Investigatory Powers Act 2016

Policy background

3. The Government introduced legislation to replace the emergency legislation passed in July 2014, the Data Retention and Investigatory Powers Act 2014 (DRIPA), which was subject to a sunset clause providing for DRIPA to be repealed on 31 December 2016. DRIPA replaced the Data Retention (EC Directive) Regulations 2009 (S.I. 2009/859), following the European Court of Justice judgment of April 2014 in the Digital Rights Ireland case, which declared the Data Retention Directive invalid. During the passage of DRIPA, the Government committed to bring forward new legislation which would provide the security and intelligence agencies, law enforcement and other public authorities with the investigatory powers necessary to address evolving threats within a changing communications environment. The Act updates the legal framework governing the state’s ability to acquire communications and data about communications.
4. The Act also consolidates and updates powers available to the state to obtain communications and communications data which were previously provided for in a number of different statutes (see 'Legal background', below), many of which were enacted before the internet became a widely-used means of communication.
5. Section 7 of the Data Retention and Investigatory Powers Act 2014 required David Anderson QC, in his capacity as the Independent Reviewer of Terrorism Legislation, to conduct a review of existing laws relating to investigatory powers. David Anderson published his review in June 2015. This Act responds to the recommendations made in that review and those of the reviews undertaken by the ISC and the Panel of the Independent Surveillance Review convened by the Royal United Services Institute. All three reviews agreed that investigatory powers remain essential in tackling the current and evolving threats to the United Kingdom.
6. A draft Bill was published on 4 November 2015 to facilitate pre-legislative scrutiny by a Joint Committee of Parliament. The Committee took evidence from a broad selection of witnesses including the Government, parliamentarians, law enforcement, oversight commissioners, lawyers, journalists, academics, civil society groups, communications service providers and charities and victims’ groups. It also published 148 submissions (over 1500 pages) of written evidence. The Committee’s report, including its recommendations, was published on 11 February 2016.
7. In addition to the Joint Committee, a number of other Committees were involved in scrutinising the draft Bill. The ISC published a report on 9 February 2016, building on the Committee’s 2015 Privacy and Security report. The House of Commons Science and Technology Committee also conducted an inquiry into the Bill. The Science and Technology Committee focused on the obligations that will be placed on communications service providers and the feasibility and costs associated with implementing the Bill’s provisions. Their report was published on 1 February 2016.
8. Following pre-legislative scrutiny, the Government introduced a revised Bill to Parliament, accompanied by further explanatory material including a response to each of the three committees' recommendations, on 1 March 2016. The Bill was carried over into the second session and reintroduced in the House of Commons on 19 May 2016.
9. During its passage through the House of Commons, a number of Government amendments were made to the Bill, in response to concerns raised by the Opposition and others. These included overarching provisions making explicit the privacy protections which run throughout the Bill; further enhancements to safeguards, such as those which apply to the modification process for warrants; and changes to the warrant and notice serving procedure to provide greater reassurance to communications service providers. The Government also accepted an Opposition amendment which placed protections for trade unions on the face of the Bill, putting beyond doubt that investigatory powers cannot be used where the only purpose is to intrude on legitimate trade union activity.
10. Other amendments included enhanced protections for sensitive professions and parliamentarians, including the requirement that a Judicial Commissioner must consider that there is "an overriding public interest" before any request to identify a journalist’s source can be approved. The Prime Minister must also personally approve a warrant to obtain the communications of an MP or a member of another relevant legislature.
11. The Government also announced at Report stage that David Anderson QC would carry out an independent review into the operational case for the bulk powers in the Bill. David Anderson, supported by an expert team of his own choosing, looked at 60 case studies provided by the three security and intelligence agencies and questioned 85 intelligence officials. His report, published on 19 August 2016, concluded that bulk powers are of vital importance to the security and intelligence agencies. Where alternative methods exist, David Anderson found that they are "often less effective, more dangerous, more resource-intensive, more intrusive or slower". His report made one recommendation: the creation of a Technology Advisory Panel (TAP) to advise on the impact of changing technology, and how MI5, SIS and GCHQ could reduce the privacy footprint of their activities.
12. The Bill was introduced in the House of Lords on 8 June 2016. A number of Government amendments were made at Report stage, with a particular focus on protections for legally privileged material and journalistic sources and material, and stronger safeguards for retention of communications data. They also amended the Bill to give effect to David Anderson's recommendation that a TAP should be created.
13. The ISC successfully tabled amendments to create an offence for the misuse of bulk powers, and to provide the ISC with access to the results of investigations carried out by the Investigatory Powers Commissioner (IPC) on the basis of a referral from the ISC, in so far as they relate to the Committee's functions. The Government also accepted an Opposition amendment requiring that access to internet connection records for the purpose of preventing or detecting crime should only be permitted, subject to limited exceptions, for the investigation of offences carrying a maximum sentence of at least twelve months.