Legal perspectives: Investigatory Powers Act In this feature swift action tensions burdens When the sun sets Gavin Irwin explores the demise of RIPA and DRIPA and the genesis of the draft Investigatory Powers Bill T he Investigatory Powers Bill 2015 had its first reading in the House of Commons on 1 March 2016. The text of the bill has been long in the drafting. When enacted, it will consolidate and replace much of the Regulation of Investigatory Powers Act 2000 (RIPA), the Data Retention and Investigatory Powers Act 2014 (DRIPA) and a host of other piecemeal legislative provisions. The sunset clause in DRIPA its provisions expire and cease to have any effect on various dates in 2016 required parliament to act swiftly. TS Today reported on the legislative process as recently as October 2015. By then, public interest had been aroused in divergent directions. On the left, the 2013 Snowden leaks caused great concern that Big Brother had been watching us all for decades without our permission and, critically, without oversight. In addition, sensationalised news articles directed us towards the occasionally egregious use of investigatory powers by some local authorities. On the right, the unprecedented, unregulated growth of the internet as a means of communication together with growing concern over porous European borders and the prospect of radicalised, militarised young men returning from Syria and running amok in the UK sent us scrambling in the other direction, towards giving those charged with protecting us ever-greater powers. David Anderson QC, the Independent Reviewer of Terrorism Legislation, summed up the relevant tensions as follows in his June 2015 review, A Question of Trust1: A comprehensive and comprehensible new References: 1 A Question of Trust: Report of the Investigatory Powers Review TAP TO NAVIGATE PAGES 1 Credits Gavin Irwin is a barrister at Drystone 2 3 4 To share this page, in the toolbar click on 5 6 You might also like When the clock is ticking March 2016 Chambers. Images: Grisha Bruev / Shutterstock law should be drafted from scratch, replacing the multitude of current powers and providing for clear limits and safeguards on any intrusive power that it may be necessary for public authorities to use RIPA, obscure since its inception, has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates. A multitude of alternative powers, some of them without statutory safeguards, confuse the picture further. This state of affairs is undemocratic, unnecessary and in the long run intolerable. Importantly, he also stated that: Procedures [should be] streamlined, notably in relation to warrants and the authorisation of local authority requests for communications data. The draft bill was published on 4 November 2015. The joint committee heard evidence2 and received submissions3, including those made in forceful terms by CTSI and the Local Government Association. In short, it was submitted that: Trading standards departments and officers play a vital role in protecting individuals and businesses by investigating and prosecuting serious crime; and that the government had failed adequately to appreciate the extent and/or the quality of their contribution in that regard. The report of the joint committee was published on 11 February 20164 together with the considerable volume of material generated under the consultation. At paragraphs 82 and 83, the committee stated: We agree that local authorities and trading standards should continue to have access to communications data to support their law enforcement roles, but this intrusive power should not be used for minor infringements. We recommend that parliament should give further consideration to defining the purposes for which local authorities may be allowed to apply for communications data when the bill is introduced. The bill, as currently drafted, deals specifically with local authorities at paragraphs 64 to 77. A summary of the main points for obtaining communications data is below. As a local authority is a relevant authority, it may obtain communications data. However, a designated senior officer (DSO) of a local authority may grant an authorisation for obtaining communications data only, and then only if the local authority is party to a published Collaboration Agreement certified by the Secretary of State. A Collaboration Agreement is an agreement under which a relevant public authority (the supplying authority) puts the services of DSOs of that authority or other officers of that authority at the disposal of another relevant public authority (the subscribing authority) for the purposes of the subscribing authoritys functions under this Part, and either: (i) a DSO of the supplying authority is permitted to grant authorisations to officers of the subscribing authority; (ii) officers of the supplying authority are permitted to be granted authorisations by a DSO of the subscribing authority; or, (iii) officers of the supplying authority act as single points of contact for officers of the subscribing authority. A DSO is an individual who holds within the relevant public authority the following: the position of director, head of service, or service manager (or equivalent), or a higher position. Before granting an authorisation, the DSO must consult a person whois acting as a single point of contact (SPoC) in relation to the granting of authorisations. A SPoC is an officer of a relevant public authority responsible for advising: officers of the relevant public authority about applying for authorisations; or DSOs of the relevant public authority about granting authorisations. A SPoC may advise an officer of a relevant public authority who is considering whether to apply for an authorisation about: the most appropriate methods for obtaining data where the data concerned is processed by more than one telecommunications operator; and the cost, and resource implications, for: l the relevant public authority concerned with obtaining the data l the telecommunications operator concerned with disclosing the data; any unintended consequences of the proposed authorisation; any issues as to the lawfulness of the proposed authorisation; whether it is reasonably practical to obtain the data sought in pursuance of the proposed authorisation; whether requirements imposed by virtue of an authorisation have been met; the use in support of operations or investigations of communications data obtained in pursuance of an authorisation; and, any other effects of an authorisation; Authorisation may be granted only if it is necessary and proportionate. Data may be obtained: in the interests of national security; for the purpose of preventing or detecting crime or of preventing disorder; in the interests of the economic wellbeing of the UK so far as those interestsare also relevant to the interests of national security; in the interests of public safety; for the purpose of protecting public health; for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department. Or for the purpose of preventing death or injury or any damage to a persons physical or mental health, or of mitigating any injury or damage to a persons physical or mental health; to assist investigations into alleged miscarriages of justice; where a person has died, or is unable to identify themselves because of a physical or mental condition: article. However, properly authorised, as outlined above, the obtaining of communications data by trading standards officers will be lawful. Until such time as the bill becomes an act, trading standards departments and officers should, in collaboration with their legal departments: make provision for the scheme set out above it is unlikely, fundamentally, to change in its passage through parliament to be implemented during 2016; and continue to forge better links with neighbouring, collaborating local authorities, particularly in relation to the creation of reciprocal, self-policing SPoCs. In appropriate cases, continue to apply the guidance provided in relation to the investigatory powers of consumer law enforcers contained in Schedule 5 of the Consumer Rights Act 2015.5 David Anderson QC expressly recognised the burdens placed on local authorities and trading standards departments in gaining access to communications data since the requirement for court approval was introduced under DRIPA in 2012. The number of applications from local authorities has reduced significantly. In a typical month in 2014, there were fewer than 150 requests, compared with 200-400 in the months before November 2012. The dawn of the new act, while heralding significant change whether or not parliament heeds the joint committees advice to define the purposes for which local authorities may be permitted to apply for communications data will not lessen the load. Sunrise looks likely to be just as burdensome as sunset. References: 2 Joint Committee on the Draft Investigatory Powers Bill Oral evidence 3 Joint Committee on the Draft Investigatory Powers Bill Written evidence 5 Investigatory powers of consumer law enforcers 4 Joint Committee on the Draft Investigatory Powers Bill