Changes to the Notices Regime
Notices may be given to relevant operators that hold data of operational relevance in order to provide and maintain investigatory powers capabilities. This ensures the intelligence services and law enforcement have access to data required for their investigations.
	The provisions in this Act amend the definition of a TO out of an abundance of caution to ensure that obligations imposed by the IPA 2016 can apply to all constituent parts or entities of the company, irrespective of where the entity providing the "telecommunications service" is based or the entity controlling the "telecommunications system" is based. Provisions also aim to clarify that a notice may be given to one entity in relation to another entity’s capability.
	When giving a notice for the first time, the Secretary of State has a statutory obligation to engage in a consultation period with the relevant operator. Following this consultation, and taking into consideration the views of the operator, the Secretary of State then considers whether to formally give the notice. Should they decide to do so, the notice must then be approved by a JC and formally given to the company before its obligations become binding on them. If at this point the operator is dissatisfied with the terms of the notice, they have a statutory right to refer the notice (or part of it) to the Secretary of State for review as set out in sections 90 and 257 of the IPA 2016.
	The Secretary of State must then consult the Technical Advisory Board (TAB) and a JC. As it stands, during a review period the operator is not required to comply with the notice, so far as referred, until the Secretary of State has determined the review. Where an operator is seeking to make significant changes to their services or systems that would have a detrimental effect on a current lawful access capability, this could create a capability gap during the review period.
	After considering reports from the Technical Advisory Board (TAB) and the JC, the Secretary of State may decide to vary, revoke, or confirm the effect of the notice. Where the Secretary of State decides to confirm or vary the notice, the IPC must approve the decision. Section 8 amends s.227(8) to allow the IPC to delegate this function to the newly created Deputy IPCs, in the event that the IPC is unable or unavailable to exercise this function.
	The measures in this Act aim to ensure that the TO maintains the status quo, by not making any changes that may have a negative impact on lawful access capabilities, until the review by the Secretary of State has concluded (Section 18).
	Sections 90(1) and 257(1) of the IPA 2016 include regulation making powers in relation to a review of a notice. The Investigatory Powers (Review of Notices and Technical Advisory Board) Regulations 2018 (S.I. 2018/354), made pursuant to s.90(1) and s.257(1), set out the period and circumstances within which notices maybe referred back to the Secretary of State for a review. However, the pre-existing power does not give the Secretary of State the power to specify in regulations a time limit regarding the overall review process. Section 18 introduces a new regulation making power that will enable the amendment of existing regulations (S.I. 2018/254) to specify both the length of time the Secretary of State can take to reach a decision on the review of a notice, upon receipt of the report by the JC and TAB, and the overall length of time a review of a notice can take. This provides clarity to both operators and operational partners regarding how long a review of a notice can take and therefore how long the status quo must be maintained by the operator.
	It is also necessary to make provision for a JC to issue directions to the Secretary of State and the person seeking the review, as they see fit, to ensure the effective management of the notice review process. Section 18 gives a JC the power to give directions to both parties specifying the time period for providing their evidence or making their representations and give the JC the power to disregard any submissions made outside these timelines. This ensures the JC has the appropriate power to deal with non-compliance and provides clarity to all parties regarding timelines and expectations.
	A TO, or any person employed or engaged for the purposes of the business of a TO, must not disclose the existence or contents of a notice to any other person without permission of the Secretary of State. This prohibition is enforceable by civil proceedings under Section 95(2) and (5) for DRNs, however there was previously no equivalent enforcement provision for TCNs or NSNs. Provisions in this Act amend s.255(10) IPA 2016 with the intention of ensuring that the duty not to disclose the existence or contents of a TCN or an NSN is also enforceable by civil proceedings.
	TOs who are already subject to a notice are required to inform the Secretary of State of any changes that may impact their existing notice obligations. This ensures that changes do not have a negative effect on investigatory powers. This Act imposes obligations on TOs who have not already been issued with a notice, to inform the Secretary of State of relevant changes, including technical changes that might affect lawful access, before such changes are implemented.
	Under the current IPA 2016 provisions, the approval of a JC is required where the Secretary of State proposes to vary a notice and that variation would impose additional requirements on the TO (sections 94(4) and 256(4) and (5). The IPA 2016 also requires that the Secretary of State keeps relevant notices under regular review (sections 90(13) and 256(2), with the review process described in the relevant Codes of Practice. This Act creates a statutory role for the IPC within a formalised notice renewal process, if a period of two years has elapsed since a notice was first given, varied or renewed. This introduces an additional safeguard. With the introduction of the notice renewal process, a consequential amendment was required to the IPC’s main oversight functions. As such, this Act makes an amendment to insert a reference into s.229 to enable a JC to decide whether to approve the renewal of certain notices.