Investigatory Powers Act 2016

CHAPTER 1 U.K. Investigatory Powers Commissioner and other Judicial Commissioners

The Commissioners U.K.

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).

(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.

(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 any other Judicial Commissioner.

(9) Subsection (8) does not apply to the function of the Investigatory Powers Commissioner of making a recommendation under subsection (4)(e) or making an appointment under section 247(1).

[F1 (9A) Subsection (8) applies to the functions of the Investigatory Powers Commissioner under section 60A or 65(3B) only where the Investigatory Powers Commissioner is unable to exercise the functions because of illness or absence or for any other reason.]

(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.

(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

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

Textual Amendments

F1 S. 227(9A) inserted (5.2.2019) by The Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123), reg. 1(4)(d)(5), Sch. 1 para. 24 (see S.I. 2019/174, reg. 2(c))

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)

228 Terms and conditions of appointment U.K.

(1) Subject as follows, each Judicial Commissioner holds and vacates office in accordance with the Commissioner's terms and conditions of appointment.

(2) Each Judicial Commissioner is to be appointed for a term of three years.

(3) A person who ceases to be a Judicial Commissioner (otherwise than under subsection (5)) may be re-appointed under section 227(1).

(4) A Judicial Commissioner may not, subject to subsection (5), be removed from office before the end of the term for which the Commissioner is appointed unless a resolution approving the removal has been passed by each House of Parliament.

(5) A Judicial Commissioner may be removed from office by the Prime Minister if, after the appointment of the Commissioner—

(a) a bankruptcy order is made against the Commissioner or the Commissioner's estate is sequestrated or the Commissioner makes a composition or arrangement with, or grants a trust deed for, the Commissioner's creditors,

(b) any of the following orders is made against the Commissioner—

(i) a disqualification order under the Company Directors Disqualification Act 1986 or the Company Directors Disqualification (Northern Ireland) Order 2002,

(ii) an order under section 429(2)(b) of the Insolvency Act 1986 (failure to pay under county court administration order),

(iii) an order under section 429(2) of the Insolvency Act 1986 (disabilities on revocation of county court administration order),

(c) the Commissioner's disqualification undertaking is accepted under section 7 or 8 of the Company Directors Disqualification Act 1986 or under the Company Directors Disqualification (Northern Ireland) Order 2002, or

(d) the Commissioner is convicted in the United Kingdom, the Channel Islands or the Isle of Man of an offence and receives a sentence of imprisonment (whether suspended or not).

Modifications etc. (not altering text)

C2 S. 228(2) 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)

Main functions of Commissioners U.K.

229 Main oversight functions U.K.

(1) The Investigatory Powers Commissioner must keep under review (including by way of audit, inspection and investigation) the exercise by public authorities of statutory functions relating to—

(a) the interception of communications,

(b) the acquisition or retention of communications data,

(c) the acquisition of secondary data or related systems data under Chapter 1 of Part 2 or Chapter 1 of Part 6, or

(d) equipment interference.

(2) Such statutory functions include, in particular, functions relating to the disclosure, retention or other use of—

(a) any content of communications intercepted by an interception authorised or required by a warrant under Chapter 1 of Part 2 or Chapter 1 of Part 6,

(b) acquired or retained communications data,

(c) data acquired as mentioned in subsection (1)(c), or

(d) communications, equipment data or other information acquired by means of equipment interference.

(3) The Investigatory Powers Commissioner must keep under review (including by way of audit, inspection and investigation)—

(a) the acquisition, retention, use or disclosure of bulk personal datasets by an intelligence service,

(b) the giving and operation of notices under section 252 (national security notices),

(c) the exercise of functions by virtue of section 80 of the Serious Crime Act 2015 (prevention or restriction of use of communication devices by prisoners etc.),

(d) the exercise of functions by virtue of sections 1 to 4 of the Prisons (Interference with Wireless Telegraphy) Act 2012,

(e) the exercise of functions by virtue of Part 2 or 3 of the Regulation of Investigatory Powers Act 2000 (surveillance, covert human intelligence sources and investigation of electronic data protected by encryption etc.),

(f) the adequacy of the arrangements by virtue of which the duties imposed by section 55 of that Act are sought to be discharged,

(g) the exercise of functions by virtue of the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11) (surveillance and covert human intelligence sources),

(h) the exercise of functions under Part 3 of the Police Act 1997 (authorisation of action in respect of property),

(i) the exercise by the Secretary of State of functions under sections 5 to 7 of the Intelligence Services Act 1994 (warrants for interference with wireless telegraphy, entry and interference with property etc.), and

(j) the exercise by the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) of functions under sections 5 and 6(3) and (4) of the Act of 1994.

[F2 (3A) The Investigatory Powers Commissioner must, in accordance with the Agreement between the Government of the United Kingdom and the Government of the United States of America on access to electronic data for the purpose of countering serious crime dated 3rd October 2019, keep under review the compliance by public authorities with the terms of that Agreement.]

