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Investigatory Powers
Act 2016
CHAPTER 25
£39.25
 REU, Alm.del - 2016-17 - Endeligt svar på spørgsmål 120: Spm. om ministeren kan fremskaffe den nye britiske lov omhandlende sessionslogning, til justitsministeren
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Investigatory Powers Act 2016
CHAPTER 25
CONTENTS
P
ART
1
G
ENERAL PRIVACY PROTECTIONS
Overview and general privacy duties
1
2
Overview of Act
General duties in relation to privacy
Prohibitions against unlawful interception
3
4
5
6
7
8
9
10
Offence of unlawful interception
Definition of “interception” etc.
Conduct that is not interception
Definition of “lawful authority”
Monetary penalties for certain unlawful interceptions
Civil liability for certain unlawful interceptions
Restriction on requesting interception by overseas authorities
Restriction on requesting assistance under mutual assistance agreements etc.
Prohibition against unlawful obtaining of communications data
11
Offence of unlawfully obtaining communications data
Abolition or restriction of powers to obtain communications data
12
Abolition or restriction of certain powers to obtain communications data
Restrictions on interference with equipment
13
14
Mandatory use of equipment interference warrants
Restriction on use of section 93 of the Police Act 1997
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ii
Investigatory Powers Act 2016 (c.
25)
P
ART
2
L
AWFUL INTERCEPTION OF COMMUNICATIONS
C
HAPTER
1
I
NTERCEPTION AND EXAMINATION WITH A WARRANT
Warrants under this Chapter
15
16
17
Warrants that may be issued under this Chapter
Obtaining secondary data
Subject-matter of warrants
Power to issue warrants
18
19
20
21
22
Persons who may apply for issue of a warrant
Power of Secretary of State to issue warrants
Grounds on which warrants may be issued by Secretary of State
Power of Scottish Ministers to issue warrants
“Relevant Scottish applications”
Approval of warrants by Judicial Commissioners
23
24
25
Approval of warrants by Judicial Commissioners
Approval of warrants issued in urgent cases
Failure to approve warrant issued in urgent case
Additional safeguards
26
27
28
29
Members of Parliament etc.
Items subject to legal privilege
Confidential journalistic material
Sources of journalistic information
Further provision about warrants
30
31
32
33
34
35
36
37
38
39
40
Decisions to issue warrants to be taken personally by Ministers
Requirements that must be met by warrants
Duration of warrants
Renewal of warrants
Modification of warrants
Persons who may make modifications
Further provision about modifications
Notification of major modifications
Approval of major modifications made in urgent cases
Cancellation of warrants
Special rules for certain mutual assistance warrants
Implementation of warrants
41
42
43
Implementation of warrants
Service of warrants
Duty of operators to assist with implementation
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Investigatory Powers Act 2016 (c.
25)
iii
C
HAPTER
2
O
THER FORMS OF LAWFUL INTERCEPTION
Interception with consent
44
Interception with the consent of the sender or recipient
Interception for administrative or enforcement purposes
45
46
47
48
Interception by providers of postal or telecommunications services
Interception by businesses etc. for monitoring and record-keeping purposes
Postal services: interception for enforcement purposes
Interception by OFCOM in connection with wireless telegraphy
Interception taking place in certain institutions
49
50
51
Interception in prisons
Interception in psychiatric hospitals etc.
Interception in immigration detention facilities
Interception in accordance with overseas requests
52
Interception in accordance with overseas requests
C
HAPTER
3
O
THER PROVISIONS ABOUT INTERCEPTION
Restrictions on use or disclosure of material obtained under warrants etc.
53
54
55
56
57
58
59
Safeguards relating to retention and disclosure of material
Safeguards relating to disclosure of material overseas
Additional safeguards for items subject to legal privilege
Exclusion of matters from legal proceedings etc.
Duty not to make unauthorised disclosures
Section 57: meaning of “excepted disclosure”
Offence of making unauthorised disclosures
Interpretation
60
Part 2: interpretation
P
ART
3
A
UTHORISATIONS FOR OBTAINING COMMUNICATIONS DATA
Targeted authorisations for obtaining data
61
62
63
64
65
Power to grant authorisations
Restrictions in relation to internet connection records
Additional restrictions on grant of authorisations
Procedure for authorisations and authorised notices
Duration and cancellation of authorisations and notices
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iv
Investigatory Powers Act 2016 (c.
25)
66
Duties of telecommunications operators in relation to authorisations
Filtering arrangements for obtaining data
67
68
69
Filtering arrangements for obtaining data
Use of filtering arrangements in pursuance of an authorisation
Duties in connection with operation of filtering arrangements
Relevant public authorities other than local authorities
70
71
72
Relevant public authorities and designated senior officers etc.
Power to modify section 70 and Schedule 4
Certain regulations under section 71: supplementary
Local authorities
73
74
75
Local authorities as relevant public authorities
Requirement to be party to collaboration agreement
Judicial approval for local authority authorisations
Additional protections
76
77
Use of a single point of contact
Commissioner approval for authorisations to identify or confirm journalistic
sources
Collaboration agreements
78
79
80
Collaboration agreements
Collaboration agreements: supplementary
Police collaboration agreements
Further and supplementary provision
81
82
83
84
85
86
Lawfulness of conduct authorised by this Part
Offence of making unauthorised disclosure
Certain transfer and agency arrangements with public authorities
Application of Part 3 to postal operators and postal services
Extra-territorial application of Part 3
Part 3: interpretation
P
ART
4
R
ETENTION OF COMMUNICATIONS DATA
General
87
Powers to require retention of certain data
Safeguards
88
89
90
Matters to be taken into account before giving retention notices
Approval of retention notices by Judicial Commissioners
Review by the Secretary of State
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Investigatory Powers Act 2016 (c.
25)
v
91
92
93
Approval of notices following review under section 90
Data integrity and security
Disclosure of retained data
Variation or revocation of notices
94
Variation or revocation of notices
Enforcement
95
Enforcement of notices and certain other requirements and restrictions
Further and supplementary provision
96
97
98
Application of Part 4 to postal operators and postal services
Extra-territorial application of Part 4
Part 4: interpretation
P
ART
5
E
QUIPMENT INTERFERENCE
Warrants under this Part
99
100
101
Warrants under this Part: general
Meaning of “equipment data”
Subject-matter of warrants
Power to issue warrants
102
103
104
105
106
107
Power to issue warrants to intelligence services: the Secretary of State
Power to issue warrants to intelligence services: the Scottish Ministers
Power to issue warrants to the Chief of Defence Intelligence
Decision to issue warrants under sections 102 to 104 to be taken personally by
Ministers
Power to issue warrants to law enforcement officers
Restriction on issue of warrants to certain law enforcement officers
Approval of warrants by Judicial Commissioners
108
109
110
Approval of warrants by Judicial Commissioners
Approval of warrants issued in urgent cases
Failure to approve warrant issued in urgent case
Additional safeguards
111
112
113
114
Members of Parliament etc.
Items subject to legal privilege
Confidential journalistic material
Sources of journalistic information
Further provision about warrants
115
Requirements that must be met by warrants
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vi
Investigatory Powers Act 2016 (c.
25)
116
117
118
119
120
121
122
123
124
125
Duration of warrants
Renewal of warrants
Modification of warrants issued by the Secretary of State or Scottish Ministers
Persons who may make modifications under section 118
Further provision about modifications under section 118
Notification of modifications
Approval of modifications under section 118 made in urgent cases
Modification of warrants issued by law enforcement chiefs
Approval of modifications under section 123 in urgent cases
Cancellation of warrants
Implementation of warrants
126
127
128
Implementation of warrants
Service of warrants
Duty of telecommunications operators to assist with implementation
Supplementary provision
129
130
131
132
133
134
135
Safeguards relating to retention and disclosure of material
Safeguards relating to disclosure of material overseas
Additional safeguards for items subject to legal privilege
Duty not to make unauthorised disclosures
Section 132: meaning of “excepted disclosure”
Offence of making unauthorised disclosure
Part 5: interpretation
P
ART
6
B
ULK WARRANTS
C
HAPTER
1
B
ULK INTERCEPTION WARRANTS
Bulk interception warrants
136
137
138
139
140
141
142
Bulk interception warrants
Obtaining secondary data
Power to issue bulk interception warrants
Additional requirements in respect of warrants affecting overseas operators
Approval of warrants by Judicial Commissioners
Decisions to issue warrants to be taken personally by Secretary of State
Requirements that must be met by warrants
Duration, modification and cancellation of warrants
143
144
145
146
147
148
Duration of warrants
Renewal of warrants
Modification of warrants
Approval of major modifications by Judicial Commissioners
Approval of major modifications made in urgent cases
Cancellation of warrants
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Investigatory Powers Act 2016 (c.
25)
vii
Implementation of warrants
149
Implementation of warrants
Restrictions on use or disclosure of material obtained under warrants etc.
150
151
152
153
154
155
156
Safeguards relating to retention and disclosure of material
Safeguards relating to disclosure of material overseas
Safeguards relating to examination of material
Additional safeguards for items subject to legal privilege
Additional safeguard for confidential journalistic material
Offence of breaching safeguards relating to examination of material
Application of other restrictions in relation to warrants
Interpretation
157
Chapter 1: interpretation
C
HAPTER
2
B
ULK ACQUISITION WARRANTS
Bulk acquisition warrants
158
159
160
161
Power to issue bulk acquisition warrants
Approval of warrants by Judicial Commissioners
Decisions to issue warrants to be taken personally by Secretary of State
Requirements that must be met by warrants
Duration, modification and cancellation of warrants
162
163
164
165
166
167
Duration of warrants
Renewal of warrants
Modification of warrants
Approval of major modifications by Judicial Commissioners
Approval of major modifications made in urgent cases
Cancellation of warrants
Implementation of warrants
168
169
170
Implementation of warrants
Service of warrants
Duty of operators to assist with implementation
Restrictions on use or disclosure of data obtained under warrants etc.
171
172
173
Safeguards relating to the retention and disclosure of data
Safeguards relating to examination of data
Offence of breaching safeguards relating to examination of data
Supplementary provision
174
175
Offence of making unauthorised disclosure
Chapter 2: interpretation
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viii
Investigatory Powers Act 2016 (c.
25)
C
HAPTER
3
B
ULK EQUIPMENT INTERFERENCE WARRANTS
Bulk equipment interference warrants
176
177
178
179
180
181
182
183
Bulk equipment interference warrants: general
Meaning of “equipment data”
Power to issue bulk equipment interference warrants
Approval of warrants by Judicial Commissioners
Approval of warrants issued in urgent cases
Failure to approve warrant issued in urgent case
Decisions to issue warrants to be taken personally by Secretary of State
Requirements that must be met by warrants
Duration, modification and cancellation of warrants
184
185
186
187
188
189
Duration of warrants
Renewal of warrants
Modification of warrants
Approval of major modifications by Judicial Commissioners
Approval of major modifications made in urgent cases
Cancellation of warrants
Implementation of warrants
190
Implementation of warrants
Restrictions on use or disclosure of material obtained under warrants etc.
191
192
193
194
195
196
197
Safeguards relating to retention and disclosure of material
Safeguards relating to disclosure of material overseas
Safeguards relating to examination of material etc.
Additional safeguards for items subject to legal privilege
Additional safeguard for confidential journalistic material
Offence of breaching safeguards relating to examination of material
Application of other restrictions in relation to warrants
Interpretation
198
Chapter 3: interpretation
P
ART
7
B
ULK PERSONAL DATASET WARRANTS
Bulk personal datasets: interpretation
199
Bulk personal datasets: interpretation
Requirement for warrant
200
201
Requirement for authorisation by warrant: general
Exceptions to section 200(1) and (2)
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Investigatory Powers Act 2016 (c.
25)
ix
202
203
Restriction on use of class BPD warrants
Meaning of “protected data”
Issue of warrants
204
205
206
207
208
209
210
211
212
Class BPD warrants
Specific BPD warrants
Additional safeguards for health records
Protected data: power to impose conditions
Approval of warrants by Judicial Commissioners
Approval of specific BPD warrants issued in urgent cases
Failure to approve specific BPD warrant issued in urgent case
Decisions to issue warrants to be taken personally by Secretary of State
Requirements that must be met by warrants
Duration, modification and cancellation
213
214
215
216
217
218
219
Duration of warrants
Renewal of warrants
Modification of warrants
Approval of major modifications by Judicial Commissioners
Approval of major modifications made in urgent cases
Cancellation of warrants
Non-renewal or cancellation of BPD warrants
Further and supplementary provision
220
221
222
223
224
225
226
Initial examinations: time limits
Safeguards relating to examination of bulk personal datasets
Additional safeguards for items subject to legal privilege: examination
Additional safeguards for items subject to legal privilege: retention following
examination
Offence of breaching safeguards relating to examination of material
Application of Part to bulk personal datasets obtained under this Act
Part 7: interpretation
P
ART
8
O
VERSIGHT ARRANGEMENTS
C
HAPTER
1
I
NVESTIGATORY
P
OWERS
C
OMMISSIONER AND OTHER
J
UDICIAL
C
OMMISSIONERS
The Commissioners
227
228
Investigatory Powers Commissioner and other Judicial Commissioners
Terms and conditions of appointment
Main functions of Commissioners
229
230
231
Main oversight functions
Additional directed oversight functions
Error reporting
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x
Investigatory Powers Act 2016 (c.
25)
232
233
Additional functions under this Part
Functions under other Parts and other enactments
Reports and investigation and information powers
234
235
236
237
Annual and other reports
Investigation and information powers
Referrals by the Intelligence and Security Committee of Parliament
Information gateway
Supplementary provision
238
239
240
Funding, staff and facilities etc.
Power to modify functions
Abolition of existing oversight bodies
C
HAPTER
2
O
THER ARRANGEMENTS
Codes of practice
241
Codes of practice
Investigatory Powers Tribunal
242
243
Right of appeal from Tribunal
Functions of Tribunal in relation to this Act etc.
Information Commissioner
244
Oversight by Information Commissioner in relation to Part 4
Advisory bodies
245
246
247
Technical Advisory Board
Technology Advisory Panel
Members of the Panel
P
ART
9
M
ISCELLANEOUS AND GENERAL PROVISIONS
C
HAPTER
1
M
ISCELLANEOUS
Combined warrants and authorisations
248
Combination of warrants and authorisations
Compliance with Act
249
Payments towards certain compliance costs
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Investigatory Powers Act 2016 (c.
25)
xi
250
Power to develop compliance systems etc.
Additional powers
251
252
253
254
255
256
257
258
Amendments of the Intelligence Services Act 1994
National security notices
Technical capability notices
Approval of notices by Judicial Commissioners
Further provision about notices under section 252 or 253
Variation and revocation of notices
Review of notices by the Secretary of State
Approval of notices following review under section 257
Wireless telegraphy
259
Amendments of the Wireless Telegraphy Act 2006
C
HAPTER
2
G
ENERAL
Review of operation of Act
260
Review of operation of Act
Interpretation
261
262
263
264
265
Telecommunications definitions
Postal definitions
General definitions
General definitions: “journalistic material” etc.
Index of defined expressions
Supplementary provision
266
267
268
269
270
271
Offences by bodies corporate etc.
Regulations
Enhanced affirmative procedure
Financial provisions
Transitional, transitory or saving provision
Minor and consequential provision
Final provision
272
Commencement, extent and short title
Schedule 1
Part 1
Part 2
Schedule 2
Schedule 3
—
—
—
—
—
Monetary penalty notices
Monetary penalty notices
Information provisions
Abolition of disclosure powers
Exceptions to section 56
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xii
Investigatory Powers Act 2016 (c.
25)
Schedule 4
Part 1
Part 2
Schedule 5
Schedule 6
Part 1
Part 2
Part 3
Schedule 7
Schedule 8
Part 1
Part 2
Part 3
Part 4
Schedule 9
Schedule 10
Part 1
Part 2
Part 3
Part 4
Part 5
Part 6
Part 7
Part 8
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
Relevant public authorities and designated senior officers etc.
Table of authorities and officers etc.
Interpretation of table
Transfer and agency arrangements with public authorities:
further provisions
Issue of warrants under section 106 etc: table
Table: Part 1
Table: Part 2
Interpretation of the table
Codes of practice
Combination of warrants and authorisations
Combinations with targeted interception warrants
Other
combinations
involving
targeted
equipment
interference warrants
Combinations involving targeted examination warrants only
Combined warrants: supplementary provision
Transitional, transitory and saving provision
Minor and consequential provision
General amendments
Lawful interception of communications
Acquisition of communications data
Retention of communications data
Equipment interference
Judicial Commissioners
Other minor and consequential provision
Repeals and revocations consequential on other repeals or
amendments in this Act
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ELIZABETH II
c.
25
Investigatory Powers Act 2016
2016 CHAPTER 25
An Act to make provision about the interception of communications,
equipment interference and the acquisition and retention of communications
data, bulk personal datasets and other information; to make provision about
the treatment of material held as a result of such interception, equipment
interference or acquisition or retention; to establish the Investigatory Powers
Commissioner and other Judicial Commissioners and make provision about
them and other oversight arrangements; to make further provision about
investigatory powers and national security; to amend sections 3 and 5 of the
Intelligence Services Act 1994; and for connected purposes.
[29th November 2016]
B
by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
E IT ENACTED
P
ART
1
G
ENERAL PRIVACY PROTECTIONS
Overview and general privacy duties
1
(1)
(2)
(3)
Overview of Act
This Act sets out the extent to which certain investigatory powers may be used
to interfere with privacy.
This Part imposes certain duties in relation to privacy and contains other
protections for privacy.
These other protections include offences and penalties in relation to—
(a) the unlawful interception of communications, and
(b) the unlawful obtaining of communications data.
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2
(4)
Investigatory Powers Act 2016 (c.
25)
Part 1 — General privacy protections
This Part also abolishes and restricts various general powers to obtain
communications data and restricts the circumstances in which equipment
interference, and certain requests about the interception of communications,
can take place.
Further protections for privacy—
(a) can be found, in particular, in the regimes provided for by Parts 2 to 7
and in the oversight arrangements in Part 8, and
(b) also exist—
(i) by virtue of the Human Rights Act 1998,
(ii) in section 55 of the Data Protection Act 1998 (unlawful
obtaining etc. of personal data),
(iii) in section 48 of the Wireless Telegraphy Act 2006 (offence of
interception or disclosure of messages),
(iv) in sections 1 to 3A of the Computer Misuse Act 1990 (computer
misuse offences),
(v) in the common law offence of misconduct in public office, and
(vi) elsewhere in the law.
The regimes provided for by Parts 2 to 7 are as follows—
(a) Part 2 and Chapter 1 of Part 6 set out circumstances (including under a
warrant) in which the interception of communications is lawful and
make further provision about the interception of communications and
the treatment of material obtained in connection with it,
(b) Part 3 and Chapter 2 of Part 6 set out circumstances in which the
obtaining of communications data is lawful in pursuance of an
authorisation or under a warrant and make further provision about the
obtaining and treatment of such data,
(c) Part 4 makes provision for the retention of certain communications data
in pursuance of a notice,
(d) Part 5 and Chapter 3 of Part 6 deal with equipment interference
warrants, and
(e) Part 7 deals with bulk personal dataset warrants.
As to the rest of the Act—
(a) Part 8 deals with oversight arrangements for regimes in this Act and
elsewhere, and
(b) Part 9 contains miscellaneous and general provisions including
amendments to sections 3 and 5 of the Intelligence Services Act 1994
and provisions about national security and combined warrants and
authorisations.
General duties in relation to privacy
(5)
(6)
(7)
2
(1)
Subsection (2) applies where a public authority is deciding whether—
(a) to issue, renew or cancel a warrant under Part 2, 5, 6 or 7,
(b) to modify such a warrant,
(c) to approve a decision to issue, renew or modify such a warrant,
(d) to grant, approve or cancel an authorisation under Part 3,
(e) to give a notice in pursuance of such an authorisation or under Part 4
or section 252, 253 or 257,
(f) to vary or revoke such a notice,
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Investigatory Powers Act 2016 (c.
25)
Part 1 — General privacy protections
3
(g)
(h)
(i)
(j)
(k)
to approve a decision to give or vary a notice under Part 4 or section
252, 253 or 257,
to approve the use of criteria under section 153, 194 or 222,
to give an authorisation under section 219(3)(b),
to approve a decision to give such an authorisation, or
to apply for or otherwise seek any issue, grant, giving, modification,
variation or renewal of a kind falling within paragraph (a), (b), (d), (e),
(f) or (i).
(2)
The public authority must have regard to—
(a) whether what is sought to be achieved by the warrant, authorisation or
notice could reasonably be achieved by other less intrusive means,
(b) whether the level of protection to be applied in relation to any
obtaining of information by virtue of the warrant, authorisation or
notice is higher because of the particular sensitivity of that information,
(c) the public interest in the integrity and security of telecommunication
systems and postal services, and
(d) any other aspects of the public interest in the protection of privacy.
The duties under subsection (2)—
(a) apply so far as they are relevant in the particular context, and
(b) are subject to the need to have regard to other considerations that are
also relevant in that context.
The other considerations may, in particular, include—
(a) the interests of national security or of the economic well-being of the
United Kingdom,
(b) the public interest in preventing or detecting serious crime,
(c) other considerations which are relevant to—
(i) whether the conduct authorised or required by the warrant,
authorisation or notice is proportionate, or
(ii) whether it is necessary to act for a purpose provided for by this
Act,
(d) the requirements of the Human Rights Act 1998, and
(e) other requirements of public law.
For the purposes of subsection (2)(b), examples of sensitive information
include—
(a) items subject to legal privilege,
(b) any information identifying or confirming a source of journalistic
information, and
(c) relevant confidential information within the meaning given by
paragraph 2(4) of Schedule 7 (certain information held in confidence
and consisting of personal records, journalistic material or
communications between Members of Parliament and their
constituents).
In this section “public authority” includes the relevant judicial authority
(within the meaning of section 75) where the relevant judicial authority is
deciding whether to approve under that section an authorisation under Part 3.
(3)
(4)
(5)
(6)
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4
Investigatory Powers Act 2016 (c.
25)
Part 1 — General privacy protections
Prohibitions against unlawful interception
3
(1)
Offence of unlawful interception
A person commits an offence if—
(a) the person intentionally intercepts a communication in the course of its
transmission by means of—
(i) a public telecommunication system,
(ii) a private telecommunication system, or
(iii) a public postal service,
(b) the interception is carried out in the United Kingdom, and
(c) the person does not have lawful authority to carry out the interception.
But it is not an offence under subsection (1) for a person to intercept a
communication in the course of its transmission by means of a private
telecommunication system if the person—
(a) is a person with a right to control the operation or use of the system, or
(b) has the express or implied consent of such a person to carry out the
interception.
Sections 4 and 5 contain provision about—
(a) the meaning of “interception”, and
(b) when interception is to be regarded as carried out in the United
Kingdom.
Section 6 contains provision about when a person has lawful authority to carry
out an interception.
For the meaning of the terms used in subsection (1)(a)(i) to (iii), see sections 261
and 262.
A person who is guilty of an offence under subsection (1) is liable—
(a) on summary conviction in England and Wales, to a fine;
(b) on summary conviction in Scotland or Northern Ireland, to a fine not
exceeding the statutory maximum;
(c) on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.
No proceedings for any offence which is an offence by virtue of this section
may be instituted—
(a) in England and Wales, except by or with the consent of the Director of
Public Prosecutions;
(b) in Northern Ireland, except by or with the consent of the Director of
Public Prosecutions for Northern Ireland.
Definition of “interception” etc.
Interception in relation to telecommunication systems
(1)
For the purposes of this Act, a person intercepts a communication in the course
of its transmission by means of a telecommunication system if, and only if—
(a) the person does a relevant act in relation to the system, and
(2)
(3)
(4)
(5)
(6)
(7)
4
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5
the effect of the relevant act is to make any content of the
communication available, at a relevant time, to a person who is not the
sender or intended recipient of the communication.
For the meaning of “content” in relation to a communication, see section 261(6).
(2)
In this section “relevant act”, in relation to a telecommunication system,
means—
(a) modifying, or interfering with, the system or its operation;
(b) monitoring transmissions made by means of the system;
(c) monitoring transmissions made by wireless telegraphy to or from
apparatus that is part of the system.
