OpenLegislation

The Investigatory Powers Act 2016 (Commencement No. 3 and Transitory, Transitional and Saving Provisions) Regulations 2017

S.I. 2017/859 · Made 29 August 2017

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Investigatory Powers

Made 29th August 2017

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 270(2) and 272(1) of the Investigatory Powers Act 2016f1

Annotations to the whole text

Footnotes

f1

2016 c. 25.

Contents

  1. Part 1: General and commencement
  2. 1Citation and interpretation
  3. 2Appointed day
  4. Part 2: Investigatory Powers Commissioner: transitory, transitional and saving provisions
  5. 3Transitory provisions regarding the main functions of the Commissioner
  6. 4Transitory provisions regarding functions of the Interception of Communications Commissioner
  7. 5Continuity of functions
  8. 6Saving provisions regarding oversight
  9. Part 3: Surveillance Commissioners: transitory and saving provisions
  10. 7Transitory and saving provisions regarding the Surveillance Commissioners
  11. 8Transitory and saving provisions regarding Assistant Surveillance Commissioners
  12. 9Transitory and saving provisions regarding the Scottish Surveillance Commissioners
  13. 10Transitory and saving provisions regarding the Scottish Assistant Surveillance Commissioners
  14. 11Decisions of the Chief Commissioner and other Surveillance Commissioners
  15. Signature
  16. Explanatory note

1Citation and interpretation

(1)

These Regulations may be cited as the Investigatory Powers Act 2016 (Commencement No. 3 and Transitory, Transitional and Saving Provisions) Regulations 2017.

(2)

In these Regulations—

  • “the 1997 Act” means the Police Act 1997f1;

  • “the 2016 Act” means the Investigatory Powers Act 2016;

  • “the Chief Surveillance Commissioner”, “the other Surveillance Commissioners”, “the Scottish Chief Surveillance Commissioner” and “the other Scottish Surveillance Commissioners” have the same meaning as in section 240 of the 2016 Act;

  • “RIPA” means the Regulation of Investigatory Powers Act 2000f2;

  • “RIPSA” means the Regulation of Investigatory Powers (Scotland) Act 2000f3.

2Appointed day

The following provisions of the 2016 Act come into force on 1st September 2017—

(a)

the definition of “related systems data” in section 15(6) (warrants that may be issued under this Chapter) for the purpose of the definition of “related systems data” in section 229(9) of the 2016 Act (main oversight functions);

(b)

section 16(4) to (6) (meaning of “secondary data”) for the purpose of the definition of “secondary data” in section 229(9) of the 2016 Act;

(c)

section 199 (bulk personal datasets: interpretation) for the purpose of the definition of “bulk personal dataset” in section 229(9);

(d)

in section 229—

(i)

subsection (1)(a) to (c);

(ii)

subsection (2)(a) to (c);

(iii)

subsection (3)(a) and (c) to (j);

(iv)

subsection (4);

(v)

subsection (5);

(vi)

subsection (8)(a), (d)(i) so far as it applies to deciding whether to approve the grant or renewal of an authorisation, (d)(ii), and (j) to (m), and

(vii)

the definitions of “bulk personal datasets”, “judicial authority”, “related systems data”, “relevant Minister” and “secondary data” in subsection (9);

(e)

section 233 (functions under other Parts and other enactments) for all remaining purposes;

(f)

section 234(2)(a) to (c) and (f) (matters required to be included in an annual report), (10) and (11);

(g)

section 235(5) (reporting to the Investigatory Powers Commissioner any refusal by operators to comply with requirements);

(h)

section 236 (referrals by the Intelligence and Security Committee of Parliament);

(i)

section 240 (abolition of existing oversight bodies);

(j)

paragraphs 67, 69 and 71 to 98 of Schedule 10.