(4) But the Investigatory Powers Commissioner is not to keep under review—

(a) the exercise of any function of a relevant Minister to make subordinate legislation,

(b) the exercise of any function by a judicial authority,

(c) the exercise of any function by virtue of Part 3 of the Regulation of Investigatory Powers Act 2000 which is exercisable with the permission of a judicial authority,

(d) the exercise of any function which—

(i) is for the purpose of obtaining information or taking possession of any document or other property in connection with communications stored in or by a telecommunication system, or

(ii) is carried out in accordance with an order made by a judicial authority for that purpose,

and is not exercisable by virtue of this Act, the Regulation of Investigatory Powers Act 2000, the Regulation of Investigatory Powers (Scotland) Act 2000[F3 , the Crime (Overseas Production Orders) Act 2019] or an enactment mentioned in subsection (3)(c), (h), (i) or (j) above,

(e) the exercise of any function where the conduct concerned is—

(i) conduct authorised by section 45, 47 or 50, or

(ii) conduct authorised by section 46 which is not conduct by or on behalf of an intercepting authority (within the meaning given by section 18(1)), or

(f) the exercise of any function which is subject to review by the Information Commissioner or the Investigatory Powers Commissioner for Northern Ireland.

[F4 (4A) In keeping matters under review in accordance with subsection (3)(e), the Investigatory Powers Commissioner must, in particular, keep under review the exercise of the power to grant or renew authorisations under section 29B of the Regulation of Investigatory Powers Act 2000.

(4B) In keeping under review the exercise of the power mentioned in subsection (4A), the Investigatory Powers Commissioner must, in particular, keep under review whether public authorities are complying with any requirements imposed on them by virtue of Part 2 of the Regulation of Investigatory Powers Act 2000 in relation to juvenile criminal conduct authorisations and vulnerable adult criminal conduct authorisations.

(4C) For the purposes of subsection (4B)—

(a) “a juvenile criminal conduct authorisation” is an authorisation under section 29B of the Regulation of Investigatory Powers Act 2000 where the covert human intelligence source to whom the authorisation relates is under the age of 18; and

(b) “a vulnerable adult criminal conduct authorisation” is an authorisation under section 29B of the Regulation of Investigatory Powers Act 2000 where the covert human intelligence source to whom the authorisation relates is a vulnerable adult within the meaning of section 29D(3) of that Act.]

(5) In keeping matters under review in accordance with this section, the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.

(6) In exercising functions under this Act, a Judicial Commissioner must not act in a way which the Commissioner considers to be contrary to the public interest or prejudicial to—

(a) national security,

(b) the prevention or detection of serious crime, or

(c) the economic well-being of the United Kingdom.

(7) A Judicial Commissioner must, in particular, ensure that the Commissioner does not—

(a) jeopardise the success of an intelligence or security operation or a law enforcement operation,

(b) compromise the safety or security of those involved, or

(c) unduly impede the operational effectiveness of an intelligence service, a police force, a government department or Her Majesty's forces.

(8) Subsections (6) and (7) do not apply in relation to any of the following functions of a Judicial Commissioner—

(a) deciding—

(i) whether to serve, vary or cancel a monetary penalty notice under section 7 or paragraph 16 of Schedule 1, a notice of intent under paragraph 4 of that Schedule or an information notice under Part 2 of that Schedule, or

(ii) the contents of any such notice,

(b) deciding whether to approve the issue, modification or renewal of a warrant,

(c) deciding whether to direct the destruction of material or how otherwise to deal with the situation where—

(i) a warrant issued, or modification made, for what was considered to be an urgent need is not approved, or

(ii) an item subject to legal privilege is retained, following its examination, for purposes other than the destruction of the item,

(d) deciding whether to—

(i) approve the grant, modification or renewal of an authorisation, or

(ii) quash or cancel an authorisation or renewal,

(e) deciding whether to approve—

(i) the giving or varying of a retention notice under Part 4 or a notice under section 252 or 253, or

(ii) the giving of a notice under section 90(10)(b) or 257(9)(b),

(f) participating in a review under section 90 or 257,

(g) deciding whether to approve an authorisation under section 219(3)(b),

(h) deciding whether to give approval under section 222(4),

(i) deciding whether to approve the giving or varying of a direction under section 225(3),

(j) making a decision under section 231(1),

(k) deciding whether to order the destruction of records under section 103 of the Police Act 1997, section 37 of the Regulation of Investigatory Powers Act 2000 or section 15 of the Regulation of Investigatory Powers (Scotland) Act 2000,

(l) deciding whether to make an order under section 103(6) of the Police Act 1997 (order enabling the taking of action to retrieve anything left on property in pursuance of an authorisation),

(m) deciding—

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

(ii) any action to take as a result.

[F5 (8A) Subsections (6) and (7) also do not apply in relation to the functions of the Investigatory Powers Commissioner under section 60A or 65(3B).]

(9) In this section—

• “bulk personal dataset” is to be read in accordance with section 199,

• “equipment data” has the same meaning as in Part 5 (see section 100),

• “judicial authority” means a judge, court or tribunal or any person exercising the functions of a judge, court or tribunal (but does not include a Judicial Commissioner),

• “police force” has the same meaning as in Part 2 (see section 60(1)),

• “related systems data” has the meaning given by section 15(6),

• “relevant Minister” means a Minister of the Crown or government department, the Scottish Ministers, the Welsh Ministers or a Northern Ireland department,

• “secondary data” has the same meaning as in Part 2 (see section 16).

