Citation and interpretation

1.-(1) These Regulations may be cited as the Investigatory Powers Act 2016 (Commencement No. 8 and Transitional and Saving Provisions) Regulations 2018.

(2) In these Regulations-

"RIPA" means the Regulation of Investigatory Powers Act 2000(2);

"the 2016 Act" means the Investigatory Powers Act 2016;

"relevant intercepting authority" means-

Provisions coming into force on 30th August 2018

2.-(1) The following provisions of the 2016 Act come into force on 30th August 2018-

(a)section 18 (persons who may apply for issue of a warrant), so far as not already in force;

(b)section 21 (power of Scottish Ministers to issue warrants), so far as not already in force;

(c)in section 243(1) (functions of the Tribunal in relation to this Act etc.), paragraph (g) (amendment of section 65(7ZA) of RIPA (role for the Tribunal where judicial authority involved));

(d)section 248 (combination of warrants and authorisations) for the purpose of the provisions of Schedule 8 coming into force in accordance with sub-paragraph (f) of this regulation;

(e)section 271(1) (Schedule 10: minor and consequential provision) so far as relating to the provisions coming into force in accordance with sub-paragraph (h) of this regulation;

(f)in Schedule 8 (combination of warrants and authorisations), paragraphs 3 and 5 to 7 (combined warrants that may be issued on application by or on behalf of certain intercepting authorities) for the purpose of the Secretary of State or the Scottish Ministers deciding to issue a combined warrant but not for the purpose of the issuing of such a warrant;

(g)in Schedule 9 (transitional, transitory and saving provision), paragraph 7 (savings for particular purposes), and section 270(1) so far as it relates to that paragraph;

(h)in Schedule 10 (minor and consequential provision)-

(i)paragraph 46 (amendment of section 49 of RIPA);

(ii)in Part 8 (repeals and revocations consequential on other repeals or amendments in this Act), the repeal or revocation of the following provisions-

(aa)paragraphs 7(2) and 9 of Schedule 4 to RIPA;

(bb)paragraphs 20 and 21 of Schedule 2 to the Inquiries Act 2005(3);

(cc)paragraphs 22 and 23 of Schedule 7 to the Wireless Telegraphy Act 2006(4);

(dd)paragraph 208 of Schedule 1 to the National Health Service (Consequential Provisions) Act 2006(5);

(ee)paragraph 169 of Schedule 16 to the Armed Forces Act 2006(6);

(ff)sections 69 and 74 of the Counter-Terrorism Act 2008(7);

(gg)section 100 of the Policing and Crime Act 2009(8);

(hh)section 28(2) and (3) of the Terrorist Asset-Freezing etc. Act 2010(9);

(ii)paragraph 4 of Schedule 7 to the Terrorism Prevention and Investigation Measures Act 2011(10);

(jj)regulations 2(1) and (4) and 3 of, and the Schedule to, the Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulations 2011(11);

(kk)paragraph 98 of Schedule 5 to the Health and Social Care Act 2012(12);

(ll)section 16 of, and paragraph 11 of Schedule 2 to, the Justice and Security Act 2013(13);

(mm)paragraph 78 of Schedule 8 and paragraph 125 of Schedule 9 to the Crime and Courts Act 2013(14);

(nn)section 15(3) of, and paragraph 2 of Schedule 8 to, the Counter-Terrorism and Security Act 2015(15);

(oo)the repeals and revocations listed in the table with the heading "Judicial Commissioners".

(2) Until 26th September 2018, the Secretary of State and the Scottish Ministers may not, on an application by or on behalf of a relevant intercepting authority, issue a warrant under Chapter 1 of Part 2 of the 2016 Act (but may make a decision regarding the issuing of such a warrant).

