Blackstone’s Guide To The Investigatory Powers Act 2016

555 Pages·2017·3.624 MB·English

by  Simon McKay

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Blackstone’s Guide to
The Investigatory Powers Act 2016
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BLACKSTONE’S GUIDE TO 
The Investigatory
Powers Act 2016
Simon McKay
Barrister
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Foreword
In contrast to its ill- fated predecessor, the Communications Data Bill 2012, the
Investigatory Powers Act 2016 achieves revolutionary change. It details intrusive
capabilities— equipment interference, bulk collection of communications data,
usage of bulk personal datasets—w hose very existence was secret until 2015 and it
provides for stronger control and oversight of these capabilities, notably by requiring
judicial approval of warrants and notices that had previously been reserved to min-
isters. As a result, the Act significantly enhances the democratic control of electronic
surveillance in the UK.
Transparency and stronger oversight were the core recommendations of my
report, ‘A Question of Trust’ (2015), but to claim credit for their implementation
in the Act would be naive. Larger forces were at work: the pressure for avowal
that flowed from the Snowden disclosures and their use before the Investigatory
Powers Tribunal; the realization that equivalent safeguards were going to be
required if US service providers were to comply with requests for assistance; and
legal pressure from the privacy- minded culture of the European institutions,
influenced in turn by nations for whom intelligence- gathering has sinister his-
torical resonances.
The degree of parliamentary scrutiny afforded to the Act fell short of what some
(including the author) would have preferred. One might certainly wish that more
MPs were at home on the digital front line. But parliamentary debates on the draft
Bill and then the Bill occupied some twelve months and were informed by the
reports of seven parliamentary committees, one of them privy to highly classified
information. The Joint Bill Committee alone took some 2,400 pages of evidence,
much of it from technical experts and NGOs, and made almost 200 recommenda-
tions, the vast majority of which were adopted.
With the strong powers confirmed or conferred by the Act now in place,
attention will shift to the work of the Investigatory Powers Commission (as it
should surely have been called), and to the courts. Legal challenges to the opera-
tion of the bulk powers— whose utility I examined in my Bulk Powers Review of
2016— are pending. Other likely areas of legal or regulatory controversy are the
scope of targeted thematic powers, the safeguards on access to communications
data, the conditions to be placed on data transfer, and the manner in which
technical capability notices may in the future be used to require the removal of
encryption. Brexit will impose its own complications, as the European Court of
Justice sharpens its scrutiny of third countries which handle the personal data
of EU citizens.
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Foreword
This well- referenced handbook is a useful aid to understanding the Act. But as
the threat picture, the law, and the technology continue their rapid evolution, the
Act and its interpretation cannot be expected to stand still. We must hope that
the author has the appetite for a second edition: it may be needed sooner rather
than later.
David Anderson QC
Brick Court Chambers, London
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Acknowledgements
The human rights lawyer, John Wadham, approached me in early 2016 with an
invitation to consider jointly writing with him the Blackstones’ Guide to the
Investigatory Powers Act 2016. I was delighted to accept, not just because of the
opportunity to work collaboratively with such a respected civil liberties practitioner,
but also it was clear, even by then, that the legislation would be complex and John’s
experience and intelligence would make the task of trying to make sense of it con-
siderably easier. However, by May 2016, John was called to undertake his essential
work as the Chair of the National Preventative Mechanism and unable to participate
in writing the text. It remains that without his original contact, it is unlikely I would
have undertaken the project.
It was thereafter destined to be a largely a solitary work. The sheer complexity
and vastness of the Bill required uninterrupted concentration—at least within my
own intellectual limitations. That is not to say experts in their fields did not assist
me; they were of considerable help, but in the main they had dedicated time, effort,
