Proposal for a Draft Investigatory Powers Act 2016 (Remedial) Order 2023

We welcome the Government’s action in proposing the draft Remedial Order to rectify the incompatibility of the UK’s bulk communications interception regime as regards confidential journalistic material and sources of journalistic material, as protected by Article 10 (freedom of expression ECHR). (Paragraph 6) Procedural requirements

We are content that the Home Office has compelling reasons for proceeding by way of remedial order.

We are satisfied that the use of the non-urgent procedure is appropriate. We accept that the non-urgent procedure ensures there is an opportunity for representations to be made on the Government’s proposals.

We are required to report on whether the proposal for the draft Remedial Order meets the criteria of the Joint Committee on Statutory Instruments. We are satisfied that it does so. (Paragraph 38) Remedying the incompatibility

We are satisfied that the Commissioner is sufficiently independent and impartial to exercise the authorisation function.

We are satisfied that the proposed draft Remedial Order would bring the bulk interception regime under the IPA in line with the requirements of Article 10 of the ECHR regarding prior authorisation, as set out by the Grand Chamber in the Big Brother Watch case.

We are not satisfied that the proposal for the draft Remedial Order would bring the retention regime under the IPA in line with the requirements of Article 10, as set out by the Grand Chamber in the Big Brother Watch case.

We recommend that the proposed draft be amended to reflect that the Investigatory Powers Commissioner must order the relevant material to be destroyed unless the public interest test is met. The Commissioner must not be empowered to authorise the retention of the relevant material—even with conditions—where the public interest test has not been met.

Subject to our recommendation regarding authorisation for retention, we are satisfied that the draft of the proposed Remedial Order would adequately address the incompatibilities with Article 10 (freedom of speech) identified by the Grand Chamber in the Big Brother Watch case concerning the examination and retention of journalistic material. (Paragraph 48) 20 Proposal for a Draft Investigatory Powers Act 2016 (Remedial) Order 2023

We recommend that the Government proceeds to lay a draft order before both Houses once the Remedial Order has been modified in accordance with our recommendation concerning retention. (Paragraph 48) Other matters arising

We recommend that the Home Office and the security agencies engage with the Investigatory Powers Commissioner so they can review any journalistic material which has been retained and remains retained before this Remedial Order is made to ensure that it meets the public interest test.

Departments must give us as much detail as they can when explaining their decisions regarding the use of delegated powers to make Remedial Orders under the Human Rights Act. They must provide specific information about how they came to the relevant conclusions about the compelling reasons for using the Remedial Order powers, and whether or not the urgent procedure should be used. (Paragraph 54) Proposal for a Draft Investigatory Powers Act 2016 (Remedial) Order 2023 21