The Data Protection Tribunal (National Security Appeals) (Telecommunications) Rules 2000

Explanatory Note

(This note is not part of the Rules)

These Rules regulate the exercise of the rights of appeal conferred by regulation 32 of the Telecommunications (Data Protection and Privacy) Regulations 1999 (S.I. 1999/2093) (relating to Ministerial certification that exemption from provisions of the Regulations is or was required for the purpose of safeguarding national security), and the practice and procedure of the Data Protection Tribunal in such cases.

Rule 3 places a general duty on the Tribunal in such cases to secure that information is not disclosed contrary to the interests of national security, and limits the ex parte jurisdiction of the tribunal to matters concerning the summary disposal of appeals under rule 11.

Rule 4 requires an appeal to be made by notice of appeal served on the Tribunal, stating the grounds of appeal and other specified particulars, and rule 5 makes provision as to the time limits for appealing. Rule 6 provides for acknowledgment of the notice of appeal, and for service of copies. Rule 7 provides for a notice in reply by the Minister who signed the certificate, and rule 8 for a reply by the telecommunications service or network provider in regulation 32(6) cases who is claiming the application of a certificate. Rule 9 provides for the parties to amend their pleadings, in some cases with leave only. Rule 10 allows the Minister or the telecommunications service or network provider to apply for an appeal to be struck out in limited circumstances.

Rule 11 enables the Tribunal to dismiss an appeal on the basis of consideration of the notice of appeal, the Minister’s notice, and any reply by a telecommunications service or network provider, where it considers it proper to do so, but it must first allow the appellant to make representations, written and oral, against a proposal to deal with the appeal under this procedure.

Rule 12 permits the Minister to object, on national security grounds, to the disclosure of his notice in reply, or any telecommunications service or network provider’s reply, to a party (or the Data Protection Commissioner). Where he does so, he must give reasons and if possible supply a version of the notice which can be disclosed, and the procedure set out in rule 17 applies to the objection.

Rules 13 and 14 make provision in respect of the withdrawal of an appeal and the consolidation of appeals. Rule 15 provides for the giving of directions by the Tribunal, of its own motion or on the application of a party; this power may be exercised in the absence of the parties, and any party may apply to set aside or vary directions.

Rule 16 provides for the Minister to be able to apply, on national security grounds, for the Tribunal to reconsider proposals to exercise certain of its powers (including giving directions, issuing a witness summons or publishing a determination). The procedure in rule 17 applies to such an application.

Rule 17 provides for the Tribunal to adjudicate on objections and applications of the Minister made on national security grounds.

Other than in cases to which rule 11 applies, the Tribunal must as a general rule proceed by way of a hearing but in certain additional circumstances it may determine an appeal without a hearing (rule 18). Provision is made as to the appointment of time and place of a hearing (rule 19), summoning of witnesses to attend a hearing (rule 20), representation at a hearing (rule 21) and default of appearance at a hearing (rule 22).

Hearings by the Tribunal must generally be in private, but provision is made for public hearings, and the admission of other persons, in limited circumstances (rule 23). The Rules include provision as to the conduct of proceedings at a hearing (rule 24), powers of the president to act for the Tribunal (rule 25), evidence (rule 26), the determination of appeals (rule 27) and costs (rule 28).

These Rules contribute to the implementation of Directive 97/66/EC of the European Parliament and of the Council concerning the processing of personal data and privacy in the telecommunications sector (O.J. No. L24, 30.1.98, p.1).