Textual Amendments

F2 S. 229(3A) inserted (18.9.2020) by The Functions of the Investigatory Powers Commissioner (Oversight of the Data Access Agreement between the United Kingdom and the United States of America and of functions exercisable under the Crime (Overseas Production Orders) Act 2019) Regulations 2020 (S.I. 2020/1009), regs. 1, 2(a)

F3 Words in s. 229(4)(d) inserted (18.9.2020) by The Functions of the Investigatory Powers Commissioner (Oversight of the Data Access Agreement between the United Kingdom and the United States of America and of functions exercisable under the Crime (Overseas Production Orders) Act 2019) Regulations 2020 (S.I. 2020/1009), regs. 1, 2(b)

F4 S. 229(4A)-(4C) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 7(2), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

F5 S. 229(8A) inserted (5.2.2019) by The Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123), reg. 1(4)(d)(5), Sch. 1 para. 25 (see S.I. 2019/174, reg. 2(c))

Modifications etc. (not altering text)

C3 S. 229(4)(f) power to repeal words conferred (1.9.2017) by Investigatory Powers Act 2016 (c. 25), ss. 240(5)(b), 272(1) (with Sch. 9 paras. 7, 8, 10); S.I. 2017/859, reg. 2(i) (with regs. 6-11)

C4 S. 229(6)(7) applied (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 62(5) (with s. 25(9)); S.I. 2020/792, reg. 2(g)

Commencement Information

I1 S. 229(1) in force at 12.3.2018 for specified purposes by S.I. 2018/341, reg. 2(b)(i)

I2 S. 229(1)(a)-(c) in force at 1.9.2017 by S.I. 2017/859, reg. 2(d)(i) (with reg. 3(1)(a))

I3 S. 229(1)(d) in force at 27.6.2018 in so far as not already in force by S.I. 2018/652, reg. 11(a)(i)

I4 S. 229(2)(a)-(c) in force at 1.9.2017 by S.I. 2017/859, reg. 2(d)(ii) (with reg. 3(1)(b))

I5 S. 229(2)(d) in force at 27.6.2018 by S.I. 2018/652, reg. 11(a)(i)

I6 S. 229(3)(a) (c)-(j) in force at 1.9.2017 by S.I. 2017/859, reg. 2(d)(iii)

I7 S. 229(3)(b) in force at 12.3.2018 by S.I. 2018/341, reg. 2(b)(ii)

I8 S. 229(4) in force at 1.9.2017 by S.I. 2017/859, reg. 2(d)(iv) (with reg. 3(2)-(5))

I9 S. 229(5) in force at 1.9.2017 by S.I. 2017/859, reg. 2(d)(v)

I10 S. 229(6)(7) in force at 13.2.2017 by S.I. 2017/137, reg. 2(d)

I11 S. 229(8) in force at 27.6.2018 for specified purposes by S.I. 2018/652, reg. 11(a)(ii)

I12 S. 229(8)(a) in force at 1.9.2017 by S.I. 2017/859, reg. 2(d)(vi) (with reg. 3(6))

I13 S. 229(8)(b)(c) in force at 5.2.2019 by S.I. 2019/174, reg. 2(e)

I14 S. 229(8)(d)(i) in force at 1.9.2017 for specified purposes by S.I. 2017/859, reg. 2(d)(vi)

I15 S. 229(8)(d)(i) in force at 5.2.2019 in so far as not already in force by S.I. 2019/174, reg. 2(e)

I16 S. 229(8)(d)(ii) in force at 1.9.2017 by S.I. 2017/859, reg. 2(d)(vi) (with reg. 3(6))

I17 S. 229(8)(e)(f) in force at 1.11.2018 in so far as not already in force by S.I. 2018/873, reg. 4(b)

I18 S. 229(8)(e)(i) in force at 12.3.2018 for specified purposes by S.I. 2018/341, reg. 2(b)(aa)(iii)

I19 S. 229(8)(e)(ii) in force at 12.3.2018 for specified purposes by S.I. 2018/341, reg. 2(b)(bb)(iii)

I20 S. 229(8)(f) in force at 12.3.2018 for specified purposes by S.I. 2018/341, reg. 2(b)(cc)(iii)

I21 S. 229(8)(g)-(i) in force at 22.8.2018 by S.I. 2018/873, reg. 3(d)

I22 S. 229(8)(j)-(m) in force at 1.9.2017 by S.I. 2017/859, reg. 2(d)(vi) (with reg. 3(6))

I23 S. 229(9) in force at 13.2.2017 for specified purposes by S.I. 2017/137, reg. 2(e)

I24 S. 229(9) in force at 1.9.2017 for specified purposes by S.I. 2017/859, reg. 2(d)(vii)

I25 S. 229(9) in force at 27.6.2018 in so far as not already in force by S.I. 2018/652, reg. 11(a)(i)

230 Additional directed oversight functions U.K.

(1) So far as directed to do so by the Prime Minister and subject to subsection (2), the Investigatory Powers Commissioner must keep under review the carrying out of any aspect of the functions of—

(a) an intelligence service,

(b) a head of an intelligence service, or

(c) any part of Her Majesty's forces, or of the Ministry of Defence, so far as engaging in intelligence activities.