3Transitory provisions regarding the main functions of the Commissioner

(1)

From 1st September 2017 until the coming into force of section 19 of the 2016 Act (power of Secretary of State to issue warrants)—

(a)

section 229(1) has effect as if for paragraph (c) there were substituted—

“(c)

the obtaining of related communications data under Chapter 1 of Part 1 of the Regulation of Investigatory Powers Act 2000f1”, and

(b)

section 229(2)(a) has effect as if for “Chapter 1 of Part 2 or Chapter 1 of Part 6” there were substituted “Chapter 1 of Part 1 of the Regulation of Investigatory Powers Act 2000f2”.

(2)

From 1st September 2017 until the coming into force of section 45 of the 2016 Act (interception by providers of postal or telecommunications services), section 229(4)(e)(i) of the 2016 Act has effect as if the reference to section 45 were a reference to section 4(2) of RIPA (power to provide for lawful interception).

(3)

From 1st September 2017 until the coming into force of section 47 of the 2016 Act (postal services: interception for enforcement purposes), section 229(4)(e)(i) of the 2016 Act has effect as if the reference to section 47 were a reference to section 3(3A) and (3B)f3 of RIPA (lawful interception without an interception warrant).

(4)

From 1st September 2017 until the coming into force of section 50 of the 2016 Act (interception in psychiatric hospitals), section 229(4)(e)(i) of the 2016 Act has effect as if the reference to section 50 were a reference to section 4(5) and (6)f4 of RIPA.

(5)

From 1st September 2017 until the coming into force of section 46 of the 2016 Act (interception by business etc. for monitoring and record-keeping purposes), section 229(4)(e)(ii) of RIPA has effect as if the reference—

(a)

to section 46 were a reference to section 4(2) of RIPA, and

(b)

to an intercepting authority (within the meaning given by section 18(1)) were a reference to a person specified in section 6(2)f5 of RIPA (application for issue of an interception warrant).

(6)

From 1st September 2017 until the coming into force of section 7 of the 2016 Act (monetary penalties for certain unlawful interceptions), section 229(8)(a) of the 2016 Act is to be read as if for sub-paragraph (i) there were substituted—

“(i)

whether to serve, vary or cancel a monetary penalty notice under section 1(1A)f6 of, or paragraph 11 of Schedule A1f7 to, the Regulation of Investigatory Powers Act 2000, a notice of intent under paragraph 3 of that Schedule or an information notice under paragraph 9 of that Schedule.”.

4Transitory provisions regarding functions of the Interception of Communications Commissioner

From 1st September 2017 until the repeal of Chapter 1 of Part 1 of RIPA by paragraph 45 of Schedule 10 to the 2016 Act is fully in force, the references to the Interception of Communications Commissioner in sections 1(1A) (unlawful interception), 12(11)(c) (maintenance of interception capability)f1, 15(4)(c) (general safeguards) and 19(9) (offence for unauthorised disclosures)f2 of, and paragraph 1 of Schedule A1 to, RIPA are to be read as references to the Investigatory Powers Commissionerf3.

5Continuity of functions

(1)

The abolition of the office of a relevant commissioner does not affect the validity of anything done before the abolition.

(2)

The transfer of a function does not affect the validity of anything done before the transfer.

(3)

Paragraphs (4) to (7) apply in relation to the transfer of a function.

(4)

Where anything is in the process of being made or done by or in relation to the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Chief Surveillance Commissioner or the Scottish Chief Surveillance Commissioner immediately before the transfer takes effect, it may be continued afterwards by or in relation to the Investigatory Powers Commissioner.

(5)

Where anything is in the process of being made or done by or in relation to the other Surveillance Commissioners or the other Scottish Surveillance Commissioners immediately before the transfer takes effect, it may be continued afterwards by or in relation to a Judicial Commissioner.

(6)

Where anything has been made or done by or in relation to the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Chief Surveillance Commissioner or the Scottish Chief Surveillance Commissioner and is in effect immediately before the transfer takes effect, it has effect afterwards as if made or done by or in relation to the Investigatory Powers Commissioner.

