Investigatory Powers Commissioner (IPC) Functions Flexibility and resilience
The Act contains measures which amend the role of the IPC and wider oversight regime with the intent of providing increased flexibility and resilience, and to formalise the IPC’s functions.
	Under the current legislation, there are currently two mechanisms by which the IPC’s functions can be amended. This is either by: regulations made by the Secretary of State under s.239 of the IPA 2016 to amend s.229 of the IPA 2016; or by a direction issued by the Prime Minister under s.230. Such directions under s.230 are currently limited to the activities of the intelligence agencies and the MoD, so far as engaging in intelligence activities. The Government’s policy intent in this Act is to achieve greater consistency in how the Government can direct the IPC to oversee the activities of public authorities whose activities fall within the remit of the IPA 2016, by extending the power of the Prime Minister to issue such directions to other public authorities that use the IPA 2016, so far as engaging in intelligence activities. This ensures clearer parameters regarding the IPC’s oversight and ensures that law enforcement agencies, such as, the NCA are included in the scope of s.230, with the flexibility that would allow a rapid response to emerging oversight requirements.
	The IPA 2016 did not make provision for the IPC to formally appoint a Deputy IPC (DIPC) to exercise functions that are personally conferred on the IPC (such as, the ability to review a decision of a JC not to approve a warrant or approve the decision of a Secretary of State to give a notice). Lord Anderson’s report highlighted that this could hamper IPCO’s resilience and agility, particularly in circumstances where the IPC may be unavailable to carry out their role. The Act allows for up to two Deputy IPCs to be appointed, given that the IPC is contracted to work for 3 days per week and JCs are contracted to work for 90 days per year to provide further resilience. The policy intent is that the IPC would be able to formally appoint up to two DIPCs because of the risk that a single Deputy might become unavailable. The specific appointment and removal from office of Deputy IPCs would be the responsibility of the IPC.
	The Act contains a measure which delegates all the IPC’s appellate functions to the newly created Deputy IPCs when the IPC is unable or unavailable to determine them for any reason. This is relevant in the context of authorisations under the IPA 2016 and Schedule 3 of the Counter Terrorism Boarder Security Act 2019, regarding appeals to the IPC against a JC’s decision. This measure gives Deputy IPCs the power to determine such appeals when the IPC is unable or unavailable to determine them.
	The IPA 2016 was amended by the Data Retention and Acquisition Regulations 2018 to add a new provision to give the IPC power to authorise the acquisition of Communications Data (CD) (Section 227(9A) of the IPA 2016). The IPC’s power to delegate functions to a JC under s.227(8) of the IPA 2016 does not extend to the IPC’s functions relating to CD under ss.60A and 65(3B) IPA 2016 and extends only to where the IPC is unable to exercise these functions because of illness or absence or for any other reason. This restriction caused issues during the Covid pandemic, where although office access was limited, the IPC was arguably not "unable" carry out his functions within the meaning of s.227(9A) IPA 2016. This Act amends the IPA 2016 to remove this limitation and allows the IPC’s power in respect of CD authorisation to be generally exercised by JCs.
	This Act removes the IPC’s oversight functions relating to telecommunications restriction orders (TROs) for prisoners under s.229(3)(c) of the IPA 2016. TROs are already subject to judicial approval in the county court, which provides the necessary degree of assurance and oversight, and the Government has not identified any additional benefit in the IPC overseeing this process after the event.
	There was previously no provision in the IPA 2016 for the IPC to formally appoint temporary JCs. The ability to appoint temporary JCs under the Coronavirus Act 2020 proved vital to the continued operation of the IPA 2016 and its oversight regime during the COVID-19 pandemic. Following the suspension of the emergency legislation, the Home Office has replicated the procedures, safeguards, and terms of appointment set out in ss. 22 and 23 of the Coronavirus Act 2020 in this Act, but removed the connection to coronavirus and widened its application to exceptional circumstances which result in a shortage of JCs. Specifically, the powers provide that: the IPC may appoint temporary JCs to carry out the functions conferred on JCs by any enactment; a temporary JC would be appointed for one or more terms not exceeding six months each and not exceeding three years in total; and the Secretary of State and the IPC must also agree that an exceptional circumstance which results in a shortage of JCs exists before these powers are exercised.