First Report - Draft Investigatory Powers Act 2016 (Remedial) Order 2023: Second Report

We welcome the Government’s action in laying the Draft Remedial Order to rectify the incompatibility of the UK’s bulk communications interception regime as regards the protection of confidential journalistic material and sources of journalistic material, as protected by Article 10 (freedom of expression) ECHR. (Paragraph 5) Procedural requirements

We are satisfied that the Government has complied with the procedural requirement to summarise the representations it has received and to detail any changes that have been made to the Draft Remedial Order as a result of those representations.

We remain content that the Home Office has compelling reasons for proceeding by way of remedial order. We accept that, notwithstanding the introduction of the Investigatory Powers (Amendment) Bill, it remains appropriate in the circumstances for the Government to proceed by way of remedial order.

We remain 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 satisfied that we do not need to draw the Draft Remedial Order to the special attention of Parliament on any of the JCSI’s grounds. (Paragraph 41) Remedying the incompatibility

We welcome the amendments made by the Government in response to our recommendation to amend the draft to require the Investigatory Powers Commissioner to order the destruction of the relevant material unless the public interest test is met.

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

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

We are content that the addition of the urgent procedure for prior authorisation of selectors is compatible with Article 10 ECHR in light of its attendant safeguards. We accept that it may be necessary in some circumstances for decisions to be made urgently outside working hours. We consider other ways could have been found to accomplish this, but given that the Government has decided to proceed in this manner and included the safeguards set out, above, we accept that the procedure Draft Investigatory Powers Act 2016 (Remedial) Order 2023: Second Report 27 is likely to be considered compatible with Article 10. However, the Government should take steps to ensure that the circumstances in which it is necessary to use the procedure are kept to a minimum.

In light of the particular importance of the maintenance of journalistic freedoms under Article 10 ECHR, we recommend that the IC Code is updated to give clear guidance on the meaning of ‘urgent’ in the specific context of authorisations by senior officials under new section 154(2)(b) concerning journalistic material, as well as illustrative examples. This updated guidance should be published within six months of the Remedial Order coming into force.

We are surprised by the Home Office’s statement that the IPCO does not have a mechanism for facilitating urgent approvals by Judicial Commissioners outside standard working hours. We therefore encourage the Home Office to engage with the IPCO to see whether an appropriate mechanism - such as an on-call rota - could be developed in order to minimise the situations in which a senior official would take initial decisions in place of an independent Judicial Commissioner. We request that the Home Office writes to the JCHR before the end of six months after the Remedial Order comes into force to set out what actions have been taken by it to ensure that the circumstances in which a senior official would need to take a decision out of hours instead of a Judicial Commissioner have been minimised.

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

We are satisfied that the Draft Remedial Order would adequately address the incompatibilities with Article 10 ECHR (freedom of speech) identified by the Grand Chamber in the Big Brother Watch case concerning the examination and retention of journalistic material.

We recommend that the Draft Remedial Order is approved by Parliament. (Paragraph 70) Other matters arising

Departments should only lay proposals for draft remedial orders before Parliament when they have fully determined their policy requirements. This includes carrying out effective engagement with UKIC, which can reasonably be expected of Government where a remedial order would have a direct and profound impact on the functions of security agencies. The two-stage process for Parliamentary scrutiny of remedial orders should not be used by the Government as an opportunity to ‘correct’ policy oversights which it could reasonably have identified by consulting UKIC or other Government agencies, thereby reducing the time available to Parliament and other parties to fully scrutinise the Government’s policy.

We welcome the fact that the Home Office has followed the recommendation of our previous report in a timely fashion. (Paragraph 76) 28 Draft Investigatory Powers Act 2016 (Remedial) Order 2023: Second Report

We reiterate our reminder that Government 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.

We remind Departments of the need for timely responses to the Joint Committee on Human Rights in order to ensure that remedial orders receive effective Parliamentary scrutiny. (Paragraph 81) Draft Investigatory Powers Act 2016 (Remedial) Order 2023: Second Report 29