Report of the Interception of Communications Commissioner - 2016
The Investigatory Powers Act
The Investigatory Powers Act received Royal Assent on 29 November 2016. It will come
into practice through a series of commencement orders throughout 2017 and 2018.
Previous reports set out IOCCO’s engagement with the Government, Parliamentarians
and civil society during the passage of the Bill. Here I will set out the major changes to
the law governing the interception of communications, and consider how much of the
‘IOCCO wish-list’ made it into the final legislation.
The Act abolishes my office of Interception of Communications Commissioner. It also
abolishes the Intelligence Services and Surveillance Commissioners. My functions will be
carried out by the Investigatory Powers Commissioner and his Judicial Commissioners.
Combining oversight powers and offices in this way should improve the quality and
consistency of oversight. My oversight of prisons, which has previously been on a nonstatutory basis, will be carried out on a statutory basis by the Investigatory Powers
Commissioner.
The most significant change in the Act is the introduction of the judicial ‘double lock’. For
certain investigatory techniques, in addition to existing authorisation processes, it will
be necessary for one of the judicial commissioners to also consider the application, and
to decide whether to approve it. With respect to the interception of communications,
this process will apply to interception warrants, bulk interception warrants, warrants
authorising the bulk acquisition of communications data, and technical capability notices.
In terms of volume, the overwhelming majority of these applications will be for lawful
interception relating to a single target of interception (for example, a serious criminal).
The bulk warrants and technical capability notices will be much less common but far more
complex. Warrant requesting departments will need to give commissioners enough time
to properly consider the technical and privacy implications of these applications and the
Commissioner’s office will need to include enough expertise to advise on these issues.
My office engaged proactively with a wide range of stakeholders, in Government,
Parliament and civil society, during the passage of the Act. Of the six items on the
IOCCO ‘wish-list’, three have been fulfilled in full. The new Commissioner will expect
their inspectors to have increased access to technical systems; there is provision for the
new Commissioner to launch their own investigations and currently a plan to have a
small team conducting them; and the additional skills I wanted to see in the new body
(technical, legal and communications) should be present in various forms.
Three wishes have not been fulfilled. The first was that the Act should relax secrecy
provisions to aid transparency. There is a provision for the Commissioner to make
disclosures in certain circumstances, but no general commitment to transparency within
the Act. This is partly a question of culture. In my view, the new Commissioner should
aim to continually push the boundaries of what information can be communicated to the
public about the activities of its intelligence and law enforcement agencies.
I also wanted the rules around error reporting to be clearer, and to give the Commissioner
greater powers to notify individuals who have been the victim of an error (so-called
‘notifications’). Section 231 of the Act specifies that notifications can only occur where
‘an error has caused significant prejudice or harm to the person concerned. Accordingly,
the fact that there has been a breach of a person’s Convention rights (within the meaning
54
@iocco_oversight