Investigatory Powers Act 2016

227 Investigatory Powers Commissioner and other Judicial Commissioners U.K.

(1) The Prime Minister must appoint—

(a) the Investigatory Powers Commissioner, and

(b) such number of other Judicial Commissioners as the Prime Minister considers necessary for the carrying out of the functions of the Judicial Commissioners.

(2) A person is not to be appointed as the Investigatory Powers Commissioner or another Judicial Commissioner unless the person holds or has held a high judicial office (within the meaning of Part 3 of the Constitutional Reform Act 2005).

(3) A person is not to be appointed as the Investigatory Powers Commissioner unless recommended jointly by—

(a) the Lord Chancellor,

(b) the Lord Chief Justice of England and Wales,

(c) the Lord President of the Court of Session, and

(d) the Lord Chief Justice of Northern Ireland.

(4) A person is not to be appointed as a Judicial Commissioner under subsection (1)(b) unless recommended jointly by—

(a) the Lord Chancellor,

(b) the Lord Chief Justice of England and Wales,

(c) the Lord President of the Court of Session,

(d) the Lord Chief Justice of Northern Ireland, and

(e) the Investigatory Powers Commissioner.

(5) Before appointing any person under subsection (1), the Prime Minister must consult the Scottish Ministers.

(6) The Prime Minister must have regard to a memorandum of understanding agreed between the Prime Minister and the Scottish Ministers when exercising functions under subsection (1) or (5).

[F1 (6A) The Investigatory Powers Commissioner may appoint up to two persons who are Judicial Commissioners to be Deputy Investigatory Powers Commissioners.

(6B) A person appointed as a Deputy Investigatory Powers Commissioner continues to be a Judicial Commissioner.]

(7) The Investigatory Powers Commissioner is a Judicial Commissioner and the Investigatory Powers Commissioner and the other Judicial Commissioners are to be known, collectively, as the Judicial Commissioners.

[F2 (8) The Investigatory Powers Commissioner may, to such extent as the Investigatory Powers Commissioner may decide, delegate the exercise of functions of the Investigatory Powers Commissioner to—

(a) a Deputy Investigatory Powers Commissioner, or

(b) any other Judicial Commissioner.

(8A) Subsection (8)(a) applies to the function of the Investigatory Powers Commissioner of—

(a) making a recommendation under subsection (4)(e),

(b) deciding under section 90(11) or 257(10) whether to approve a decision of the Secretary of State,

(c) making an appointment under section 228A(2) or 247(1), or

(d) deciding—

(i) an appeal against, or a review of, a decision made by another Judicial Commissioner, and

(ii) any action to take as a result,

only where the Investigatory Powers Commissioner is unable or unavailable to exercise the function for any reason.

(8B) Subsection (8)(b) does not apply to any function of the Investigatory Powers Commissioner mentioned in subsection (8A).

(8C) Subsection (8) does not apply to the function of the Investigatory Powers Commissioner of making an appointment under subsection (6A).

(8D) Where there are two Deputy Investigatory Powers Commissioners, the power in subsection (8)(a) may, in particular, be used to delegate to one Deputy Investigatory Powers Commissioner the exercise of the function of the Investigatory Powers Commissioner of deciding—

(a) an appeal against, or a review of, a decision made by the other Deputy Investigatory Powers Commissioner, and

(b) any action to take as a result.]

F3 (9A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) The delegation under subsection (8) to any extent of functions by the Investigatory Powers Commissioner does not prevent the exercise of the functions to that extent by that Commissioner.

[F4 (10A) Where—

(a) the exercise of a function of the Investigatory Powers Commissioner mentioned in subsection (8A)(d) is delegated to a Deputy Investigatory Powers Commissioner in accordance with subsection (8)(a), and

(b) the Deputy Investigatory Powers Commissioner decides the appeal or review (and any action to take as a result),

no further appeal, or request for a further review, may be made to the Investigatory Powers Commissioner in relation to the decision of the Deputy Investigatory Powers Commissioner.]

(11) Any function exercisable by a Judicial Commissioner or any description of Judicial Commissioners is exercisable by any of the Judicial Commissioners or (as the case may be) any of the Judicial Commissioners of that description.

(12) Subsection (11) does not apply to—

(a) any function conferred on the Investigatory Powers Commissioner by name (except so far as its exercise by any of the Judicial Commissioners or any description of Judicial Commissioners is permitted by a delegation under subsection (8)), or

(b) any function conferred on, or delegated under subsection (8) to, any other particular named Judicial Commissioner.

(13) References in any enactment—

(a) to a Judicial Commissioner are to be read as including the Investigatory Powers Commissioner, and

[F5 (b) to the Investigatory Powers Commissioner are to be read—

(i) so far as necessary for the purposes of subsection (8)(a), as references to the Investigatory Powers Commissioner or any Deputy Investigatory Powers Commissioner, and

(ii) so far as necessary for the purposes of subsection (8)(b), as references to the Investigatory Powers Commissioner or any other Judicial Commissioner.]

[F6 (14) In this section a reference to deciding an appeal against, or a review of, a decision made by a Judicial Commissioner includes a reference to deciding whether to approve a decision that the Judicial Commissioner has refused to approve.]

Textual Amendments

F1 S. 227(6A)(6B) inserted (14.10.2024) by Investigatory Powers (Amendment) Act 2024 (c. 9), ss. 7(2), 32(2); S.I. 2024/1021, reg. 2(g)

F2 S. 227(8)-(8D) substituted for s. 227(8)(9) (14.10.2024) by Investigatory Powers (Amendment) Act 2024 (c. 9), ss. 8(2), 32(2); S.I. 2024/1021, reg. 2(h)

F3 S. 227(9A) omitted (14.10.2024) by virtue of Investigatory Powers (Amendment) Act 2024 (c. 9), ss. 8(3), 32(2); S.I. 2024/1021, reg. 2(h)

F4 S. 227(10A) inserted (14.10.2024) by Investigatory Powers (Amendment) Act 2024 (c. 9), ss. 8(4), 32(2); S.I. 2024/1021, reg. 2(h)

F5 S. 227(13)(b) substituted (14.10.2024) by Investigatory Powers (Amendment) Act 2024 (c. 9), ss. 8(5), 32(2); S.I. 2024/1021, reg. 2(h)

F6 S. 227(14) inserted (14.10.2024) by Investigatory Powers (Amendment) Act 2024 (c. 9), ss. 8(6), 32(2); S.I. 2024/1021, reg. 2(h)

Modifications etc. (not altering text)

C1 S. 227(4)-(6) excluded (temp.) (27.3.2020) by The Investigatory Powers (Temporary Judicial Commissioners and Modification of Time Limits) Regulations 2020 (S.I. 2020/360), regs. 1(2), 3(3) (with reg. 5)