and valuable resources to formulating submissions to and in some cases giving evi-
dence before the various Committees reviewing the Bill and it is from this material
I derived the greatest support. One of the Bill’s architects, David Anderson QC, has
been quick to point out in response to criticisms that the Act was ill thought out
that it benefited from unparalleled expertise ranging from the compilation of the
reports that previsioned reform to the high quality of the written and oral evidence
provided to the Committees. I know some of those who contributed to this process
but by no means all. However each deserves acknowledgment for their preparedness
to grapple with the Bill’s clauses—they are the pioneers discovering and mapping
out a legal wilderness—and their contribution to this text has been invaluable. I am
enormously grateful to David, who has contributed a vast amount to law reform in
recent years and took the time to write the foreword to this work.
Above all, acknowledgment must be given to the whistle-blowers (leaving aside
issues of culpability or justification) and those civil liberties organisations (Liberty,
Privacy International, and Big Brother Watch, to name a few) and their advocates
that held the state to account on the domestic and international stage. The wide-
spread unlawfulness of aspects of state surveillance—for that it what it unques-
tionably was—is easily forgotten following the seismic avowals and reformation of
recent times. It is important that those who catalysed change are recognised.
I would like to thank Professor Clive Walker QC, Emeritus Professor of Law at
University of Leeds, for his friendship and support, not just for reading the draft
chapters but in general, particularly over the last two or three years and Professor
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Acknowledgements
David Ormerod QC, Law Commissioner and Professor of Law at Queen Mary’s
University.
Undertaking a project like this as a practitioner is only possible because profes-
sional clients continue to loyally instruct me. I am grateful to Séamus McIlroy and
his colleagues for the thought-provoking instructions in this arena that take me back
to my birthplace, Belfast, regularly. I wish him well as he makes the transition from
solicitor to member of that august institution, the Northern Ireland Bar.
Finally, I would like to thank Fiona Sinclair and Peter Daniell at OUP and those
working behind the scenes for their work on getting the book to completion, in
particular Dipak at Newgen.
There is a post-script. Following the enactment of the Investigatory Powers Act
2016, the reports and events that carved out its course may easily be forgotten.
One should not be: David Anderson’s, A Question of Trust. Quite apart from the
report being a reflection of David’s success at making the difficult subject of state
surveillance accessible to non-lawyers, its title should be etched on the minds of
government, state actors, and agencies engaging in covert surveillance of whatever
kind: in a free society, you are empowered to do so only in the service of the public
interest and only whilst you hold the confidence of the people. Exceed the powers
you are given, upset this delicate balance and as the events leading to the 2016 Act
demonstrated, there will be reckoning. In this sense, it is as, Shakespeare’s Antonio
foresaw, that the past is prologue.
Any and all errors in the text are mine alone.
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Table of Contents
table of cases xiii
table of legislation xv
List of Abbreviations xli
1. AN INTRODUCTION TO THE INVESTIGATORY
POWERS ACT 2016 
A. Introduction  1.01
B. Evolution of the Investigatory Powers Act 2016  1.05
C. Provisions of General Application  1.59
D. Commencement  1.91
E. Preliminary Assessment of the Investigatory Powers Act 2016  1.94
2. GENERAL PRIVACY PROTECTIONS 
A. Introduction  2.01
B. Section 1 IPA: The ‘Overview’ Provisions  2.06
C. Unlawful Interception  2.11
D. The Interception of Communications  2.19
E. Lawful Authority  2.39
F. Monetary Penalties for Certain Unlawful Interceptions  2.43
G. Civil Liability for Certain Unlawful Interceptions  2.54
H. Restriction on Requesting Interception by Overseas Authorities  2.55
I. Offence of Unlawfully Obtaining Communications Data  2.59
J. Abolition of Powers to Obtain Communications Data  2.62
K. Restriction on Use of Section 93 of the Police Act 1997  2.73
3. LAWFUL INTERCEPTION OF COMMUNICATIONS 
A. Introduction  3.01
B. Warrants  3.06
C. Issuing Warrants  3.26
D. Approval of Warrants by Judicial Commissioners  3.45
E. Additional Safeguards  3.57
F. Warrants: Formalities  3.67
G. Other Forms of Lawful Interception  3.121