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The Investigatory Powers Act 2016 regulates the use of surveillance by the State via methods including the interception of communications, the acquisition and examination of bulk data sets and the use of covert human intelligence sources (“CHIS”). It was introduced as a means of updating the legal basis upon which law enforcement and the intelligence agencies conduct surveillance, in part to reflect technological advances, and to enhance oversight and transparency.
Investigatory powers may be used only for specific purposes, including the detection or prevention of serious crime, for reasons of national security, if there is a threat to life or to protect the economic wellbeing of the UK.
Examples of the investigatory powers that the Act governs:
Some powers, such as interception and equipment interference, can be exercised in bulk. Bulk powers allow for the collection of large volumes of data which largely relate to individuals who are not of intelligence interest but which are likely to include data relating to terrorists and/or those involved in serious crime. This data can then be examined for information relating to individuals or activities of concern. Bulk powers may only be used by the security and intelligence agencies.
The Act created a system of independent oversight by the newly created office of Investigatory Powers Commissioner, supported by other Judicial Commissioners (all of whom are serving or retired members of the senior judiciary).
Use of the most intrusive investigatory powers must be authorised by the Judicial Commissioners under the so-called “double lock” mechanism introduced by the Act. This is a mechanism requiring, in all but urgent cases, that a decision of the Secretary of State to issue an interception warrant be approved by a Judicial Commissioner.
Various provisions in the Act, in particular those permitting mass data collection, have been subject to legal challenge on the grounds that they amount to a violation of individuals’ privacy rights (Article 8 ECHR) and freedom of expression (Article 10 ECHR). The Act has been dubbed “the Snooper’s Charter” by various civil liberties groups.
In Big Brother Watch v UK (App nos 58170/13, 62322/14 and 24960/15) (GC) [2021] ECHR 439, the Grand Chamber of the ECtHR found that the pre-IPA 2016 regime for the bulk interception of electronic cross-border communications by the intelligence agencies did not contain adequate safeguards against abuses of power.
In R (National Council of Civil Liberties (Liberty)) v Secretary of State for the Home Department [2023] Civ 926, the Court of Appeal considered a challenge to the revised regime, as set out in the IPA 2016 and in accordance with certain proposed amendments to the Act. It held that Parts 3 – 7 of the Act were compatible, in all but one respect, with Articles 8 and 10 and EU retained law. The exception were the arrangements governing the transfer of material from bulk personal datasets to authorities in other states: these were not compatible with Article 10 because the safeguards governing such transfers were not contained in any legislation, code or publicly available policy or other document. The Court of Appeal remitted to the Divisional Court for determination the question of whether the provisions for bulk equipment interference warrants were compatible with art.10, given that there was no provision for prior independent authorisation of the examination of confidential journalistic material and information capable of identifying a journalist’s sources.
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