Regulator to be empowered by expansion of ‘snoopers’ charter’

The expansion of the 2016 Investigatory Powers Act, dubbed “the snooper’s charter” by critics, authorised the bulk interception and collection of communications data, as well as giving police, intelligence agencies and select government officials the power to access large parts of that data without a warrant.

The proposed expansion of the act would see a number of new bodies given the right to make use of the collected data, including TPR.

The watchdog is to be given “the power to obtain communications data, where it is wholly or partly events data, for the purpose of preventing or detecting serious crime, and in any other case for the purpose of preventing or detecting crime or preventing disorder”, according to the explanatory note accompanying the proposal.

In practice, and in common with many other regulators, TPR prefers to make sparing use of its powers if at all possible

Joel Eytle, DLA Piper

A government memorandum ‘explaining purpose and effect’ stated: “TPR has become responsible for enforcement of employer automatic enrolment duties, which have been gradually rolled out to more than 1m businesses since 2012. 

“This has dramatically increased the scale of TPR’s enforcement activity and highlighted the need for effective sanctions, including prosecution. In parallel with this, TPR has adapted its approach to its other areas of responsibility, putting more emphasis on prosecution as a means of securing compliance and punishing wrongdoing.” 

It concluded: “Communications data powers will be highly valuable in investigations as digital footprints become increasingly significant.”

Information-gathering will support new robust approach

In a statement, a spokesperson for the regulator explained that scammers are a key target of the new powers: “We welcome the proposed new powers under the Investigatory Powers Act.  Increased access to communications data including mobile phone and email data will help with our criminal investigations by enabling us to detect, and enforce against, those who ruin lives by scamming savers out of the pensions they have been saving for. 

The new powers are subject to safeguards, and can only be used in criminal investigations where statutory requirements are met. Their use is governed by the Home Office code of practice, and will be overseen by the Investigatory Powers Commissioner.

“With our partners, we work hard to ensure savers know how to spot and avoid a scam and can access the information they need .  We also work to ensure trustees are equipped to be the first line of defence for savers.  Where appropriate, we use our powers to bring fraudsters to justice and to act as a deterrent to protect savers in the future,” the spokesperson added.

On what these new powers entail, Joel Eytle, partner at DLA Piper’s pensions group, said: “The draft regulations extend the regulator’s powers to obtain data to fight criminal offences – specifically, the regulator will be able to obtain data about the time, date and method by which a communication was sent. This will include emails and telephone calls.

“These powers will build upon the additional information-gathering powers that the regulator will have under the pension schemes bill currently making its way through parliament.”

The watchdog’s new focus on investigation and prosecution follows the introduction of its “quicker, clearer, tougher” maxim, while the pension schemes bill will allow it to prosecute the worst instances of bosses neglecting defined benefit schemes in criminal cases with potential prison sentences.

“The new powers go hand in hand with the increased criminal offences the regulator will be responsible for, and give it greater flexibility to achieve its aims,” Mr Eytle said.

TPR expected to be cautious in approach

The passage of the act in 2016 was met by protest from civil liberties groups, including legal challenges. However, in August last year, the High Court ruled against the latest such challenge brought by Liberty, on the basis that its “interlocking safeguards” provided sufficient protection against abuse.

“In practice, and in common with many other regulators, TPR prefers to make sparing use of its powers if at all possible,” Mr Eytle said. 

“Using its powers could also involve a number of risks, in particular that it could be challenged on the use of those powers and found to have exceeded their scope. This would be harmful for the regulator, and it would also give people a greater understanding of the limits of its powers,” he explained.

Mr Eytle added that the new powers accrued by the watchdog are limited, and “the regulator can only use them in relation to prevention or detection of serious crime or disorder, so I think they are unlikely to be used speculatively”.