For the purposes of this section references to modifying a telecommunication
system include references to attaching any apparatus to, or otherwise
modifying or interfering with—
(a) any part of the system, or
(b) any wireless telegraphy apparatus used for making transmissions to or
from apparatus that is part of the system.
In this section “relevant time”, in relation to a communication transmitted by
means of a telecommunication system, means—
(a) any time while the communication is being transmitted, and
(b) any time when the communication is stored in or by the system
(whether before or after its transmission).
For the purposes of this section, the cases in which any content of a
communication is to be taken to be made available to a person at a relevant
time include any case in which any of the communication is diverted or
recorded at a relevant time so as to make any content of the communication
available to a person after that time.
In this section “wireless telegraphy” and “wireless telegraphy apparatus” have
the same meaning as in the Wireless Telegraphy Act 2006 (see sections 116 and
117 of that Act).
Interception in relation to postal services
(7)
Section 125(3) of the Postal Services Act 2000 applies for the purposes of
determining for the purposes of this Act whether a postal item is in the course
of its transmission by means of a postal service as it applies for the purposes of
determining for the purposes of that Act whether a postal packet is in course
of transmission by post.
Interception carried out in the United Kingdom
(8)
For the purposes of this Act the interception of a communication is carried out
in the United Kingdom if, and only if—
(a) the relevant act or, in the case of a postal item, the interception is carried
out by conduct within the United Kingdom, and
(b) the communication is intercepted—
(i) in the course of its transmission by means of a public
telecommunication system or a public postal service, or
(ii) in the course of its transmission by means of a private
telecommunication system in a case where the sender or
intended recipient of the communication is in the United
Kingdom.
(b)
(3)
(4)
(5)
(6)
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6
5
(1)
Conduct that is not interception
Investigatory Powers Act 2016 (c.
25)
Part 1 — General privacy protections
References in this Act to the interception of a communication do not include
references to the interception of any communication broadcast for general
reception.
References in this Act to the interception of a communication in the course of
its transmission by means of a postal service do not include references to—
(a) any conduct that takes place in relation only to so much of the
communication as consists of any postal data comprised in, included as
part of, attached to, or logically associated with a communication
(whether by the sender or otherwise) for the purposes of any postal
service by means of which it is being or may be transmitted, or
(b) any conduct, in connection with conduct falling within paragraph (a),
that gives a person who is neither the sender nor the intended recipient
only so much access to a communication as is necessary for the purpose
of identifying such postal data.
For the meaning of “postal data”, see section 262.
Definition of “lawful authority”
(2)
6
(1)
For the purposes of this Act, a person has lawful authority to carry out an
interception if, and only if—
(a) the interception is carried out in accordance with—
(i) a targeted interception warrant or mutual assistance warrant
under Chapter 1 of Part 2, or
(ii) a bulk interception warrant under Chapter 1 of Part 6,
(b) the interception is authorised by any of sections 44 to 52, or
(c) in the case of a communication stored in or by a telecommunication
system, the interception—
(i) is carried out in accordance with a targeted equipment
interference warrant under Part 5 or a bulk equipment
interference warrant under Chapter 3 of Part 6,
(ii) is in the exercise of any statutory power that is exercised for the
purpose of obtaining information or taking possession of any
document or other property, or
(iii) is carried out in accordance with a court order made for that
purpose.
Conduct which has lawful authority for the purposes of this Act by virtue of
subsection (1)(a) or (b) is to be treated as lawful for all other purposes.
Any other conduct which—
(a) is carried out in accordance with a warrant under Chapter 1 of Part 2 or
a bulk interception warrant, or
(b) is authorised by any of sections 44 to 52,
is to be treated as lawful for all purposes.
Monetary penalties for certain unlawful interceptions
(2)
(3)
7
(1)
The Investigatory Powers Commissioner may serve a monetary penalty notice
on a person if conditions A and B are met.
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(2)
A monetary penalty notice is a notice requiring the person on whom it is served
to pay to the Investigatory Powers Commissioner (“the Commissioner”) a
monetary penalty of an amount determined by the Commissioner and
specified in the notice.
Condition A is that the Commissioner considers that—
(a) the person has intercepted, in the United Kingdom, any
communication in the course of its transmission by means of a public
telecommunication system,
(b) the person did not have lawful authority to carry out the interception,
and
(c) the person was not, at the time of the interception, making an attempt
to act in accordance with an interception warrant which might, in the
opinion of the Commissioner, explain the interception.
Condition B is that the Commissioner does not consider that the person has
committed an offence under section 3(1).
The amount of a monetary penalty determined by the Commissioner under
this section must not exceed £50,000.
Schedule 1 (which makes further provision about monetary penalty notices)
has effect.
In this section “interception warrant” means—
(a) a targeted interception warrant or mutual assistance warrant under
Chapter 1 of Part 2, or
(b) a bulk interception warrant under Chapter 1 of Part 6.
For the meaning of “interception” and other key expressions used in this
section, see sections 4 to 6.
Civil liability for certain unlawful interceptions
(3)
(4)
(5)
(6)
(7)
(8)
8
(1)
An interception of a communication is actionable at the suit or instance of—
(a) the sender of the communication, or
(b) the recipient, or intended recipient, of the communication,
if conditions A to D are met.
Condition A is that the interception is carried out in the United Kingdom.
Condition B is that the communication is intercepted—
(a) in the course of its transmission by means of a private
telecommunication system, or
(b) in the course of its transmission, by means of a public
telecommunication system, to or from apparatus that is part of a private
telecommunication system.
Condition C is that the interception is carried out by, or with the express or
implied consent of, a person who has the right to control the operation or use
of the private telecommunication system.
Condition D is that the interception is carried out without lawful authority.
For the meaning of “interception” and other key expressions used in this
section, see sections 4 to 6.
(2)
(3)
(4)
(5)
(6)
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8
9
(1)
Investigatory Powers Act 2016 (c.
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Part 1 — General privacy protections
Restriction on requesting interception by overseas authorities
This section applies to a request for any authorities of a country or territory
outside the United Kingdom to carry out the interception of communications
sent by, or intended for, an individual who the person making the request
believes will be in the British Islands at the time of the interception.
A request to which this section applies may not be made by or on behalf of a
person in the United Kingdom unless—
(a) a targeted interception warrant has been issued under Chapter 1 of Part
2 authorising the person to whom it is addressed to secure the
interception of communications sent by, or intended for, that
individual, or
(b) a targeted examination warrant has been issued under that Chapter
authorising the person to whom it is addressed to carry out the
selection of the content of such communications for examination.
Restriction on requesting assistance under mutual assistance agreements etc.
(1)
This section applies to—
(a) a request for assistance under an EU mutual assistance instrument, and
(b) a request for assistance in accordance with an international mutual
assistance agreement.
A request to which this section applies may not be made by or on behalf of a
person in the United Kingdom to the competent authorities of a country or
territory outside the United Kingdom unless a mutual assistance warrant has
been issued under Chapter 1 of Part 2 authorising the making of the request.
In this section—
“EU mutual assistance instrument” means an EU instrument which—
(a) relates to the provision of mutual assistance in connection with,
or in the form of, the interception of communications,
(b) requires the issue of a warrant, order or equivalent instrument
in cases in which assistance is given, and
(c) is designated as an EU mutual assistance instrument by
regulations made by the Secretary of State;
“international mutual assistance agreement” means an international
agreement which—
(a) relates to the provision of mutual assistance in connection with,
or in the form of, the interception of communications,
(b) requires the issue of a warrant, order or equivalent instrument
in cases in which assistance is given, and
(c) is designated as an international mutual assistance agreement
by regulations made by the Secretary of State.
Prohibition against unlawful obtaining of communications data
(2)
10
(2)
(3)
11
(1)
Offence of unlawfully obtaining communications data
A relevant person who, without lawful authority, knowingly or recklessly
obtains communications data from a telecommunications operator or a postal
operator is guilty of an offence.
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(2)
(3)
In this section “relevant person” means a person who holds an office, rank or
position with a relevant public authority (within the meaning of Part 3).
Subsection (1) does not apply to a relevant person who shows that the person
acted in the reasonable belief that the person had lawful authority to obtain the
communications data.
A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or
(ii) to a fine,
or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.
Abolition or restriction of powers to obtain communications data
(4)
12
(1)
Abolition or restriction of certain powers to obtain communications data
Schedule 2 (which repeals certain information powers so far as they enable
public authorities to secure the disclosure by a telecommunications operator or
postal operator of communications data without the consent of the operator)
has effect.
Any general information power which—
(a) would (apart from this subsection) enable a public authority to secure
the disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator, and
(b) does not involve a court order or other judicial authorisation or warrant
and is not a regulatory power or a relevant postal power,
is to be read as not enabling the public authority to secure such a disclosure.
A regulatory power or relevant postal power which enables a public authority
to secure the disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator may only be
exercised by the public authority for that purpose if it is not possible for the
authority to use a power under this Act to secure the disclosure of the data.
The Secretary of State may by regulations modify any enactment in
consequence of subsection (2).
In this section “general information power” means—
(2)
(3)
(4)
(5)
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(a)
Investigatory Powers Act 2016 (c.
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Part 1 — General privacy protections
(b)
in relation to disclosure by a telecommunications operator, any power
to obtain information or documents (however expressed) which—
(i) is conferred by or under an enactment other than this Act or the
Regulation of Investigatory Powers Act 2000, and
(ii) does not deal (whether alone or with other matters) specifically
with telecommunications operators or any class of
telecommunications operators, and
in relation to disclosure by a postal operator, any power to obtain
information or documents (however expressed) which—
(i) is conferred by or under an enactment other than this Act or the
Regulation of Investigatory Powers Act 2000, and
(ii) does not deal (whether alone or with other matters) specifically
with postal operators or any class of postal operators.
(6)
In this section—
“power” includes part of a power,
“regulatory power” means any power to obtain information or
documents (however expressed) which—
(a) is conferred by or under an enactment other than this Act or the
Regulation of Investigatory Powers Act 2000, and
(b) is exercisable in connection with the regulation of—
(i) telecommunications operators, telecommunications
services or telecommunication systems, or
(ii) postal operators or postal services,
“relevant postal power” means any power to obtain information or
documents (however expressed) which—
(a) is conferred by or under an enactment other than this Act or the
Regulation of Investigatory Powers Act 2000, and
(b) is exercisable in connection with the conveyance or expected
conveyance of any postal item into or out of the United
Kingdom,
and references to powers include duties (and references to enabling and
exercising are to be read as including references to requiring and performing).
Restrictions on interference with equipment
13
(1)
Mandatory use of equipment interference warrants
An intelligence service may not, for the purpose of obtaining communications,
private information or equipment data, engage in conduct which could be
authorised by an equipment interference warrant except under the authority of
such a warrant if—
(a) the intelligence service considers that the conduct would (unless done
under lawful authority) constitute one or more offences under sections
1 to 3A of the Computer Misuse Act 1990 (computer misuse offences),
and
(b) there is a British Islands connection.
For the purpose of this section, there is a British Islands connection if—
(a) any of the conduct would take place in the British Islands (regardless of
the location of the equipment which would, or may, be interfered with),
(2)
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Investigatory Powers Act 2016 (c.
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11
(b)
(c)
the intelligence service believes that any of the equipment which
would, or may, be interfered with would, or may, be in the British
Islands at some time while the interference is taking place, or
a purpose of the interference is to obtain—
(i) communications sent by, or to, a person who is, or whom the
intelligence service believes to be, for the time being in the
British Islands,
(ii) private information relating to an individual who is, or whom
the intelligence service believes to be, for the time being in the
British Islands, or
(iii) equipment data which forms part of, or is connected with,
communications or private information falling within sub-
paragraph (i) or (ii).
(3)
This section does not restrict the ability of the head of an intelligence service to
apply for an equipment interference warrant in cases where—
(a) the intelligence service does not consider that the conduct for which it
is seeking authorisation would (unless done under lawful authority)
constitute one or more offences under sections 1 to 3A of the Computer
Misuse Act 1990, or
(b) there is no British Islands connection.
In this section—
“communications”, “private information” and “equipment data” have the
same meaning as in Part 5 (see section 135);
“equipment interference warrant” means—
(a) a targeted equipment interference warrant under Part 5;
(b) a bulk equipment interference warrant under Chapter 3 of Part
6.
Restriction on use of section 93 of the Police Act 1997
(4)
14
(1)
A person may not, for the purpose of obtaining communications, private
information or equipment data, make an application under section 93 of the
Police Act 1997 for authorisation to engage in conduct which could be
authorised by a targeted equipment interference warrant under Part 5 if the
applicant considers that the conduct would (unless done under lawful
authority) constitute one or more offences under sections 1 to 3A of the
Computer Misuse Act 1990 (computer misuse offences).
In this section, “communications”, “private information” and “equipment
data” have the same meaning as in Part 5 (see section 135).
(2)
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12
Investigatory Powers Act 2016 (c.
25)
Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
P
ART
2
L
AWFUL INTERCEPTION OF COMMUNICATIONS
C
HAPTER
1
I
NTERCEPTION AND EXAMINATION WITH A WARRANT
Warrants under this Chapter
15
(1)
Warrants that may be issued under this Chapter
There are three kinds of warrant that may be issued under this Chapter—
(a) targeted interception warrants (see subsection (2)),
(b) targeted examination warrants (see subsection (3)), and
(c) mutual assistance warrants (see subsection (4)).
A targeted interception warrant is a warrant which authorises or requires the
person to whom it is addressed to secure, by any conduct described in the
warrant, any one or more of the following—
(a) the interception, in the course of their transmission by means of a postal
service or telecommunication system, of communications described in
the warrant;
(b) the obtaining of secondary data from communications transmitted by
means of a postal service or telecommunication system and described
in the warrant (see section 16);
(c) the disclosure, in any manner described in the warrant, of anything
obtained under the warrant to the person to whom the warrant is
addressed or to any person acting on that person’s behalf.
A targeted examination warrant is a warrant which authorises the person to
whom it is addressed to carry out the selection of relevant content for
examination, in breach of the prohibition in section 152(4) (prohibition on
seeking to identify communications of individuals in the British Islands).
In this Part “relevant content”, in relation to a targeted examination warrant,
means any content of communications intercepted by an interception
authorised or required by a bulk interception warrant under Chapter 1 of Part
6.
A mutual assistance warrant is a warrant which authorises or requires the
person to whom it is addressed to secure, by any conduct described in the
warrant, any one or more of the following—
(a) the making of a request, in accordance with an EU mutual assistance
instrument or an international mutual assistance agreement, for the
provision of any assistance of a kind described in the warrant in
connection with, or in the form of, an interception of communications;
(b) the provision to the competent authorities of a country or territory
outside the United Kingdom, in accordance with such an instrument or
agreement, of any assistance of a kind described in the warrant in
connection with, or in the form of, an interception of communications;
(c) the disclosure, in any manner described in the warrant, of anything
obtained under the warrant to the person to whom the warrant is
addressed or to any person acting on that person’s behalf.
(2)
(3)
(4)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
13
(5)
A targeted interception warrant or mutual assistance warrant also authorises
the following conduct (in addition to the conduct described in the warrant)—
(a) any conduct which it is necessary to undertake in order to do what is
expressly authorised or required by the warrant, including—
(i) the interception of communications not described in the
warrant, and
(ii) conduct for obtaining secondary data from such
communications;
(b) any conduct by any person which is conduct in pursuance of a
requirement imposed by or on behalf of the person to whom the
warrant is addressed to be provided with assistance in giving effect to
the warrant;
(c) any conduct for obtaining related systems data from any postal
operator or telecommunications operator.
For the purposes of subsection (5)(c)—
“related systems data”, in relation to a warrant, means systems data
relating to a relevant communication or to the sender or recipient, or
intended recipient, of a relevant communication (whether or not a
person), and
“relevant communication”, in relation to a warrant, means—
(a) any communication intercepted in accordance with the warrant
in the course of its transmission by means of a postal service or
telecommunication system, or
(b) any communication from which secondary data is obtained
under the warrant.
For provision enabling the combination of targeted interception warrants with
certain other warrants or authorisations (including targeted examination
warrants), see Schedule 8.
Obtaining secondary data
(6)
(7)
16
(1)
(2)
This section has effect for the purposes of this Part.
In relation to a communication transmitted by means of a postal service,
references to obtaining secondary data from the communication are references
to obtaining such data in the course of the transmission of the communication
(as to which, see section 4(7)).
In relation to a communication transmitted by means of a telecommunication
system, references to obtaining secondary data from the communication are
references to obtaining such data—
(a) while the communication is being transmitted, or
(b) at any time when the communication is stored in or by the system
(whether before or after its transmission).
“Secondary data”—
(a) in relation to a communication transmitted by means of a postal
service, means any data falling within subsection (5);
(b) in relation to a communication transmitted by means of a
telecommunication system, means any data falling within subsection
(5) or (6).
(3)
(4)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
(5)
The data falling within this subsection is systems data which is comprised in,
included as part of, attached to or logically associated with the communication
(whether by the sender or otherwise).
The data falling within this subsection is identifying data which—
(a) is comprised in, included as part of, attached to or logically associated
with the communication (whether by the sender or otherwise),
(b) is capable of being logically separated from the remainder of the
communication, and
(c) if it were so separated, would not reveal anything of what might
reasonably be considered to be the meaning (if any) of the
communication, disregarding any meaning arising from the fact of the
communication or from any data relating to the transmission of the
communication.
For the meaning of “systems data” and “identifying data”, see section 263.
Subject-matter of warrants
(6)
(7)
17
(1)
A warrant under this Chapter may relate to—
(a) a particular person or organisation, or
(b) a single set of premises.
In addition, a targeted interception warrant or targeted examination warrant
may relate to—
(a) a group of persons who share a common purpose or who carry on, or
may carry on, a particular activity;
(b) more than one person or organisation, or more than one set of premises,
where the conduct authorised or required by the warrant is for the
purposes of a single investigation or operation;
(c) testing or training activities.
In subsection (2)(c) “testing or training activities” means—
(a) in relation to a targeted interception warrant—
(i) the testing, maintenance or development of apparatus, systems
or other capabilities relating to the interception of
communications in the course of their transmission by means of
a telecommunication system or to the obtaining of secondary
data from communications transmitted by means of such a
system, or
(ii) the training of persons who carry out, or are likely to carry out,
such interception or the obtaining of such data;
(b) in relation to a targeted examination warrant—
(i) the testing, maintenance or development of apparatus, systems
or other capabilities relating to the selection of relevant content
for examination, or
(ii) the training of persons who carry out, or are likely to carry out,
the selection of relevant content for examination.
(2)
(3)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
15
Power to issue warrants
18
(1)
Persons who may apply for issue of a warrant
Each of the following is an “intercepting authority” for the purposes of this
Part—
(a) a person who is the head of an intelligence service;
(b) the Director General of the National Crime Agency;
(c) the Commissioner of Police of the Metropolis;
(d) the Chief Constable of the Police Service of Northern Ireland;
(e) the chief constable of the Police Service of Scotland;
(f) the Commissioners for Her Majesty’s Revenue and Customs;
(g) the Chief of Defence Intelligence;
(h) a person who is the competent authority of a country or territory
outside the United Kingdom for the purposes of an EU mutual
assistance instrument or an international mutual assistance agreement.
For the meaning of “head of an intelligence service”, see section 263.
An application for the issue of a warrant under this Chapter may only be made
on behalf of an intercepting authority by a person holding office under the
Crown.
Power of Secretary of State to issue warrants
(1)
The Secretary of State may, on an application made by or on behalf of an
intercepting authority mentioned in section 18(1)(a) to (g), issue a targeted
interception warrant if—
(a) the Secretary of State considers that the warrant is necessary on
grounds falling within section 20,
(b) the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(c) the Secretary of State considers that satisfactory arrangements made for
the purposes of sections 53 and 54 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and
(d) except where the Secretary of State considers that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
This is subject to subsection (4).
The Secretary of State may, on an application made by or on behalf of the head
of an intelligence service, issue a targeted examination warrant if—
(a) the Secretary of State considers that the warrant is necessary on
grounds falling within section 20,
(b) the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(c) the Secretary of State considers that the warrant is or may be necessary
to authorise the selection of relevant content for examination in breach
of the prohibition in section 152(4) (prohibition on seeking to identify
communications of individuals in the British Islands), and
(2)
(3)
19
(2)
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Investigatory Powers Act 2016 (c.
25)
Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
except where the Secretary of State considers that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
This is subject to subsection (4).
(3)
The Secretary of State may, on an application made by or on behalf of an
intercepting authority, issue a mutual assistance warrant if—
(a) the Secretary of State considers that the warrant is necessary on
grounds falling within section 20,
(b) the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(c) the Secretary of State considers that satisfactory arrangements made for
the purposes of sections 53 and 54 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and
(d) except where the Secretary of State considers that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
This is subject to subsection (4).
The Secretary of State may not issue a warrant under this section if—
(a) the application is a relevant Scottish application (see section 22), and
(b) in the case of an application for a targeted interception warrant or a
targeted examination warrant, the Secretary of State considers that the
warrant is necessary only for the purpose of preventing or detecting
serious crime.
For the power of the Scottish Ministers to issue warrants under this Chapter,
see section 21.
But subsection (4) does not prevent the Secretary of State from doing anything
under this section for the purposes specified in section 2(2) of the European
Communities Act 1972.
Grounds on which warrants may be issued by Secretary of State
(1)
(2)
This section has effect for the purposes of this Part.
A targeted interception warrant or targeted examination warrant is necessary
on grounds falling within this section if it is necessary—
(a) in the interests of national security,
(b) for the purpose of preventing or detecting serious crime, or
(c) in the interests of the economic well-being of the United Kingdom so
far as those interests are also relevant to the interests of national
security (but see subsection (4)).
A mutual assistance warrant is necessary on grounds falling within this section
if—
(a) it is necessary for the purpose of giving effect to the provisions of an EU
mutual assistance instrument or an international mutual assistance
agreement, and
(b) the circumstances appear to the Secretary of State to be equivalent to
those in which the Secretary of State would issue a warrant by virtue of
subsection (2)(b).
(d)
(4)
(5)
20
(3)
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
17
(4)
A warrant may be considered necessary as mentioned in subsection (2)(c) only
if the information which it is considered necessary to obtain is information
relating to the acts or intentions of persons outside the British Islands.
A warrant may not be considered necessary on grounds falling within this
section if it is considered necessary only for the purpose of gathering evidence
for use in any legal proceedings.
The fact that the information which would be obtained under a warrant relates
to the activities in the British Islands of a trade union is not, of itself, sufficient
to establish that the warrant is necessary on grounds falling within this section.
Power of Scottish Ministers to issue warrants
(5)
(6)
21
(1)
The Scottish Ministers may, on an application made by or on behalf of an
intercepting authority mentioned in section 18(1)(a) to (g), issue a targeted
interception warrant if—
(a) the application is a relevant Scottish application (see section 22),
(b) the Scottish Ministers consider that the warrant is necessary on
grounds falling within subsection (4),
(c) the Scottish Ministers consider that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(d) the Scottish Ministers consider that satisfactory arrangements made for
the purposes of sections 53 and 54 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and
(e) except where the Scottish Ministers consider that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
The Scottish Ministers may, on an application made by or on behalf of the head
of an intelligence service, issue a targeted examination warrant if—
(a) the application is a relevant Scottish application,
(b) the Scottish Ministers consider that the warrant is necessary on
grounds falling within subsection (4),
(c) the Scottish Ministers consider that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(d) the Scottish Ministers consider that the warrant is or may be necessary
to authorise the selection of relevant content for examination in breach
of the prohibition in section 152(4) (prohibition on seeking to identify
communications of individuals in the British Islands), and
(e) except where the Scottish Ministers consider that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
The Scottish Ministers may, on an application made by or on behalf of an
intercepting authority, issue a mutual assistance warrant if—
(a) the application is a relevant Scottish application,
(b) the Scottish Ministers consider that the warrant is necessary on
grounds falling within subsection (4),
(c) the Scottish Ministers consider that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(2)
(3)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
(d)
(e)
the Scottish Ministers consider that satisfactory arrangements made for
the purposes of sections 53 and 54 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and
except where the Scottish Ministers consider that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
(4)
A warrant is necessary on grounds falling within this subsection if—
(a) in the case of a targeted interception warrant or targeted examination
warrant, it is necessary for the purposes of preventing or detecting
serious crime, and
(b) in the case of a mutual assistance warrant—
(i) it is necessary for the purpose of giving effect to the provisions
of an EU mutual assistance instrument or an international
mutual assistance agreement, and
(ii) the circumstances appear to the Scottish Ministers to be
equivalent to those in which the Scottish Ministers would issue
a warrant by virtue of paragraph (a).
