BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
G. The Investigatory Powers Act 2016
183. The Investigatory Powers Act 2016 received Royal Assent on
29 November 2016. The new regime which it introduced is now largely
operational, with the majority of the powers under the Act having been
brought into force during the course of 2018.
184. Under the 2016 Act a bulk interception warrant – which may cover
both the “content” of communications and “secondary data” – has to be
necessary at least in the interests of national security (but may also be for
the purpose of preventing or detecting serious crime or in the interests of the
economic well-being of the United Kingdom in so far as those interests are
also relevant to national security). The warrant must specify the
“operational purposes” for which any material obtained under that warrant
may be selected for examination. There are detailed provisions about the
making of the list of “operational purposes” by the heads of the intelligence
services. An operational purpose may be specified in that list only with the
approval of the Secretary of State. The list of operational purposes must be
provided to the ISC every three months and must be reviewed by the Prime
Minister at least once a year.
185. An application for a bulk warrant must be made by or on behalf of
the head of an intelligence service. The power to issue a warrant must be
exercised by the Secretary of State personally and in deciding whether to
issue a bulk warrant he or she must apply the principles of necessity and
proportionality. The issuing of the warrant is subject to prior approval by a
Judicial Commissioner, who must apply the principles of judicial review
(the so-called “double-lock”). The Judicial Commissioner must therefore
consider for himself or herself questions such as whether an interference is
justified as being proportionate under Article 8 § 2 of the Convention.
186. The warrant lasts for six months unless it has already been
cancelled or renewed. Renewal is subject to approval by a Judicial
Commissioner.
187. The “main purpose” of the warrant must be to obtain
“overseas-related communications”, being communications sent to or
received by individuals outside the British Islands. Selection for
examination of intercepted content or “protected material” is subject to the
“British Islands safeguard”, meaning that it may not at any time be selected
for examination if any criteria used for the selection of the intercepted
content for examination are referable to an individual known to be in the
British Islands at that time, and the purpose of using those criteria is to
identify the content of communications sent by, or intended for, that
individual.
188. The 2016 Act also created a right of appeal from the IPT and
replaced the Interception of Communications Commissioner with a new
Investigatory Powers Commissioner (see paragraph 138 above).
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