(2) Subsection (1) does not apply in relation to anything which is required to be kept under review by the Investigatory Powers Commissioner under section 229.

(3) The Prime Minister may give a direction under this section at the request of the Investigatory Powers Commissioner or the Intelligence and Security Committee of Parliament or otherwise.

(4) The Prime Minister must publish, in a manner which the Prime Minister considers appropriate, any direction under this section (and any revocation of such a direction) except so far as it appears to the Prime Minister that such publication would be contrary to the public interest or prejudicial to—

(a) national security,

(b) the prevention or detection of serious crime,

(c) the economic well-being of the United Kingdom, or

(d) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.

Commencement Information

I26 S. 230 in force at 13.2.2017 by S.I. 2017/137, reg. 2(f)

231 Error reporting U.K.

(1) The Investigatory Powers Commissioner must inform a person of any relevant error relating to that person of which the Commissioner is aware if the Commissioner considers that—

(a) the error is a serious error, and

(b) it is in the public interest for the person to be informed of the error.

(2) In making a decision under subsection (1)(a), the Investigatory Powers Commissioner may not decide that an error is a serious error unless the Commissioner considers that the error has caused significant prejudice or harm to the person concerned.

(3) Accordingly, the fact that there has been a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998) is not sufficient by itself for an error to be a serious error.

(4) In making a decision under subsection (1)(b), the Investigatory Powers Commissioner must, in particular, consider—

(a) the seriousness of the error and its effect on the person concerned, and

(b) the extent to which disclosing the error would be contrary to the public interest or prejudicial to—

(i) national security,

(ii) the prevention or detection of serious crime,

(iii) the economic well-being of the United Kingdom, or

(iv) the continued discharge of the functions of any of the intelligence services.

(5) Before making a decision under subsection (1)(a) or (b), the Investigatory Powers Commissioner must ask the public authority which has made the error to make submissions to the Commissioner about the matters concerned.

(6) When informing a person under subsection (1) of an error, the Investigatory Powers Commissioner must—

(a) inform the person of any rights that the person may have to apply to the Investigatory Powers Tribunal, and

(b) provide such details of the error as the Commissioner considers to be necessary for the exercise of those rights, having regard in particular to the extent to which disclosing the details would be contrary to the public interest or prejudicial to anything falling within subsection (4)(b)(i) to (iv).

(7) The Investigatory Powers Commissioner may not inform the person to whom it relates of a relevant error except as provided by this section.

(8) A report under section 234(1) must include information about—

(a) the number of relevant errors of which the Investigatory Powers Commissioner has become aware during the year to which the report relates,

(b) the number of relevant errors which the Commissioner has decided during that year were serious errors, and

(c) the number of persons informed under subsection (1) during that year.

(9) In this section “relevant error” means an error—

(a) by a public authority in complying with any requirements which are imposed on it by virtue of this Act or any other enactment and which are subject to review by a Judicial Commissioner, and

(b) of a description identified for this purpose in a code of practice under Schedule 7,

and the Investigatory Powers Commissioner must keep under review the definition of “relevant error”.

Modifications etc. (not altering text)

C5 S. 231(9)(a) restricted (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 62(6) (with s. 25(9)); S.I. 2020/792, reg. 2(g)

Commencement Information

I27 S. 231 in force at 5.2.2019 for specified purposes by S.I. 2019/174, reg. 2(f)

I28 S. 231(1)-(8) in force at 27.6.2018 by S.I. 2018/652, reg. 11(b)(i)

I29 S. 231(9)(a) in force at 27.6.2018 for specified purposes by S.I. 2018/652, reg. 11(b)(aa)(ii)

I30 S. 231(9)(a) in force at 22.8.2018 for specified purposes by S.I. 2018/873, reg. 3(e)

I31 S. 231(9)(a) in force at 26.9.2018 for specified purposes by S.I. 2018/940, reg. 3(e)

I32 S. 231(9)(a) in force at 1.11.2018 for specified purposes by S.I. 2018/873, reg. 4(c)

I33 S. 231(9)(a) in force at 5.12.2018 for specified purposes by S.I. 2018/1246, reg. 3(g)

I34 S. 231(9)(b) in force at 27.6.2018 for specified purposes by S.I. 2018/652, reg. 11(b)(bb)(ii)

232 Additional functions under this Part U.K.

(1) A Judicial Commissioner must give the Investigatory Powers Tribunal all such documents, information and other assistance (including the Commissioner's opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require—

(a) in connection with the investigation of any matter by the Tribunal, or

(b) otherwise for the purposes of the Tribunal's consideration or determination of any matter.

(2) A Judicial Commissioner may provide advice or information to any public authority or other person in relation to matters for which a Judicial Commissioner is responsible.

(3) But a Judicial Commissioner must consult the Secretary of State before providing any advice or information under subsection (2) if it appears to the Commissioner that providing the advice or information might be contrary to the public interest or prejudicial to—

(a) national security,

(b) the prevention or detection of serious crime,

(c) the economic well-being of the United Kingdom, or

(d) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.

