8
Investigatory Powers Commissioner ’s Annual Report 2019
2. Legal and Policy
Overview
2.1
Legal and policy issues continue to be a key focus for the Investigatory Powers
Commissioner (IPC). The powers that the Investigatory Powers Commissioner’s Office
(IPCO) oversees, and upon which the Office for Communications Data Authorisations
(OCDA) takes decisions, can all be subject to direct and indirect challenge in the UK and
European courts. The legal teams of both IPCO and OCDA monitor litigation that may affect
the Commissioner’s oversight role and the IPC is committed to providing such assistance as
the courts or Investigatory Powers Tribunal (IPT) may reasonably require of him.
2.2
This chapter gives an overview of:
• the key legal and policy developments that have impacted on IPCO and OCDA in 2019; and
• legal and policy approaches and decisions that we have taken on particular topics relevant
to the IPC’s functions.
Legal and policy developments relevant to our work
Ongoing implementation of the Investigatory Powers Act 2016 (IPA)
2.3
For the IPC, the major impact of the ongoing implementation of the IPA arose from
the commencement of section 60A which changed the regime for the authorisation of
communications data (CD) requests. Implementation of these provisions was staggered
over the course of the year for different public authorities. This has meant that by the
end of the year, all non-urgent authorisations for CD (other than those relating to national
security), are now authorised by the IPC under delegated powers.1
2.4
The IPC discharges this function through delegating decision-making to “authorising
individuals” in OCDA. OCDA is an administratively separate office to IPCO, and its work over
the course of 2019 is set out in more detail in Chapters 5 and 6. Chapter 19 also provides
statistics in relation to the number of CD authorisations granted by OCDA.
2.5
Section 77 of the IPA requires that any CD authorisation intended to identify or confirm a
source of journalistic information requires prior approval by a Judicial Commissioner. This
section came into force in 2019 and applies for all authorisations other than those which
relate to an imminent threat to life. This provision, under 77(1)(b), allows for emergency
requests to be made without prior judicial approval. Further details on the protections in
relation to journalists and journalistic sources are given in Chapter 3.
1
Statistics on the use of communications data, including routine and urgent applications are given in the
relevant chapters for each type of authority, and in Chapter 19 which covers Statistics.