A warrant may not be considered necessary on grounds falling within
subsection (4) if it is considered necessary only for the purpose of gathering
evidence for use in any legal proceedings.
The fact that the information which would be obtained under a warrant relates
to the activities in the British Islands of a trade union is not, of itself, sufficient
to establish that the warrant is necessary on grounds falling within subsection
(4).
“Relevant Scottish applications”
(5)
(6)
22
(1)
An application for the issue of a warrant under this Chapter is a “relevant
Scottish application” for the purposes of this Chapter if any of conditions A to
C is met.
In this section “the applicant” means the person by whom, or on whose behalf,
the application is made.
Condition A is that—
(a) the application is for the issue of a targeted interception warrant or a
targeted examination warrant, and
(b) the warrant, if issued, would relate to—
(i) a person who is in Scotland, or is reasonably believed by the
applicant to be in Scotland, at the time of the issue of the
warrant, or
(ii) premises which are in Scotland, or are reasonably believed by
the applicant to be in Scotland, at that time.
Condition B is that—
(a) the application is for the issue of a mutual assistance warrant which, if
issued, would authorise or require—
(i) the making of a request falling within section 15(4)(a), or
(ii) the making of such a request and disclosure falling within
section 15(4)(c), and
(b) the application—
(2)
(3)
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
19
(i)
(ii)
is made by, or on behalf of, the chief constable of the Police
Service of Scotland, or
is made by, or on behalf of, the Commissioners for Her
Majesty’s Revenue and Customs or the Director General of the
National Crime Agency for the purpose of preventing or
detecting serious crime in Scotland.
(4)
Condition C is that—
(a) the application is for the issue of a mutual assistance warrant which, if
issued, would authorise or require—
(i) the provision of assistance falling within section 15(4)(b), or
(ii) the provision of such assistance and disclosure falling within
section 15(4)(c), and
(b) the warrant, if issued, would relate to—
(i) a person who is in Scotland, or is reasonably believed by the
applicant to be in Scotland, at the time of the issue of the
warrant, or
(ii) premises which are in Scotland, or are reasonably believed by
the applicant to be in Scotland, at that time.
Approval of warrants by Judicial Commissioners
23
(1)
Approval of warrants by Judicial Commissioners
In deciding whether to approve a person’s decision to issue a warrant under
this Chapter, a Judicial Commissioner must review the person’s conclusions as
to the following matters—
(a) whether the warrant is necessary on relevant grounds (see subsection
(3)), and
(b) whether the conduct that would be authorised by the warrant is
proportionate to what is sought to be achieved by that conduct.
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).
In subsection (1)(a) “relevant grounds” means—
(a) in the case of a decision of the Secretary of State to issue a warrant,
grounds falling within section 20;
(b) in the case of a decision of the Scottish Ministers to issue a warrant,
grounds falling within section 21(4).
Where a Judicial Commissioner refuses to approve a person’s decision to issue
a warrant under this Chapter, the Judicial Commissioner must give the person
written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a person’s decision to issue a warrant under
this Chapter, the person may ask the Investigatory Powers Commissioner to
decide whether to approve the decision to issue the warrant.
(2)
(3)
(4)
(5)
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Investigatory Powers Act 2016 (c.
25)
Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
24
(1)
Approval of warrants issued in urgent cases
This section applies where—
(a) a warrant under this Chapter is issued without the approval of a
Judicial Commissioner, and
(b) the person who decided to issue the warrant considered that there was
an urgent need to issue it.
The person who decided to issue the warrant must inform a Judicial
Commissioner that it has been issued.
The Judicial Commissioner must, before the end of the relevant period—
(a) decide whether to approve the decision to issue the warrant, and
(b) notify the person of the Judicial Commissioner’s decision.
“The relevant period” means the period ending with the third working day
after the day on which the warrant was issued.
If a Judicial Commissioner refuses to approve the decision to issue a warrant,
the warrant—
(a) ceases to have effect (unless already cancelled), and
(b) may not be renewed,
and section 23(5) does not apply in relation to the refusal to approve the
decision.
Section 25 contains further provision about what happens if a Judicial
Commissioner refuses to approve the decision to issue a warrant.
Failure to approve warrant issued in urgent case
(1)
(2)
This section applies where under section 24(3) a Judicial Commissioner refuses
to approve the decision to issue a warrant.
The person to whom the warrant was addressed must, so far as is reasonably
practicable, secure that anything in the process of being done under the
warrant stops as soon as possible.
The Judicial Commissioner may—
(a) direct that any of the material obtained under the warrant is destroyed;
(b) impose conditions as to the use or retention of any of that material;
(c) in the case of a targeted examination warrant, impose conditions as to
the use of any relevant content selected for examination under the
warrant.
The Judicial Commissioner—
(a) may require an affected party to make representations about how the
Judicial Commissioner should exercise any function under subsection
(3), and
(b) must have regard to any such representations made by an affected
party (whether or not as a result of a requirement imposed under
paragraph (a)).
Each of the following is an “affected party” for the purposes of subsection (4)—
(a) the person who decided to issue the warrant;
(b) the person to whom the warrant was addressed.
(2)
(3)
(4)
(5)
25
(3)
(4)
(5)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
21
(6)
The person who decided to issue the warrant may ask the Investigatory
Powers Commissioner to review a decision made by any other Judicial
Commissioner under subsection (3).
On a review under subsection (6), the Investigatory Powers Commissioner
may—
(a) confirm the Judicial Commissioner’s decision, or
(b) make a fresh determination.
Nothing in this section or section 24 affects the lawfulness of—
(a) anything done under the warrant before it ceases to have effect;
(b) if anything is in the process of being done under the warrant when it
ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done which it is not reasonably practicable to stop.
Additional safeguards
(7)
(8)
26
(1)
Members of Parliament etc.
This section applies where—
(a) an application is made to the Secretary of State for the issue of a
targeted interception warrant or a targeted examination warrant, and
(b) the purpose of the warrant is—
(i) in the case of a targeted interception warrant, to authorise or
require the interception of communications sent by, or intended
for, a person who is a member of a relevant legislature, or
(ii) in the case of a targeted examination warrant, to authorise the
selection for examination of the content of such
communications.
The Secretary of State may not issue the warrant without the approval of the
Prime Minister.
In this section “member of a relevant legislature” means—
(a) a member of either House of Parliament;
(b) a member of the Scottish Parliament;
(c) a member of the National Assembly for Wales;
(d) a member of the Northern Ireland Assembly;
(e) a member of the European Parliament elected for the United Kingdom.
Items subject to legal privilege
(1)
Subsections (2) to (5) apply if—
(a) an application is made by or on behalf of an intercepting authority for
a warrant under this Chapter, and
(b) the purpose, or one of the purposes, of the warrant is—
(i) in the case of a targeted interception warrant or mutual
assistance warrant, to authorise or require the interception of
items subject to legal privilege, or
(ii) in the case of a targeted examination warrant, to authorise the
selection of such items for examination.
(2)
(3)
27
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Investigatory Powers Act 2016 (c.
25)
Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
(2)
The application must contain a statement that the purpose, or one of the
purposes, of the warrant is to authorise or require the interception, or (in the
case of a targeted examination warrant) the selection for examination, of items
subject to legal privilege.
In deciding whether to issue the warrant, the person to whom the application
is made must have regard to the public interest in the confidentiality of items
subject to legal privilege.
The person to whom the application is made may issue the warrant only if the
person considers—
(a) that there are exceptional and compelling circumstances that make it
necessary to authorise or require the interception, or (in the case of a
targeted examination warrant) the selection for examination, of items
subject to legal privilege, and
(b) that the arrangements made for the purposes of section 53 or (as the
case may be) section 150 (safeguards relating to retention and
disclosure of material) include specific arrangements for the handling,
retention, use and destruction of such items.
But the warrant may not be issued if it is considered necessary only as
mentioned in section 20(2)(c).
For the purposes of subsection (4)(a), there cannot be exceptional and
compelling circumstances that make it necessary to authorise or require the
interception, or the selection for examination, of items subject to legal privilege
unless—
(a) the public interest in obtaining the information that would be obtained
by the warrant outweighs the public interest in the confidentiality of
items subject to legal privilege,
(b) there are no other means by which the information may reasonably be
obtained, and
(c) in the case of a warrant considered necessary as mentioned in section
20(2)(b) or (3) or (as the case may be) 21(4), obtaining the information is
necessary for the purpose of preventing death or significant injury.
Subsections (8) and (9) apply if—
(a) an application is made by or on behalf of an intercepting authority for
a warrant under this Chapter,
(b) the intercepting authority considers that the relevant communications
are likely to include items subject to legal privilege, and
(c) subsections (2) to (5) do not apply.
The application must contain—
(a) a statement that the intercepting authority considers that the relevant
communications are likely to include items subject to legal privilege,
and
(b) an assessment of how likely it is that the relevant communications will
include such items.
The person to whom the application is made may issue the warrant only if the
person considers that the arrangements made for the purposes of section 53 or
(as the case may be) section 150 include specific arrangements for the handling,
retention, use and destruction of items subject to legal privilege.
In this section “relevant communications” means—
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
23
(a)
(b)
(11)
in relation to a targeted interception warrant or mutual assistance
warrant, any communications the interception of which is authorised
or required by the warrant;
in relation to a targeted examination warrant, any communications the
content of which the warrant authorises to be selected for examination.
Subsections (12) and (13) apply if—
(a) an application is made by or on behalf of an intercepting authority for
a warrant under this Chapter,
(b) the purpose, or one of the purposes, of the warrant is—
(i) in the case of a targeted interception warrant or mutual
assistance warrant, to authorise or require the interception of
communications that, if they were not made with the intention
of furthering a criminal purpose, would be items subject to legal
privilege, or
(ii) in the case of a targeted examination warrant, to authorise the
selection of such communications for examination, and
(c) the intercepting authority considers that the communications (“the
targeted communications”) are likely to be communications made with
the intention of furthering a criminal purpose.
The application must—
(a) contain a statement that the purpose, or one of the purposes, of the
warrant is to authorise or require the interception, or (in the case of a
targeted examination warrant) the selection for examination, of
communications that, if they were not made with the intention of
furthering a criminal purpose, would be items subject to legal privilege,
and
(b) set out the reasons for believing that the targeted communications are
likely to be communications made with the intention of furthering a
criminal purpose.
The person to whom the application is made may issue the warrant only if the
person considers that the targeted communications are likely to be
communications made with the intention of furthering a criminal purpose.
Confidential journalistic material
(12)
(13)
28
(1)
This section applies if—
(a) an application is made by or on behalf of an intercepting authority for
a warrant under this Chapter, and
(b) the purpose, or one of the purposes, of the warrant is—
(i) in the case of a targeted interception warrant or mutual
assistance warrant, to authorise or require the interception of
communications which the intercepting authority believes will
be communications containing confidential journalistic
material, or
(ii) in the case of a targeted examination warrant, to authorise the
selection for examination of journalistic material which the
intercepting authority believes is confidential journalistic
material.
The application must contain a statement that the purpose, or one of the
purposes, of the warrant is—
(2)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
(a)
(b)
in the case of a targeted interception warrant or mutual assistance
warrant, to authorise or require the interception of communications
which the intercepting authority believes will be communications
containing confidential journalistic material, or
in the case of a targeted examination warrant, to authorise the selection
for examination of journalistic material which the intercepting
authority believes is confidential journalistic material.
(3)
The person to whom the application is made may issue the warrant only if the
person considers that the arrangements made for the purposes of section 53 or
(as the case may be) section 150 (safeguards relating to retention and disclosure
of material) include specific arrangements for the handling, retention, use and
destruction of communications containing confidential journalistic material.
For the meaning of “journalistic material” and “confidential journalistic
material”, see section 264.
Sources of journalistic information
(4)
29
(1)
This section applies if—
(a) an application is made by or on behalf of an intercepting authority for
a warrant under this Chapter, and
(b) the purpose, or one of the purposes, of the warrant is to identify or
confirm a source of journalistic information.
(For the meaning of “source of journalistic information”, see section 263(1).)
The application must contain a statement that the purpose, or one of the
purposes, of the warrant is to identify or confirm a source of journalistic
information.
The person to whom the application is made may issue the warrant only if the
person considers that the arrangements made for the purposes of section 53 or
(as the case may be) section 150 (safeguards relating to retention and disclosure
of material) include specific arrangements for the handling, retention, use and
destruction of communications that identify sources of journalistic
information.
Further provision about warrants
(2)
(3)
30
(1)
Decisions to issue warrants to be taken personally by Ministers
The decision to issue a warrant under this Chapter must be taken personally
by—
(a) the Secretary of State, or
(b) in the case of a warrant to be issued by the Scottish Ministers, a member
of the Scottish Government.
Before a warrant under this Chapter is issued, it must be signed by the person
who has taken the decision to issue it.
Subsections (1) and (2) are subject to—
(a) subsection (4), and
(b) section 40 (special rules for certain mutual assistance warrants).
(2)
(3)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
25
(4)
If it is not reasonably practicable for a warrant to be signed by the person who
has taken the decision to issue it, the warrant may be signed by a senior official
designated by the Secretary of State or (as the case may be) the Scottish
Ministers for that purpose.
In such a case, the warrant must contain a statement that—
(a) it is not reasonably practicable for the warrant to be signed by the
person who took the decision to issue it, and
(b) the Secretary of State or (as the case may be) a member of the Scottish
Government has personally and expressly authorised the issue of the
warrant.
In this section “senior official” means—
(a) in the case of a warrant to be issued by the Secretary of State, a member
of the Senior Civil Service or a member of the Senior Management
Structure of Her Majesty’s Diplomatic Service;
(b) in the case of a warrant to be issued by the Scottish Ministers, a member
of the staff of the Scottish Administration who is a member of the Senior
Civil Service.
Requirements that must be met by warrants
(5)
(6)
31
(1)
A warrant under this Chapter must contain a provision stating whether it is a
targeted interception warrant, a targeted examination warrant or a mutual
assistance warrant.
A warrant issued under this Chapter must be addressed to the person by
whom, or on whose behalf, the application for the warrant was made.
A warrant that relates to a particular person or organisation, or to a single set
of premises, must name or describe that person or organisation or those
premises.
A warrant that relates to a group of persons who share a common purpose or
who carry on (or may carry on) a particular activity must—
(a) describe that purpose or activity, and
(b) name or describe as many of those persons as it is reasonably
practicable to name or describe.
A warrant that relates to more than one person or organisation, or more than
one set of premises, where the conduct authorised or required by the warrant
is for the purposes of a single investigation or operation, must—
(a) describe the investigation or operation, and
(b) name or describe as many of those persons or organisations, or as many
of those sets of premises, as it is reasonably practicable to name or
describe.
A warrant that relates to any testing or training activities must—
(a) describe those activities, and
(b) name or describe as many of the persons within subsection (7) as it is
reasonably practicable to name or describe.
“Testing or training activities” has the meaning given by section 17(3).
A person is within this subsection if—
(a) in the case of a targeted interception warrant—
(2)
(3)
(4)
(5)
(6)
(7)
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Investigatory Powers Act 2016 (c.
25)
Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
(b)
communications from, or intended for, the person will or may
be intercepted by an interception authorised or required by the
warrant, or
(ii) secondary data will or may be obtained under the warrant from
communications from, or intended for, the person;
in the case of a targeted examination warrant, the content of
communications from, or intended for, the person may be selected for
examination under the warrant.
(i)
(8)
Where—
(a) a targeted interception warrant or mutual assistance warrant
authorises or requires the interception of communications described in
the warrant, or the obtaining of secondary data from such
communications, or
(b) a targeted examination warrant authorises the selection of the content
of communications for examination,
the warrant must specify the addresses, numbers, apparatus, or other factors,
or combination of factors, that are to be used for identifying the
communications.
Any factor, or combination of factors, specified in accordance with subsection
(8) must be one that identifies communications which are likely to be or to
include—
(a) communications from, or intended for, any person or organisation
named or described in the warrant, or
(b) communications originating on, or intended for transmission to, any
premises named or described in the warrant.
In this section any reference to communications from, or intended for, a person
or organisation includes communications from, or intended for, anything
owned, controlled or operated by that person or organisation.
Duration of warrants
(9)
(10)
32
(1)
A warrant under this Chapter ceases to have effect at the end of the relevant
period (see subsection (2)), unless—
(a) it is renewed before the end of that period (see section 33), or
(b) it is cancelled or otherwise ceases to have effect before the end of that
period (see sections 24 and 39).
In this section “the relevant period”—
(a) in the case of an urgent warrant which has not been renewed, means the
period ending with the fifth working day after the day on which the
warrant was issued;
(b) in any other case, means the period of 6 months beginning with—
(i) the day on which the warrant was issued, or
(ii) in the case of a warrant that has been renewed, the day after the
day at the end of which the warrant would have ceased to have
effect if it had not been renewed.
For the purposes of subsection (2)(a) a warrant is an “urgent warrant” if—
(a) the warrant was issued without the approval of a Judicial
Commissioner, and
(2)
(3)
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
27
(b)
the person who decided to issue the warrant considered that there was
an urgent need to issue it.
33
(1)
Renewal of warrants
If the renewal conditions are met, a warrant issued under this Chapter may be
renewed, at any time during the renewal period, by an instrument issued by
the appropriate person (see subsection (3)).
The renewal conditions are—
(a) that the appropriate person considers that the warrant continues to be
necessary on any relevant grounds (see subsection (4)),
(b) that the appropriate person considers that the conduct that would be
authorised by the renewed warrant continues to be proportionate to
what is sought to be achieved by that conduct,
(c) that, in the case of a targeted examination warrant, the appropriate
person considers that the warrant continues to be necessary to
authorise the selection of relevant content for examination in breach of
the prohibition in section 152(4), and
(d) that the decision to renew the warrant has been approved by a Judicial
Commissioner.
The appropriate person is—
(a) in the case of a warrant issued by the Secretary of State, the Secretary of
State;
(b) in the case of a warrant issued by the Scottish Ministers, a member of
the Scottish Government.
“Relevant grounds” means—
(a) in the case of a warrant issued by the Secretary of State, grounds falling
within section 20;
(b) in the case of a warrant issued by the Scottish Ministers, grounds falling
within section 21(4).
“The renewal period” means—
(a) in the case of an urgent warrant which has not been renewed, the
relevant period;
(b) in any other case, the period of 30 days ending with the day at the end
of which the warrant would otherwise cease to have effect.
The decision to renew a warrant must be taken personally by the appropriate
person, and the instrument renewing the warrant must be signed by that
person.
Section 23 (approval of warrants by Judicial Commissioners) applies in relation
to a decision to renew a warrant as it applies in relation to a decision to issue a
warrant (and accordingly any reference in that section to the person who
decided to issue the warrant is to be read as a reference to the person who
decided to renew it).
Sections 26 to 29 (additional safeguards) apply in relation to a decision to
renew a warrant as they apply in relation to a decision to issue a warrant.
In this section—
“the relevant period” has the same meaning as in section 32;
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
“urgent warrant” is to be read in accordance with subsection (3) of that
section.
(10)
This section is subject to section 40 (special rules for certain mutual assistance
warrants).
Modification of warrants
(1)
(2)
The provisions of a warrant issued under this Chapter may be modified at any
time by an instrument issued by the person making the modification.
The only modifications that may be made under this section are—
(a) adding, varying or removing the name or description of a person,
organisation or set of premises to which the warrant relates, and
(b) adding, varying or removing any factor specified in the warrant in
accordance with section 31(8).
But a warrant may not be modified as mentioned in subsection (2)(a) if it relates
only to a particular person or organisation, or to a single set of premises, as
mentioned in section 17(1).
The decision to modify the provisions of a warrant must be taken personally
by the person making the modification, and the instrument making the
modification must be signed by that person.
This is subject to section 36(8).
In this Chapter—
(a) a modification adding or varying a name or description as mentioned
in paragraph (a) of subsection (2) is referred to as a “major
modification”, and
(b) any other modification within that subsection is referred to as a “minor
modification”.
Nothing in this section applies in relation to modifying the provisions of a
warrant in a way which does not affect the conduct authorised or required by
it.
Sections 35 to 38 contain further provision about making modifications under
this section.
Persons who may make modifications
(1)
A major modification may be made by—
(a) the Secretary of State, in the case of a warrant issued by the Secretary of
State,
(b) a member of the Scottish Government, in the case of a warrant issued
by the Scottish Ministers, or
(c) a senior official acting on behalf of the Secretary of State or (as the case
may be) the Scottish Ministers.
A minor modification may be made by—
(a) the Secretary of State, in the case of a warrant issued by the Secretary of
State,
(b) a member of the Scottish Government, in the case of a warrant issued
by the Scottish Ministers,
34
(3)
(4)
(5)
(6)
(7)
35
(2)
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Investigatory Powers Act 2016 (c.
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Chapter 1 — Interception and examination with a warrant
29
(c)
(d)
(e)
(3)
a senior official acting on behalf of the Secretary of State or (as the case
may be) the Scottish Ministers,
the person to whom the warrant is addressed, or
a person who holds a senior position in the same public authority as the
person mentioned in paragraph (d).
But if a person within subsection (2)(d) or (e) considers that there is an urgent
need to make a major modification, that person (as well as a person within
subsection (1)) may do so.
Section 38 contains provision about the approval of major modifications made
in urgent cases.
Subsections (1) and (3) are subject to section 36(5) and (6) (special rules where
any of sections 26 to 29 applies in relation to the making of a major
modification).
Subsections (2)(d) and (e) and (3) do not apply in the case of a mutual assistance
warrant addressed to a person falling within section 18(1)(h) (competent
authorities of overseas countries or territories).
For the purposes of subsection (2)(e) a person holds a senior position in a public
authority if—
(a) in the case of any of the intelligence services—
(i) the person is a member of the Senior Civil Service or a member
of the Senior Management Structure of Her Majesty’s
Diplomatic Service, or
(ii) the person holds a position in the intelligence service of
equivalent seniority to such a person;
(b) in the case of the National Crime Agency, the person is a National
Crime Agency officer of grade 2 or above;
(c) in the case of the metropolitan police force, the Police Service of
Northern Ireland or the Police Service of Scotland, a person is of or
above the rank of superintendent;
(d) in the case of Her Majesty’s Revenue and Customs, the person is a
member of the Senior Civil Service;
(e) in the case of the Ministry of Defence—
(i) the person is a member of the Senior Civil Service, or
(ii) the person is of or above the rank of brigadier, commodore or
air commodore.
In this section “senior official” means—
(a) in the case of a warrant issued by the Secretary of State, a member of the
Senior Civil Service or a member of the Senior Management Structure
of Her Majesty’s Diplomatic Service;
(b) in the case of a warrant issued by the Scottish Ministers, a member of
the staff of the Scottish Administration who is a member of the Senior
Civil Service.
Further provision about modifications
(4)
(5)
(6)
(7)
36
(1)
A person may make a modification within subsection (2) only if the person
considers—
(a) that the modification is necessary on any relevant grounds (see
subsection (3)), and
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
(b)
(2)
that the conduct authorised by the modification is proportionate to
what is sought to be achieved by that conduct.
The modifications within this subsection are—
(a) a major modification adding the name or description of a person,
organisation or set of premises to which the warrant relates, and
(b) a minor modification adding any factor specified in the warrant in
accordance with section 31(8).
In subsection (1)(a) “relevant grounds” means—
(a) in the case of a warrant issued by the Secretary of State, grounds falling
within section 20;
(b) in the case of a warrant issued by the Scottish Ministers, grounds falling
within section 21(4);
and for the purposes of subsection (1) any reference to the Secretary of State in
section 20(3)(b) or the Scottish Ministers in section 21(4)(b) is to be read as a
reference to the person making the modification.
