1.By its letter dated 17 November 2011, the Committee requests that the Home Office explain:
a) why the Criminal Justice (European Investigation Order) Regulations 2017 (“the Regulations”) purport to be made in exercise of the powers conferred by section 10(3) of the Investigatory Powers Act 2016 (“the 2016 Act”) at a time when it is not yet in force; and
b) if reliance is placed on section 13 of the Interpretation Act 1978 (“the 1978 Act”), the justification for that reliance.
2.This memorandum is submitted in response to that request.
3.As the Committee notes, section 10(3) of the Investigatory Powers Act 2016 is not yet in force. The Home Office confirms that reliance is placed on section 13(1)(b) of the 1978 Act in relation to regulation 59 of the Regulations. Under that regulation, the power conferred by section 10(3) of the 2016 Act is being exercised in order to designate Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order (“the Directive”) as a “EU mutual assistance instrument” for the purposes of that section and for other key provisions in that Act. The Home Office further confirms that reliance on section 13 of the 1978 Act in order to make this designation prior to the entry into force of the 2016 Act was considered necessary and expedient for the purpose of giving full effect to section 10 and other relevant provisions of that Act at the time it comes into force. This is for the reasons set out below.
4.Part 1 of Chapter 2 of the 2016 Act enables the Secretary of State to issue a “mutual assistance warrant” for one of two purposes. The first is to serve as a basis for a request to a foreign State for assistance in intercepting communications. The second is in order to give effect to a similar request made of the UK by a foreign State. Under the Act, a mutual assistance warrant can only be issued where there are appropriate international arrangements in place between the UK and the foreign State involved, governing the making of such requests. These arrangements can take the form of an “EU mutual assistance instrument”, which is defined in section 10(3) of the Act to include certain EU instruments designated by regulations made by the Secretary of State. It is therefore only once a particular instrument has been designated (in this case the Directive) that it falls within the definition of “EU mutual assistance instrument”. Only then can a mutual assistance warrant be issued for the purpose of making or giving effect to requests for assistance under that instrument.
5.The reference to “EU mutual assistance instrument” in section 10 was included with the Directive in mind, being an EU instrument which creates obligations in relation to cross-border requests for the interception of communications. It is necessary for the designation to be in place at the time the regime created by the 2016 Act comes into force for the UK to continue to be able fulfil its obligations under the Directive. Currently these obligations are fulfilled through the Regulation of Investigatory Powers Act 2000 (as amended by the Regulations), which expressly refers to the Directive in sections 1(4B)(b) and section 20. Those provisions will cease to have effect on the entry into force of section 10 of the 2016 Act.
21 November 2017
30 November 2017