Investigatory Powers (Amendment) Act 2024

27 Bulk equipment interference: safeguards for confidential journalistic material etc

(1) The Investigatory Powers Act 2016 is amended as follows.

(2) For section 195 (additional safeguard for confidential journalistic material) substitute—

“195 Additional safeguards for confidential journalistic material etc

(1) Subsection (2) applies if, in a case where material obtained under a bulk equipment interference warrant (“BEI material”) is to be selected for examination—

(a) the purpose, or one of the purposes, of using those criteria to be used for the selection of the BEI material for examination (“the relevant criteria”) is to identify any confidential journalistic material or to identify or confirm a source of journalistic information, or

(b) the use of the relevant criteria is highly likely to identify confidential journalistic material or identify or confirm a source of journalistic information.

(2) The BEI material may be selected for examination using the relevant criteria only if the use of those criteria has been approved by—

(a) the Investigatory Powers Commissioner, or

(b) in a case where a senior official acting on behalf of the Secretary of State considers there is an urgent need to do so, the senior official.

(3) The Investigatory Powers Commissioner or a senior official may give an approval under subsection (2) only if the Commissioner or official considers that—

(a) the public interest in obtaining the information that would be obtained by the selection of the BEI material for examination outweighs the public interest in the confidentiality of confidential journalistic material or sources of journalistic information, and

(b) there are no less intrusive means by which the information may reasonably be obtained.

(4) Subsection (5) applies where—

(a) material obtained under a bulk equipment interference warrant (“the relevant material”) is retained, following its examination, for purposes other than the destruction of the relevant material, and

(b) the person to whom the warrant is addressed considers that the relevant material contains confidential journalistic material or material that would identify or confirm a source of journalistic information.

(5) The person to whom the warrant is addressed must inform the Investigatory Powers Commissioner of the retention of the relevant material as soon as reasonably practicable.

(6) Unless the Investigatory Powers Commissioner considers that subsection (8) applies to the relevant material, the Commissioner must direct that the relevant material is destroyed.

(7) If the Investigatory Powers Commissioner considers that subsection (8) applies to the relevant material, the Commissioner may impose such conditions as to the use or retention of the relevant material as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of confidential journalistic material or sources of journalistic information.

(8) This subsection applies to material containing—

(a) confidential journalistic material, or

(b) material identifying or confirming a source of journalistic information,

if the public interest in retaining the material outweighs the public interest in the confidentiality of confidential journalistic material or sources of journalistic information.

(9) The Investigatory Powers Commissioner—

(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsections (6) and (7), and

(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).

(10) “Affected party” has the meaning given by section 194(14).

(For provision about the grounds for retaining material obtained under a warrant, see section 191.)

195A Section 195: procedure where use of criteria approved by senior official

(1) This section applies where material obtained under a bulk equipment interference warrant is selected for examination using criteria the use of which was approved by a senior official under section 195(2).

(2) The Secretary of State must, as soon as reasonably practicable, inform the Investigatory Powers Commissioner that the approval has been given.

(3) The Investigatory Powers Commissioner must, as soon as reasonably practicable—

(a) consider whether the relevant condition is met as regards the use of the criteria for the selection of the material for examination, and

(b) notify the Secretary of State of their decision.

(4) For this purpose, “the relevant condition” is that—

(a) the public interest in obtaining the information that would be obtained by the selection of the material for examination outweighs the public interest in the confidentiality of confidential journalistic material or sources of journalistic information, and

(b) there are no less intrusive means by which the information may reasonably be obtained.

(5) On the giving of a notification of a decision that the relevant condition is not met, the senior official’s approval ceases to have effect.

(6) Nothing in subsection (5) affects the lawfulness of—

(a) anything done by virtue of the approval before it ceases to have effect, or

(b) if anything is in the process of being done by virtue of the approval when it ceases to have effect—

(i) anything done before that thing could be stopped, or

(ii) anything done which it is not reasonably practicable to stop.”

(3) In section 229 (main oversight functions), in subsection (8), before paragraph (g) insert—

“(fb) deciding whether—

(i) to approve the use of criteria under section 195(2)(a),

(ii) subsection 195(8) applies for the purposes of subsection 195(6) and (7),

(iii) the relevant condition is met for the purposes of subsection 195A(3)(a).”