Citation, commencement and extent

1.—(1) This Order may be cited as the Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021.

(2) This Order comes into force on 10th August 2021.

(3) This Order extends to England and Wales, Scotland and Northern Ireland.

Amendments to the Regulation of Investigatory Powers (Source Records) Regulations 2000

2.  In regulation 3 of the Investigatory Powers (Source Records) Regulations 2000( 2) (particulars to be contained in records) —

(a) at the end of paragraph (m), omit “and”;

(b) at the end of paragraph (n), insert “and”;

(c) after paragraph (n), insert—

“(o) in the case of a source in relation to whom a criminal conduct authorisation has been granted under section 29B of the 2000 Act—

(i) any criminal conduct authorisations granted to the source, including any parameters of the conduct authorised;

(ii) confirmation from the person granting or renewing the authorisation that the authorisation and parameters of the authorisation have been explained to, and understood by, the source;

(iii) the authorisation under section 29 of the 2000 Act to which the criminal conduct authorisation relates. ”.

Amendments to the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010

3.  The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010( 3) is amended as follows—

(a) in article 3 (matters subject to legal privilege), after “section 29”, in both places it occurs, insert “or section 29B”;

(b) in article 4 (approving officer), after “section 29” insert “or section 29B”;

(c) in article 5(3)(a) (notification), for “article 6(4) and section 29(2)(b) and (c)” substitute “article 6(4), section 29(2)(b) and (c) and section 29B(4)(b) and (c)”;

(d) in article 6(3)(a)(ii) (approval required for grant or renewal of authorisations), after “and (c)” insert “or section 29B(4)(b) and (c)”.

Amendments to the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010

4.—(1) The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010( 4) is amended as follows.

(2) In article 3 (prescribed offices, ranks and position with relevant public authorities), at the end of paragraph (2)(aa) omit “and” and insert—

“(ab) column (2) of Part 1B of the Schedule (being offices, ranks and positions with the relevant public authorities which are listed in relation to such entries in column (1) of that Part and which are relevant public authorities for the purposes of section 29B of the Act), and ”.

(3) For article 4(2) (additional offices, ranks and positions prescribed for urgent cases), substitute—

“(2)  An individual holding an office, rank or position which is listed in an entry in column (3) of the Schedule may only grant an authorisation—

(a) for the purposes of section 28 or 29 of the Act in the case of an entry in Part 1 of the Schedule;

(b) for the purposes of section 29 or 29B in the case of an entry in Part 1A of the Schedule;

(c) for the purposes of section 29B only in the case of an entry in Part 1B; or

(d) for the purposes of section 28 only in the case of an entry in Part 2,

where is it not reasonably practicable, having regard to the urgency of the case, for the application for an authorisation to be considered by an individual with the same relevant public authority holding an office, rank or position which is listed in column (2) of the Schedule. ”.

(4) In article 5 (restrictions on the granting of authorisations)—

(a) in paragraph (1), after “column (2) or (3)” insert “of Parts 1, 1A and 2”;

(b) after paragraph (1), insert—

“(1A)  An individual holding an office, rank or position which is listed in an entry in column (2) or (3) of Part 1A of the Schedule may not grant an authorisation under section 29B unless that individual believes it is necessary for any of the grounds set out in the corresponding entry in column (5) of that Part.

(1B)  An individual holding an office, rank or position which is listed in an entry in column (2) or (3) of Part 1B of the Schedule may not grant an authorisation under section 29B unless that individual believes it is necessary for any of the grounds set out in section 29B(5) of the Act which are listed in the corresponding entry in column (4) of that Part. ”;

(c) in paragraph (2)—

(i) in sub-paragraph (aa)—

(aa) after “29(3)” insert “or 29B(5)”;

(bb) omit “or” at the end of the sub-paragraph;

(ii) after sub-paragraph (aa), insert—

“(ab) section 29B(5) of the Act in the case of an entry in Part 1B, or ”.

(5) In article 8 (restrictions on granting of authorisations apply to more senior offices etc.), for “28 and 29” substitute “28, 29 and 29B”.

(6) In Part 1 of the Schedule (offices etc. and restrictions in respect of public authorities specified in Part 1 of Schedule 1 to the Act)—

(a) in the entry for the Police Service of Northern Ireland, column (3), for “Inspector” substitute “Superintendent”;

(b) in the entry for the Ministry of Justice—

(i) for both entries in column (2), substitute “A civil servant at Band 8 or above of Her Majesty’s Prison and Probation Service”;

(ii) for both entries in column (3), substitute “A civil servant at Band 8 or above of Her Majesty’s Prison and Probation Service”;

(c) in the entry for the Environment Agency, omit “Area Director or”;

(d) in the entry for the Food Standards Agency—

(i) for each entry in column (2) substitute “Grade 6 Deputy Head of the National Food Crime Unit or Head of Litigation in the Legal Department”;

(ii) for each entry in column (3), substitute—

(7) For the table in Part 1A of the Schedule, substitute the following table—

(8) After Part 1A of the Schedule, insert—

“PART 1B

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes changes to certain Orders and Regulations made under the Regulation of Investigatory Powers Act 2000 (c. 23)(“the 2000 Act”) which are consequential to changes made by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (c. 4)(“the 2021 Act”) to the 2000 Act. This Order also makes unrelated minor changes to the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 ( S.I. 2010/521) (“the 2010 Order”).

Article 2 amends the Regulation of Investigatory Powers (Source Records) Regulations 2000 ( S.I. 2000/2725) to insert requirements to keep records relating to criminal conduct authorisations given under section 29B of the 2000 Act, as inserted by the 2021 Act.

Article 3 amends the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 ( S.I. 2010/123) to apply the safeguards that exist for section 29 authorisations which relate to legal professional privilege material to section 29B authorisations as well.

Article 4 amends the 2010 Order in various ways which are consequential on the creation of section 29B authorisations.

Paragraph (2) of that article amends article 3 of the 2010 Order to provide that those designated in column 2 of Part 1B of the Schedule are prescribed for the purposes of section 30(1) of the 2000 Act.

Paragraph (3) amends article 4 of the 2010 Order to include section 29B authorisations within the urgency provisions in article 4.

Paragraph (4) amends article 5 of the 2010 Order to restrict the purposes for which section 29B authorisations may be made by individuals listed in column 2 or 3 of Part 1A and Part 1B of the Schedule.

Paragraph (5) amends article 8 of the 2010 Order with the effect that the offices, ranks or positions specified in Parts 1A and 1B of the Schedule include those individuals holding more senior offices, ranks or positions.

Paragraph (6) makes four minor changes to Part 1 of the Schedule to the 2010 Order which either reflect changes in certain bodies in Part 1 or where other bodies wished to make the individuals holding offices, ranks or positions designated in Part 1 consistent with those to be designated in Part 1A and 1B of the Schedule in relation to section 29B authorisations.

Paragraph (7) amends Part 1A of the Schedule to the 2010 Order to insert a new column (5) which specifies the available grounds set out in section 29B(5) for authorisations to be granted by those holding the offices, ranks or positions which are prescribed in that Part for the purposes of section 30(1) of the 2000 Act.

Paragraph (8) inserts Part 1B into the Schedule to the 2010 Order which specifies the individuals holding offices, ranks or positions in those bodies specified in Schedule A1 to the 2000 Act (which was inserted by the 2021 Act) and the corresponding grounds in section 29B(5) for the purposes of which those holding those offices may grant a section 29B authorisation.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.