The Investigatory Powers Act 2016 (Remedial) Order 2023

EXPLANATORY NOTE

(This note is not part of the Order)

This Order replaces section 154 of the Investigatory Powers Act 2016 (c. 25) (“the IPA”) with a new section 154 and a new section 154A, following a judgment from the European Court of Human Rights that certain aspects of the Regulation of Investigatory Powers Act 2000 (c. 23) (“RIPA”) were in breach of Article 10 of the European Convention on Human Rights (freedom of expression). RIPA was the predecessor legislation to the IPA.

In the case of Big Brother Watch and Others v the United Kingdom (Application numbers 58170/13, 62322/14 and 24960/15) delivered on 25th May 2021, the European Court of Human Rights held that RIPA and the associated code of practice did not protect sufficiently Article 10 rights relating to confidential journalistic material (“CJM”) or sources of journalistic material (“SJM”).

The IPA has now replaced the relevant parts of RIPA and makes express provision for bulk interception. Existing section 154 of the IPA requires that where a security and intelligence agency wishes to retain a communication which they know contains CJM intercepted under a bulk interception warrant, that agency must inform the Investigatory Powers Commissioner (“the Commissioner”).

Article 2 inserts new sections 154 and 154A which include additional protections in relation to CJM and SJM.

New section 154(1) and (2) requires the approval of the Commissioner before criteria are used for certain purposes to select for examination material acquired under a bulk interception warrant. Where there is an urgent need for an approval of such criteria, a senior official acting on behalf of the Secretary of State may give such approval instead of the Commissioner.

New section 154(3) provides that the Commissioner or senior official may only give approval for the use of criteria if a public interest test is met.

New section 154(4) specifies that subsection (5) will apply to material obtained under a bulk interception warrant which contains CJM or SJM, where that material is retained by the agency concerned. New subsection (5) requires that the agency inform the Commissioner about that retention.

New section 154(6) provides that, unless the Commissioner considers that the public interest in retaining the material outweighs the public interest in its confidentiality, the Commissioner must direct that such material be destroyed.

New section 154(7) provides that, if the Commissioner considers that the public interest in retaining the material outweighs the public interest in its confidentiality, the Commissioner may impose conditions as to its use or retention.

New section 154(8) specifies the public interest test the Commissioner must consider.

New section 154(9) gives the Commissioner the power to require the Secretary of State or the intelligence agency concerned to make representations about how the Commissioner should exercise their functions under subsections (6) and (7). The Commissioner must have regard to any representations received from those persons.

New section 154A provides for the situation in which material is selected for examination following the giving of approval by a senior official under s154(2). In such circumstances, new section 154A(2) requires the Secretary of State to inform the Investigatory Powers Commissioner of that approval.

New section 154A(3) requires the Investigatory Powers Commissioner to decide whether to approve the senior official’s decision and to notify the Secretary of State as soon as reasonably practicable. The Investigatory Powers Commissioner may approve the senior official’s decision if they consider it to be in the public interest to do so and there is no less intrusive means of obtaining the information. New section 154A(5) provides that where the senior official’s decision is not approved by the Investigatory Powers Commissioner, that decision ceases to have effect.

New section 154A(6) provides that, where the decision of a senior official ceases to have effect because of the Investigatory Powers Commissioner’s decision not to approve it, things done in reliance on the senior official’s approval remain lawful. Similarly, anything done in reliance on a senior official approval which the Commissioner refuses to approve will remain lawful if it is not reasonably practicable to stop that thing.

Article 3 makes a consequential amendment to section 229 in relation to the exercise of the Investigatory Powers Commissioner’s functions under new sections 154 and 154A.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private or voluntary sector or community bodies is foreseen.