib 7, [2025] 4 All ER 591, paras 144-145
[12] Al-Hawsawi v Security Service & Ors [2023] UKIPTrib 5, [2024] 1 All ER 671
[13] Al-Hawsawi & Anr v Security Service & Ors [2025] UKIPTrib 11
[14] Lee v Anr v Security Service (No.3) [2024] UKIPTrib 7, [2025] 4 All ER 591, paras 15-17
[15] McCaffery & Anr v Police Service of Northern Ireland & Ors [2024] UKIPTrib 8
[16] Wilson v Commissioner of Police of the Metropolis & Anr [2021] UKIPTrib IPT_11_167_H
[17] Various Claimants v Security Service & Ors [2024] UKIPTrib 6
[18] Privacy International & Ors v Secretary of State for Foreign and Commonwealth Affairs & Ors [2019] UKIPTrib IPT_17_186_CH, majority judgment upheld by CA [2021] EWCA Civ 330, [2021] QB 1087
[19] Al-Hawsawi & Anr v Security Service Ors [2025] UKIPTrib 11
[20] Various Claimants v Security Service & Anr [2022] UKIPTrib 3, [2023] 2 All ER 949
[21] [2025] UKIPTrib 8, at paras 86-89, where the Tribunal cited from its earlier judgment in Privacy International & Ors v Secretary of State for Foreign and Commonwealth Affairs & Ors [2021] UKIP Trib IPT_17_86_CH, at paras 34-37
[22] https://investigatorypowerstribunal.org.uk/wp-content/uploads/2024/11/Investigatory-Powers-Tribunal-Report-2024.pdf
[23] R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] AC 491
[24] Privacy International and Ors v Secretary of State for Foreign and Commonwealth Affairs and Ors [2021] EWCA Civ 330, [2021] QB 1087
[25] [2021] EWHC 27 (Admin), [2021] QB 936
[26] [2022] UKIPTrib 1
[27] Application Nos IPT/01/62 and IPT/01/77 (judgment of 23 January 2003), a case known as Kennedy
[28] Various Claimants v Security Service & Anr [2022] UKIP Trib 3; [2023] All ER 949, para 71
[29] [2019] UKSC 38, [2020] AC 629, para 41
[30] [2023] UKIP Trib 10, [2024] 4 All ER 510
[31] [2025] UKIP Trib 2
[32] R v Greater Manchester Coroner, ex parte Tal [1985] QB 67
[33] The US Foreign Intelligence Surveillance Court was created in 1978 under the Foreign Intelligence Surveillance Act, but it has a much more restricted remit than the IPT.