(4) In addition to consulting the Secretary of State under subsection (3), the Judicial Commissioner must also consult the Scottish Ministers if it appears to the Commissioner that providing the advice or information might be prejudicial to—

(a) the prevention or detection of serious crime by a Scottish public authority, or

(b) the continued discharge of any devolved functions of a Scottish public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.

(5) In subsection (4)—

• “devolved function” means a function that does not relate to reserved matters (within the meaning of the Scotland Act 1998), and

• “Scottish public authority” has the same meaning as in the Scotland Act 1998.

(6) Subsections (3) and (4) do not apply to any advice or information provided under subsection (2) to the Investigatory Powers Tribunal.

Commencement Information

I35 S. 232 in force at 13.2.2017 by S.I. 2017/137, reg. 2(g)

233 Functions under other Parts and other enactments U.K.

(1) The Investigatory Powers Commissioner and the other Judicial Commissioners have the functions that are exercisable by them by virtue of any other Part of this Act or by virtue of any other enactment.

(2) In Part 3 of the Police Act 1997 (authorisations of action in respect of property: approval by Commissioners)—

(a) in sections 96(1), 103(7)(b) and (8), 104(3) to (8) and 105(1) and (2) for “Chief Commissioner” substitute “ Investigatory Powers Commissioner ”,

(b) in sections 96(1), 97(1)(a) and 103(1), (2), (4) and (5)(b) for “a Commissioner appointed under section 91(1)(b)” substitute “ a Judicial Commissioner ”,

(c) in sections 96(4), 97(4) and (6) and 103(3) and (6) for “a Commissioner” substitute “ a Judicial Commissioner ”,

(d) in section 103(7) for “a Commissioner” substitute “ a Judicial Commissioner (other than the Investigatory Powers Commissioner) ”,

(e) in section 104(1) for “Chief Commissioner” substitute “ Investigatory Powers Commissioner (except where the original decision was made by that Commissioner) ”,

(f) in section 104(3) and (8)(a) for “the Commissioner” substitute “ the Judicial Commissioner concerned ”,

(g) in section 105(1)(a)(ii) and (b)(ii) for “the Commissioner” substitute “ the Judicial Commissioner ”, and

(h) in sections 97(5) and 103(9) for “A Commissioner” substitute “ A Judicial Commissioner ”.

(3) In Part 2 of the Regulation of Investigatory Powers Act 2000 (surveillance and covert human intelligence sources: approval by Commissioners)—

(a) in sections 35(1) and (4), 36(2)(a) and (5) and 37(2) to (6) and (8) for “an ordinary Surveillance Commissioner”, wherever it appears, substitute “ a Judicial Commissioner ”,

(b) in sections 35(2)(b), 36(6)(g), 37(9)(b), 38(1) and (4) to (6) and 39(1), (2) and (4) and in the heading of section 39 for “Chief Surveillance Commissioner”, wherever it appears, substitute “ Investigatory Powers Commissioner ”,

(c) in sections 35(3)(a) and 36(4)(a) and (b) for “Surveillance Commissioner” substitute “ Judicial Commissioner ”,

(d) in section 37(8)(b) for “Chief Surveillance Commissioner” substitute “ Investigatory Powers Commissioner (if he is not that Commissioner) ”,

(e) in section 38(1)(a) for “an ordinary Surveillance Commissioner” substitute “ a Judicial Commissioner (other than the Investigatory Powers Commissioner) ”,

(f) in sections 38(5)(b) and 39(1)(b) for “ordinary Surveillance Commissioner” substitute “ Judicial Commissioner ”, and

(g) in the heading of section 38 for “Surveillance Commissioners” substitute “ Judicial Commissioners ”.

(4) In Part 3 of the Act of 2000 (investigation of electronic data protected by encryption etc.)—

(a) in section 51(6) (notification to Intelligence Services Commissioner or Chief Surveillance Commissioner of certain directions relating to the disclosure of a key to protected information) for the words from “done so” to the end substitute “ done so to the Investigatory Powers Commissioner ”,

(b) in section 54(9) (tipping-off: protected disclosures to a relevant Commissioner) for “relevant Commissioner” substitute “ Judicial Commissioner ”,

(c) in section 55(7) (court to have regard to opinion of a relevant Commissioner in certain circumstances relating to a disclosed key) for “relevant Commissioner” substitute “ Judicial Commissioner or the Investigatory Powers Commissioner for Northern Ireland ”, and

(d) omit sections 54(11) and 55(8) (definitions of “relevant Commissioner”).