Sections 26 to 29 (additional safeguards) apply in relation to the making of a
major modification within subsection (2)(a) above as they apply in relation to
the issuing of a warrant.
Where section 26 applies in relation to the making of a major modification—
(a) the modification must be made by the Secretary of State, and
(b) the modification has effect only if the decision to make the modification
has been approved by a Judicial Commissioner.
Where section 27, 28 or 29 applies in relation to the making of a major
modification—
(a) the modification must be made by—
(i) the Secretary of State or (in the case of a warrant issued by the
Scottish Ministers) a member of the Scottish Government, or
(ii) if a senior official acting on behalf of a person within sub-
paragraph (i) considers that there is an urgent need to make the
modification, that senior official, and
(b) except where the person making the modification considers that there
is an urgent need to make it, the modification has effect only if the
decision to make the modification has been approved by a Judicial
Commissioner.
In a case where any of sections 26 to 29 applies in relation to the making of a
major modification, section 23 (approval of warrants by Judicial
Commissioners) applies in relation to the decision to make the modification as
it applies in relation to a decision to issue a warrant, but as if—
(a) the references in subsection (1)(a) and (b) of that section to the warrant
were references to the modification,
(b) any reference to the person who decided to issue the warrant were a
reference to the person who decided to make the modification, and
(c) subsection (3) of this section applied for the purposes of subsection (1)
of that section as it applies for the purposes of subsection (1) of this
section.
Section 38 contains provision about the approval of major modifications made
in urgent cases.
(3)
(4)
(5)
(6)
(7)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
31
(8)
If, in a case where any of sections 26 to 29 applies in relation to the making of
a major modification, it is not reasonably practicable for the instrument making
the modification to be signed by the Secretary of State or (as the case may be) a
member of the Scottish Government in accordance with section 34(4), the
instrument may be signed by a senior official designated by the Secretary of
State or (as the case may be) the Scottish Ministers for that purpose.
In such a case, the instrument making the modification must contain a
statement that—
(a) it is not reasonably practicable for the instrument to be signed by the
person who took the decision to make the modification, and
(b) the Secretary of State or (as the case may be) a member of the Scottish
Government has personally and expressly authorised the making of the
modification.
If at any time a person mentioned in section 35(2) considers that any factor
specified in a warrant in accordance with section 31(8) is no longer relevant for
identifying communications which, in the case of that warrant, are likely to be,
or to include, communications falling within section 31(9)(a) or (b), the person
must modify the warrant by removing that factor.
In this section “senior official” has the same meaning as in section 35.
Notification of major modifications
(9)
(10)
(11)
37
(1)
As soon as is reasonably practicable after a person makes a major modification
of a warrant under this Chapter, a Judicial Commissioner must be notified of
the modification and the reasons for making it.
But subsection (1) does not apply where—
(a) the modification is made by virtue of section 35(3), or
(b) any of sections 26 to 29 applies in relation to the making of the
modification.
Where a major modification is made by a senior official in accordance with
section 35(1) or section 36(6)(a)(ii), the Secretary of State or (in the case of a
warrant issued by the Scottish Ministers) a member of the Scottish Government
must be notified personally of the modification and the reasons for making it.
In this section “senior official” has the same meaning as in section 35.
Approval of major modifications made in urgent cases
(2)
(3)
(4)
38
(1)
(2)
This section applies where a person makes a major modification of a warrant
under this Chapter by virtue of section 35(3).
This section also applies where—
(a) section 27, 28 or 29 applies in relation to the making of a major
modification of a warrant under this Chapter,
(b) the person making the modification does so without the approval of a
Judicial Commissioner, and
(c) the person considered that there was an urgent need to make the
modification.
The person who made the modification must inform the appropriate person
that it has been made.
(3)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
(4)
In this section—
“the appropriate person” is—
(a) in a case falling within subsection (1), a designated senior
official, and
(b) in a case falling within subsection (2), a Judicial Commissioner,
“designated senior official” means a senior official who has been
designated by the Secretary of State or (in the case of warrants issued
by the Scottish Ministers) the Scottish Ministers for the purposes of this
section, and
“senior official” has the same meaning as in section 35.
The appropriate person must, before the end of the relevant period—
(a) decide whether to approve the decision to make the modification, and
(b) notify the person of the appropriate person’s decision.
“The relevant period” means the period ending with the third working day
after the day on which the modification was made.
As soon as is reasonably practicable after a designated senior official makes a
decision under subsection (5)—
(a) a Judicial Commissioner must be notified of—
(i) the decision, and
(ii) if the senior official has decided to approve the decision to make
the modification, the modification in question, and
(b) the Secretary of State or (in the case of a warrant issued by the Scottish
Ministers) a member of the Scottish Government must be notified
personally of the matters mentioned in paragraph (a)(i) and (ii).
If the appropriate person refuses to approve the decision to make the
modification—
(a) the warrant (unless it no longer has effect) has effect as if the
modification had not been made, and
(b) the person to whom the warrant is addressed must, so far as is
reasonably practicable, secure that anything in the process of being
done under the warrant by virtue of that modification stops as soon as
possible,
and, in a case falling within subsection (2) above, section 23(5) does not apply
in relation to the refusal to approve the decision.
Nothing in this section affects the lawfulness of—
(a) anything done under the warrant by virtue of the modification before
the modification ceases to have effect;
(b) if anything is in the process of being done under the warrant by virtue
of the modification when the modification ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done which it is not reasonably practicable to stop.
Cancellation of warrants
(5)
(6)
(7)
(8)
39
(1)
(2)
Any of the appropriate persons may cancel a warrant issued under this
Chapter at any time.
If any of the appropriate persons considers that—
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
33
a warrant issued under this Chapter is no longer necessary on any
relevant grounds, or
(b) the conduct authorised by the warrant is no longer proportionate to
what is sought to be achieved by that conduct,
the person must cancel the warrant.
(3)
In subsection (2)(a) “relevant grounds” means—
(a) in the case of a warrant issued by the Secretary of State, grounds falling
within section 20;
(b) in the case of a warrant issued by the Scottish Ministers, grounds falling
within section 21(4).
For the purpose of this section “the appropriate persons” are—
(a) in the case of a warrant issued by the Secretary of State, the Secretary of
State or a senior official acting on behalf of the Secretary of State;
(b) in the case of a warrant issued by the Scottish Ministers, a member of
the Scottish Government or a senior official acting on behalf of the
Scottish Ministers.
Where a warrant is cancelled under this section, the person to whom the
warrant was addressed must, so far as is reasonably practicable, secure that
anything in the process of being done under the warrant stops as soon as
possible.
A warrant that has been cancelled under this section may not be renewed.
In this section “senior official” means—
(a) in the case of a warrant issued by the Secretary of State, a member of the
Senior Civil Service or a member of the Senior Management Structure
of Her Majesty’s Diplomatic Service;
(b) in the case of a warrant issued by the Scottish Ministers, a member of
the staff of the Scottish Administration who is a member of the Senior
Civil Service.
See also section 40 (which imposes a duty to cancel mutual assistance warrants
in certain circumstances).
Special rules for certain mutual assistance warrants
(1)
For the purposes of this section a warrant is a “relevant mutual assistance
warrant” if—
(a) the warrant is for the purposes of a request for assistance made under
an EU mutual assistance instrument or an international mutual
assistance agreement by the competent authorities of a country or
territory outside the United Kingdom, and
(b) either—
(i) it appears that the interception subject is outside the United
Kingdom, or
(ii) the interception authorised or required by the warrant is to take
place in relation only to premises outside the United Kingdom.
The decision to issue a relevant mutual assistance warrant may be taken by a
senior official designated by the Secretary of State for that purpose.
In such a case, the warrant must contain—
(a)
(4)
(5)
(6)
(7)
(8)
40
(2)
(3)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
(a)
(b)
a statement that the warrant is issued for the purposes of a request for
assistance made under an EU mutual assistance instrument or an
international mutual assistance agreement (as the case may be) by the
competent authorities of a country or territory outside the United
Kingdom, and
whichever of the following statements is applicable—
(i) a statement that the interception subject appears to be outside
the United Kingdom;
(ii) a statement that the interception authorised or required by the
warrant is to take place in relation only to premises outside the
United Kingdom.
(4)
A relevant mutual assistance warrant may be renewed by a senior official
designated by the Secretary of State for that purpose; and references in section
33 to the appropriate person include, in the case of such a warrant, references
to that senior official.
Where a senior official renews a relevant mutual assistance warrant in
accordance with subsection (4), the instrument renewing the warrant must
contain—
(a) a statement that the renewal is for the purposes of a request for
assistance made under an EU mutual assistance instrument or an
international mutual assistance agreement (as the case may be) by the
competent authorities of a country or territory outside the United
Kingdom, and
(b) whichever of the following statements is applicable—
(i) a statement that the interception subject appears to be outside
the United Kingdom;
(ii) a statement that the interception authorised or required by the
warrant is to take place in relation only to premises outside the
United Kingdom.
Subsection (7) applies in a case where—
(a) a relevant mutual assistance warrant—
(i) was issued containing the statement set out in subsection
(3)(b)(i), or
(ii) has been renewed by an instrument containing the statement
set out in subsection (5)(b)(i), and
(b) the last renewal (if any) of the warrant was a renewal by a senior official
in accordance with subsection (4).
If the Secretary of State, or a senior official acting on behalf of the Secretary of
State, believes that the person, group or organisation named or described in the
warrant as the interception subject is in the United Kingdom, that person must
cancel the warrant under section 39.
In this section—
“the interception subject”, in relation to a warrant, means the person,
group of persons or organisation to which the warrant relates;
“senior official” means a member of the Senior Civil Service or a member
of the Senior Management Structure of Her Majesty’s Diplomatic
Service.
(5)
(6)
(7)
(8)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
35
Implementation of warrants
41
(1)
(2)
Implementation of warrants
This section applies to targeted interception warrants and mutual assistance
warrants.
In giving effect to a warrant to which this section applies, the person to whom
it is addressed (“the intercepting authority”) may (in addition to acting alone)
act through, or together with, such other persons as the intercepting authority
may require (whether under subsection (3) or otherwise) to provide the
authority with assistance in giving effect to the warrant.
For the purpose of requiring any person to provide assistance in relation to a
warrant to which this section applies, the intercepting authority may—
(a) serve a copy of the warrant on any person who the intercepting
authority considers may be able to provide such assistance, or
(b) make arrangements for the service of a copy of the warrant on any such
person.
A copy of a warrant may be served under subsection (3) on a person outside
the United Kingdom for the purpose of requiring the person to provide such
assistance in the form of conduct outside the United Kingdom.
For the purposes of this Act, the provision of assistance in giving effect to a
warrant to which this section applies includes any disclosure to the
intercepting authority, or to persons acting on behalf of the intercepting
authority, of anything obtained under the warrant.
References in this section and sections 42 and 43 to the service of a copy of a
warrant include—
(a) the service of a copy of one or more schedules contained in the warrant
with the omission of the remainder of the warrant, and
(b) the service of a copy of the warrant with the omission of any schedule
contained in the warrant.
Service of warrants
(1)
(2)
This section applies to the service of warrants under section 41(3).
A copy of the warrant must be served in such a way as to bring the contents of
the warrant to the attention of the person who the intercepting authority
considers may be able to provide assistance in relation to it.
A copy of a warrant may be served on a person outside the United Kingdom in
any of the following ways (as well as by electronic or other means of service)—
(a) by serving it at the person’s principal office within the United Kingdom
or, if the person has no such office in the United Kingdom, at any place
in the United Kingdom where the person carries on business or
conducts activities;
(b) if the person has specified an address in the United Kingdom as one at
which the person, or someone on the person’s behalf, will accept
service of documents of the same description as a copy of a warrant, by
serving it at that address;
(3)
(4)
(5)
(6)
42
(3)
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 1 — Interception and examination with a warrant
(c)
by making it available for inspection (whether to the person or to
someone acting on the person’s behalf) at a place in the United
Kingdom (but this is subject to subsection (4)).
(4)
A copy of a warrant may be served on a person outside the United Kingdom in
the way mentioned in subsection (3)(c) only if—
(a) it is not reasonably practicable for a copy to be served by any other
means (whether as mentioned in subsection (3)(a) or (b) or otherwise),
and
(b) the intercepting authority takes such steps as the authority considers
appropriate for the purpose of bringing the contents of the warrant, and
the availability of a copy for inspection, to the attention of the person.
The steps mentioned in subsection (4)(b) must be taken as soon as reasonably
practicable after the copy of the warrant is made available for inspection.
In this section “the intercepting authority” has the same meaning as in section
41.
Duty of operators to assist with implementation
(5)
(6)
43
(1)
A relevant operator that has been served with a copy of a warrant to which
section 41 applies by (or on behalf of) the intercepting authority must take all
steps for giving effect to the warrant that are notified to the relevant operator
by (or on behalf of) the intercepting authority.
This is subject to subsection (4).
In this section—
“relevant operator” means a postal operator or a telecommunications
operator;
“the intercepting authority” has the same meaning as in section 41.
Subsection (1) applies whether or not the relevant operator is in the United
Kingdom.
The relevant operator is not required to take any steps which it is not
reasonably practicable for the relevant operator to take.
In determining for the purposes of subsection (4) whether it is reasonably
practicable for a relevant operator outside the United Kingdom to take any
steps in a country or territory outside the United Kingdom for giving effect to
a warrant, the matters to be taken into account include the following—
(a) any requirements or restrictions under the law of that country or
territory that are relevant to the taking of those steps, and
(b) the extent to which it is reasonably practicable to give effect to the
warrant in a way that does not breach any of those requirements or
restrictions.
Where obligations have been imposed on a relevant operator (“P”) under
section 253 (technical capability notices), for the purposes of subsection (4) the
steps which it is reasonably practicable for P to take include every step which
it would have been reasonably practicable for P to take if P had complied with
all of those obligations.
A person who knowingly fails to comply with subsection (1) is guilty of an
offence and liable—
(a) on summary conviction in England and Wales—
(2)
(3)
(4)
(5)
(6)
(7)
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37
(b)
(c)
(d)
(8)
to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or
(ii) to a fine,
or to both;
on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.
(i)
The duty imposed by subsection (1) is enforceable (whether or not the person
is in the United Kingdom) by civil proceedings by the Secretary of State for an
injunction, or for specific performance of a statutory duty under section 45 of
the Court of Session Act 1988, or for any other appropriate relief.
C
HAPTER
2
O
THER FORMS OF LAWFUL INTERCEPTION
Interception with consent
44
(1)
Interception with the consent of the sender or recipient
The interception of a communication is authorised by this section if the sender
and the intended recipient of the communication have each consented to its
interception.
The interception of a communication is authorised by this section if—
(a) the communication is one sent by, or intended for, a person who has
consented to the interception, and
(b) surveillance by means of that interception has been authorised under—
(i) Part 2 of the Regulation of Investigatory Powers Act 2000, or
(ii) the Regulation of Investigatory Powers (Scotland) Act 2000
(2000 asp 11).
Interception for administrative or enforcement purposes
(2)
45
(1)
Interception by providers of postal or telecommunications services
The interception of a communication is authorised by this section if the
interception is carried out—
(a) by, or on behalf of, a person who provides a postal service or a
telecommunications service, and
(b) for any of the purposes in subsection (2).
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Investigatory Powers Act 2016 (c.
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Part 2 — Lawful interception of communications
Chapter 2 — Other forms of lawful interception
(2)
The purposes referred to in subsection (1) are—
(a) purposes relating to the provision or operation of the service;
(b) purposes relating to the enforcement, in relation to the service, of any
enactment relating to—
(i) the use of postal or telecommunications services, or
(ii) the content of communications transmitted by means of such
services;
(c) purposes relating to the provision of services or facilities aimed at
preventing or restricting the viewing or publication of the content of
communications
transmitted
by
means
of
postal
or
telecommunications services.
A reference in this section to anything carried out for purposes relating to the
provision or operation of a telecommunications service includes, among other
things, a reference to anything done for the purposes of identifying, combating
or preventing anything which could affect—
(a) any telecommunication system by means of which the service is
provided, or
(b) any apparatus attached to such a system.
Interception by businesses etc. for monitoring and record-keeping purposes
(3)
46
(1)
(2)
Conduct is authorised by this section if it is authorised by regulations made
under subsection (2).
The Secretary of State may by regulations authorise conduct of a description
specified in the regulations if that conduct appears to the Secretary of State to
constitute a legitimate practice reasonably required for the purpose, in
connection with the carrying on of any relevant activities (see subsection (4)),
of monitoring or keeping a record of—
(a) communications by means of which transactions are entered into in the
course of the relevant activities, or
(b) other communications relating to the relevant activities or taking place
in the course of the carrying on of those activities.
But nothing in any regulations under subsection (2) may authorise the
interception of any communication except in the course of its transmission
using apparatus or services provided by or to the person carrying on the
relevant activities for use (whether wholly or partly) in connection with those
activities.
In this section “relevant activities” means—
(a) any business,
(b) any activities of a government department, the Welsh Government, a
Northern Ireland department or any part of the Scottish
Administration,
(c) any activities of a public authority, and
(d) any activities of any person or office holder on whom functions are
conferred by or under any enactment.
Postal services: interception for enforcement purposes
(3)
(4)
47
(1)
The interception of a communication in the course of its transmission by means
of a public postal service is authorised by this section if it is carried out by an
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Chapter 2 — Other forms of lawful interception
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officer of Revenue and Customs under section 159 of the Customs and Excise
Management Act 1979, as applied by virtue of—
(a) section 105 of the Postal Services Act 2000 (power to open postal items
etc.), or
(b) that section and another enactment.
(2)
The interception of a communication in the course of its transmission by means
of a public postal service is authorised by this section if it is carried out under
paragraph 9 of Schedule 7 to the Terrorism Act 2000 (port and border controls).
Interception by OFCOM in connection with wireless telegraphy
(1)
Conduct falling within subsection (2) is authorised by this section if it is carried
out by OFCOM for purposes connected with a relevant matter (see subsection
(3)).
The conduct referred to in subsection (1) is—
(a) the interception of a communication in the course of its transmission by
means of a telecommunication system;
(b) the obtaining, by or in connection with the interception, of information
about the sender or recipient, or intended recipient, of the
communication (whether or not a person);
(c) the disclosure of anything obtained by conduct falling within
paragraph (a) or (b).
Each of the following is a relevant matter for the purposes of subsection (1)—
(a) the grant of wireless telegraphy licences under the Wireless Telegraphy
Act 2006 (“the 2006 Act”);
(b) the prevention or detection of anything which constitutes interference
with wireless telegraphy;
(c) the enforcement of—
(i) any provision of Part 2 (other than Chapter 2 and sections 27 to
31) or Part 3 of the 2006 Act, or
(ii) any enactment not falling within sub-paragraph (i) that relates
to interference with wireless telegraphy.
In this section—
“interference”, in relation to wireless telegraphy, has the same meaning as
in the Wireless Telegraphy Act 2006 (see section 115(3) of that Act);
“OFCOM” means the Office of Communications established by section 1
of the Office of Communications Act 2002;
“wireless telegraphy” has the same meaning as in the Wireless Telegraphy
Act 2006 (see section 116 of that Act).
Interception taking place in certain institutions
49
(1)
(2)
Interception in prisons
Conduct taking place in a prison is authorised by this section if it is conduct in
exercise of any power conferred by or under prison rules.
In this section “prison rules” means any rules made under—
(a) section 47 of the Prison Act 1952,
48
(2)
(3)
(4)
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Part 2 — Lawful interception of communications
Chapter 2 — Other forms of lawful interception
(b)
(c)
(3)
section 39 of the Prisons (Scotland) Act 1989, or
section 13 of the Prison Act (Northern Ireland) 1953.
In this section “prison” means—
(a) any prison, young offender institution, young offenders centre, secure
training centre, secure college or remand centre which—
(i) is under the general superintendence of, or is provided by, the
Secretary of State under the Prison Act 1952, or
(ii) is under the general superintendence of, or is provided by, the
Department of Justice in Northern Ireland under the Prison Act
(Northern Ireland) 1953, or
(b) any prison, young offenders institution or remand centre which is
under the general superintendence of the Scottish Ministers under the
Prisons (Scotland) Act 1989,
and includes any contracted out prison, within the meaning of Part 4 of the
Criminal Justice Act 1991 or section 106(4) of the Criminal Justice and Public
Order Act 1994, and any legalised police cells within the meaning of section 14
of the Prisons (Scotland) Act 1989.
Interception in psychiatric hospitals etc.
50
(1)
Conduct is authorised by this section if—
(a) it takes place in any hospital premises where high security psychiatric
services are provided, and
(b) it is conduct in pursuance of, and in accordance with, any relevant
direction given to the body providing those services at those premises.
“Relevant direction” means—
(a) a direction under section 4(3A)(a) of the National Health Service Act
2006, or
(b) a direction under section 19 or 23 of the National Health Service (Wales)
Act 2006.
Conduct is authorised by this section if—
(a) it takes place in a state hospital, and
(b) it is conduct in pursuance of, and in accordance with, any direction
given to the State Hospitals Board for Scotland under section 2(5) of the
National Health Service (Scotland) Act 1978 (regulations and directions
as to the exercise of their functions by health boards).
The reference to section 2(5) of that Act is to that provision as applied by Article
5(1) of, and the Schedule to, the State Hospitals Board for Scotland Order 1995
(which applies certain provisions of that Act to the State Hospitals Board).
Conduct is authorised by this section if it is conduct in exercise of any power
conferred by or under—
(a) section 281 of the Mental Health (Care and Treatment) (Scotland) Act
2003 (2003 asp 13) (power to withhold correspondence of certain
persons detained in hospital), or
(b) section 284 of that Act (powers relating to the use of telephones by
certain persons detained in hospital).
In this section—
“high security psychiatric services” has the same meaning as in section 4
of the National Health Service Act 2006;
(2)
(3)
(4)
(5)
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“hospital premises” has the same meaning as in section 4(3) of that Act;
“state hospital” has the same meaning as in the National Health Service
(Scotland) Act 1978.
51
(1)
Interception in immigration detention facilities
Conduct taking place in immigration detention facilities is authorised by this
section if it is conduct in exercise of any power conferred by or under relevant
rules.
In this section—
“immigration detention facilities” means any removal centre, short-term
holding facility or pre-departure accommodation;
“removal centre”, “short-term holding facility” and “pre-departure
accommodation” have the meaning given by section 147 of the
Immigration and Asylum Act 1999;
“relevant rules” means—
(a) in the case of a removal centre, rules made under section 153 of
that Act;
(b) in the case of a short-term holding facility, rules made under, or
having effect by virtue of, section 157 of that Act;
(c) in the case of pre-departure accommodation, rules made under,
or having effect by virtue of, section 157A of that Act.
Interception in accordance with overseas requests
52
(1)
Interception in accordance with overseas requests
The interception of a communication in the course of its transmission by means
of a telecommunication system is authorised by this section if conditions A to
D are met.
Condition A is that the interception—
(a) is carried out by or on behalf of a telecommunications operator, and
(b) relates to the use of a telecommunications service provided by the
telecommunications operator.
Condition B is that the interception is carried out in response to a request made
in accordance with a relevant international agreement by the competent
authorities of a country or territory outside the United Kingdom.
In this subsection “relevant international agreement” means an international
agreement to which the United Kingdom is a party and which is designated as
a relevant international agreement by regulations made by the Secretary of
State.
Condition C is that the interception is carried out for the purpose of obtaining
information about the communications of an individual—
(a) who is outside the United Kingdom, or
(b) who each of the following persons believes is outside the United
Kingdom—
(i) the person making the request;
(ii) the person carrying out the interception.
(2)
(2)
(3)
(4)
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Part 2 — Lawful interception of communications
Chapter 2 — Other forms of lawful interception
(5)
Condition D is that any further conditions specified in regulations made by the
Secretary of State for the purposes of this section are met.
C
HAPTER
3
O
THER PROVISIONS ABOUT INTERCEPTION
Restrictions on use or disclosure of material obtained under warrants etc.
