Analysis of Part III of the (draft) Electronics Communications Act 1999

The Tribunal

Introduction

The Tribunal is set up by Clause 18 (and Schedule 2). It is intended to act as a Court for matters which arise under Part III. The normal Courts are not, in the Government's eyes, suitable for these purposes because matters will arise relating to interception, national security and so forth. It would not necessarily be in the National Interest for a plaintiff, or society as a whole to know what is going on.

Fundamental problems

The notion of secret 'trials' by a Tribunal are inherently obnoxious. There should be provision for all matters covered by Clause 18 to be handled through the normal courts except perhaps when the Secretary of State certifies that this would not be in the public interest.

It seems to be the intention of Clause 18 that the Tribunal will not be able to hear complaints about actions taken under Part III by judges which should presumably be appealed in the normal way. Thus 18(1)(a) explicitly restricts the Tribunal's territory to decisions of the Secretary of State. What the draftsman appears to have missed that there are several circumstances (especially in relation to 10(1)(c) and 10(1)(d)) where the Secretary of State is not involved and no Court is involved either. This is presumably a mistake and the Tribunal's territory should be expanded accordingly.

It is unclear from the drafting that the Tribunal will be able to examine some of the options that arise when Section 10 notices are served. It should be made far more clear that they will entertain complaints that decisions about matters such as secrecy and provision of plaintext have been made unreasonably.

It is very strange to find that 18(1)(b) allows people to approach a "crypto" Tribunal about IOCA matters.

It is disappointing that there appears to be no requirement for the Tribunal to publish its findings or even to summarise its activities for the benefit of Parliament.

As proposed, the Tribunal is capable of failing to provide people with a fair trial (a requirement under the European Convention on Human Rights). It is clearly intended that the special representative envisioned under Schedule 2 6(1) to represent an excluded complainant will meet the ECHR requirements. However, although this trick works for Asylum Tribunals (from which it has been borrowed) the requirements for fairness towards citizens of a country are far greater than the requirements towards people seeking temporary residence there.

Finally, the membership criteria for the Tribunal (people who've been lawyers for ten years or more) makes it pretty certain they'll know almost nothing about cryptography. This seems to be a little bit counterproductive given the subject matter they will be deciding upon.

Some opinions from UKCrypto

David Swarbrick
The Tribunal only acts upon complaint about the effects of notices issued under the authority of the Secretary of State. If it is just an ordinary plod who issues the notice, the tribunal (and all other protection under the Act) disappear.

The notes suggest that normal remedies are available. I think not.

Anthony B Sylvester
[discussing the "tipping off offence" that prevents you discussing a Section 10 notice with one's family] ... to add insult to the injury done to those relationships - there is a duty imposed on every person "to whom a section 10 notice has been given" to tell all if the Commissioner wishes to hear (Clause 17(3)(e))..... 'by Jack, you'll speak when you're spoken to and not before'

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