(5) In the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11) (surveillance and covert human intelligence sources: approval by Commissioners and review by the Chief Commissioner)—

(a) in sections 13(1) and (4), 14(1)(a) and (4) and 15(1) to (5) and (7) for “an ordinary Surveillance Commissioner”, wherever it appears, substitute “ a Judicial Commissioner ”,

(b) in sections 13(2)(b), 15(8)(b), 16(1) and (4) to (6) and 17 and in the heading of section 17 for “Chief Surveillance Commissioner”, wherever it appears, substitute “ Investigatory Powers Commissioner ”,

(c) in sections 13(3)(a) and 14(3)(a) and (b) for “Surveillance Commissioner” substitute “ Judicial Commissioner ”,

(d) in section 15(7)(b) for “Chief Surveillance Commissioner” substitute “ Investigatory Powers Commissioner (if the Commissioner is not that Commissioner) ”,

(e) in section 16(1)(a) for “an ordinary Surveillance Commissioner” substitute “ a Judicial Commissioner (other than the Investigatory Powers Commissioner) ”,

(f) in sections 16(5)(b) and 17(1)(b) for “ordinary Surveillance Commissioner” substitute “ Judicial Commissioner ”, and

(g) in section 16(5) for “ordinary Surveillance Commissioner's” substitute “Judicial Commissioner's”.

(6) In Part 2 of the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 (S.I. 2013/2788) (notification of certain authorisations to, and approval of certain authorisations by, ordinary Surveillance Commissioner)—

(a) in article 4(1), for “an ordinary Surveillance Commissioner” substitute “ a Judicial Commissioner ”,

(b) in article 5(8) and the heading of Part 2, for “ordinary Surveillance Commissioner” substitute “ Judicial Commissioner ”,

(c) in article 6(1) and (3) for “Chief Surveillance Commissioner” substitute “ Investigatory Powers Commissioner ”,

(d) in article 6(1) for “an ordinary Surveillance Commissioner” substitute “ a Judicial Commissioner (other than the Investigatory Powers Commissioner) ”, and

(e) in the heading of article 6 for “Surveillance Commissioners” substitute “ Judicial Commissioners ”.

Commencement Information

I36 S. 233(1) in force at 13.2.2017 for specified purposes by S.I. 2017/137, reg. 2(h)

I37 S. 233(1) in force at 1.9.2017 in so far as not already in force by S.I. 2017/859, reg. 2(e)

I38 S. 233(2)-(6) in force at 1.9.2017 by S.I. 2017/859, reg. 2(e)

Reports and investigation and information powers U.K.

234 Annual and other reports U.K.

(1) The Investigatory Powers Commissioner must, as soon as reasonably practicable after the end of each calendar year, make a report to the Prime Minister about the carrying out of the functions of the Judicial Commissioners.

(2) A report under subsection (1) must, in particular, include—

(a) statistics on the use of the investigatory powers which are subject to review by the Investigatory Powers Commissioner (including the number of warrants or authorisations issued, given, considered or approved during the year),

(b) information about the results of such use (including its impact),

[F6 (ba) information about the use of the power to grant or renew authorisations under section 29B of the Regulation of Investigatory Powers Act 2000,]

(c) information about the operation of the safeguards conferred by this Act in relation to items subject to legal privilege, confidential journalistic material and sources of journalistic information,

(d) information about the following kinds of warrants issued, considered or approved during the year—

(i) targeted interception warrants or targeted examination warrants of the kind referred to in section 17(2),

(ii) targeted equipment interference warrants relating to matters within paragraph (b), (c), (e), (f), (g) or (h) of section 101(1), and

(iii) targeted examination warrants under Part 5 relating to matters within any of paragraphs (b) to (e) of section 101(2),

(e) information about the operational purposes specified during the year in warrants issued under Part 6 or 7,

(f) the information on errors required by virtue of section 231(8),

(g) information about the work of the Technology Advisory Panel,

(h) information about the funding, staffing and other resources of the Judicial Commissioners, and

(i) details of public engagements undertaken by the Judicial Commissioners or their staff.

(3) The Investigatory Powers Commissioner must, at any time, make any report to the Prime Minister which has been requested by the Prime Minister.

(4) The Investigatory Powers Commissioner may, at any time, make any such report to the Prime Minister, on any matter relating to the functions of the Judicial Commissioners, as the Investigatory Powers Commissioner considers appropriate.

(5) A report under subsection (1) or (4) may, in particular, include such recommendations as the Investigatory Powers Commissioner considers appropriate about any matter relating to the functions of the Judicial Commissioners.

(6) On receiving a report from the Investigatory Powers Commissioner under subsection (1), the Prime Minister must—

(a) publish the report, and

(b) lay a copy of the published report before Parliament together with a statement as to whether any part of the report has been excluded from publication under subsection (7).

(7) The Prime Minister may, after consultation with the Investigatory Powers Commissioner and (so far as the report relates to functions under Part 3 of the Police Act 1997) the Scottish Ministers, exclude from publication any part of a report under subsection (1) if, in the opinion of the Prime Minister, the publication of that part would be contrary to the public interest or prejudicial to—

(a) national security,

(b) the prevention or detection of serious crime,

(c) the economic well-being of the United Kingdom, or

(d) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.

(8) The Prime Minister must send a copy of every report and statement as laid before Parliament under subsection (6)(b) to the Scottish Ministers and the Scottish Ministers must lay the copy report and statement before the Scottish Parliament.

(9) The Investigatory Powers Commissioner may publish any report under subsection (3) or (4), or any part of such a report, if requested to do so by the Prime Minister.

