The Investigatory Powers Bill has now passed both Houses of Parliament and is awaiting royal assent. We have summarised the key provisions of the Bill inprevious updates.
The Bill consolidates existing investigatory powers contained in the Regulation of Investigatory Powers Act 2000, Data Retention and Investigatory Powers Act 2014 and other legislation. Among other things, it provides for the interception and retention of communications data and the content of communications, equipment interference, bulk interception and acquisition of data, bulk equipment interference and bulk personal datasets. It introduces a new power that will require communications service providers to retain internet connection records, along with other data, for up to 12 months. The Bill overhauls the existing oversight framework by introducing a new Investigatory Powers Commissioner. It also imposes a new ‘double-lock’ requirement on certain warrants so that they cannot take effect until they have been approved by both the Secretary of State and a judge.
The House of Lords proposed a number of amendments in the final stages of the legislative process which related to protection of legally privileged material and confidential journalistic information, civil liability for unlawful interception, limitations on overseas authorities and oversight of the exercise of investigatory powers. During the ‘ping pong’ process where the final amendments were passed between the two Houses of Parliament, the House of Commons rejected proposed amendments relating to press regulation. Those amendments were suggested by the House of Lords to reflect legal cost reforms recommended by the Leveson Inquiry. The government has issued a separate consultation seeking views in relation to this issue.
The sweeping powers contained in the Bill have been the subject of considerable controversy since November 2015 when a draft Bill was first published. Some of the controversy has focused on powers that have been exercised for some time, but which have only recently been publicly avowed (such as, for example, the collection of bulk communications data and bulk personal datasets pursuant to broadly worded legislative provisions and directions from the Secretary of State). Just as the parts of the current legislation have been the subject of legal challenges to the Investigatory Powers Tribunal, High Court and European Court of Justice, it can be expected that the powers in the Bill will attract similar challenge.
It is anticipated that the Bill will take effect from early 2017, as the Data Retention and Investigatory Powers Act has a sunset clause of 31 December 2016.