Explanatory note
(This note is not part of the Regulations)
These Regulations are the first commencement regulations made under the Investigatory Powers Act 2016 (c.25) (“the 2016 Act”).
Regulation 2 brings into force provisions of the 2016 Act relating to the retention of communications data. Part 4 of the 2016 Act gives the Secretary of State power to give a notice requiring the retention of communications data, including internet connection records (“a retention notice”). Oversight by the Information Commissioner of retained communications data and provision for reimbursement of the costs of telecommunications operators are also commenced.
The provisions of Part 4 requiring approval by the Investigatory Powers Commissioner of the decision of the Secretary of State to give or vary a retention notice are not commenced, as the Commissioner has not yet been appointed. Similarly, the provisions for requesting a review of a retention notice, which include a role for the Commissioner, are not commenced. Schedule 9 of the 2016 Act provides that any retention notice given or varied without the approval of the Commissioner ceases to have effect 3 months after the date on which the requirement for Commissioner approval comes into force.
Regulation 2 also brings into force the repeal of sections 1 and 2 of the Data Retention and Investigatory Powers Act 2014 (c.27) (“the 2014 Act”), which provide for communications data retention. Schedule 9 of the 2016 Act provides that a retention notice given under the 2014 Act continues to have effect for a period of 6 months from the 30th December (“the transitional period”) as if it were a notice given under Part 4 of the 2016 Act. Schedule 9 to the 2016 Act also provides that the amendments made by sections 3 to 6 of the 2014 Act to the Regulation of Investigatory Powers Act 2000 continue to have effect until the relevant provisions of the Regulation of Investigatory Powers Act 2000 are repealed by the 2016 Act.
Regulation 3 modifies regulation 15 of the Data Retention Regulations 2014 (S.I. 2014/2042) which, by virtue of paragraph 5(1) of Schedule 9 to the 2016 Act, has continued effect during the transitional period.