(10) Subsection (11) applies if the Prime Minister receives a report from the Investigatory Powers Commissioner under subsection (1) or (4) which relates to an investigation, inspection or audit carried out by the Commissioner following a decision to do so of which the Intelligence and Security Committee of Parliament was informed under section 236(2).

(11) The Prime Minister must send to the Intelligence and Security Committee of Parliament a copy of the report so far as it relates to—

(a) the investigation, inspection or audit concerned, and

(b) the functions of the Committee falling within section 2 of the Justice and Security Act 2013.

Textual Amendments

F6 S. 234(2)(ba) inserted (10.8.2021 for specified purposes, 15.9.2021 for specified purposes, 30.9.2021 in so far as not already in force) by Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4), ss. 7(3), 9(2); S.I. 2021/605, reg. 2(a)(b)(c)

Modifications etc. (not altering text)

C6 S. 234(1) restricted (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 62(7) (with s. 25(9)); S.I. 2020/792, reg. 2(g)

Commencement Information

I39 S. 234(1)(2)(g)-(i)(3)-(9) in force at 13.2.2017 by S.I. 2017/137, reg. 2(i)

I40 S. 234(2)(a)-(c) (f) in force at 1.9.2017 by S.I. 2017/859, reg. 2(f)

I41 S. 234(2)(d) in force at 27.6.2018 for specified purposes by S.I. 2018/652, reg. 11(c)(i)

I42 S. 234(2)(d)(e) in force at 22.8.2018 by S.I. 2018/873, reg. 3(f)

I43 S. 234(2)(e) in force at 27.6.2018 for specified purposes by S.I. 2018/652, reg. 11(c)(ii)

I44 S. 234(10)(11) in force at 1.9.2017 by S.I. 2017/859, reg. 2(f)

235 Investigation and information powers U.K.

(1) A Judicial Commissioner may carry out such investigations, inspections and audits as the Commissioner considers appropriate for the purposes of the Commissioner's functions.

(2) Every relevant person must disclose or provide to a Judicial Commissioner all such documents and information as the Commissioner may require for the purposes of the Commissioner's functions.

(3) Every relevant person must provide a Judicial Commissioner with such assistance as the Commissioner may require in carrying out any investigation, inspection or audit for the purposes of the Commissioner's functions.

(4) Assistance under subsection (3) may, in particular, include such access to apparatus, systems or other facilities or services as the Judicial Commissioner concerned may require in carrying out any investigation, inspection or audit for the purposes of the Commissioner's functions.

(5) A public authority may report to the Investigatory Powers Commissioner any refusal by a telecommunications operator or postal operator to comply with any requirements imposed by virtue of this Act.

(6) A public authority, telecommunications operator or postal operator must report to the Investigatory Powers Commissioner any relevant error (within the meaning given by section 231(9)) of which it is aware.

(7) In this section “relevant person” means—

(a) any person who holds, or has held, an office, rank or position with a public authority,

(b) any telecommunications operator or postal operator who is, has been or may become subject to a requirement imposed by virtue of this Act,

(c) any person who is, has been or may become subject to a requirement to provide assistance by virtue of section 41, 43, 126, 128, 149, 168, 170 or 190, or

(d) any person to whom a notice is given under section 49 of the Regulation of Investigatory Powers Act 2000.

Commencement Information

I45 S. 235(1)-(4)(7) in force at 13.2.2017 by S.I. 2017/137, reg. 2(j)

I46 S. 235(5) in force at 1.9.2017 by S.I. 2017/859, reg. 2(g)

I47 S. 235(6) in force at 27.6.2018 by S.I. 2018/652, reg. 11(d)

236 Referrals by the Intelligence and Security Committee of Parliament U.K.

(1) Subsection (2) applies if the Intelligence and Security Committee of Parliament refers a matter to the Investigatory Powers Commissioner with a view to the Commissioner carrying out an investigation, inspection or audit into it.

(2) The Investigatory Powers Commissioner must inform the Intelligence and Security Committee of Parliament of the Commissioner's decision as to whether to carry out the investigation, inspection or audit.

Commencement Information

I48 S. 236 in force at 1.9.2017 by S.I. 2017/859, reg. 2(h)

237 Information gateway U.K.

(1) A disclosure of information to the Investigatory Powers Commissioner or another Judicial Commissioner for the purposes of any function of the Commissioner does not breach—

(a) an obligation of confidence owed by the person making the disclosure, or

(b) any other restriction on the disclosure of information (whether imposed by virtue of this Act or otherwise).

(2) But subsection (1) does not apply to a disclosure, in contravention of any provisions of [F7 the data protection legislation], of personal data which is not exempt from those provisions.

[F8 (3) In this section, “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).]

Textual Amendments

F7 Words in s. 237(2) substituted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 203(2) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

F8 S. 237(3) inserted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 203(3) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

Commencement Information

I49 S. 237 in force at 13.2.2017 by S.I. 2017/137, reg. 2(k)

Supplementary provision U.K.

238 Funding, staff and facilities etc. U.K.

(1) There is to be paid to the Judicial Commissioners out of money provided by Parliament such remuneration and allowances as the Treasury may determine.