53
(1)
Safeguards relating to retention and disclosure of material
The issuing authority must ensure, in relation to every targeted interception
warrant or mutual assistance warrant issued by that authority, that
arrangements are in force for securing that the requirements of subsections (2)
and (5) are met in relation to the material obtained under the warrant.
This is subject to subsection (9).
The requirements of this subsection are met in relation to the material obtained
under a warrant if each of the following is limited to the minimum that is
necessary for the authorised purposes (see subsection (3))—
(a) the number of persons to whom any of the material is disclosed or
otherwise made available;
(b) the extent to which any of the material is disclosed or otherwise made
available;
(c) the extent to which any of the material is copied;
(d) the number of copies that are made.
For the purposes of this section something is necessary for the authorised
purposes if, and only if—
(a) it is, or is likely to become, necessary on any of the grounds falling
within section 20 on which a warrant under Chapter 1 of this Part may
be necessary,
(b) it is necessary for facilitating the carrying out of any functions under
this Act of the Secretary of State, the Scottish Ministers or the person to
whom the warrant is or was addressed,
(c) it is necessary for facilitating the carrying out of any functions of the
Judicial Commissioners or the Investigatory Powers Tribunal under or
in relation to this Act,
(d) it is necessary to ensure that a person (“P”) who is conducting a
criminal prosecution has the information P needs to determine what is
required of P by P’s duty to secure the fairness of the prosecution, or
(e) it is necessary for the performance of any duty imposed on any person
by the Public Records Act 1958 or the Public Records Act (Northern
Ireland) 1923.
The arrangements for the time being in force under this section for securing
that the requirements of subsection (2) are met in relation to the material
obtained under the warrant must include arrangements for securing that every
copy made of any of that material is stored, for so long as it is retained, in a
secure manner.
The requirements of this subsection are met in relation to the material obtained
under a warrant if every copy made of any of that material (if not destroyed
(2)
(3)
(4)
(5)
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earlier) is destroyed as soon as there are no longer any relevant grounds for
retaining it (see subsection (6)).
(6)
For the purposes of subsection (5), there are no longer any relevant grounds for
retaining a copy of any material if, and only if—
(a) its retention is not necessary, or not likely to become necessary, on any
of the grounds falling within section 20 on which a warrant under
Chapter 1 of this Part may be necessary, and
(b) its retention is not necessary for any of the purposes mentioned in
paragraphs (b) to (e) of subsection (3) above.
Where—
(a) a communication which has been intercepted in accordance with a
targeted interception warrant or mutual assistance warrant is retained,
following its examination, for purposes other than the destruction of
the communication, and
(b) it is a communication that contains confidential journalistic material or
identifies a source of journalistic information,
the person to whom the warrant is addressed must inform the Investigatory
Powers Commissioner as soon as is reasonably practicable.
Subsection (9) applies if—
(a) any material obtained under the warrant has been handed over to any
overseas authorities, or
(b) a copy of any such material has been given to any overseas authorities.
To the extent that the requirements of subsections (2) and (5) relate to any of
the material mentioned in subsection (8)(a), or to the copy mentioned in
subsection (8)(b), the arrangements made for the purposes of this section are
not required to secure that those requirements are met (see instead section 54).
In this section—
“copy”, in relation to material obtained under a warrant, means any of the
following (whether or not in documentary form)—
(a) any copy, extract or summary of the material which identifies
the material as having been obtained under the warrant, and
(b) any record which—
(i) refers to any interception or to the obtaining of any
material, and
(ii) is a record of the identities of the persons to or by whom
the material was sent, or to whom the material relates,
and “copied” is to be read accordingly;
“the issuing authority” means—
(a) the Secretary of State, in the case of warrants issued by the
Secretary of State;
(b) the Scottish Ministers, in the case of warrants issued by the
Scottish Ministers;
“overseas authorities” means authorities of a country or territory outside
the United Kingdom.
(7)
(8)
(9)
(10)
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Chapter 3 — Other provisions about interception
54
(1)
Safeguards relating to disclosure of material overseas
The issuing authority must ensure, in relation to every targeted interception
warrant or mutual assistance warrant issued by that authority, that
arrangements are in force for securing that—
(a) any material obtained under the warrant is handed over to overseas
authorities only if the requirements of subsection (2) are met, and
(b) copies of any such material are given to overseas authorities only if
those requirements are met.
The requirements of this subsection are met in the case of a warrant if it appears
to the issuing authority—
(a) that requirements corresponding to the requirements of section 53(2)
and (5) will apply, to such extent (if any) as the issuing authority
considers appropriate, in relation to any of the material which is
handed over, or any copy of which is given, to the authorities in
question, and
(b) that restrictions are in force which would prevent, to such extent (if
any) as the issuing authority considers appropriate, the doing of
anything in, for the purposes of or in connection with any proceedings
outside the United Kingdom which would result in a prohibited
disclosure.
In subsection (2)(b) “prohibited disclosure” means a disclosure which, if made
in the United Kingdom, would breach the prohibition in section 56(1).
In this section—
“copy” has the same meaning as in section 53;
“the issuing authority” means—
(a) the Secretary of State, in the case of warrants issued by the
Secretary of State;
(b) the Scottish Ministers, in the case of warrants issued by the
Scottish Ministers;
“overseas authorities” means authorities of a country or territory outside
the United Kingdom.
Additional safeguards for items subject to legal privilege
(1)
This section applies where an item subject to legal privilege which has been
intercepted in accordance with a targeted interception warrant or mutual
assistance warrant is retained, following its examination, for purposes other
than the destruction of the item.
The person to whom the warrant is addressed must inform the Investigatory
Powers Commissioner of the retention of the item as soon as is reasonably
practicable.
Unless the Investigatory Powers Commissioner considers that subsection (5)
applies to the item, the Commissioner must—
(a) direct that the item is destroyed, or
(b) impose one or more conditions as to the use or retention of that item.
If the Investigatory Powers Commissioner considers that subsection (5) applies
to the item, the Commissioner may nevertheless impose such conditions under
subsection (3)(b) as the Commissioner considers necessary for the purpose of
(2)
(3)
(4)
55
(2)
(3)
(4)
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protecting the public interest in the confidentiality of items subject to legal
privilege.
(5)
This subsection applies to an item subject to legal privilege if—
(a) the public interest in retaining the item outweighs the public interest in
the confidentiality of items subject to legal privilege, and
(b) retaining the item is necessary in the interests of national security or for
the purpose of preventing death or significant injury.
The Investigatory Powers Commissioner—
(a) may require an affected party to make representations about how the
Commissioner should exercise any function under subsection (3), and
(b) must have regard to any such representations made by an affected
party (whether or not as a result of a requirement imposed under
paragraph (a)).
Each of the following is an “affected party” for the purposes of subsection (6)—
(a) the person who decided to issue the warrant;
(b) the person to whom the warrant is or was addressed.
Exclusion of matters from legal proceedings etc.
(1)
No evidence may be adduced, question asked, assertion or disclosure made or
other thing done in, for the purposes of or in connection with any legal
proceedings or Inquiries Act proceedings which (in any manner)—
(a) discloses, in circumstances from which its origin in interception-related
conduct may be inferred—
(i) any content of an intercepted communication, or
(ii) any secondary data obtained from a communication, or
(b) tends to suggest that any interception-related conduct has or may have
occurred or may be going to occur.
This is subject to Schedule 3 (exceptions).
“Interception-related conduct” means—
(a) conduct by a person within subsection (3) that is, or in the absence of
any lawful authority would be, an offence under section 3(1) (offence of
unlawful interception);
(b) a breach of the prohibition imposed by section 9 (restriction on
requesting interception by overseas authorities);
(c) a breach of the prohibition imposed by section 10 (restriction on
requesting assistance under mutual assistance agreements etc.);
(d) the making of an application by any person for a warrant, or the issue
of a warrant, under Chapter 1 of this Part;
(e) the imposition of any requirement on any person to provide assistance
in giving effect to a targeted interception warrant or mutual assistance
warrant.
The persons referred to in subsection (2)(a) are—
(a) any person who is an intercepting authority (see section 18);
(b) any person holding office under the Crown;
(c) any person deemed to be the proper officer of Revenue and Customs by
virtue of section 8(2) of the Customs and Excise Management Act 1979;
(d) any person employed by, or for the purposes of, a police force;
(6)
(7)
56
(2)
(3)
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Chapter 3 — Other provisions about interception
(e)
(f)
(4)
any postal operator or telecommunications operator;
any person employed or engaged for the purposes of the business of a
postal operator or telecommunications operator.
Any reference in subsection (1) to interception-related conduct also includes
any conduct taking place before the coming into force of this section and
consisting of—
(a) conduct by a person within subsection (3) that—
(i) was an offence under section 1(1) or (2) of the Regulation of
Investigatory Powers Act 2000 (“RIPA”), or
(ii) would have been such an offence in the absence of any lawful
authority (within the meaning of section 1(5) of RIPA);
(b) conduct by a person within subsection (3) that—
(i) was an offence under section 1 of the Interception of
Communications Act 1985, or
(ii) would have been such an offence in the absence of subsections
(2) and (3) of that section;
(c) a breach by the Secretary of State of the duty under section 1(4) of RIPA
(restriction on requesting assistance under mutual assistance
agreements);
(d) the making of an application by any person for a warrant, or the issue
of a warrant, under—
(i) Chapter 1 of Part 1 of RIPA, or
(ii) the Interception of Communications Act 1985;
(e) the imposition of any requirement on any person to provide assistance
in giving effect to a warrant under Chapter 1 of Part 1 of RIPA.
In this section—
“Inquiries Act proceedings” means proceedings of an inquiry under the
Inquiries Act 2005;
“intercepted communication” means any communication intercepted in
the course of its transmission by means of a postal service or
telecommunication system.
Duty not to make unauthorised disclosures
(5)
57
(1)
(2)
A person to whom this section applies must not make an unauthorised
disclosure to another person.
A person makes an unauthorised disclosure for the purposes of this section if—
(a) the person discloses any of the matters within subsection (4) in relation
to—
(i) a warrant under Chapter 1 of this Part, or
(ii) a warrant under Chapter 1 of Part 1 of the Regulation of
Investigatory Powers Act 2000, and
(b) the disclosure is not an excepted disclosure (see section 58).
This section applies to the following persons—
(a) any person who is an intercepting authority (see section 18);
(b) any person holding office under the Crown;
(c) any person employed by, or for the purposes of, a police force;
(d) any postal operator or telecommunications operator;
(3)
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(e)
(f)
(4)
any person employed or engaged for the purposes of the business of a
postal operator or telecommunications operator;
any person to whom any of the matters within subsection (4) have been
disclosed in relation to a warrant mentioned in subsection (2)(a).
The matters referred to in subsection (2)(a) are—
(a) the existence or contents of the warrant;
(b) the details of the issue of the warrant or of any renewal or modification
of the warrant;
(c) the existence or contents of any requirement to provide assistance in
giving effect to the warrant;
(d) the steps taken in pursuance of the warrant or of any such requirement;
(e) any of the material obtained under the warrant.
Section 57: meaning of “excepted disclosure”
58
(1)
For the purposes of section 57 a disclosure made in relation to a warrant is an
“excepted disclosure” if it falls within any of the Heads set out in—
(a) subsection (2) (disclosures authorised by warrant etc.);
(b) subsection (4) (oversight bodies);
(c) subsection (5) (legal advisers);
(d) subsection (8) (disclosures of a general nature).
Head 1 is—
(a) a disclosure authorised by the warrant;
(b) a disclosure authorised by the person to whom the warrant is or was
addressed or under any arrangements made by that person for the
purposes of this section;
(c) a disclosure authorised by the terms of any requirement to provide
assistance in giving effect to the warrant (including any requirement
for disclosure imposed by virtue of section 41(5) or, in the case of a
warrant under Chapter 1 of Part 1 of the Regulation of Investigatory
Powers Act 2000 (“RIPA”), section 11(9) of RIPA).
But subsection (2)(b) does not apply in the case of a mutual assistance warrant
that is or was addressed to a person falling within section 18(1)(h) (competent
authorities of overseas countries or territories).
Head 2 is—
(a) in the case of a warrant under Chapter 1 of this Part, a disclosure made
to, or authorised by, a Judicial Commissioner;
(b) in the case of a warrant under Chapter 1 of Part 1 of RIPA, a disclosure
made to, or authorised by, the Interception of Communications
Commissioner or a Judicial Commissioner;
(c) a disclosure made to the Independent Police Complaints Commission
for the purposes of facilitating the carrying out of any of its functions;
(d) a disclosure made to the Intelligence and Security Committee of
Parliament for the purposes of facilitating the carrying out of any of its
functions.
Head 3 is—
(a) a disclosure made by a legal adviser—
(2)
(3)
(4)
(5)
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Part 2 — Lawful interception of communications
Chapter 3 — Other provisions about interception
(b)
in contemplation of, or in connection with, any legal
proceedings, and
(ii) for the purposes of those proceedings;
a disclosure made—
(i) by a professional legal adviser (“L”) to L’s client or a
representative of L’s client, or
(ii) by L’s client, or by a representative of L’s client, to L,
in connection with the giving, by L to L’s client, of advice about the
effect of the relevant provisions (see subsection (7)).
(i)
(6)
(7)
But a disclosure within Head 3 is not an excepted disclosure if it is made with
the intention of furthering a criminal purpose.
In subsection (5)(b) “the relevant provisions” means—
(a) in the case of a warrant under Chapter 1 of this Part, the provisions of
this Part;
(b) in the case of a warrant under Chapter 1 of Part 1 of RIPA, the
provisions of that Chapter.
Head 4 is—
(a) a disclosure that—
(i) is made by a postal operator or a telecommunications operator
in accordance with a requirement imposed by regulations made
by the Secretary of State, and
(ii) consists of statistical information of a description specified in
the regulations;
(b) a disclosure of information that does not relate to any particular
warrant under Chapter 1 of this Part or under Chapter 1 of Part 1 of
RIPA but relates to any such warrants in general.
Nothing in this section affects the operation of section 56 (which, among other
things, prohibits the making of certain disclosures in, for the purposes of or in
connection with legal proceedings).
Offence of making unauthorised disclosures
(8)
(9)
59
(1)
(2)
A person who fails to comply with section 57(1) commits an offence.
A person who is guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or
(ii) to a fine,
or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
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49
(d)
(3)
or to both;
on conviction on indictment, to imprisonment for a term not exceeding
5 years or to a fine, or to both.
In proceedings against any person for an offence under this section in respect
of any disclosure, it is a defence for the person to show that the person could
not reasonably have been expected, after first becoming aware of the matter
disclosed, to take steps to prevent the disclosure.
Interpretation
60
(1)
Part 2: interpretation
In this Part—
“EU mutual assistance instrument” has the meaning given by section
10(3);
“intercepting authority” is to be read in accordance with section 18;
“international mutual assistance agreement” has the meaning given by
section 10(3);
“mutual assistance warrant” has the meaning given by section 15(4);
“police force” means any of the following—
(a) any police force maintained under section 2 of the Police Act
1996;
(b) the metropolitan police force;
(c) the City of London police force;
(d) the Police Service of Scotland;
(e) the Police Service of Northern Ireland;
(f) the Ministry of Defence Police;
(g) the Royal Navy Police;
(h) the Royal Military Police;
(i) the Royal Air Force Police;
(j) the British Transport Police Force;
“relevant content”, in relation to a targeted examination warrant, has the
meaning given by section 15(3);
“relevant Scottish application” has the meaning given by section 22;
“secondary data” has the meaning given by section 16, and references to
obtaining secondary data from a communication are to be read in
accordance with that section;
“targeted examination warrant” has the meaning given by section 15(3).
In this Part references to a member of a police force, in relation to the Royal
Navy Police, the Royal Military Police or the Royal Air Force Police, do not
include any member of that force who is not for the time being attached to, or
serving with, that force or another of those police forces.
See also—
section 261 (telecommunications definitions),
section 262 (postal definitions),
section 263 (general definitions),
section 264 (general definitions: “journalistic material” etc.),
section 265 (index of defined expressions).
(2)
(3)
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Investigatory Powers Act 2016 (c.
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Part 3 — Authorisations for obtaining communications data
P
ART
3
A
UTHORISATIONS FOR OBTAINING COMMUNICATIONS DATA
Targeted authorisations for obtaining data
61
(1)
Power to grant authorisations
Subsection (2) applies if a designated senior officer of a relevant public
authority considers—
(a) that it is necessary to obtain communications data for a purpose falling
within subsection (7),
(b) that it is necessary to obtain the data—
(i) for the purposes of a specific investigation or a specific
operation, or
(ii) for the purposes of testing, maintaining or developing
equipment, systems or other capabilities relating to the
availability or obtaining of communications data, and
(c) that the conduct authorised by the authorisation is proportionate to
what is sought to be achieved.
The designated senior officer may authorise any officer of the authority to
engage in any conduct which—
(a) is for the purpose of obtaining the data from any person, and
(b) relates to—
(i) a telecommunication system, or
(ii) data derived from a telecommunication system.
Subsections (1) and (2) are subject to—
(a) section 62 (restrictions in relation to internet connection records),
(b) section 63 (additional restrictions on grant of authorisations),
(c) sections 70 and 73 to 75 and Schedule 4 (restrictions relating to certain
relevant public authorities),
(d) section 76 (requirement to consult a single point of contact), and
(e) section 77 (Commissioner approval for authorisations to identify or
confirm journalistic sources).
Authorised conduct may, in particular, consist of an authorised officer—
(a) obtaining the communications data themselves from any person or
telecommunication system,
(b) asking any person whom the authorised officer believes is, or may be,
in possession of the communications data or capable of obtaining it—
(i) to obtain the data (if not already in possession of it), and
(ii) to disclose the data (whether already in the person’s possession
or subsequently obtained by that person) to a person identified
by, or in accordance with, the authorisation, or
(c) requiring by notice a telecommunications operator whom the
authorised officer believes is, or may be, in possession of the
communications data or capable of obtaining it—
(i) to obtain the data (if not already in possession of it), and
(2)
(3)
(4)
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(ii)
to disclose the data (whether already in the operator’s
possession or subsequently obtained by the operator) to a
person identified by, or in accordance with, the authorisation.
(5)
An authorisation—
(a) may relate to data whether or not in existence at the time of the
authorisation,
(b) may authorise the obtaining or disclosure of data by a person who is
not an authorised officer, or any other conduct by such a person, which
enables or facilitates the obtaining of the communications data
concerned, and
(c) may, in particular, require a telecommunications operator who controls
or provides a telecommunication system to obtain or disclose data
relating to the use of a telecommunications service provided by another
telecommunications operator in relation to that system.
An authorisation—
(a) may not authorise any conduct consisting in the interception of
communications in the course of their transmission by means of a
telecommunication system, and
(b) may not authorise an authorised officer to ask or require, in the
circumstances mentioned in subsection (4)(b) or (c), a person to disclose
the data to any person other than—
(i) an authorised officer, or
(ii) an officer of the same relevant public authority as an authorised
officer.
It is necessary to obtain communications data for a purpose falling within this
subsection if it is necessary to obtain the data—
(a) in the interests of national security,
(b) for the purpose of preventing or detecting crime or of preventing
disorder,
(c) in the interests of the economic well-being of the United Kingdom so
far as those interests are also relevant to the interests of national
security,
(d) in the interests of public safety,
(e) for the purpose of protecting public health,
(f) for the purpose of assessing or collecting any tax, duty, levy or other
imposition, contribution or charge payable to a government
department,
(g) for the purpose of preventing death or injury or any damage to a
person’s physical or mental health, or of mitigating any injury or
damage to a person’s physical or mental health,
(h) to assist investigations into alleged miscarriages of justice,
(i) where a person (“P”) has died or is unable to identify themselves
because of a physical or mental condition—
(i) to assist in identifying P, or
(ii) to obtain information about P’s next of kin or other persons
connected with P or about the reason for P’s death or condition,
or
(j) for the purpose of exercising functions relating to—
(i) the regulation of financial services and markets, or
(ii) financial stability.
(6)
(7)
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(8)
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Part 3 — Authorisations for obtaining communications data
The fact that the communications data which would be obtained in pursuance
of an authorisation relates to the activities in the British Islands of a trade union
is not, of itself, sufficient to establish that it is necessary to obtain the data for a
purpose falling within subsection (7).
See—
(a) sections 70 and 73 for the meanings of “designated senior officer” and
“relevant public authority”;
(b) section 84 for the way in which this Part applies to postal operators and
postal services.
Restrictions in relation to internet connection records
(9)
62
(1)
A designated senior officer of a local authority may not grant an authorisation
for the purpose of obtaining data which is, or can only be obtained by
processing, an internet connection record.
A designated senior officer of a relevant public authority which is not a local
authority may not grant an authorisation for the purpose of obtaining data
which is, or can only be obtained by processing, an internet connection record
unless condition A, B or C is met.
Condition A is that the designated senior officer considers that it is necessary,
for a purpose falling within section 61(7), to obtain the data to identify which
person or apparatus is using an internet service where—
(a) the service and time of use are already known, but
(b) the identity of the person or apparatus using the service is not known.
Condition B is that—
(a) the purpose for which the data is to be obtained falls within section
61(7) but is not the purpose falling within section 61(7)(b) of preventing
or detecting crime, and
(b) the designated senior officer considers that it is necessary to obtain the
data to identify—
(i) which internet communications service is being used, and when
and how it is being used, by a person or apparatus whose
identity is already known,
(ii) where or when a person or apparatus whose identity is already
known is obtaining access to, or running, a computer file or
computer program which wholly or mainly involves making
available, or acquiring, material whose possession is a crime, or
(iii) which internet service is being used, and when and how it is
being used, by a person or apparatus whose identity is already
known.
Condition C is that—
(a) the purpose for which the data is to be obtained is the purpose falling
within section 61(7)(b) of preventing or detecting crime,
(b) the crime to be prevented or detected is serious crime or other relevant
crime, and
(c) the designated senior officer considers that it is necessary to obtain the
data to identify—
(2)
(3)
(4)
(5)
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(i)
(ii)
(iii)
which internet communications service is being used, and when
and how it is being used, by a person or apparatus whose
identity is already known,
where or when a person or apparatus whose identity is already
known is obtaining access to, or running, a computer file or
computer program which wholly or mainly involves making
available, or acquiring, material whose possession is a crime, or
which internet service is being used, and when and how it is
being used, by a person or apparatus whose identity is already
known.
(6)
In subsection (5) “other relevant crime” means crime which is not serious crime
but where the offence, or one of the offences, which is or would be constituted
by the conduct concerned is—
(a) an offence for which an individual who has reached the age of 18 (or, in
relation to Scotland or Northern Ireland, 21) is capable of being
sentenced to imprisonment for a term of 12 months or more
(disregarding any enactment prohibiting or restricting the
imprisonment of individuals who have no previous convictions), or
(b) an offence—
(i) by a person who is not an individual, or
(ii) which involves, as an integral part of it, the sending of a
communication or a breach of a person’s privacy.
In this Act “internet connection record” means communications data which—
(a) may be used to identify, or assist in identifying, a telecommunications
service to which a communication is transmitted by means of a
telecommunication system for the purpose of obtaining access to, or
running, a computer file or computer program, and
(b) comprises data generated or processed by a telecommunications
operator in the process of supplying the telecommunications service to
the sender of the communication (whether or not a person).
Additional restrictions on grant of authorisations
(7)
63
(1)
A designated senior officer may not grant an authorisation for the purposes of
a specific investigation or a specific operation if the officer is working on that
investigation or operation.
But, if the designated senior officer considers that there are exceptional
circumstances which mean that subsection (1) should not apply in a particular
case, that subsection does not apply in that case.
Examples of exceptional circumstances include—
(a) an imminent threat to life or another emergency,
(b) the investigation or operation concerned is one where there is an
exceptional need, in the interests of national security, to keep
knowledge of it to a minimum,
(c) there is an opportunity to obtain information where—
(i) the opportunity is rare,
(ii) the time to act is short, and
(iii) the need to obtain the information is significant and in the
interests of national security, or
(2)
(3)
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(d)
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Part 3 — Authorisations for obtaining communications data
the size of the relevant public authority concerned is such that it is not
practicable to have a designated senior officer who is not working on
the investigation or operation concerned.
