The Communications Data Acquisition Regulations 2019 SI 2019/939 have been made. The Regulations amend the Investigatory Powers Act 2016 (the IPA) to enable police forces and other public authorities (except local authorities) to continue to share designated senior officers to acquire communications data under the IPA. The Regulations come into force on 18 May 2019 and apply across the UK.
Some police forces and other public authorities share designated senior officers to authorise the acquisition of communications data under the Regulation of Investigatory Powers Act 2000 (RIPA). Part 3 of the IPA replaces the provisions of RIPA covering the acquisition of communications data by police forces and other public authorities. Section 78 and section 80 of the IPA as originally enacted would have allowed the practice of sharing designated senior officers to continue after the transition from RIPA to the IPA.
Before Part 3 of the IPA came into force, it was amended by the Data Retention and Acquisition Regulations 2018 (SI 2018/1123) (“the 2018 Regulations”). These amendments were made in response to the judgment of the Court of Justice of the European Union in joined cases C-203/15 and C-698/15 (Tele2/Watson), setting out safeguards required so that a communications data retention regime is compliant with EU law.
To the extent relevant to the new Regulations, the 2018 Regulations provided for independent authorisation by the Investigatory Powers Commissioner (new section 60A of the IPA), amended section 61 of the IPA which provides for internal authorisation of certain requests by a designated senior officer, and inserted a provision for authorisation by designated senior officers in urgent cases. The 2018 Regulations also amended the IPA so that local authorities could only acquire communications data following an authorisation from the Investigatory Powers Commissioner under the new section 60A. The consequential amendments to the IPA in the 2018 Regulations removed the provisions from section 78 and section 80 allowing for collaboration in relation to designated senior officers. As a result of these amendments the IPA only allowed for collaboration agreements relating to the sharing of single points of contact.
Regulation 3 and regulation 4 of the Regulations partially restore section 78 and section 80 of the IPA to the form in which originally enacted so that police forces and other public authorities will be able to continue sharing designated senior officers when acquiring communications data under section 61 of the IPA. The Regulations also add provisions to section 78 and section 80 to allow the sharing of designated senior officers when acquiring communications data under section 61A.
Regulation 2 amends section 73 of the IPA to ensure that the definition of “collaboration agreement” in relation to a local authority continues to be limited to an agreement allowing the sharing of single points of contact. Local authorities are not able to acquire communications data under section 61 or section 61A of the IPA, and so do not have designated senior officers.
Regulation 5 amends the definition of “authorisation” in section 86 of the IPA so that it takes account of the modifications to section 61 and section 61A made by sections 78 and 80. In consequence of the amendments to section 78 and section 80 of the IPA, regulation 6 revokes amending provisions of the Data Retention and Acquisition Regulations 2018.
An explanatory memorandum has also been published.
The Communications Data Code of Practice was brought into force by the Data Retention and Acquisition Regulations 2018. The Home Office intends to issue a revised code to take account of the minor changes made by the new Regulations. The changes will be subject to public consultation and affirmative approval in both Houses of Parliament.
