UK government proposes expansion of investigatory powers

The government has published a draft statutory instrument which, if it is approved by parliament, would amend the act to add the Pensions Regulator, Insolvency Service, Civil Nuclear Constabulary, Environment Agency, , and the UK National Authority for Counter Eavesdropping to the list of authorities which can obtain communications data.

The proposed amendment would equip the authorities with the tools needed to effect proper enforcement, such as the ability to obtain communications data through warrant, unbeknownst to the subject of the warrant.

The expansion to include the Insolvency Service would enable it to gather evidence relating, in particular, to cases of breach of director disqualification orders or fraudulent trading by directors.

In a memorandum to the statutory instrument (2 page / 27KB PDF), the government said the five authorities were “increasingly unable to rely on local police forces to investigate crimes on their behalf”. The memo states that these public authorities require access to data to assess risks and investigate suspected offences.

Pensions litigation expert Ben Fairhead of Pinsent Masons, the law firm behind Out-Law, said the expansion of the Investigatory Powers Act 2016 could be indicative of a trend towards something like parity of powers between law enforcement agencies such as the Serious Fraud Office, and the Pensions Regulator. 

He said: “This ties in with the Pensions Regulator taking the lead on more direct enforcement and prosecution action in recent times – it has existing powers but this will inevitably strengthen and widen the scope it has for pursuing criminal investigations”.

Regulatory law expert Katie Davighi of Pinsent Masons said the proposals could be reflective of a mood within law enforcement that pre-existing powers may not be sufficient to enable the effective investigation of potential misconduct, both more generally, and particularly in the current context in which the majority of the workforce in certain sectors are required to work from home. She said: “The proposal may also be indicative of law enforcement seeking to ensure communality of approach, or at least, the tools available to enforcement agencies. Possibly, we might see a more collaborative enforcement approach in the future”.

The proposals came in the wake of the introduction of temporary powers brought into effect by the Coronavirus Act 2020, which passed into law in March.

The act enables the secretary of state to grant powers to the Investigatory Powers Commissioner to appoint temporary commissioners with powers to sign warrants, in anticipation of staff shortages. It also expanded the time limit on seeking retrospective warrants.

“In light of these proposals to strengthen enforcement powers, and whilst acknowledging the host of unprecedented challenges in-house counsel are currently faced with, it is prudent to ensure that compliance policies are up-to-date and adjusted to match current trends. HMRC chief executive Jim Harra has said that the department has been approached by furloughed workers who felt they were being pressured to work whilst benefitting from the grant. Remotely accessible training, and the signposting of new policies would greatly strengthen firms compliance profiles,” Davighi said. "It remains to be seen whether these proposals will be enacted into law, and, if so, their impact on the UK enforcement appetite."