The Investigatory Powers Act 2016 (Commencement No. 8 and Transitional and Saving Provisions) Regulations 2018

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations bring into force provisions of the Investigatory Powers Act 2016 (c. 25) (“the 2016 Act”) relating to the targeted interception of communications.

Provisions regarding the interception of communications by the intelligence services and Defence Intelligence are already in force. These Regulations relate to interception by the other intercepting authorities: the National Crime Agency, the Metropolitan Police, the Police Service of Northern Ireland, Police Scotland, Her Majesty’s Revenue and Customs, and a person who is the competent authority of a country or territory outside the United Kingdom for the purposes of an EU mutual assistance instrument or an international mutual assistance agreement.

Regulation 2 brings into force on 30th August 2018 provisions allowing targeted interception warrants and mutual assistance warrants to be applied for by those intercepting authorities (a “relevant intercepting authority”). On such an application, the Secretary of State or the Scottish Ministers may decide to issue a warrant, and a Judicial Commissioner may approve that decision, but may not issue the warrant until 26th September 2018. On 26th September 2018, regulation 3 brings into force miscellaneous provisions relating to interception that are required once such warrants can be issued.

Regulation 4 brings into force on 7th November 2018 the repeal of provisions in Part 1 of Chapter 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) (“RIPA”) such that interception warrants under RIPA can no longer be issued or renewed. Regulation 5 brings into force on 27th December 2018 the repeal of Part 1 of Chapter 1 of RIPA to the extent that it has not already been repealed.

Regulation 6 provides for transitional arrangements. Under the 2016 Act, a person can only decide to issue a targeted or bulk interception warrant if the person considers that satisfactory arrangements are in place in relation to the disclosure and retention of material. Paragraph (1) provides that, during the period when a decision can be made to issue a warrant but a warrant cannot be issued, this requirement can be met if satisfactory arrangements are in place under the equivalent provisions of RIPA. Paragraph (2) provides for transitional arrangements in relation to material obtained under RIPA by a relevant intercepting authority. It provides that material obtained under RIPA can be handled in accordance with the safeguards in the 2016 Act.

Regulation 7 is a transitional provision providing that, until the repeal of Chapter 2 of Part 1 of RIPA, the Tribunal continues to have jurisdiction in relation to communications data authorisations approved by a judicial authority under section 23A of RIPA.

Regulation 8 is a transitional provision such that, notwithstanding the repeal of Chapter 1 of Part 1 of RIPA, the Investigatory Powers Tribunal will be able to carry out its functions in relation to conduct occurring before that repeal.

Regulation 9 omits two transitional provisions from the Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving provisions) Regulations 2018 (S.I. 2018/652 c. 52) which, following the coming into force of section 18 for all purposes, are no longer required.

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