(7)

Where anything has been made or done by or in relation to the other Surveillance Commissioners or the other Scottish Surveillance Commissioners and is in effect immediately before the transfer takes effect, it has effect afterwards as if made or done by or in relation to a Judicial Commissioner.

(8)

In this regulation a reference to the transfer of a function is a reference to a case where—

(a)

a function is a function of a relevant commissioner,

(b)

that commissioner is abolished, and

(c)

a corresponding function is conferred on the Investigatory Powers Commissioner or the other Judicial Commissioners.

(9)

For the purposes of this regulation, “relevant commissioner” means—

(a)

the Interception of Communications Commissioner;

(b)

the Intelligence Services Commissioner;

(c)

the Chief Surveillance Commissioner;

(d)

the other Surveillance Commissioners;

(e)

the Scottish Chief Surveillance Commissioner, or

(f)

the other Scottish Surveillance Commissioners.

6Saving provisions regarding oversight

(1)

The following provisions continue to have effect in relation to conduct taking place before the coming into force of these Regulations—

(a)

sections 57(2), (4) and (4A) (Interception of Communications Commissioner)f1, 59(2) and (4) (Intelligence Services Commissioner)f2, 59A(1) and (2) (Additional functions of the Intelligence Services Commissioner)f3 and 62(1) to (2A) (Additional functions of Chief Surveillance Commissioner)f4 of RIPA;

(b)

section 107(1) of the 1997 Act (supplementary provisions relating to Commissioners), and

(c)

section 21(1) and (4) of RIPSA (functions of Chief Surveillance Commissioner).

(2)

In continuing to have effect by virtue of paragraph (1) —

(a)

section 57(2), (4) and (4A) of RIPA is to be read as if for “Interception of Communications Commissioner” there were substituted “Investigatory Powers Commissioner”;

(b)

section 59(2) and (4) of RIPA is to be read as if for “Intelligence Services Commissioner” there were substituted “Investigatory Powers Commissioner”;

(c)

section 59A(1) and (2) is to be read as if for “Intelligence Services Commissioner” there were substituted “Investigatory Powers Commissioner”

(d)

section 62(1) to (2A) of RIPA is to be read as if for “Chief Surveillance Commissioner” there were substituted “Investigatory Powers Commissioner”;

(e)

section 21(1) and (4) of RIPSA is to be read as if for “Chief Surveillance Commissioner” there were substituted “Investigatory Powers Commissioner”, and

(f)

section 107(1) of the 1997 Act is to be read as if for “Chief Commissioner” there were substituted “Investigatory Powers Commissioner”.

(3)

A direction given under section 59A which is in force immediately before the coming into force of these Regulations continues to have effect in relation to conduct taking place before the coming into force of these Regulations as if given to the Investigatory Powers Commissioner.

7Transitory and saving provisions regarding the Surveillance Commissioners

(1)

Where a person holds office as a Commissioner appointed under section 91(1)(b) of the 1997 Act (the Commissioners) immediately before the coming into force of section 240 of the 2016 Act (abolition of existing oversight bodies), section 91(1) to (4) and (6) to (10)f1 of the 1997 Act and sections 40f2 (information to be provided to Surveillance Commissioners) and 63(3) and (4) (Assistant Surveillance Commissioners) of RIPA continue to have effect in relation to such a person until—

(a)

31st December 2017, or

(b)

the day on which the person ceases to be a Commissioner in accordance with section 91 of the 1997 Act, if earlier.

(2)

But paragraph (1) does not apply to a person who is appointed as a Judicial Commissioner.