(2) The Secretary of State must, after consultation with the Investigatory Powers Commissioner and subject to the approval of the Treasury as to numbers of staff, provide the Judicial Commissioners with—

(a) such staff, and

(b) such accommodation, equipment and other facilities and services,

as the Secretary of State considers necessary for the carrying out of the Commissioners' functions.

(3) The Scottish Ministers may pay to the Judicial Commissioners such allowances as the Scottish Ministers consider appropriate in respect of the exercise by the Commissioners of functions which relate to the exercise by Scottish public authorities of devolved functions.

(4) In subsection (3)—

• “devolved function” means a function that does not relate to reserved matters (within the meaning of the Scotland Act 1998), and

• “Scottish public authority” has the same meaning as in the Scotland Act 1998.

(5) The Investigatory Powers Commissioner or any other Judicial Commissioner may, to such extent as the Commissioner concerned may decide, delegate the exercise of functions of that Commissioner to any member of staff of the Judicial Commissioners or any other person acting on behalf of the Commissioners.

(6) Subsection (5) does not apply to—

(a) the function of the Investigatory Powers Commissioner of making a recommendation under section 227(4)(e) or making an appointment under section 247(1),

(b) any function which falls within section 229(8), or

(c) any function under section 58(4) or 133(3) of authorising a disclosure,

but, subject to this and the terms of the delegation, does include functions which have been delegated to a Judicial Commissioner by the Investigatory Powers Commissioner.

(7) The delegation under subsection (5) to any extent of functions by the Investigatory Powers Commissioner or any other Judicial Commissioner does not prevent the exercise of the functions to that extent by the Commissioner concerned.

Commencement Information

I50 S. 238(1)-(5)(6)(a)(7) in force at 13.2.2017 by S.I. 2017/137, reg. 2(l)

I51 S. 238(6)(b)(c) in force at 25.7.2018 by S.I. 2018/873, reg. 2(w)

239 Power to modify functions U.K.

(1) The Secretary of State may by regulations modify the functions of the Investigatory Powers Commissioner or any other Judicial Commissioner.

(2) But such regulations may not modify any function conferred by virtue of this Act on a Judicial Commissioner to approve, quash or cancel—

(a) an authorisation or warrant, or

(b) the variation or renewal of an authorisation or warrant.

(3) The power to make regulations under this section (including that power as extended by section 267(1)(c)) may, in particular, be exercised by modifying any provision made by or under an enactment (including this Act).

Commencement Information

I52 S. 239 in force at 13.2.2017 by S.I. 2017/137, reg. 2(m)

240 Abolition of existing oversight bodies U.K.

(1) The offices of the following are abolished—

(a) the Interception of Communications Commissioner,

(b) the Intelligence Services Commissioner,

(c) the Chief Surveillance Commissioner,

(d) the other Surveillance Commissioners,

(e) the Scottish Chief Surveillance Commissioner, and

(f) the other Scottish Surveillance Commissioners.

(2) Accordingly, the following enactments are repealed—

(a) sections 57 and 58 of the Regulation of Investigatory Powers Act 2000 (the Interception of Communications Commissioner),

(b) sections 59, 59A and 60 of that Act (the Intelligence Services Commissioner),

(c) sections 62 and 63 of that Act and sections 91 and 107 of the Police Act 1997 (the Surveillance Commissioners), and

(d) sections 2(1) to (9), 3 and 4 of the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11) (the Scottish Surveillance Commissioners).

(3) The Secretary of State may by regulations, with the consent of the Northern Ireland Assembly, provide for the abolition of the office of the Investigatory Powers Commissioner for Northern Ireland.

(4) The power to make regulations under subsection (3) (including that power as extended by section 267(1)(c)) may, in particular, be exercised by modifying any provision made by or under an enactment (including this Act).

(5) Regulations made by virtue of subsection (4) may, in particular, repeal—

(a) section 61 of the Regulation of Investigatory Powers Act 2000 (the Investigatory Powers Commissioner for Northern Ireland), and

(b) the words “or the Investigatory Powers Commissioner for Northern Ireland” in section 229(4)(f) of this Act.

(6) In this section—

• “the Chief Surveillance Commissioner” means the Chief Commissioner appointed under section 91(1)(a) of the Police Act 1997,

• “the other Scottish Surveillance Commissioners” means—

  (a)

  the Surveillance Commissioners appointed under section 2(1)(b) of the Regulation of Investigatory Powers (Scotland) Act 2000, and

  (b)

  the Assistant Surveillance Commissioners appointed under section 3 of that Act,

• “the other Surveillance Commissioners” means—

  (a)

  the Commissioners appointed under section 91(1)(b) of the Police Act 1997, and

  (b)

  the Assistant Surveillance Commissioners appointed under section 63(1) of the Regulation of Investigatory Powers Act 2000,

• “the Scottish Chief Surveillance Commissioner” means the Chief Surveillance Commissioner appointed under section 2(1)(a) of the Regulation of Investigatory Powers (Scotland) Act 2000.

Commencement Information

I53 S. 240 in force at 1.9.2017 by S.I. 2017/859, reg. 2(i) (with regs. 6-11)