64
(1)
Procedure for authorisations and authorised notices
An authorisation must specify—
(a) the office, rank or position held by the designated senior officer
granting it,
(b) the matters falling within section 61(7) by reference to which it is
granted,
(c) the conduct that is authorised,
(d) the data or description of data to be obtained, and
(e) the persons or descriptions of persons to whom the data is to be, or may
be, disclosed or how to identify such persons.
An authorisation which authorises a person to impose requirements by notice
on a telecommunications operator must also specify—
(a) the operator concerned, and
(b) the nature of the requirements that are to be imposed,
but need not specify the other contents of the notice.
The notice itself—
(a) must specify—
(i) the office, rank or position held by the person giving it,
(ii) the requirements that are being imposed, and
(iii) the telecommunications operator on whom the requirements
are being imposed, and
(b) must be given in writing or (if not in writing) in a manner that produces
a record of its having been given.
An authorisation must be applied for, and granted, in writing or (if not in
writing) in a manner that produces a record of its having been applied for or
granted.
Duration and cancellation of authorisations and notices
(1)
(2)
(3)
An authorisation ceases to have effect at the end of the period of one month
beginning with the date on which it is granted.
An authorisation may be renewed at any time before the end of that period by
the grant of a further authorisation.
Subsection (1) has effect in relation to a renewed authorisation as if the period
of one month mentioned in that subsection did not begin until the end of the
period of one month applicable to the authorisation that is current at the time
of the renewal.
A designated senior officer who has granted an authorisation—
(a) may cancel it at any time, and
(b) must cancel it if the designated senior officer considers that the
requirements of this Part would not be satisfied in relation to granting
an equivalent new authorisation.
(2)
(3)
(4)
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(4)
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(5)
The Secretary of State may by regulations provide for the person by whom any
function under subsection (4) is to be exercised where the person who would
otherwise have exercised it is no longer available to do so.
Such regulations may, in particular, provide for the person by whom the
function is to be exercised to be a person appointed in accordance with the
regulations.
A notice given in pursuance of an authorisation (and any requirement imposed
by the notice)—
(a) is not affected by the authorisation subsequently ceasing to have effect
under subsection (1), but
(b) is cancelled if the authorisation is cancelled under subsection (4).
Duties of telecommunications operators in relation to authorisations
(6)
(7)
66
(1)
It is the duty of a telecommunications operator on whom a requirement is
imposed by notice given in pursuance of an authorisation to comply with that
requirement.
It is the duty of a telecommunications operator who is obtaining or disclosing
communications data, in response to a request or requirement for the data in
pursuance of an authorisation, to obtain or disclose the data in a way that
minimises the amount of data that needs to be processed for the purpose
concerned.
A person who is under a duty by virtue of subsection (1) or (2) is not required
to take any steps in pursuance of that duty which it is not reasonably
practicable for that person to take.
For the purposes of subsection (3), where obligations have been imposed on a
telecommunications operator (“P”) under section 253 (maintenance of
technical capability), the steps which it is reasonably practicable for P to take
include every step which it would have been reasonably practicable for P to
take if P had complied with all of those obligations.
The duty imposed by subsection (1) or (2) is enforceable by civil proceedings
by the Secretary of State for an injunction, or for specific performance of a
statutory duty under section 45 of the Court of Session Act 1988, or for any
other appropriate relief.
Filtering arrangements for obtaining data
(2)
(3)
(4)
(5)
67
(1)
Filtering arrangements for obtaining data
The Secretary of State may establish, maintain and operate arrangements for
the purposes of—
(a) assisting a designated senior officer, who is considering whether to
grant an authorisation, to determine whether the requirements of this
Part in relation to granting the authorisation are satisfied, or
(b) facilitating the lawful, efficient and effective obtaining of
communications data from any person by relevant public authorities in
pursuance of an authorisation.
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(2)
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Part 3 — Authorisations for obtaining communications data
Arrangements under subsection (1) (“filtering arrangements”) may, in
particular, involve the obtaining of communications data in pursuance of an
authorisation (“the target data”) by means of—
(a) a request to the Secretary of State to obtain the target data on behalf of
an authorised officer, and
(b) the Secretary of State—
(i) obtaining the target data or data from which the target data may
be derived,
(ii) processing the target data or the data from which it may be
derived (and retaining data temporarily for that purpose), and
(iii) disclosing the target data to the person identified for this
purpose by, or in accordance with, the authorisation.
Filtering arrangements may, in particular, involve the generation or use by the
Secretary of State of information—
(a) for the purpose mentioned in subsection (1)(a), or
(b) for the purposes of—
(i) the support, maintenance, oversight, operation or
administration of the arrangements, or
(ii) the functions of the Investigatory Powers Commissioner
mentioned in subsection (4) or (5).
Filtering arrangements must involve the generation and retention of such
information or documents as the Investigatory Powers Commissioner
considers appropriate for the purposes of the functions of the Commissioner
under section 229(1) of keeping under review the exercise by public authorities
of functions under this Part.
The Secretary of State must consult the Investigatory Powers Commissioner
about the principles on the basis of which the Secretary of State intends to
establish, maintain or operate any arrangements for the purpose mentioned in
subsection (1)(a).
Use of filtering arrangements in pursuance of an authorisation
(3)
(4)
(5)
68
(1)
(2)
This section applies in relation to the use of the filtering arrangements in
pursuance of an authorisation.
The filtering arrangements may be used—
(a) to obtain and disclose communications data in pursuance of an
authorisation, only if the authorisation specifically authorises the use of
the arrangements to obtain and disclose the data,
(b) to process data in pursuance of an authorisation (and to retain the data
temporarily for that purpose), only if the authorisation specifically
authorises processing data of that description under the arrangements
(and their temporary retention for that purpose).
An authorisation must record the designated senior officer’s decision as to—
(a) whether the communications data to be obtained and disclosed in
pursuance of the authorisation may be obtained and disclosed by use
of the filtering arrangements,
(b) whether the processing of data under the filtering arrangements (and
its temporary retention for that purpose) is authorised,
(3)
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(c)
(4)
if the processing of data under the filtering arrangements is authorised,
the description of data that may be processed.
A designated senior officer must not grant an authorisation which authorises—
(a) use of the filtering arrangements, or
(b) processing under the filtering arrangements,
unless the condition in subsection (5) is met.
The condition is that the designated senior officer (as well as considering that
the other requirements of this Part in relation to granting the authorisation are
satisfied) considers that what is authorised in relation to the filtering
arrangements is proportionate to what is sought to be achieved.
Duties in connection with operation of filtering arrangements
(5)
69
(1)
The Secretary of State must secure—
(a) that no authorisation data is obtained or processed under the filtering
arrangements except for the purposes of an authorisation,
(b) that data which—
(i) has been obtained or processed under the filtering
arrangements, and
(ii) is to be disclosed in pursuance of an authorisation or for the
purpose mentioned in section 67(1)(a),
is disclosed only to the person to whom the data is to be disclosed in
pursuance of the authorisation or (as the case may be) to the designated
senior officer concerned,
(c) that any authorisation data which is obtained under the filtering
arrangements in pursuance of an authorisation is immediately
destroyed—
(i) when the purposes of the authorisation have been met, or
(ii) if at any time it ceases to be necessary to retain the data for the
purposes or purpose concerned.
The Secretary of State must secure that data (other than authorisation data)
which is retained under the filtering arrangements is disclosed only—
(a) for the purpose mentioned in section 67(1)(a),
(b) for the purposes of support, maintenance, oversight, operation or
administration of the arrangements,
(c) to the Investigatory Powers Commissioner for the purposes of the
functions of the Commissioner mentioned in section 67(4) or (5), or
(d) otherwise as authorised by law.
The Secretary of State must secure that—
(a) only the Secretary of State and designated individuals are permitted to
read, obtain or otherwise process data for the purposes of support,
maintenance, oversight, operation or administration of the filtering
arrangements, and
(b) no other persons are permitted to access or use the filtering
arrangements except in pursuance of an authorisation or for the
purpose mentioned in section 67(1)(a).
In subsection (3)(a) “designated” means designated by the Secretary of State;
and the Secretary of State may designate an individual only if the Secretary of
(2)
(3)
(4)
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State thinks that it is necessary for the individual to be able to act as mentioned
in subsection (3)(a).
(5)
The Secretary of State must—
(a) put in place and maintain an adequate security system to govern access
to, and use of, the filtering arrangements and to protect against any
abuse of the power of access, and
(b) impose measures to protect against unauthorised or unlawful data
retention, processing, access or disclosure.
The Secretary of State must—
(a) put in place and maintain procedures (including the regular testing of
relevant software and hardware) to ensure that the filtering
arrangements are functioning properly, and
(b) report, as soon as possible after the end of each calendar year, to the
Investigatory Powers Commissioner about the functioning of the
filtering arrangements during that year.
A report under subsection (6)(b) must, in particular, contain information about
the destruction of authorisation data during the calendar year concerned.
If the Secretary of State believes that significant processing errors have
occurred giving rise to a contravention of any of the requirements of this Part
which relate to the filtering arrangements, the Secretary of State must report
that fact immediately to the Investigatory Powers Commissioner.
In this section “authorisation data”, in relation to an authorisation, means
communications data that is, or is to be, obtained in pursuance of the
authorisation or any data from which that data is, or may be, derived.
Relevant public authorities other than local authorities
70
(1)
(2)
(3)
Relevant public authorities and designated senior officers etc.
Schedule 4 (relevant public authorities and designated senior officers etc.) has
effect.
A public authority listed in column 1 of the table in the Schedule is a relevant
public authority for the purposes of this Part.
In this Part “designated senior officer”, in relation to a relevant public authority
listed in column 1 of the table, means an individual who holds with the
authority—
(a) an office, rank or position specified in relation to the authority in
column 2 of the table, or
(b) an office, rank or position higher than that specified in relation to the
authority in column 2 of the table (subject to subsections (4) and (5)).
Subsection (5) applies where an office, rank or position specified in relation to
a relevant public authority in column 2 of the table is specified by reference
to—
(a) a particular branch, agency or other part of the authority, or
(b) responsibility for functions of a particular description.
A person is a designated senior officer by virtue of subsection (3)(b) only if the
person—
(6)
(7)
(8)
(9)
(4)
(5)
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(a)
(b)
(6)
holds an office, rank or position in that branch, agency or part, or
has responsibility for functions of that description.
A person who is a designated senior officer of a relevant public authority by
virtue of subsection (3) and an entry in column 2 of the table may grant an
authorisation—
(a) only for obtaining communications data of the kind specified in the
corresponding entry in column 3 of the table, and
(b) only if section 61(1)(a) is met in relation to a purpose within one of the
paragraphs of section 61(7) specified in the corresponding entry in
column 4 of the table.
Where there is more than one entry in relation to a relevant public authority in
column 2 of the table, and a person is a designated senior officer of the
authority by virtue of subsection (3) as it applies to more than one of those
entries, subsection (6) applies in relation to each entry.
Power to modify section 70 and Schedule 4
(7)
71
(1)
(2)
The Secretary of State may by regulations modify section 70 or Schedule 4.
Regulations under subsection (1) may in particular—
(a) add a public authority to, or remove a public authority from, the list in
column 1 of the table,
(b) modify an entry in column 2 of the table,
(c) impose or remove restrictions on the authorisations that may be
granted by a designated senior officer with a specified public authority,
(d) impose or remove restrictions on the circumstances in which or
purposes for which such authorisations may be granted by a
designated senior officer.
The power to make regulations under subsection (1) includes power to make
such modifications in any enactment (including this Act) as the Secretary of
State considers appropriate in consequence of a person becoming, or ceasing to
be, a relevant public authority because of regulations under that subsection.
Certain regulations under section 71: supplementary
(3)
72
(1)
This section applies to regulations under section 71 other than regulations
which do only one or both of the following—
(a) remove a public authority from the list in column 1 of the table in
Schedule 4 and make consequential modifications,
(b) modify column 2 of the table in a way that does not involve replacing
an office, rank or position specified in that column in relation to a
particular public authority with a lower office, rank or position in
relation to the same authority.
Before making regulations to which this section applies, the Secretary of State
must consult—
(a) the Investigatory Powers Commissioner, and
(b) the public authority to which the modifications relate.
A statutory instrument containing regulations to which this section applies
may not be made except in accordance with the enhanced affirmative
procedure.
(2)
(3)
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Local authorities
73
(1)
(2)
Local authorities as relevant public authorities
A local authority is a relevant public authority for the purposes of this Part.
In this Part “designated senior officer”, in relation to a local authority, means
an individual who holds with the authority—
(a) the position of director, head of service or service manager (or
equivalent), or
(b) a higher position.
A designated senior officer of a local authority may grant an authorisation for
obtaining communications data only if section 61(1)(a) is met in relation to a
purpose within section 61(7)(b).
The Secretary of State may by regulations amend subsection (2).
Before making regulations under subsection (4) which amend subsection (2) so
as to replace an office, rank or position specified in that subsection with a lower
office, rank or position, the Secretary of State must consult—
(a) the Investigatory Powers Commissioner, and
(b) each local authority to which the amendment relates.
A statutory instrument containing regulations under subsection (4) to which
subsection (5) applies may not be made except in accordance with the
enhanced affirmative procedure.
Sections 74 and 75 impose further restrictions in relation to the grant of
authorisations by local authorities.
Requirement to be party to collaboration agreement
(1)
A designated senior officer of a local authority may not grant an authorisation
unless—
(a) the local authority is a party to a collaboration agreement (whether as a
supplying authority or a subscribing authority or both), and
(b) that collaboration agreement is certified by the Secretary of State
(having regard to guidance given by virtue of section 79(6) and (7)) as
being appropriate for the local authority.
A designated senior officer of a local authority may only grant an authorisation
to a person within subsection (3).
A person is within this subsection if the person is an officer of a relevant public
authority which is a supplying authority under a collaboration agreement to
which the local authority is a party.
If the local authority is itself a supplying authority under a collaboration
agreement with the result that officers of the local authority are permitted to be
granted authorisations by a designated senior officer of a subscribing
authority, the persons within subsection (3) include officers of the local
authority.
In this section “collaboration agreement”, “subscribing authority” and
“supplying authority” have the same meaning as in section 78.
(3)
(4)
(5)
(6)
(7)
74
(2)
(3)
(4)
(5)
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75
(1)
(2)
(3)
(4)
Judicial approval for local authority authorisations
This section applies to an authorisation granted by a designated senior officer
of a local authority other than an authorisation to which section 77 applies.
The authorisation is not to take effect until such time (if any) as the relevant
judicial authority has made an order under this section approving it.
The local authority may apply to the relevant judicial authority for an order
under this section approving the authorisation.
The local authority is not required to give notice of the application to—
(a) any person to whom the authorisation relates, or
(b) that person’s legal representatives.
The relevant judicial authority may approve the authorisation if, and only if,
the relevant judicial authority considers that—
(a) at the time of the grant, there were reasonable grounds for considering
that the requirements of this Part were satisfied in relation to the
authorisation, and
(b) at the time when the relevant judicial authority is considering the
matter, there are reasonable grounds for considering that the
requirements of this Part would be satisfied if an equivalent new
authorisation were granted at that time.
Where, on an application under this section, the relevant judicial authority
refuses to approve the grant of the authorisation, the relevant judicial authority
may make an order quashing the authorisation.
In this section “the relevant judicial authority” means—
(a) in relation to England and Wales, a justice of the peace,
(b) in relation to Scotland, a sheriff, and
(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in
Northern Ireland.
See also sections 77A and 77B of the Regulation of Investigatory Powers Act
2000 (procedure for orders under this section of a sheriff in Scotland or a
district judge (magistrates’ courts) in Northern Ireland).
Additional protections
(5)
(6)
(7)
(8)
76
(1)
Use of a single point of contact
Before granting an authorisation, the designated senior officer must consult a
person who is acting as a single point of contact in relation to the granting of
authorisations.
But, if the designated senior officer considers that there are exceptional
circumstances which mean that subsection (1) should not apply in a particular
case, that subsection does not apply in that case.
Examples of exceptional circumstances include—
(a) an imminent threat to life or another emergency, or
(b) the interests of national security.
A person is acting as a single point of contact if that person—
(2)
(3)
(4)
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(a)
(b)
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is an officer of a relevant public authority, and
is responsible for advising—
(i) officers of the relevant public authority about applying for
authorisations, or
(ii) designated senior officers of the relevant public authority about
granting authorisations.
(5)
A person acting as a single point of contact may, in particular, advise an officer
of a relevant public authority who is considering whether to apply for an
authorisation about—
(a) the most appropriate methods for obtaining data where the data
concerned is processed by more than one telecommunications
operator,
(b) the cost, and resource implications, for—
(i) the relevant public authority concerned of obtaining the data,
and
(ii) the telecommunications operator concerned of disclosing the
data,
(c) any unintended consequences of the proposed authorisation, and
(d) any issues as to the lawfulness of the proposed authorisation.
A person acting as a single point of contact may, in particular, advise a
designated senior officer who is considering whether to grant an authorisation
about—
(a) whether it is reasonably practical to obtain the data sought in
pursuance of the proposed authorisation,
(b) the cost, and resource implications, for—
(i) the relevant public authority concerned of obtaining the data,
and
(ii) the telecommunications operator concerned of disclosing the
data,
(c) any unintended consequences of the proposed authorisation, and
(d) any issues as to the lawfulness of the proposed authorisation.
A person acting as a single point of contact may also provide advice about—
(a) whether requirements imposed by virtue of an authorisation have been
met,
(b) the use in support of operations or investigations of communications
data obtained in pursuance of an authorisation, and
(c) any other effects of an authorisation.
Nothing in this section prevents a person acting as a single point of contact
from also applying for, or being granted, an authorisation or, in the case of a
designated senior officer, granting an authorisation.
Commissioner approval for authorisations to identify or confirm journalistic
sources
(6)
(7)
(8)
77
(1)
Subsection (2) applies if—
(a) a designated senior officer has granted an authorisation in relation to
the obtaining by a relevant public authority of communications data for
the purpose of identifying or confirming a source of journalistic
information, and
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(b)
(2)
(3)
(4)
the authorisation is not necessary because of an imminent threat to life.
The authorisation is not to take effect until such time (if any) as a Judicial
Commissioner has approved it.
The relevant public authority for which the authorisation has been granted
may apply to a Judicial Commissioner for approval of the authorisation.
The applicant is not required to give notice of the application to—
(a) any person to whom the authorisation relates, or
(b) that person’s legal representatives.
A Judicial Commissioner may approve the authorisation if, and only if, the
Judicial Commissioner considers that—
(a) at the time of the grant, there were reasonable grounds for considering
that the requirements of this Part were satisfied in relation to the
authorisation, and
(b) at the time when the Judicial Commissioner is considering the matter,
there are reasonable grounds for considering that the requirements of
this Part would be satisfied if an equivalent new authorisation were
granted at that time.
In considering whether the position is as mentioned in subsection (5)(a) and
(b), the Judicial Commissioner must, in particular, have regard to—
(a) the public interest in protecting a source of journalistic information,
and
(b) the need for there to be another overriding public interest before a
relevant public authority seeks to identify or confirm a source of
journalistic information.
Where, on an application under this section, the Judicial Commissioner refuses
to approve the grant of the authorisation, the Judicial Commissioner may
quash the authorisation.
Collaboration agreements
(5)
(6)
(7)
78
(1)
Collaboration agreements
A collaboration agreement is an agreement (other than a police collaboration
agreement) under which—
(a) a relevant public authority (“the supplying authority”) puts the services
of designated senior officers of that authority or other officers of that
authority at the disposal of another relevant public authority (“the
subscribing authority”) for the purposes of the subscribing authority’s
functions under this Part, and
(b) either—
(i) a designated senior officer of the supplying authority is
permitted to grant authorisations to officers of the subscribing
authority,
(ii) officers of the supplying authority are permitted to be granted
authorisations by a designated senior officer of the subscribing
authority, or
(iii) officers of the supplying authority act as single points of contact
for officers of the subscribing authority.
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(2)
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The persons by whom, or to whom, authorisations may be granted (or who
may act as single points of contact) under a collaboration agreement are
additional to those persons by whom, or to whom, authorisations would
otherwise be granted under this Part (or who could otherwise act as single
points of contact).
In a case falling within subsection (1)(b)(i)—
(a) section 61 has effect as if—
(i) in subsection (2) the reference to an officer of the authority were
a reference to an officer of the subscribing authority, and
(ii) in subsection (6)(b)(ii) the reference to an officer of the same
relevant public authority as an authorised officer included a
reference to an officer of the supplying authority,
(b) section 63(3)(d) has effect as if the reference to the relevant public
authority concerned were a reference to both authorities,
(c) this Part has effect as if the designated senior officer of the supplying
authority had the power to grant an authorisation to officers of the
subscribing authority, and had other functions in relation to the
authorisation, which were the same as (and subject to no greater or
lesser restrictions than) the power and other functions which the
designated senior officer of the subscribing authority who would
otherwise have dealt with the authorisation would have had, and
(d) section 75(1) applies to the authorisation as if it were granted by a
designated senior officer of the subscribing authority.
In a case falling within subsection (1)(b)(ii)—
(a) section 61 has effect as if—
(i) in subsection (2) the reference to an officer of the authority were
a reference to an officer of the supplying authority, and
(ii) in subsection (6)(b)(ii) the reference to an officer of the same
relevant public authority as an authorised officer included a
reference to an officer of the subscribing authority, and
(b) section 63(3)(d) has effect as if the reference to the relevant public
authority concerned were a reference to both authorities.
In a case falling within subsection (1)(b)(iii), section 76(4)(b) has effect as if the
references to the relevant public authority were references to the subscribing
authority.
In this section—
“force collaboration provision” has the meaning given by paragraph (a) of
section 22A(2) of the Police Act 1996 but as if the reference in that
paragraph to a police force included the National Crime Agency,
“police collaboration agreement” means a collaboration agreement under
section 22A of the Police Act 1996 which contains force collaboration
provision.
Collaboration agreements: supplementary
(3)
(4)
(5)
(6)
79
(1)
(2)
A collaboration agreement may provide for payments to be made between
parties to the agreement.
A collaboration agreement—
(a) must be in writing,
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(b)
(c)
(3)
may be varied by a subsequent collaboration agreement, and
may be brought to an end by agreement between the parties to it.
A person who makes a collaboration agreement must—
(a) publish the agreement, or
(b) publish the fact that the agreement has been made and such other
details about it as the person considers appropriate.
A relevant public authority may enter into a collaboration agreement as a
supplying authority, a subscribing authority or both (whether or not it would
have power to do so apart from this section).
The Secretary of State may, after consulting a relevant public authority, direct
it to enter into a collaboration agreement if the Secretary of State considers that
entering into the agreement would assist the effective exercise by the authority,
or another relevant public authority, of its functions under this Part.
A code of practice under Schedule 7 must include guidance to relevant public
authorities about collaboration agreements.
The guidance must include guidance about the criteria the Secretary of State
will use in considering whether a collaboration agreement is appropriate for a
relevant public authority.
Police collaboration agreements
(4)
(5)
(6)
(7)
80
(1)
This section applies if—
(a) the chief officer of police of an England and Wales police force (“force
1”) has entered into a police collaboration agreement for the purposes
of a collaborating police force’s functions under this Part, and
(b) under the terms of the agreement—
(i) a designated senior officer of force 1 is permitted to grant
authorisations to officers of the collaborating police force,
(ii) officers of force 1 are permitted to be granted authorisations by
a designated senior officer of the collaborating police force, or
(iii) officers of force 1 act as single points of contact for officers of the
collaborating police force.
The persons by whom, or to whom, authorisations may be granted (or who
may act as single points of contact) under a police collaboration agreement are
additional to those persons by whom, or to whom, authorisations would
otherwise be granted under this Part (or who could otherwise act as single
points of contact).