Provisions coming into force on 26th September 2018

3.  The following provisions of the 2016 Act come into force on 26th September 2018-

(a)section 9 (restriction on requesting interception by overseas authorities), so far as not already in force;

(b)section 10 (restriction on requesting assistance under mutual assistance agreements etc.)(16), so far as not already in force;

(c)section 35 (persons who may make modifications), so far as not already in force;

(d)section 58 (section 57: meaning of "excepted disclosure"), so far as not already in force;

(e)in section 231(9) (definition of "relevant error"), paragraph (a) to the extent that it applies to an error by a public authority relating to interception, so far as not already in force for that purpose;

(f)section 248 (combination of warrants and authorisations) for the purpose of the provisions of Schedule 8 coming into force in accordance with paragraph (g) of this regulation;

(g)in Schedule 8-

(i)paragraphs 3 and 5 to 7, so far as not already in force;

(ii)paragraphs 24 and 26 (certain rules in the Police Act 1997(17) and the Regulation of Investigatory Powers (Scotland) Act 2000(18) not applying to combined warrants);

(h)in Schedule 10, paragraph 45 (repeal of Chapter 1 of Part 1 of RIPA) so far as it omits section 1 of RIPA (unlawful interception) so far as not already omitted, and section 271(1) so far as it relates to that paragraph.

Provisions coming into force on 7th November 2018

4.  The following provisions in Schedule 10 to the 2016 Act come into force on 7th November 2018-

(a)paragraph 45, so far as it omits the following provisions of RIPA-

(i)section 6 (application for issue of an interception warrant), so far as not already omitted;

(ii)section 7 (issue of warrants);

(iii)in section 9 (duration, cancellation and renewal of warrants)-

(aa)in subsection (1), paragraph (b) and "but" at the end of paragraph (a);

(bb)subsections (2) and (5);

(b)in Part 8, the repeal of paragraph 6 of Schedule 12 to the Serious Crime Act 2007(19) and section 271(1) so far as it relates to that repeal.

Provisions coming into force on 27th December 2018

5.  The following provisions in Schedule 10 to the 2016 Act come into force on 27th December 2018-

(a)paragraph 5 (amendment to section 71 of RIPA (issue and revision of codes of practice));

(b)in paragraph 6, sub-paragraphs (3), (6) and (7) (amendment to section 81(1) of RIPA (general definitions));

(c)paragraph 36 (amendment to section 1(5) of the Security Service Act 1989(20) (meaning of "prevention" and "detection"));

(d)paragraph 38 (amendment to section 11(1A) of the Intelligence Services Act 1994(21) (meaning of "prevention" and "detection"));

(e)paragraph 40 (amendment to section 133A of the Police Act 1997 (meaning of "prevention" and "detection"));

(f)paragraph 45 (omission of Part 1 of Chapter 1 of RIPA (interception of communications)), so far as not already in force.

(g)paragraph 47 (amendment to section 71 of RIPA (issue and revision of codes of practice));

(h)paragraph 49 (amendment to section 81 of RIPA (general interpretation));

(i)In Part 8, the repeal or revocation of the following provisions-

(i)section 116(3) of the Anti-terrorism, Crime and Security Act 2001(22);

(ii)section 32 of the Terrorism Act 2006(23);

(iii)the Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulations 2011, so far as not already revoked.

Transitional provisions relating to interception

6.-(1) Until 26th September 2018, for the purposes of applications made by or behalf of a relevant intercepting authority-

(a)section 19 of the 2016 Act has effect as if the references in subsections (1)(c) and (3)(c) to sections 53 and 54 included a reference to section 15 of RIPA (general safeguards)(24);

(b)section 21 of the 2016 Act has effect as if the references in subsections (1)(d) and (3)(d) to sections 53 and 54 included a reference to section 15 of RIPA.

(2) Until 27th December 2018, in relation to a warrant under Chapter 1 of Part 1 of RIPA issued on an application made by or on behalf of a relevant intercepting authority, section 15 of RIPA has effect as if-

(a)in subsection (1), in paragraph (a), after "and (3)" there were inserted "of this Act or section 53(2) and (5) of the Investigatory Powers Act 2016";

(b)in subsection (6), in paragraph (b), after "subsection (7)" there were inserted "of this Act or section 54(2) of the Investigatory Powers Act 2016".

Transitional provision regarding functions of the Tribunal

7.  From 30th August 2018 until the repeal of Chapter 2 of Part 1 of RIPA by paragraph 54 of Schedule 10 to the 2016 Act is fully in force, section 65 of RIPA has effect as if in subsection (7ZA) the reference to section 23A included a reference to section 75 of the 2016 Act.

