Appointment of Judicial Commissioners
48 The Investigatory Powers Act 2016 (the "IPA") is a critical piece of domestic legislation for national security. It creates the statutory basis for the use of the investigatory powers by the intelligence and law enforcement agencies, using warrants issued under the IPA. These warrants provide the agencies with the capability they need to protect national security and investigate and prevent serious crime. The Investigatory Powers Commissioner is the independent overseer of almost all investigatory powers. They also have oversight functions under the Regulation of Investigatory Powers (Scotland) Act 2000, and the Police Act 1997. They are supported in this role by 15 Judicial Commissioners, all of whom have held, or do hold, high judicial office. A warrant under the IPA must be signed by the relevant Secretary of State (or, in relation to certain warrants, the Scottish Ministers)and then approved by a Judicial Commissioner for it to be lawful, which is known as the "double lock" (other than urgent warrants, which need to be approved by a Judicial Commissioner within three working days of being issued).
49 Section 227 of the IPA specifies the appointment procedure for a Judicial Commissioner. It requires that a Judicial Commissioner must be jointly recommended by the Lord Chancellor, the Lord Chief Justice of England and Wales, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland and the Investigatory Powers Commissioner before they can be appointed by the Prime Minister.
50 The Bill provides the ability to increase the number of Judicial Commissioners should the effects of covid-19 mean that there is a shortage of Judicial Commissioners. Having a sufficient number of Judicial Commissioners is critical in protecting national security and preventing serious crime, given their vital role in the ‘double lock’ for warrants.
51 The Bill creates a regulation-making power to allow the Secretary of State to vary the appointment process for Judicial Commissioners at the request of the Investigatory Powers Commissioner where there are too few judicial commissioners available to exercise their functions as a result of the effects of Covid-19. The variation would allow the Commissioner to directly appoint temporary Judicial Commissioners for a term of up to 6 months, renewable to a maximum period of 12 months.
Urgent warrant process
52 Provisions in the IPA create a procedure for urgent warrants. This allows for ex post facto authorisation by a Judicial Commissioner within three working days of the warrant being issued. Such urgent warrants only last for a maximum period of five working days unless renewed.
53 The Bill creates a regulation making power to enable the timespan of an urgent warrant to be varied at the request of the Investigatory Powers Commissioner., extending the period for ex post facto Judicial Commissioner authorisation and the lifespan of the warrant for up to 12 working days. This will ensure impacts on the warranty process from the pandemic can be mitigated and will ensure the safeguard of judicial approval within the lowest possible time frame after a warrant is issued continues, and the agencies are able to maintain their ability to protect national security and prevent serious crime during a period of potential widespread upheaval.