The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018

CHAPTER 2 Transitional and saving provisions regarding equipment interference

Mandatory use of equipment interference warrants

21.  Until 27th December 2018 section 13 of the 2016 Act (mandatory use of equipment interference warrants) does not apply to conduct authorised by a warrant issued under section 5 of the Intelligence Services Act 1994(1), or an authorisation given under section 7 of that Act(2), which is in force immediately before 8th August 2018.

Safeguards relating to retention and disclosure of material

22.  Until 27th June 2018—

(a) section 102 of the 2016 Act (power to issue warrants to intelligence services: Secretary of State) has effect as if the reference in subsection (1)(c) to sections 129 and 130 includes a reference to sections 2(2)(a) or 4(2)(a) of the Intelligence Services Act 1994 or section 2(2)(a) of the Security Service Act 1989(3);

(b) section 103 of the 2016 Act (power to issue warrants to intelligence services: the Scottish Ministers) has effect as if the reference in subsection (1)(d) to sections 129 and 130 includes a reference to sections 2(2)(a) or 4(2)(a) of the Intelligence Services Act 1994 or section 2(2)(a) of the Security Services Act 1989.

Safeguards relating to examination of material etc.

23.  Until 27th December 2018, section 193 of the 2016 Act (safeguards relating to examination of material etc.) has effect as if in subsection (3) (selection conditions for examination) at the end there were inserted—

“(e) that the selection of the protected material for examination is authorised—

(i) by a warrant issued under section 5 of the Intelligence Services Act 1994, or

(ii) in accordance with arrangements in force in relation to material obtained under an authorisation given under section 7 of that Act.”

Safeguards relating to retention and disclosure of relevant ISA material

24.  From 27th December 2018—

(a) sections 129 to 130 of the 2016 Act apply to relevant ISA material as they apply to material obtained under a targeted equipment interference warrant;

(b) section 131 of the 2016 Act applies in relation to an item subject to legal privilege which is relevant ISA material as it applies in relation to an item subject to legal privilege which has been obtained under a targeted equipment interference warrant.

(2) In this regulation, “relevant ISA material” means material which—

(a) consists of communications, private information or equipment data;

(b) was obtained as a result of conduct—

(i) authorised under a warrant issued under section 5 of the Intelligence Services Act 1994, or under an authorisation given under section 7 of that Act, and

(ii) which as a consequence of section 13 of the 2016 Act an intelligence service may not engage in except under the authority of an equipment interference warrant, and

(c) was obtained before the coming into force of section 13 of that Act or under a warrant or authorisation to which section 13 did not apply as a consequence of regulation 21.

Items subject to legal privilege

25.  Until section 106 of the 2016 Act (power to issue warrants to law enforcement officers)(4) is in force, section 112(6)(c) of that Act is to be read as if “or as mentioned in section 106(3)(a)” were omitted.

(1)

1994 c. 13. Section 5 was amended by section 2 of the Security Service Act 1995 (c. 35), section 74(1) of the Regulation of Investigatory Powers Act 2000 and section 251(3)(a) of the 2016 Act.

(2)

Section 7 was amended by paragraph 1 of Schedule 5 to the Regulation of Investigatory Powers Act 2000, section 116(1) and (2) of the Anti-Terrorism, Crime and Security Act 2001 (c. 24) and section 31(5) and (6) of the Terrorism Act 2006.

(3)

1989 c. 5. Section 2(2)(a) was amended by paragraph 1 of Schedule 4 to the Intelligence Services Act 1994 and paragraph 4(2) of Schedule 10 to the 2016 Act.

(4)

Section 106 was amended by paragraph 74(3) of Schedule 9 to the Policing and Crime Act 2017.