IPCO makes independent decisions on requests for communications data (CD) from law enforcement and certain other public authorities under the Investigatory Powers Act 2016 (IPA).

The Investigatory Powers Commissioner (IPC) is ultimately accountable for authorising CD requests. The IPC delegates his powers to the Authorising Individuals in IPCO’s Authorisations Team. The role of the team is to review independently applications to access CD from law enforcement and public authorities, to ensure it is only authorised where this is lawful, necessary and proportionate and meets the thresholds outlined within the relevant sections of the IPA.

The double lock

The “double-lock” refers to the review of applications by our Judicial Commissioners for warrants allowing public authorities to use the most intrusive investigatory powers.

Unless a public authority is empowered to authorise activities internally, public authorities will submit applications for the use of investigatory powers to ministers (or for CD, to IPCO). Applications for the most intrusive powers are then reviewed by one of our Judicial Commissioners – only with approval from one of our Commissioners can a warrant be issued.

This is known as the “double-lock” process. It ensures a two-stage approval for the use of investigatory powers.

There are some exceptional circumstances for reasons or urgency, such as an immediate threat to life, where this prior approval is not required. In this instance, a Judicial Commissioner must be notified and may approve or quash the warrant or authorisation after it has been issued.

Considering warrants

Section 2 of the Investigatory Powers Act sets out the general privacy considerations that a Judicial Commissioner must have regard to when considering whether to approve a decision by a Secretary of State, Scottish Minister or Chief Officer to issue a warrant.

They must review the conclusions reached by the Secretary of State, Scottish Minister or Chief Officer regarding the necessity and proportionality of the warrant. In other words, Judicial Commissioners need to ensure the warrant is necessary:

  • In the interests of national security;
  • In the interests of the economic wellbeing of the UK; or
  • To prevent or detect serious crime.

They also need to believe that the warrant is proportionate to what it intends to achieve. IPCO has issued a guidance note to help public authorities and the public understand the approach taken by our Judicial Commissioners in making these decisions.

Judicial Commissioners will seek additional information about applications for warrants before making a decision if they feel that further clarity is required.

Training and briefings

Before commencing their role, all our Judicial Commissioners completed extensive training covering the work of public authorities and how each power is used operationally.

Regular briefings are given to Judicial Commissioners as new issues arise. We also host quarterly meetings for our Commissioners to consider present intelligence threats, technological or operational developments and relevant legal developments.

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