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Government to consult on amending the Investigatory Powers Act

Matteo Natalucci Published 04 December 2017

Government plans to amend IP Act to recognise European concerns – but will consult on changes needed in response to ECJ ruling; new Office for Communications Data Authorisations proposed


The government has opened a consultation  to seek views on amendments proposed to the communications data regime, and the draft communications data code of practice.

The European Court of Justice (ECJ) handed down its judgment on the Investigatory Powers Act (IPA) specifying a number of requirements that need to be in place for a data retention regime to be compliant with EU law.

The ECJ’s judgment, made nearly a year ago on December 21 2016, set out requirements that need to be in place for a data retention regime to be considered compliant with EU law. The ECJ said that it was a matter for the domestic courts to consider how its judgment should be applied to national legislation.

The government said that it considers some aspects of the UK’s  current regime for the retention of and access to communications data do not satisfy the requirements of the ECJ’s judgment and, therefore, proposes to amend the Investigatory Powers Act 2016.

Following the ECJ ruling, the government said it “accepted that some aspects of the IPA, are inconsistent with EU law”, in that:

  • There is no provision for independent authorisation of requests for access to retained data.
  • The crime purpose for retaining and accessing data is not limited to serious crime.

In light of that, Parliament – and the public - will now have the chance to consider what changes to the law should be made in response to the CJEU’s judgment.

The government also proposed to set up a new office for communications data authorisations. Its draft regulation will create:  “…a new power for the Investigatory Powers Commissioner (IPC) to authorise communications data requests. The IPC will delegate these functions to a newly appointed body of staff, to be known as the Office for Communications Data Authorisations (OCDA). OCDA will report directly to the IPC, and will be responsible for considering the vast majority of requests to access communications data made by public authorities”.

The government said it is currently working to establish ODCA in consultation with the IPC. This task involves the procurement of premises (including appropriate security arrangements), recruiting and training new staff, and the development of the necessary IT systems and processes which will allow OCDA staff to electronically consider applications from over 600 public authorities.

The government is also consulting on the draft communications data code of practice, which provides more detail on how the new regime will work in practice at the same time as the draft regulations, as this allows them to provide more detail on how the new regime will work in practice, when the two documents are read together.

The government said, “The code of practice sets out the processes and safeguards governing the retention of communications data by telecommunications operators and its acquisition by public authorities, including the police and the security and intelligence agencies. It gives detail on how these powers should be used, including examples where relevant, and is intended to provide additional clarity and ensure the highest standards of professionalism and compliance with these important powers.”

The code is primarily intended to guide those public authorities able to exercise powers under the IPA and telecommunications operators and postal operators who may be given data retention notices under the Act.

The government maintains that “the ECJ’s judgment does not apply to the retention or acquisition of data for national security purposes. The three UK intelligence agencies (MI5, MI6 and GCHQ) primarily exist to manage national security threats to the UK. The Government considers that their activities, including requests for communications data for the statutory purpose of crime, fall outside the scope of EU law and the ECJ’s judgment”.

The issue of whether the ECJ’s judgment applies to the activities of the security and intelligence agencies in relation to the acquisition and use of bulk communications data for the purposes of national security is now the subject of a pending reference to the ECJ in proceedings before the Investigatory Powers Tribunal.

Following the consultation period, responses will be analysed and the draft legislation and draft code revised as necessary. They will then be laid before Parliament for approval.

The consultation closes on January 18.

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