In a case falling within subsection (1)(b)(i)—
(a) section 61 has effect as if—
(i) in subsection (2) the reference to an officer of the authority were
a reference to an officer of the collaborating police force, and
(ii) in subsection (6)(b)(ii) the reference to an officer of the same
relevant public authority as an authorised officer included a
reference to an officer of force 1,
(b) section 63(3)(d) has effect as if the reference to the relevant public
authority concerned were a reference to force 1 and the collaborating
police force, and
(2)
(3)
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(c)
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this Part has effect as if the designated senior officer of force 1 had the
power to grant an authorisation to officers of the collaborating police
force, and had other functions in relation to the authorisation, which
were the same as (and subject to no greater or lesser restrictions than)
the power and other functions which the designated senior officer of
the collaborating police force who would otherwise have dealt with the
authorisation would have had.
(4)
In a case falling within subsection (1)(b)(ii)—
(a) section 61 has effect as if—
(i) in subsection (2) the reference to an officer of the authority were
a reference to an officer of force 1, and
(ii) in subsection (6)(b)(ii) the reference to an officer of the same
relevant public authority as an authorised officer included a
reference to an officer of the collaborating police force, and
(b) section 63(3)(d) has effect as if the reference to the relevant public
authority concerned were a reference to force 1 and the collaborating
police force.
In a case falling within subsection (1)(b)(iii), section 76(4)(b) has effect as if the
references to the relevant public authority were references to the collaborating
police force.
In this section—
“collaborating police force”, in relation to a police collaboration
agreement, means a police force (other than force 1) whose chief officer
of police is a party to the agreement,
“England and Wales police force” means—
(a) any police force maintained under section 2 of the Police Act
1996 (police forces in England and Wales outside London),
(b) the metropolitan police force, or
(c) the City of London police force,
“police collaboration agreement” has the same meaning as in section 78
(see subsection (6) of that section),
and references in this section to an England and Wales police force or a police
force include the National Crime Agency (and references to the chief officer of
police include the Director General of the National Crime Agency).
Further and supplementary provision
(5)
(6)
81
(1)
Lawfulness of conduct authorised by this Part
Conduct is lawful for all purposes if—
(a) it is conduct in which any person is authorised to engage by an
authorisation or required to undertake by virtue of a notice given in
pursuance of an authorisation, and
(b) the conduct is in accordance with, or in pursuance of, the authorisation
or notice.
A person (whether or not the person so authorised or required) is not to be
subject to any civil liability in respect of conduct that—
(a) is incidental to, or is reasonably undertaken in connection with,
conduct that is lawful by virtue of subsection (1), and
(2)
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(b)
is not itself conduct for which an authorisation or warrant—
(i) is capable of being granted under any of the enactments
mentioned in subsection (3), and
(ii) might reasonably have been expected to have been sought in
the case in question.
(3)
The enactments referred to in subsection (2)(b)(i) are—
(a) an enactment contained in this Act,
(b) an enactment contained in the Regulation of Investigatory Powers Act
2000,
(c) an enactment contained in Part 3 of the Police Act 1997 (powers of the
police and of customs officers), or
(d) section 5 of the Intelligence Services Act 1994 (warrants for the
intelligence services).
Offence of making unauthorised disclosure
82
(1)
It is an offence for a telecommunications operator, or any person employed or
engaged for the purposes of the business of a telecommunications operator, to
disclose, without reasonable excuse, to any person the existence of—
(a) any requirement imposed on the operator by virtue of this Part to
disclose communications data relating to that person, or
(b) any request made in pursuance of an authorisation for the operator to
disclose such data.
For the purposes of subsection (1), it is, in particular, a reasonable excuse if the
disclosure is made with the permission of the relevant public authority which
is seeking to obtain the data from the operator (whether the permission is
contained in any notice requiring the operator to disclose the data or
otherwise).
A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or
(ii) to a fine,
or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.
(2)
(3)
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83
(1)
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Certain transfer and agency arrangements with public authorities
The Secretary of State may by regulations provide for—
(a) any function under sections 67 to 69 which is exercisable by the
Secretary of State to be exercisable instead by another public authority,
or
(b) any function under sections 67 to 69 which is exercisable by a public
authority by virtue of paragraph (a) to be exercisable instead by the
Secretary of State.
The Secretary of State may by regulations modify any enactment about a public
authority for the purpose of enabling or otherwise facilitating any function
exercisable by the Secretary of State under this Part to be exercisable on behalf
of the Secretary of State by the authority concerned.
Regulations under subsection (2) do not affect the Secretary of State’s
responsibility for the exercise of the functions concerned.
Subsection (2) does not apply in relation to any function of the Secretary of
State of making regulations.
Schedule 5 (which contains further safeguards and provisions supplementing
this section) has effect.
Application of Part 3 to postal operators and postal services
(1)
(2)
This Part applies to postal operators and postal services as it applies to
telecommunications operators and telecommunications services.
In its application by virtue of subsection (1), this Part has effect as if—
(a) any reference to a telecommunications operator were a reference to a
postal operator,
(b) any reference to a telecommunications service were a reference to a
postal service,
(c) any reference to a telecommunication system were a reference to a
postal service,
(d) sections 61(3)(a) and 62 were omitted, and
(e) in Part 2 of Schedule 4, for “which is entity data” there were substituted
“within paragraph (c) of the definition of “communications data” in
section 262(3)”.
Extra-territorial application of Part 3
(1)
(2)
(3)
An authorisation may relate to conduct outside the United Kingdom and
persons outside the United Kingdom.
A notice given in pursuance of an authorisation may relate to conduct outside
the United Kingdom and persons outside the United Kingdom.
Where such a notice is to be given to a person outside the United Kingdom, the
notice may be given to the person in any of the following ways (as well as by
electronic or other means of service)—
(a) by delivering it to the person’s principal office within the United
Kingdom or, if the person has no such office in the United Kingdom, to
any place in the United Kingdom where the person carries on business
or conducts activities,
(2)
(3)
(4)
(5)
84
85
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(b)
(c)
(4)
if the person has specified an address in the United Kingdom as one at
which the person, or someone on the person’s behalf, will accept
documents of the same description as a notice, by delivering it to that
address,
by notifying the person by such other means as the authorised officer
considers appropriate (which may include notifying the person orally).
In determining for the purposes of subsection (3) of section 66 whether it is
reasonably practicable for a telecommunications operator outside the United
Kingdom to take any steps in a country or territory outside the United
Kingdom for the purpose of complying with a duty imposed by virtue of
subsection (1) or (2) of that section, the matters to be taken into account include
the following—
(a) any requirements or restrictions under the law of that country or
territory that are relevant to the taking of those steps, and
(b) the extent to which it is reasonably practicable to comply with the duty
in a way that does not breach any of those requirements or restrictions.
Nothing in the definition of “telecommunications operator” limits the type of
communications data in relation to which an authorisation, or a request or
requirement of a kind which gives rise to a duty under section 66(1) or (2), may
apply.
Part 3: interpretation
(5)
86
(1)
In this Part—
“authorisation” means an authorisation under section 61 (including that
section as modified by sections 78 and 80),
“designated senior officer”—
(a) in relation to a relevant public authority which is a local
authority, has the meaning given by section 73(2), and
(b) in relation to any other relevant public authority, has the
meaning given by section 70(3),
“filtering arrangements” means any arrangements under section 67(1),
“officer”, in relation to a relevant public authority, means a person
holding an office, rank or position with that authority,
“relevant public authority” means a public authority which is a relevant
public authority for the purposes of this Part by virtue of section 70(2)
or 73(1).
In this Part “local authority” means—
(a) a district or county council in England,
(b) a London borough council,
(c) the Common Council of the City of London in its capacity as a local
authority,
(d) the Council of the Isles of Scilly,
(e) a county council or county borough council in Wales,
(f) a council constituted under section 2 of the Local Government etc.
(Scotland) Act 1994, and
(g) a district council in Northern Ireland.
See also—
section 261 (telecommunications definitions),
(2)
(3)
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Investigatory Powers Act 2016 (c.
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Part 3 — Authorisations for obtaining communications data
section 262 (postal definitions),
section 263 (general definitions),
section 265 (index of defined expressions).
P
ART
4
R
ETENTION OF COMMUNICATIONS DATA
General
87
(1)
Powers to require retention of certain data
The Secretary of State may, by notice (a “retention notice”) and subject as
follows, require a telecommunications operator to retain relevant
communications data if—
(a) the Secretary of State considers that the requirement is necessary and
proportionate for one or more of the purposes falling within
paragraphs (a) to (j) of section 61(7) (purposes for which
communications data may be obtained), and
(b) the decision to give the notice has been approved by a Judicial
Commissioner.
A retention notice may—
(a) relate to a particular operator or any description of operators,
(b) require the retention of all data or any description of data,
(c) identify the period or periods for which data is to be retained,
(d) contain other requirements, or restrictions, in relation to the retention
of data,
(e) make different provision for different purposes,
(f) relate to data whether or not in existence at the time of the giving, or
coming into force, of the notice.
A retention notice must not require any data to be retained for more than 12
months beginning with—
(a) in the case of communications data relating to a specific
communication, the day of the communication concerned,
(b) in the case of entity data which does not fall within paragraph (a) above
but does fall within paragraph (a)(i) of the definition of
“communications data” in section 261(5), the day on which the entity
concerned ceases to be associated with the telecommunications service
concerned or (if earlier) the day on which the data is changed, and
(c) in any other case, the day on which the data is first held by the operator
concerned.
A retention notice must not require an operator who controls or provides a
telecommunication system (“the system operator”) to retain data which—
(a) relates to the use of a telecommunications service provided by another
telecommunications operator in relation to that system,
(b) is (or is capable of being) processed by the system operator as a result
of being comprised in, included as part of, attached to or logically
associated with a communication transmitted by means of the system
as a result of the use mentioned in paragraph (a),
(2)
(3)
(4)
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71
is not needed by the system operator for the functioning of the system
in relation to that communication, and
(d) is not retained or used by the system operator for any other lawful
purpose,
and which it is reasonably practicable to separate from other data which is
subject to the notice.
(5)
A retention notice which relates to data already in existence when the notice
comes into force imposes a requirement to retain the data for only so much of
a period of retention as occurs on or after the coming into force of the notice.
A retention notice comes into force—
(a) when the notice is given to the operator (or description of operators)
concerned, or
(b) (if later) at the time or times specified in the notice.
A retention notice is given to an operator (or description of operators) by
giving, or publishing, it in such manner as the Secretary of State considers
appropriate for bringing it to the attention of the operator (or description of
operators) to whom it relates.
A retention notice must specify—
(a) the operator (or description of operators) to whom it relates,
(b) the data which is to be retained,
(c) the period or periods for which the data is to be retained,
(d) any other requirements, or any restrictions, in relation to the retention
of the data,
(e) the information required by section 249(7) (the level or levels of
contribution in respect of costs incurred as a result of the notice).
The requirements or restrictions mentioned in subsection (8)(d) may, in
particular, include—
(a) a requirement to retain the data in such a way that it can be transmitted
efficiently and effectively in response to requests,
(b) requirements or restrictions in relation to the obtaining (whether by
collection, generation or otherwise), generation or processing of—
(i) data for retention, or
(ii) retained data.
The fact that the data which would be retained under a retention notice relates
to the activities in the British Islands of a trade union is not, of itself, sufficient
to establish that the requirement to retain the data is necessary for one or more
of the purposes falling within paragraphs (a) to (j) of section 61(7).
In this Part “relevant communications data” means communications data
which may be used to identify, or assist in identifying, any of the following—
(a) the sender or recipient of a communication (whether or not a person),
(b) the time or duration of a communication,
(c) the type, method or pattern, or fact, of communication,
(d) the telecommunication system (or any part of it) from, to or through
which, or by means of which, a communication is or may be
transmitted, or
(e) the location of any such system,
(c)
(6)
(7)
(8)
(9)
(10)
(11)
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and this expression therefore includes, in particular, internet connection
records.
Safeguards
88
(1)
Matters to be taken into account before giving retention notices
Before giving a retention notice, the Secretary of State must, among other
matters, take into account—
(a) the likely benefits of the notice,
(b) the likely number of users (if known) of any telecommunications
service to which the notice relates,
(c) the technical feasibility of complying with the notice,
(d) the likely cost of complying with the notice, and
(e) any other effect of the notice on the telecommunications operator (or
description of operators) to whom it relates.
Before giving such a notice, the Secretary of State must take reasonable steps to
consult any operator to whom it relates.
Approval of retention notices by Judicial Commissioners
(1)
In deciding whether to approve a decision to give a retention notice, a Judicial
Commissioner must review the Secretary of State’s conclusions as to whether
the requirement to be imposed by the notice to retain relevant communications
data is necessary and proportionate for one or more of the purposes falling
within paragraphs (a) to (j) of section 61(7).
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).
Where a Judicial Commissioner refuses to approve a decision to give a
retention notice, the Judicial Commissioner must give the Secretary of State
written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to give a retention notice, the
Secretary of State may ask the Investigatory Powers Commissioner to decide
whether to approve the decision to give the notice.
Review by the Secretary of State
(1)
A telecommunications operator to whom a retention notice is given may,
within such period or circumstances as may be provided for by regulations
made by the Secretary of State, refer the notice back to the Secretary of State.
Such a reference may be in relation to the whole of a notice or any aspect of it.
In the case of a notice given to a description of operators—
(2)
89
(2)
(3)
(4)
90
(2)
(3)
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(a)
(b)
(4)
each operator falling within that description may make a reference
under subsection (1), but
each such reference may only be in relation to the notice, or aspect of
the notice, so far as it applies to that operator.
There is no requirement for an operator who has referred a retention notice
under subsection (1) to comply with the notice, so far as referred, until the
Secretary of State has reviewed the notice in accordance with subsection (5).
The Secretary of State must review any notice so far as referred to the Secretary
of State under subsection (1).
Before deciding the review, the Secretary of State must consult—
(a) the Technical Advisory Board, and
(b) a Judicial Commissioner.
The Board must consider the technical requirements and the financial
consequences, for the operator who has made the reference, of the notice so far
as referred.
The Commissioner must consider whether the notice so far as referred is
proportionate.
The Board and the Commissioner must—
(a) give the operator concerned and the Secretary of State the opportunity
to provide evidence, or make representations, to them before reaching
their conclusions, and
(b) report their conclusions to—
(i) the operator, and
(ii) the Secretary of State.
The Secretary of State may, after considering the conclusions of the Board and
the Commissioner—
(a) vary or revoke the retention notice under section 94, or
(b) give a notice under this section to the operator concerned confirming its
effect.
But the Secretary of State may vary the notice, or give a notice under subsection
(10)(b) confirming its effect, only if the Secretary of State’s decision to do so has
been approved by the Investigatory Powers Commissioner.
A report or notice under this section is given to an operator by giving or
publishing it in such manner as the Secretary of State considers appropriate for
bringing it to the attention of the operator.
The Secretary of State must keep a retention notice under review (whether or
not referred under subsection (1)).
Approval of notices following review under section 90
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
91
(1)
In deciding whether to approve a decision to vary a retention notice as
mentioned in section 90(10)(a), or to give a notice under section 90(10)(b)
confirming the effect of a retention notice, the Investigatory Powers
Commissioner must review the Secretary of State’s conclusions as to whether
the requirement to be imposed by the notice as varied or confirmed to retain
relevant communications data is necessary and proportionate for one or more
of the purposes falling within paragraphs (a) to (j) of section 61(7).
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(2)
Investigatory Powers Act 2016 (c.
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Part 4 — Retention of communications data
In doing so, the Investigatory Powers Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Investigatory Powers Commissioner
complies with the duties imposed by section 2 (general duties in
relation to privacy).
Where the Investigatory Powers Commissioner refuses to approve a decision
to vary a retention notice as mentioned in section 90(10)(a), or to give a notice
under section 90(10)(b) confirming the effect of a retention notice, the
Investigatory Powers Commissioner must give the Secretary of State written
reasons for the refusal.
Data integrity and security
(3)
92
(1)
A telecommunications operator who retains relevant communications data by
virtue of this Part must—
(a) secure that the data is of the same integrity, and subject to at least the
same security and protection, as the data on any system from which it
is derived,
(b) secure, by appropriate technical and organisational measures, that the
data can be accessed only by specially authorised personnel, and
(c) protect, by appropriate technical and organisational measures, the data
against accidental or unlawful destruction, accidental loss or alteration,
or unauthorised or unlawful retention, processing, access or disclosure.
A telecommunications operator who retains relevant communications data by
virtue of this Part must destroy the data if the retention of the data ceases to be
authorised by virtue of this Part and is not otherwise authorised by law.
The destruction of the data may take place at such monthly or shorter intervals
as appear to the operator to be practicable.
Disclosure of retained data
A telecommunications operator must put in place adequate security systems
(including technical and organisational measures) governing access to relevant
communications data retained by virtue of this Part in order to protect against
any unlawful disclosure.
Variation or revocation of notices
(2)
(3)
93
94
(1)
(2)
Variation or revocation of notices
The Secretary of State may vary a retention notice.
The Secretary of State must give, or publish, notice of the variation in such
manner as the Secretary of State considers appropriate for bringing the
variation to the attention of the telecommunications operator (or description of
operators) to whom it relates.
A variation comes into force—
(a) when notice of it is given or published in accordance with subsection
(2), or
(3)
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(b)
(4)
(if later) at the time or times specified in the notice of variation.
A retention notice may not be varied so as to require the retention of additional
relevant communications data unless—
(a) the Secretary of State considers that the requirement is necessary and
proportionate for one or more of the purposes falling within
paragraphs (a) to (j) of section 61(7), and
(b) subject to subsection (6), the decision to vary the notice has been
approved by a Judicial Commissioner.
The fact that additional relevant communications data which would be
retained under a retention notice as varied relates to the activities in the British
Islands of a trade union is not, of itself, sufficient to establish that the
requirement to retain the data is necessary for one or more of the purposes
falling within paragraphs (a) to (j) of section 61(7).
Subsection (4)(b) does not apply to a variation to which section 90(11) applies.
Section 87(2) and (5) apply in relation to a retention notice as varied as they
apply in relation to a retention notice, but as if the references to the notice
coming into force included references to the variation coming into force.
Sections 87(3), (4) and (8), 95 and 97, and subsections (1), (4), (13) and (16) of
this section, apply in relation to a retention notice as varied as they apply in
relation to a retention notice.
Section 88 applies in relation to the making of a variation as it applies in
relation to the giving of a retention notice (and, accordingly, the references to
the notice in section 88(1)(a) to (e) are to be read as references to the variation).
Section 89 applies in relation to a decision to vary to which subsection (4)(b)
above applies as it applies in relation to a decision to give a retention notice
(and, accordingly, the reference in subsection (1) of that section to the
requirement to be imposed by the notice is to be read as a reference to the
requirement to be imposed by the variation).
Section 90 applies (but only so far as the variation is concerned) in relation to a
retention notice as varied (other than one varied as mentioned in subsection
(10)(a) of that section) as it applies in relation to a retention notice.
Section 91 applies in relation to a decision under section 90(10) to vary or
confirm a variation as it applies in relation to a decision to vary or confirm a
retention notice (and, accordingly, the reference in subsection (1) of that section
to the requirement to be imposed by the notice as varied or confirmed is to be
read as a reference to the requirement to be imposed by the variation as varied
or confirmed).
The Secretary of State may revoke (whether wholly or in part) a retention
notice.
The Secretary of State must give or publish notice of the revocation in such
manner as the Secretary of State considers appropriate for bringing the
revocation to the attention of the operator (or description of operators) to
whom it relates.
A revocation comes into force—
(a) when notice of it is given or published in accordance with subsection
(14), or
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
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(b)
(16)
Investigatory Powers Act 2016 (c.
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Part 4 — Retention of communications data
(if later) at the time or times specified in the notice of revocation.
The fact that a retention notice has been revoked in relation to a particular
description of communications data and a particular operator (or description
of operators) does not prevent the giving of another retention notice in relation
to the same description of data and the same operator (or description of
operators).
Enforcement
95
(1)
Enforcement of notices and certain other requirements and restrictions
It is the duty of a telecommunications operator on whom a requirement or
restriction is imposed by—
(a) a retention notice, or
(b) section 92 or 93,
to comply with the requirement or restriction.
A telecommunications operator, or any person employed or engaged for the
purposes of the business of a telecommunications operator, must not disclose
the existence or contents of a retention notice to any other person.
The Information Commissioner, or any member of staff of the Information
Commissioner, must not disclose the existence or contents of a retention notice
to any other person.
Subsections (2) and (3) do not apply to a disclosure made with the permission
of the Secretary of State.
The duty under subsection (1) or (2) is enforceable by civil proceedings by the
Secretary of State for an injunction, or for specific performance of a statutory
duty under section 45 of the Court of Session Act 1988, or for any other
appropriate relief.
Further and supplementary provision
(2)
(3)
(4)
(5)
96
(1)
(2)
Application of Part 4 to postal operators and postal services
This Part applies to postal operators and postal services as it applies to
telecommunications operators and telecommunications services.
In its application by virtue of subsection (1), this Part has effect as if—
(a) any reference to a telecommunications operator were a reference to a
postal operator,
(b) any reference to a telecommunications service were a reference to a
postal service,
(c) any reference to a telecommunication system were a reference to a
postal service,
(d) in section 87(3), for paragraph (b) there were substituted—
“(b) in the case of communications data which does not fall
within paragraph (a) above but does fall within
paragraph (c) of the definition of “communications
data” in section 262(3), the day on which the person
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(e)
concerned leaves the postal service concerned or (if
earlier) the day on which the data is changed,”,
for section 87(4) there were substituted—
A retention notice must not require an operator who provides a
postal service (“the network operator”) to retain data which—
(a) relates to the use of a postal service provided by another
postal operator in relation to the postal service of the
network operator,
(b) is (or is capable of being) processed by the network
operator as a result of being comprised in, included as
part of, attached to or logically associated with a
communication transmitted by means of the postal
service of the network operator as a result of the use
mentioned in paragraph (a),
(c) is not needed by the network operator for the
functioning of the network operator’s postal service in
relation to that communication, and
(d) is not retained or used by the network operator for any
other lawful purpose,
and which it is reasonably practicable to separate from other
data which is subject to the notice.”, and
in section 87(11), the words from “and this expression” to the end were
omitted.
“(4)
(f)
97
(1)
Extra-territorial application of Part 4
A retention notice, and any requirement or restriction imposed by virtue of a
retention notice or by section 92, 93 or 95(1) to (3), may relate to conduct outside
the United Kingdom and persons outside the United Kingdom.
But section 95(5), so far as relating to those requirements or restrictions, does
not apply to a person outside the United Kingdom.
Part 4: interpretation
(1)
In this Part—
“notice” means notice in writing,
“relevant communications data” has the meaning given by section 87(11),
“retention notice” has the meaning given by section 87(1).
See also—
section 261 (telecommunications definitions),
section 262 (postal definitions),
section 263 (general definitions),
section 265 (index of defined expressions).
(2)
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P
ART
5
E
QUIPMENT INTERFERENCE
Warrants under this Part
99
(1)
Warrants under this Part: general
Investigatory Powers Act 2016 (c.
25)
Part 5 — Equipment interference
There are two kinds of warrants which may be issued under this Part—
(a) targeted equipment interference warrants (see subsection (2));
(b) targeted examination warrants (see subsection (9)).
A targeted equipment interference warrant is a warrant which authorises or
requires the person to whom it is addressed to secure interference with any
equipment for the purpose of obtaining—
(a) communications (see section 135);
(b) equipment data (see section 100);
(c) any other information.
A targeted equipment interference warrant—
(a) must also authorise or require the person to whom it is addressed to
secure the obtaining of the communications, equipment data or other
information to which the warrant relates;
(b) may also authorise that person to secure the disclosure, in any manner
described in the warrant, of anything obtained under the warrant by
virtue of paragraph (a).
The reference in subsections (2) and (3) to the obtaining of communications or
other information includes doing so by—
(a) monitoring, observing or listening to a person’s communications or
other activities;
(b) recording anything which is monitored, observed or listened to.
A targeted equipment interference warrant also authorises the following
conduct (in addition to the conduct described in the warrant)—
(a) any conduct which it is necessary to undertake in order to do what is
expressly authorised or required by the warrant, including conduct for
securing the obtaining of communications, equipment data or other
information;
(b) any conduct by any person which is conduct in pursuance of a
requirement imposed by or on behalf of the person to whom the
warrant is addressed to be provided with assistance in giving effect to
the warrant.