Saving provisions regarding functions of the Tribunal

8.-(1) In relation to conduct taking place before 27th December 2018, section 65(8) of RIPA(25) has effect as if the reference in paragraph (a) to a warrant under Part 2, 5, 6 or 7 of the Investigatory Powers Act 2016 included a reference to a warrant under Chapter 1 of Part 1 of RIPA or a warrant under the Interception of Communications Act 1985.

(2) Paragraph (3) applies where the Tribunal exercises the jurisdiction conferred on them by or under section 65 of RIPA, or otherwise exercises or performs any power or duty conferred or imposed on them under RIPA, in relation to conduct taking place before 27th December 2018.

(3) Where this paragraph applies, section 68(7) of RIPA(26) has effect as if in paragraph (e), the reference to section 41, 126, 149, 168 or 190 of the Investigatory Powers Act 2016 included a reference to section 11 of RIPA.

Amendment to the Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018

9.-(1) On 30th August 2018, the Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018(27) are amended as follows.

(2) Omit regulations 17(2) and 18 (transitional provision regarding references to "an intercepting authority").

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations bring into force provisions of the Investigatory Powers Act 2016 (c. 25) ("the 2016 Act") relating to the targeted interception of communications.

Provisions regarding the interception of communications by the intelligence services and Defence Intelligence are already in force. These Regulations relate to interception by the other intercepting authorities: the National Crime Agency, the Metropolitan Police, the Police Service of Northern Ireland, Police Scotland, Her Majesty's Revenue and Customs, and a person who is the competent authority of a country or territory outside the United Kingdom for the purposes of an EU mutual assistance instrument or an international mutual assistance agreement.

Regulation 2 brings into force on 30th August 2018 provisions allowing targeted interception warrants and mutual assistance warrants to be applied for by those intercepting authorities (a "relevant intercepting authority"). On such an application, the Secretary of State or the Scottish Ministers may decide to issue a warrant, and a Judicial Commissioner may approve that decision, but may not issue the warrant until 26th September 2018. On 26th September 2018, regulation 3 brings into force miscellaneous provisions relating to interception that are required once such warrants can be issued.

Regulation 4 brings into force on 7th November 2018 the repeal of provisions in Part 1 of Chapter 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) ("RIPA") such that interception warrants under RIPA can no longer be issued or renewed. Regulation 5 brings into force on 27th December 2018 the repeal of Part 1 of Chapter 1 of RIPA to the extent that it has not already been repealed.

Regulation 6 provides for transitional arrangements. Under the 2016 Act, a person can only decide to issue a targeted or bulk interception warrant if the person considers that satisfactory arrangements are in place in relation to the disclosure and retention of material. Paragraph (1) provides that, during the period when a decision can be made to issue a warrant but a warrant cannot be issued, this requirement can be met if satisfactory arrangements are in place under the equivalent provisions of RIPA. Paragraph (2) provides for transitional arrangements in relation to material obtained under RIPA by a relevant intercepting authority. It provides that material obtained under RIPA can be handled in accordance with the safeguards in the 2016 Act.

Regulation 7 is a transitional provision providing that, until the repeal of Chapter 2 of Part 1 of RIPA, the Tribunal continues to have jurisdiction in relation to communications data authorisations approved by a judicial authority under section 23A of RIPA.

Regulation 8 is a transitional provision such that, notwithstanding the repeal of Chapter 1 of Part 1 of RIPA, the Investigatory Powers Tribunal will be able to carry out its functions in relation to conduct occurring before that repeal.

Regulation 9 omits two transitional provisions from the Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving provisions) Regulations 2018 (S.I. 2018/652 c. 52) which, following the coming into force of section 18 for all purposes, are no longer required.

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

NOTE AS TO EARLIER COMMENCEMENT REGULATIONS

(This note is not part of the Regulations)

The following provisions of the Investigatory Powers Act 2016 (c. 25) have been brought into force by commencement regulations made before the date of these Regulations.