(3)

In continuing to have effect by virtue of paragraph (1)—

(a)

section 91 of the 1997 Act is to be read as if in subsection (9) and (9A) for “the Chief Commissioner” there were substituted “the Investigatory Powers Commissioner”, and

(b)

section 63 of RIPA is to be read as if—

(i)

for subsection (3) there were substituted—

“(3)

The Investigatory Powers Commissioner may require a Commissioner appointed under section 91(1)(b) of the Police Act 1997 to provide the Investigatory Powers Commissioner with assistance in carrying out functions under section 229(3)(e), (f) and (h) of the Investigatory Powers Act 2016 (main oversight functions).”, and

(ii)

in subsection (4), for “the Chief Surveillance Commissioner” there were substituted “the Investigatory Powers Commissioner”.

(4)

In their application to persons who continue to hold office by virtue of paragraph (1), references to a Judicial Commissioner in the following enactments are be read as including a reference to a Commissioner appointed under section 91(1)(b) of the 1997 Act—

(a)

sections 96 (notification of authorisations etc)f3, 97 (authorisations requiring approval)f4 and 103 to 105 (quashing of authorisations and appeals against decisions)f5 of the 1997 Act;

(b)

sections 35 to 39 (authorisations)f6, 54 (tipping-off)f7, 55 (general duties of specified authorities)f8, 68 (tribunal procedure)f9 and 72 (effect of codes of practice)f10 of RIPA, and

(c)

articles 4 to 6 (authorisations and appeals against decisions) of the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013f11.

8Transitory and saving provisions regarding Assistant Surveillance Commissioners

(1)

Where a person holds office as an Assistant Surveillance Commissioner appointed under section 63(1) of RIPA immediately before the coming into force of section 240 of the 2016 Act, section 63 of RIPA and section 91(3), (4), and (6) to (9) of the 1997 Act continue to have effect in relation to such a person until—

(a)

30th April 2018, or

(b)

the day on which the person ceases to be a Commissioner in accordance with section 91 of the 1997 Act, if earlier.

(2)

But paragraph (1) does not apply to a person who is appointed as a Judicial Commissioner.

(3)

So far as continuing to have effect by virtue of paragraph (1)—

(a)

section 91(9) of the 1997 Act is to be read as if for “the Chief Commissioner” there were substituted “the Investigatory Powers Commissioner”, and

(b)

section 63 of RIPA is to be read as if—

(i)

for subsection (3) there were substituted—

“(3)

The Investigatory Powers Commissioner may require an Assistant Surveillance Commissioner to provide the Investigatory Powers Commissioner with assistance in carrying out functions under section 229(3)(e) to (h) of the Investigatory Powers Act 2016.”, and

(ii)

in subsection (4) for “the Chief Surveillance Commissioner” there were substituted “the Investigatory Powers Commissioner.”.

(4)

In their application to persons who continue to hold office by virtue of paragraph (1), references to a Judicial Commissioner in sections 54(9)f1, 55(7)f2, 68(8)f3 and 72(4)(bb)f4 of RIPA are be read as including a reference to an Assistant Surveillance Commissioner appointed under section 63(1) of RIPA.

9Transitory and saving provisions regarding the Scottish Surveillance Commissioners

(1)

Where a person holds office as a Surveillance Commissioner appointed under section 2(1)(b) of RIPSA (conduct to which this Act applies)f1 immediately before the coming into force of section 240 of the 2016 Act, sections 2(1) to (4) and (6) to (9), 3(3) and (4) (Assistant Surveillance Commissioners) and 18 (information to be provided to Surveillance Commissioners)f2 of RIPSA continue to have effect in relation to such a person until—

(a)

31st December 2017, or

(b)

the day on which the person ceases to be a Surveillance Commissioner in accordance with section 2 of RIPSA, if earlier.

(2)

But paragraph (1) does not apply to a person who is appointed as a Judicial Commissioner.

