Warrantry
The IPA 2016 provides for a warrantry process – the process through which activity under the Act is authorised. The authorisation process is multi layered, involves independent oversight by the judiciary and is based on the principles of necessity and proportionality. Depending on the powers being authorised for use by which authority, different authorisation processes are followed.
	For example, all warrant applications for interception require approval from the Secretary of State and a Judicial Commissioner whereas the use of equipment interference powers by police forces must be authorised by a Chief Constable and a Judicial Commissioner.
	Exceptionally, warrants for the use of interception or equipment interference, where the purpose is to obtain the communications of a member of a relevant legislature, must additionally be approved by the Prime Minister. This is known as "the triple lock".
	Following the Home Secretary’s statutory review of the IPA 2016 and Lord Anderson’s independent review, several areas were identified where processes around warrantry could be made more resilient and effective. This part of the IPA 2016 regime balances the requirement for strong statutory oversight with the operational requirements of the operational community and the Government identified potential ways to improve the regime while maintaining this balance.
	Firstly, given the restrictive nature of the existing approvals process for warrants the purpose of which is to intercept or examine the communications of members of a relevant legislature under Sections 26 and 111 IPA 2016, critical intelligence gathering opportunities may be missed as a result of the Prime Minister being unable to consider a warrant application due to medical incapacitation or a lack of access to secure communications. The Act makes changes to the IPA 2016 with the intention of ensuring that lack of availability of those individuals or office holders required by the IPA 2016 to authorise certain warrants or activities does not come at the cost of critical operations. It does this by providing that alternative approvers of sufficient rank or office are able to approve warrant applications in urgent circumstances. Alternative approvers must have the necessary operational awareness, which will be further defined in the relevant Codes of Practice, in order to be appointed by the Prime Minister to consider warrant applications when the Prime Minister is unable to do so. In the case of Section 26 or 111 warrants, the Act makes provision for the Prime Minister to nominate a cadre of five Secretaries of State who will be empowered to exercise the Prime Minister’s power to provide the final authorisation of the "triple lock". The procedure for the use of an alternative approver would only become available where the requirement for the authorisation is urgent and the Prime Minister is unable by virtue of medical incapacitation or a lack of access to secure communications.
	Secondly, the Act makes provision to add a Deputy Director General of the National Crime Agency to the list of law enforcement chiefs who are able to delegate the function of considering Targeted Equipment Interference (TEI) applications under s.106 IPA 2016, to appropriate delegates (as described in the table in Part 1 of Schedule 6 IPA 2016) in urgent cases. Equipment interference (EI) allows the security and intelligence agencies, law enforcement and the armed forces to interfere with equipment to obtain electronic data. This includes computers, tablets, smartphones, cables, wires and static storage devices. EI can be carried out either remotely or by physically interacting with equipment. The policy objective of this change is to improve the resilience of the process and ensure that the lawful authorisation of warrants critical to investigations is not reliant on a potential single point of failure in the authorisation process, while remaining at a suitably senior level.
	Thirdly, under the IPA 2016 as it was enacted, the processes associated with the removal of a subject from a TEI warrant did not provide a power for the Secretary of State to make any decisions about the authorisation at the point of removal stage in the process, but do require the Secretary of State to be notified of the removal. The removal of a subject will not result in further interference with privacy rights, so it could be considered unnecessary to notify the Secretary of State at this stage. The Act therefore makes an amendment to the processes associated with the removal of a subject from a TEI warrant which removes the requirement to notify the Secretary of State at the point of the removal of the subject.
	Fourthly, the Act makes changes to the table in Part 1 of Schedule 6 of the IPA 2016 which rectify a drafting error in the column providing for the delegation, in urgent circumstances, of the authorisation of an equipment interference warrant from a Chief Constable to a Deputy Chief Constable or an Assistant Chief Constable. As enacted, the IPA 2016 referred to a repealed provision within an extant piece of legislation to allow for this delegation. The relevant power of delegation is now set out in different legislation, so Schedule 6 of the IPA 2016 has been updated to reflect this.
	Finally, the way in which the IPA 2016 is currently drafted means that a Targeted Examination Equipment Interference (TXEI) warrant under Part 5 of the IPA 2016 cannot be issued for the purpose of national security where it relates to equipment located in Scotland. The issue has been remedied through a partial commencement. Regulation 9 of The Investigatory Powers Act 2016 (Commencement No. 5 and Transitional and Saving Provisions) Regulations 2018 came into force on 27th June 2018. The Act tidies up the IPA 2016 and corrects the error in legislation by amending section 102(4) IPA 2016 so that the Secretary of State would no longer need to rely on the partial Commencement of a provision.