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

Explanatory Note

(This note is not part of the Regulations)

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

Regulations 3 to 6 bring into force on 31st May 2018 the ability of the Secretary of State and (except in the case of bulk warrants) the Scottish Ministers to decide to issue certain warrants and of Judicial Commissioners to approve those decisions. Also brought into force are the additional safeguards that may apply when deciding to issue warrants and the requirement that satisfactory arrangements for the disclosure and retention of material are in place in relation to the warrant. The warrants are:

• — targeted interception warrants, targeted examination warrants and mutual assistance warrants, following an application by or on behalf of the head of an intelligence service (the Security Service, the Secret Intelligence Service or GCHQ) or the Chief of Defence Intelligence (see regulation 3);

• — targeted equipment interference warrants and targeted examination warrants, following an application by or on behalf of the head of an intelligence service or the Chief of Defence Intelligence (see regulation 4);

• — bulk interception and bulk equipment interference warrants, which may only be issued following an application by or on behalf of the head of an intelligence service (see regulation 5);

• — combined warrants, following an application by or on behalf of the head of an intelligence service or the Chief of Defence Intelligence (see regulation 6).

Regulations 8 to 10 and 12(e) bring into force on 27th June 2018 the provisions necessary for such warrants to be issued. They also bring into force the provisions relating to the modification, cancelation and renewal of warrants, the duty not to make unauthorised disclosure, the exclusion of matters relating to interception from legal proceedings and, in the case of bulk warrants, the selection for examination safeguards.

Regulation 8 also brings into force the other forms of lawful interception in Chapter 2 of Part 2 of the 2016 Act. This provides lawful authority for interception in certain limited circumstances, for example where interception takes place with consent, where it is carried out by OFCOM for a purpose connected to certain of its functions, or where interception takes place in accordance with prison rules.

Regulations 2 and 7 bring into force general privacy protections in Part 1 of the 2016 Act, so far as relevant to the other provisions coming into force. This includes an offence of unlawful interception, the power of the Investigatory Powers Commissioner to impose monetary penalties in relation to certain unlawful interception, and civil liability for certain unlawful interception.

Regulation 11 brings into force provisions giving the Investigatory Powers Commissioner oversight of the exercise by public authorities of the statutory functions relating to equipment interference, and requiring the reporting of errors by an intelligence service or the Ministry of Defence in relation to interception or equipment interference. Regulation 11 also brings into force amendments relating to interception and equipment interference in relation to the jurisdiction and procedure of the Investigatory Powers Tribunal.

Regulation 14 brings into force section 13 of the 2016 Act which requires that equipment interference conducted by the intelligence service must be authorised under the Act in certain circumstances. Section 13 will not apply to any warrants issued under section 5 of the Intelligence Services Act 1994 (c. 35), or authorisations given under section 7 of that Act, which are in force immediately before the commencement date. Regulation 14 also brings into force the repeal of provisions of the Regulation of Investigatory Powers Act 2000 (c. 23) (“RIPA”) such that from 8th August 2018 the heads of an intelligence service and the Chief of Defence Intelligence will not be able to apply for interception warrants under Chapter 1 of Part 1 of RIPA.

Regulation 15 provides for transitional provisions for the retention and disclosure of material. 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) of regulation 15 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 (3) provides that until 27th December 2018, material obtained under a bulk interception warrant can, instead of being handled in accordance with the targeted examination safeguards in section 152 of the 2016 Act, be handled in accordance with section 16 of RIPA.

Regulation 16 provides for transitional arrangements in relation to material obtained under RIPA interception warrants issued to the head of an intelligence service or the Chief of Defence Intelligence. Until Chapter 1 of Part 1 of RIPA is fully repealed, material obtained under RIPA can be handled in accordance with the safeguards in the 2016 Act. Material obtained under a RIPA interception warrant in relation to which there is a certificate under section 8(4) of RIPA may be selected for examination under the 2016 Act.

Regulation 17 makes a transitional provision such that certain conduct taking place under RIPA but after the coming into force of section 56 of the 2016 Act is excluded from legal proceedings.

Regulation 18 provides that the persons who can still apply for interception warrants under RIPA (but not yet the 2016 Act) are caught by the section 57 duty not to make unauthorised disclosures in relation to interception.

Regulation 19 makes a number of further transitional and saving provisions in relation to interception. In particular, sections 1(1) to (3) of RIPA (which provide for the offence of unlawful interception, the imposition of monetary penalties regarding certain unlawful interception and civil liability for certain unlawful interception) continue to apply in relation to conduct taking place before those provisions are repealed on 27th June 2018. Regulation 19(3) provides that interception authorised by a warrant under Chapter 1 of Part 1 of RIPA provides lawful authority for the purposes of the 2016 Act.

Regulation 20 provides that an authority for interference with wireless telegraphy given by a designated person under section 48 of the Wireless Telegraphy Act 2006 (c. 36) may continue to have effect until 27th December 2018 if in force immediately before that provision is repealed.

Regulation 22 provides that during the period when a decision can be made to issue a warrant but a warrant cannot be issued a decision to issue a targeted or bulk equipment interference warrant can be taken if the person is satisfied that there are arrangements in place that are equivalent to those in force in relation to material obtained under a warrant issued under section 5 of the Intelligence Services Act 1994 (c. 13) or an authorisation given under section 7 of that Act.

Regulation 23 provides that until 27th December 2018, protected material obtained under a bulk equipment interference warrant can be selected for examination in accordance with arrangements in force in relation to material obtained under a warrant under section 5 of the Intelligence Services Act 1994 or an authorisation given under section 7 of that Act.

Regulation 24 provides that after 27th December 2018, the safeguards that apply to material obtained under a targeted equipment interference warrant will apply to material obtained under a warrant issued under section 5 of the Intelligence Services Act 1994 or an authorisation given under section 7 of that Act which would, under the Act, be obtained under the authority of a targeted equipment interference warrant.

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.