The proposed new data gathering powers of the regulator under the Investigatory Powers Act 2016 (IPA 2016) are in addition to the powers under the current Pensions Acts and also under the new Pensions Schemes Bill.

The powers under IPA 2016 are extensive, the legislation lengthy and needs to be considered in its entirety. We have summarised below some of the key aspects.

We support the regulator in its work in protecting members. At the same time it is vital for the industry, employers and schemes to consider and understand that interaction between these new proposed data gathering powers and the current Section 72 information notice powers and also the expanded powers under the Pensions Schemes Bill.

For example, the IPA 2016 powers relate to The Pensions Regulator’s (TPR) investigations of criminal conduct, and as the Pensions Schemes Bill is set to introduce a number of wide-ranging new criminal sanctions, this means that the powers of TPR to gather data under IPA 2016 will also be extensive.

Also, how will all of TPR’s powers interact? For example, TPR might serve a Section 72 notice on one party; require another to attend a compulsory interview; and serve an IPA 2016 notice on another.

The potential for complex interaction between a broad toolkit of TPR powers suggests that ongoing dialogue with TPR and guidance on how these powers will be used in practice will be vital.

The proposal

The draft legislation includes TPR as a specified body with powers to obtain data under the Investigatory Powers Act 2016.

What do the new powers apply to?

The powers apply where the regulator believes that it is necessary to obtain data in the case of data wholly or partly relating to a specified event: for the purpose of preventing or detecting serious crime, or in any other case: for the purpose of preventing or detecting crime.

Authorisation for obtaining data

In non-urgent cases, the regulator must apply to the Investigatory Powers Commissioner for TPR to be granted the power to obtain the data in a particular case.

In urgent cases, the regulator can itself authorise its staff to obtain the data. The power to authorise is held by any "head of department in an enforcement or intelligence role", rather than the Determinations Panel.

How extensive is the power?

The power includes: TPR obtaining the data itself from any person or telecommunication system; asking any person TPR believes is, or may be, in possession or can obtain data, to obtain and disclose the data; requiring by notice a telecoms operator who TPR believes is, or may be, in possession of or can obtain data, to obtain and disclose the data.

What duties arise on a receipt of a notice?

The duties include that a telecoms operator is required to take all reasonably practicable steps to comply with a notice and TPR may apply to court for an injunction, specific performance or other order to require compliance

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