(3)

So far as continuing to have effect by virtue of paragraph (1)—

(a)

section 2 of RIPSA is to be read as if in subsection (9), for “the Chief Surveillance Commissioner” there were substituted “the Investigatory Powers Commissioner”, and

(b)

section 3 of RIPSA is to be read as if—

(i)

for subsection (3) there were substituted—

“(3)

The Investigatory Powers Commissioner may require a Surveillance Commissioner appointed under section 2(1)(b) to provide the Investigatory Powers Commissioner with assistance in carrying out functions under section 229(3)(g) of the Act.”, and

(ii)

in subsection (4), for “the Chief Surveillance Commissioner” there were substituted “the Investigatory Powers Commissioner”.

(4)

In relation to persons who continue to hold office by virtue of paragraph (1), references to a Judicial Commissioner in sections 2, 13 to 17 (authorisations and appeals against decisions)f3 and 26 (effect of codes of practice)f4 of RIPSA are be read as including a reference to a Surveillance Commissioner appointed under section 2(1)(b) of RIPSA.

10Transitory and saving provisions regarding the Scottish Assistant Surveillance Commissioners

(1)

Where a person holds office as an Assistant Surveillance Commissioner appointed under section 3 of RIPSA immediately before the coming into force of section 240 of the 2016 Act, sections 2(3), (4), and (6) to (8) and 3 of RIPSA continue to have effect in relation to such a person until—

(a)

30th April 2018, or

(b)

the day on which the person ceases to be an Assistant Surveillance Commissioner in accordance with section 3 of RIPSA, if earlier.

(2)

But paragraph (1) does not apply to a person who is appointed as a Judicial Commissioner.

(3)

So far as continuing to have effect by virtue of paragraph (1), section 3 of RIPSA is to be read as if—

(a)

for subsection (3) there were substituted—

“(3)

The Investigatory Powers Commissioner may require a Surveillance Commissioner appointed under subsection (1) to provide the Investigatory Powers Commissioner with assistance in carrying out functions under section 229(3)(g) of the Act.”, and

(b)

in subsection (4), for “the Chief Surveillance Commissioner” there were substituted “the Investigatory Powers Commissioner”.

11Decisions of the Chief Commissioner and other Surveillance Commissioners

The repeal of subsection (10) of section 91 of the 1997 Act by section 240(2)(c) of the 2016 Act does not affect any decision taken before the repeal of that subsection.

Signature

Williams of Trafford

Minister of State

Home Office

29th August 2017

Explanatory note

(This note is not part of the Regulations)

These Regulations commence provisions of the Investigatory Powers Act 2016 (c. 25) (“the 2016 Act”) relating to oversight of investigatory powers by the Investigatory Powers Commissioner and the other Judicial Commissioners.

Regulation 2 brings into force section 240 of the 2016 Act, which abolishes the offices of the commissioners that are replaced by the Investigatory Powers Commissioner and the other Judicial Commissioners: the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Chief Surveillance Commissioner and other Surveillance Commissioners and the Scottish Chief Surveillance Commissioner and other Scottish Surveillance Commissioners. Regulation 2 also brings into force provisions giving the Investigatory Powers Commissioner and other Judicial Commissioners the functions exercised by the commissioners they replace.

Part 2 provides that the Investigatory Powers Commissioner has oversight relating to interception carried out under Chapter 1 of Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) until those provisions are repealed and replaced by provisions in the 2016 Act. It also provides for continuity where a commissioner has a function, that commissioner is abolished and an equivalent function is conferred on the Investigatory Powers Commissioner or the other Judicial Commissioners. That means, for example, that if a request for approval is sent to a Surveillance Commissioner before the coming into force of these Regulations, approval may be granted by a Judicial Commissioner after the coming into force of these Regulations. It also means that where, for example, something has been authorised by a Surveillance Commissioner before the coming into force of these Regulations, it will be treated afterwards as if authorised by a Judicial Commissioner.

Part 3 provides that a person who is a Surveillance Commissioner (or a Scottish Surveillance Commissioner) immediately before the abolition of those offices can continue to hold office until 31st December 2017. Similarly, a person who is an Assistant Surveillance Commissioner (or Scottish Assistant Surveillance Commissioner) can continue to hold office until 30 April 2018.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.