Brian Sims

Investigatory Powers Act 2016 reform announced in King’s Speech

THE GOVERNMENT has introduced legislation designed to update the Investigatory Powers Act 2016. The Investigatory Powers (Amendment) Bill was announced in the King’s Speech on 7 November and will make urgent and targeted amendments to the existing Investigatory Powers Act to ensure the country is kept safe and that its citizens are protected from harmful threats.

As technology advances and changes, so do the threats posed to the UK. Updating the Investigatory Powers Act to meet modern realities will ensure the intelligence agencies can use and develop more appropriate tools and capabilities to rapidly identify intelligence insights from what are now ever-increasing quantities of data. This will allow them to better understand and respond to threats posed to members of the public and remain in step with evolving technology.

These amendments will actively enhance national security by keeping members of the public safer from threats such as terrorism, hostile activity perpetrated by foreign powers and serious and organised crime.

The UK is a world leader in ensuring privacy can be protected without compromising security. The Investigatory Powers (Amendment) Bill will maintain and enhance the existing high standards for safeguarding privacy enshrined in the 2016 Investigatory Power Act.

Home Secretary Suella Braverman stated: “My priority is – and always will be – to keep members of the public safe. I’m fully committed to ensuring that our intelligence agencies and law enforcement bodies have all the necessary tools at their disposal they need to do just this. Backed by safeguards, these reforms will play an integral role in tackling a range of dangerous threats posed to our country.”

Proportionate legislation

The targeted reforms will not create new powers in the Investigatory Powers Act. They will instead modify elements of the existing legislation to ensure that it’s proportionate, provides agencies and oversight bodies with appropriate resilience mechanisms and maintains and enhances the existing measures.

As Lord Anderson noted in his recent review of the Investigatory Powers Act (more of which anon), the UK actually goes much further than its allies in respect of the current restrictions placed on the intelligence agencies’ use of bulk personal data sets.

The Investigatory Powers (Amendment) Bill will update the Investigatory Powers Act 2016 by: 

*Making changes to the bulk personal data set regime to improve the intelligence agencies’ ability to respond with greater agility and speed to existing and emerging threats posed to national security. The amendments will improve the quality and speed of analysts’ decision-making, improving their ability to keep the public safe in a digital age, while also adhering to strong and proportionate safeguards and with independent oversight

*Enhancing the existing world-leading safeguards to support the Investigatory Powers Commissioner in carrying out oversight of public authorities’ use of investigatory powers

*Modifying the notice regimes to ensure the efficacy of the existing powers in the context of new technologies and the commercial structures of a modern digital economy. This includes ensuring that the law maintains exceptional lawful access where possible to allow for the protection of public safety, while also safeguarding the privacy of citizens and the ability of companies to develop cutting-edge technologies

*Updating the conditions for the use of Internet Connection Records to ensure that these can be used effectively in targeting the most serious types of criminal activity and national security threats without a corresponding increase in levels of intrusion, duly underpinned by a robust independent oversight regime

*Increasing resilience of the warranty authorisation processes to allow greater operational agility for the intelligence agencies and the National Crime Agency. This will help to ensure they can always gain lawful access to information in a timely way such that they can respond to the most serious national security and organised crime threats

Joint statement

The heads of the UK’s intelligence agencies – namely Anne Keast-Butler (director of GCHQ), Ken McCallum (director general at MI5) and Richard Moore, chief of the Secret Intelligence Service, have issued a joint statement on the Government’s announcement. That statement reads as follows:

“The Investigatory Powers Act is fundamental to the agencies’ ability to keep the country safe, while maintaining our democratic licence to operate. It provides the investigatory powers we need to detect and disrupt threats posed to the UK, while in parallel applying world-leading safeguards consistent with the UK’s democratic values.”

The statement goes on to note: “From hostile activity by states through to terrorists and criminal groups, all of our adversaries are taking advantage of new technologies to further their aims. It’s vital that the UK is able to keep pace, which is why we are pleased that Parliament will debate a number of vital and targeted changes to the Investigatory Powers Act.”

Further, the statement reads: “With robust and innovative protections – including independent oversight by the Investigatory Powers Commissioner and redress through the Investigatory Powers Tribunal – the existing Investigatory Powers Act regulates how investigatory powers are used by public authorities. It makes clear the circumstances in which the various powers may be used and the strict safeguards that apply. This ensures that any interference with privacy is strictly necessary, proportionate, authorised and accountable.”

Independent review process

The measures being taken forward in the Investigatory Powers (Amendment) Bill have been driven by the Home Secretary’s review and recommendations made in the independent review conducted by Lord Anderson, the outcomes of which were published back in June.  

Graeme Biggar, director general of the National Crime Agency, commented: “Accessing communications data is essential for investigating the most serious crimes and protecting our national security. As technology and the threats we face evolve in the digital world, we need to ensure that this legislation remains fit for purpose in order to help keep members of the public safe from harm. The proposed amendments to the Investigatory Powers Act will enhance law enforcement’s ability to tackle terrorism, state threats and serious organised crime including drug smuggling and fraud.”

The proposed reforms to the Investigatory Powers Act will ensure the powers enshrined within continue to be subject to robust independent oversight. Access to individuals’ data will happen only exceptionally and where this is necessary to prevent the most serious forms of crime. Robust protections will always be in place.

Security Minister Tom Tugendhat concluded: “The first duty of any Government is to protect the British people. The Investigatory Powers (Amendment) Bill will afford our intelligence services the powers they need to remain at the cutting edge as they defend our country against terrorism and hostile state actors, while at the same time protecting and enhancing the privacy of individuals right across the UK.”

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