A targeted equipment interference warrant may not, by virtue of subsection
(3), authorise or require a person to engage in conduct, in relation to a
communication other than a stored communication, which would (unless done
with lawful authority) constitute an offence under section 3(1) (unlawful
interception).
Subsection (5)(a) does not authorise a person to engage in conduct which could
not be expressly authorised under the warrant because of the restriction
imposed by subsection (6).
(2)
(3)
(4)
(5)
(6)
(7)
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(8)
(9)
In subsection (6), “stored communication” means a communication stored in or
by a telecommunication system (whether before or after its transmission).
A targeted examination warrant is a warrant which authorises the person to
whom it is addressed to carry out the selection of protected material obtained
under a bulk equipment interference warrant for examination, in breach of the
prohibition in section 193(4) (prohibition on seeking to identify
communications of, or private information relating to, individuals in the
British Islands).
In this Part, “protected material”, in relation to a targeted examination warrant,
means any material obtained under a bulk equipment interference warrant
under Chapter 3 of Part 6, other than material which is—
(a) equipment data;
(b) information (other than a communication or equipment data) which is
not private information.
For provision enabling the combination of targeted equipment interference
warrants with certain other warrants or authorisations (including targeted
examination warrants), see Schedule 8.
Any conduct which is carried out in accordance with a warrant under this Part
is lawful for all purposes.
Meaning of “equipment data”
In this Part, “equipment data” means—
(a) systems data;
(b) data which falls within subsection (2).
The data falling within this subsection is identifying data which—
(a) is, for the purposes of a relevant system, comprised in, included as part
of, attached to or logically associated with a communication (whether
by the sender or otherwise) or any other item of information,
(b) is capable of being logically separated from the remainder of the
communication or the item of information, and
(c) if it were so separated, would not reveal anything of what might
reasonably be considered to be the meaning (if any) of the
communication or the item of information, disregarding any meaning
arising from the fact of the communication or the existence of the item
of information or from any data relating to that fact.
In subsection (2), “relevant system” means any system on or by means of which
the data is held.
For the meaning of “systems data” and “identifying data”, see section 263.
Subject-matter of warrants
A targeted equipment interference warrant may relate to any one or more of
the following matters—
(a) equipment belonging to, used by or in the possession of a particular
person or organisation;
(b) equipment belonging to, used by or in the possession of a group of
persons who share a common purpose or who carry on, or may carry
on, a particular activity;
(10)
(11)
100
(1)
(2)
(3)
(4)
101
(1)
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(c)
(d)
(e)
(f)
(g)
(h)
Investigatory Powers Act 2016 (c.
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Part 5 — Equipment interference
equipment belonging to, used by or in the possession of more than one
person or organisation, where the interference is for the purpose of a
single investigation or operation;
equipment in a particular location;
equipment in more than one location, where the interference is for the
purpose of a single investigation or operation;
equipment which is being, or may be, used for the purposes of a
particular activity or activities of a particular description;
equipment which is being, or may be, used to test, maintain or develop
capabilities relating to interference with equipment for the purpose of
obtaining communications, equipment data or other information;
equipment which is being, or may be, used for the training of persons
who carry out, or are likely to carry out, such interference with
equipment.
(2)
A targeted examination warrant may relate to any one or more of the following
matters—
(a) a particular person or organisation;
(b) a group of persons who share a common purpose or who carry on, or
may carry on, a particular activity;
(c) more than one person or organisation, where the conduct authorised by
the warrant is for the purpose of a single investigation or operation;
(d) the testing, maintenance or development of capabilities relating to the
selection of protected material for examination;
(e) the training of persons who carry out, or are likely to carry out, the
selection of such material for examination.
Power to issue warrants
102
(1)
Power to issue warrants to intelligence services: the Secretary of State
The Secretary of State may, on an application made by or on behalf of the head
of an intelligence service, issue a targeted equipment interference warrant if—
(a) the Secretary of State considers that the warrant is necessary on
grounds falling within subsection (5),
(b) the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(c) the Secretary of State considers that satisfactory arrangements made for
the purposes of sections 129 and 130 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and
(d) except where the Secretary of State considers that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
But the Secretary of State may not issue a targeted equipment interference
warrant under subsection (1) if—
(a) the Secretary of State considers that the only ground for considering the
warrant to be necessary is for the purpose of preventing or detecting
serious crime, and
(b) the warrant, if issued, would authorise interference only with
equipment which would be in Scotland at the time of the issue of the
(2)
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81
warrant or which the Secretary of State believes would be in Scotland
at that time.
For the power of the Scottish Ministers to issue a targeted equipment
interference warrant, see section 103.
(3)
The Secretary of State may, on an application made by or on behalf of the head
of an intelligence service, issue a targeted examination warrant if—
(a) the Secretary of State considers that the warrant is necessary on
grounds falling within subsection (5),
(b) the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(c) the Secretary of State considers that the warrant is or may be necessary
to authorise the selection of protected material for examination in
breach of the prohibition in section 193(4) (prohibition on seeking to
identify communications of, or private information relating to,
individuals in the British Islands), and
(d) except where the Secretary of State considers that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
But the Secretary of State may not issue a targeted examination warrant under
subsection (3) if the warrant, if issued, would relate only to a person who
would be in Scotland at the time of the issue of the warrant or whom the
Secretary of State believes would be in Scotland at that time.
For the power of the Scottish Ministers to issue a targeted examination
warrant, see section 103.
A warrant is necessary on grounds falling within this subsection if it is
necessary—
(a) in the interests of national security,
(b) for the purpose of preventing or detecting serious crime, or
(c) in the interests of the economic well-being of the United Kingdom so
far as those interests are also relevant to the interests of national
security.
A warrant may be considered necessary on the ground falling within
subsection (5)(c) only if the interference with equipment which would be
authorised by the warrant is considered necessary for the purpose of obtaining
information relating to the acts or intentions of persons outside the British
Islands.
The fact that the information which would be obtained under a warrant relates
to the activities in the British Islands of a trade union is not, of itself, sufficient
to establish that the warrant is necessary on grounds falling within subsection
(5).
An application for the issue of a warrant under this section may only be made
on behalf of the head of an intelligence service by a person holding office under
the Crown.
Nothing in subsection (2) or (4) prevents the Secretary of State from doing
anything under this section for the purposes specified in section 2(2) of the
European Communities Act 1972.
(4)
(5)
(6)
(7)
(8)
(9)
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103
(1)
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Power to issue warrants to intelligence services: the Scottish Ministers
The Scottish Ministers may, on an application made by or on behalf of the head
of an intelligence service, issue a targeted equipment interference warrant if—
(a) the warrant authorises interference only with equipment which is in
Scotland at the time the warrant is issued or which the Scottish
Ministers believe to be in Scotland at that time,
(b) the Scottish Ministers consider that the warrant is necessary for the
purpose of preventing or detecting serious crime,
(c) the Scottish Ministers consider that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(d) the Scottish Ministers consider that satisfactory arrangements made for
the purposes of sections 129 and 130 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and
(e) except where the Scottish Ministers consider that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
The Scottish Ministers may, on an application made by or on behalf of the head
of an intelligence service, issue a targeted examination warrant if—
(a) the warrant relates only to a person who is in Scotland, or whom the
Scottish Ministers believe to be in Scotland, at the time of the issue of
the warrant,
(b) the Scottish Ministers consider that the warrant is necessary for the
purpose of preventing or detecting serious crime,
(c) the Scottish Ministers consider that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(d) the Scottish Ministers consider that the warrant is or may be necessary
to authorise the selection of protected material in breach of the
prohibition in section 193(4) (prohibition on seeking to identify
communications of, or private information relating to, individuals in
the British Islands), and
(e) except where the Scottish Ministers consider that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
The fact that the information which would be obtained under a warrant relates
to the activities in the British Islands of a trade union is not, of itself, sufficient
to establish that the warrant is necessary as mentioned in subsection (1)(b) or
(2)(b).
An application for the issue of a warrant under this section may only be made
on behalf of the head of an intelligence service by a person holding office under
the Crown.
Power to issue warrants to the Chief of Defence Intelligence
The Secretary of State may, on an application made by or on behalf of the Chief
of Defence Intelligence, issue a targeted equipment interference warrant if—
(a) the Secretary of State considers that the warrant is necessary in the
interests of national security,
(2)
(3)
(4)
104
(1)
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(b)
(c)
(d)
the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
the Secretary of State considers that satisfactory arrangements made for
the purposes of sections 129 and 130 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and
except where the Secretary of State considers that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
(2)
The fact that the information which would be obtained under a warrant relates
to the activities in the British Islands of a trade union is not, of itself, sufficient
to establish that the warrant is necessary as mentioned in subsection (1)(a).
An application for the issue of a warrant under this section may only be made
on behalf of the Chief of Defence Intelligence by a person holding office under
the Crown.
Decision to issue warrants under sections 102 to 104 to be taken personally by
Ministers
The decision to issue a warrant under section 102 or 104 must be taken
personally by the Secretary of State.
The decision to issue a warrant under section 103 must be taken personally by
a member of the Scottish Government.
Before a warrant under section 102, 103 or 104 is issued, it must be signed by
the person who has taken the decision to issue it (subject to subsection (4)).
If it is not reasonably practicable for a warrant to be signed by the person who
has taken the decision to issue it, the warrant may be signed by a senior official
designated by the Secretary of State or (as the case may be) the Scottish
Ministers for that purpose.
In such a case, the warrant must contain a statement that—
(a) it is not reasonably practicable for the warrant to be signed by the
person who took the decision to issue it, and
(b) the Secretary of State or (as the case may be) a member of the Scottish
Government has personally and expressly authorised the issue of the
warrant.
Power to issue warrants to law enforcement officers
A law enforcement chief described in Part 1 or 2 of the table in Schedule 6 may,
on an application made by a person who is an appropriate law enforcement
officer in relation to the chief, issue a targeted equipment interference warrant
if—
(a) the law enforcement chief considers that the warrant is necessary for
the purpose of preventing or detecting serious crime,
(b) the law enforcement chief considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(c) the law enforcement chief considers that satisfactory arrangements
made for the purposes of sections 129 and 130 (safeguards relating to
disclosure etc.) are in force in relation to the warrant, and
(3)
105
(1)
(2)
(3)
(4)
(5)
106
(1)
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(d)
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Part 5 — Equipment interference
except where the law enforcement chief considers that there is an
urgent need to issue the warrant, the decision to issue the warrant has
been approved by a Judicial Commissioner.
(2)
The fact that the information which would be obtained under a warrant relates
to the activities in the British Islands of a trade union is not, of itself, sufficient
to establish that the warrant is necessary as mentioned in subsection (1)(a).
A law enforcement chief described in Part 1 of the table in Schedule 6 may, on
an application made by a person who is an appropriate law enforcement officer
in relation to the chief, issue a targeted equipment interference warrant if—
(a) the law enforcement chief considers that the warrant is necessary for
the purpose of preventing death or any injury or damage to a person’s
physical or mental health or of mitigating any injury or damage to a
person’s physical or mental health,
(b) the law enforcement chief considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(c) the law enforcement chief considers that satisfactory arrangements
made for the purposes of sections 129 and 130 (safeguards relating to
disclosure etc.) are in force in relation to the warrant, and
(d) except where the law enforcement chief considers that there is an
urgent need to issue the warrant, the decision to issue the warrant has
been approved by a Judicial Commissioner.
If it is not reasonably practicable for a law enforcement chief to consider an
application under this section, an appropriate delegate may, in an urgent case,
exercise the power to issue a targeted equipment interference warrant.
For the purposes of this section—
(a) a person is a law enforcement chief if the person is listed in the first
column of the table in Schedule 6;
(b) a person is an appropriate delegate in relation to a law enforcement
chief listed in the first column if the person is listed in the
corresponding entry in the second column of that table;
(c) a person is an appropriate law enforcement officer in relation to a law
enforcement chief listed in the first column if the person is listed in the
corresponding entry in the third column of that table.
Where the law enforcement chief is the Chief Constable or the Deputy Chief
Constable of the Police Service of Northern Ireland, the reference in subsection
(1)(a) to the purpose of preventing or detecting serious crime includes a
reference to the interests of national security.
A law enforcement chief who is an immigration officer may consider that the
condition in subsection (1)(a) is satisfied only if the serious crime relates to an
offence which is an immigration or nationality offence (whether or not it also
relates to other offences).
A law enforcement chief who is an officer of Revenue and Customs may
consider that the condition in subsection (1)(a) is satisfied only if the serious
crime relates to an assigned matter within the meaning of section 1(1) of the
Customs and Excise Management Act 1979.
A law enforcement chief who is a designated customs official may consider
that the condition in subsection (1)(a) is satisfied only if the serious crime
(3)
(4)
(5)
(6)
(7)
(8)
(9)
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relates to a matter in respect of which a designated customs official has
functions.
(10)
A law enforcement chief who is the chair of the Competition and Markets
Authority may consider that the condition in subsection (1)(a) is satisfied only
if the offence, or all of the offences, to which the serious crime relates are
offences under section 188 of the Enterprise Act 2002.
A law enforcement chief who is the chairman, or a deputy chairman, of the
Independent Police Complaints Commission may consider that the condition
in subsection (1)(a) is satisfied only if the offence, or all of the offences, to which
the serious crime relates are offences that are being investigated as part of an
investigation by the Commission under Schedule 3 to the Police Reform Act
2002.
A law enforcement chief who is the Police Investigations and Review
Commissioner may consider that the condition in subsection (1)(a) is satisfied
only if the offence, or all of the offences, to which the serious crime relates are
offences that are being investigated under section 33A(b)(i) of the Police, Public
Order and Criminal Justice (Scotland) Act 2006.
For the purpose of subsection (7), an offence is an immigration or nationality
offence if conduct constituting the offence—
(a) relates to the entitlement of one or more persons who are not nationals
of the United Kingdom to enter, transit across, or be in, the United
Kingdom (including conduct which relates to conditions or other
controls on any such entitlement), or
(b) is undertaken for the purposes of or otherwise in relation to—
(i) the British Nationality Act 1981;
(ii) the Hong Kong Act 1985;
(iii) the Hong Kong (War Wives and Widows) Act 1996;
(iv) the British Nationality (Hong Kong) Act 1997;
(v) the British Overseas Territories Act 2002;
(vi) an instrument made under any of those Acts.
In this section—
“designated customs official” has the same meaning as in Part 1 of the
Borders, Citizenship and Immigration Act 2009 (see section 14(6) of that
Act);
“immigration officer” means a person appointed as an immigration
officer under paragraph 1 of Schedule 2 to the Immigration Act 1971.
(11)
(12)
(13)
(14)
107
(1)
Restriction on issue of warrants to certain law enforcement officers
A law enforcement chief specified in subsection (2) may not issue a targeted
equipment interference warrant under section 106 unless the law enforcement
chief considers that there is a British Islands connection.
The law enforcement chiefs specified in this subsection are—
(a) the Chief Constable of a police force maintained under section 2 of the
Police Act 1996;
(b) the Commissioner, or an Assistant Commissioner, of the metropolitan
police force;
(c) the Commissioner of Police for the City of London;
(2)
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(d)
(e)
(f)
(g)
(h)
(i)
(3)
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Part 5 — Equipment interference
the chief constable of the Police Service of Scotland;
the Chief Constable or a Deputy Chief Constable of the Police Service
of Northern Ireland;
the Chief Constable of the British Transport Police Force;
the Chief Constable of the Ministry for Defence Police;
the chairman, or a deputy chairman, of the Independent Police
Complaints Commission;
the Police Investigations and Review Commissioner.
The Director General of the National Crime Agency may not issue a targeted
equipment interference warrant on the application of a member of a
collaborative police force unless the Director General considers that there is a
British Islands connection.
“Collaborative police force” has the meaning given by paragraph 2 of Part 3 of
Schedule 6.
For the purpose of this section, there is a British Islands connection if—
(a) any of the conduct authorised by the warrant would take place in the
British Islands (regardless of the location of the equipment that would,
or may, be interfered with),
(b) any of the equipment which would, or may, be interfered with would,
or may, be in the British Islands at some time while the interference is
taking place, or
(c) a purpose of the interference is to obtain—
(i) communications sent by, or to, a person who is, or whom the
law enforcement officer believes to be, for the time being in the
British Islands,
(ii) information relating to an individual who is, or whom the law
enforcement officer believes to be, for the time being in the
British Islands, or
(iii) equipment data which forms part of, or is connected with,
communications or information falling within sub-paragraph
(i) or (ii).
Except as provided by subsections (1) to (3), a targeted equipment interference
warrant may be issued under section 106 whether or not the person who has
power to issue the warrant considers that there is a British Islands connection.
Approval of warrants by Judicial Commissioners
(4)
(5)
108
(1)
Approval of warrants by Judicial Commissioners
In deciding whether to approve a person’s decision to issue a warrant under
this Part, a Judicial Commissioner must review the person’s conclusions as to
the following matters—
(a) whether the warrant is necessary on any relevant grounds (see
subsection (3)), and
(b) whether the conduct which would be authorised by the warrant is
proportionate to what is sought to be achieved by that conduct.
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(2)
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(b)
consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).
(3)
In subsection (1)(a), “relevant grounds” means—
(a) in the case of a decision to issue a warrant under section 102, grounds
falling within section 102(5);
(b) in the case of a decision to issue a warrant under section 103, the
purpose of preventing or detecting serious crime;
(c) in the case of a decision to issue a warrant under section 104, the
interests of national security;
(d) in the case of a decision to issue a warrant under section 106(1), the
purpose mentioned in section 106(1)(a);
(e) in the case of a decision to issue a warrant under section 106(3), the
purpose mentioned in section 106(3)(a).
Where a Judicial Commissioner refuses to approve a person’s decision to issue
a warrant under this Part, the Judicial Commissioner must give the person
written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a person’s decision to issue a warrant under
this Part, the person may ask the Investigatory Powers Commissioner to decide
whether to approve the decision to issue the warrant.
Approval of warrants issued in urgent cases
This section applies where—
(a) a warrant under this Part is issued without the approval of a Judicial
Commissioner, and
(b) the person who issued the warrant considered that there was an urgent
need to issue it.
The person who issued the warrant must inform a Judicial Commissioner that
it has been issued.
The Judicial Commissioner must, before the end of the relevant period—
(a) decide whether to approve the decision to issue the warrant, and
(b) notify the person of the Judicial Commissioner’s decision.
“The relevant period” means the period ending with the third working day
after the day on which the warrant was issued.
If a Judicial Commissioner refuses to approve the decision to issue a warrant,
the warrant—
(a) ceases to have effect (unless already cancelled), and
(b) may not be renewed,
and section 108(5) does not apply in relation to the refusal to approve the
decision.
Section 110 contains further provision about what happens if a Judicial
Commissioner refuses to approve the decision to issue a warrant.
(4)
(5)
109
(1)
(2)
(3)
(4)
(5)
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110
(1)
(2)
Failure to approve warrant issued in urgent case
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This section applies where under section 109(3) a Judicial Commissioner
refuses to approve the decision to issue a warrant.
The person to whom the warrant was addressed must, so far as is reasonably
practicable, secure that anything in the process of being done under the
warrant stops as soon as possible.
Where the refusal relates to a targeted equipment interference warrant, the
Judicial Commissioner may—
(a) authorise further interference with equipment for the purpose of
enabling the person to whom the warrant was addressed to secure that
anything in the process of being done under the warrant stops as soon
as possible;
(b) direct that any of the material obtained under the warrant is destroyed;
(c) impose conditions as to the use or retention of any of that material.
Where the refusal relates to a targeted examination warrant, the Judicial
Commissioner may impose conditions as to the use of any protected material
selected for examination under the warrant.
The Judicial Commissioner—
(a) may require an affected party to make representations about how the
Judicial Commissioner should exercise any function under subsection
(3) or (4), and
(b) must have regard to any such representations made by an affected
party (whether or not as a result of a requirement imposed under
paragraph (a)).
Each of the following is an “affected party” for the purposes of subsection (5)—
(a) the person who decided to issue the warrant;
(b) the person to whom the warrant was addressed.
The person who decided to issue the warrant may ask the Investigatory
Powers Commissioner to review a decision made by any other Judicial
Commissioner under subsection (3) or (4).
On a review under subsection (7), the Investigatory Powers Commissioner
may—
(a) confirm the Judicial Commissioner’s decision, or
(b) make a fresh determination.
Nothing in this section or section 109 affects the lawfulness of—
(a) anything done under the warrant before it ceases to have effect;
(b) if anything is in the process of being done under the warrant when it
ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done that it is not reasonably practicable to stop.
Additional safeguards
(3)
(4)
(5)
(6)
(7)
(8)
(9)
111
(1)
Members of Parliament etc.
Subsection (3) applies where—
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(a)
(b)
an application is made to the Secretary of State for a targeted
equipment interference warrant, and
the purpose of the warrant is to obtain—
(i) communications sent by, or intended for, a person who is a
member of a relevant legislature, or
(ii) a member of a relevant legislature’s private information.
(2)
Subsection (3) also applies where—
(a) an application is made to the Secretary of State for a targeted
examination warrant, and
(b) the purpose of the warrant is to authorise the selection for examination
of protected material which consists of—
(i) communications sent by, or intended for, a person who is a
member of a relevant legislature, or
(ii) a member of a relevant legislature’s private information.
The Secretary of State may not issue the warrant without the approval of the
Prime Minister.
Subsection (5) applies where—
(a) an application is made under section 106 to a law enforcement chief for
a targeted equipment interference warrant, and
(b) the purpose of the warrant is to obtain—
(i) communications sent by, or intended for, a person who is a
member of a relevant legislature, or
(ii) a member of a relevant legislature’s private information.
The law enforcement chief may not issue the warrant without the approval of
the Secretary of State unless the law enforcement chief believes that the
warrant (if issued) would authorise interference only with equipment which
would be in Scotland at the time of the issue of the warrant or which the law
enforcement chief believes would be in Scotland at that time.
The Secretary of State may give approval for the purposes of subsection (5)
only with the approval of the Prime Minister.
In a case where the decision whether to issue a targeted equipment interference
warrant is to be taken by an appropriate delegate in relation to a law
enforcement chief under section 106
(
4
)
, the reference in subsection (5) to the
law enforcement chief is to be read as a reference to the appropriate delegate.
In this section “member of a relevant legislature” means—
(a) a member of either House of Parliament;
(b) a member of the Scottish Parliament;
(c) a member of the National Assembly for Wales;
(d) a member of the Northern Ireland Assembly;
(e) a member of the European Parliament elected for the United Kingdom.
Items subject to legal privilege
Subsections (2) to (5) apply if—
(a) an application is made for a warrant under this Part, and
(b) the purpose, or one of the purposes, of the warrant is—
(3)
(4)
(5)
(6)
(7)
(8)
112
(1)
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(i)
(ii)
(2)
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in the case of a targeted equipment interference warrant, to
authorise or require interference with equipment for the
purpose of obtaining items subject to legal privilege, or
in the case of a targeted examination warrant, to authorise the
selection of such items for examination.
The application must contain a statement that the purpose, or one of the
purposes, of the warrant is to authorise or require interference with equipment
for the purpose of obtaining items subject to legal privilege or (in the case of a
targeted examination warrant) the selection for examination of items subject to
legal privilege.
In deciding whether to issue the warrant, the person to whom the application
is made must have regard to the public interest in the confidentiality of items
subject to legal privilege.
The person to whom the application is made may issue the warrant only if the
person considers—
(a) that there are exceptional and compelling circumstances which make it
necessary to authorise or require interference with equipment for the
purpose of obtaining items subject to legal privilege or (in the case of a
targeted examination warrant) the selection for examination of items
subject to legal privilege, and
(b) that the arrangements made for the purposes of section 129 or (as the
case may be) section 191 (safeguards relating to retention and
disclosure of material) include specific arrangements for the handling,
retention, use and destruction of such items.
But the warrant may not be issued if it is considered necessary only as
mentioned in section 102(5)(c).
For the purposes of subsection (4)(a), there cannot be exceptional and
compelling circumstances that make it necessary to authorise or require
interference with equipment for the purpose of obtaining, or the selection for
examination of, items subject to legal privilege unless—
(a) the public interest in obtaining the information that would be obtained
by the warrant outweighs the public interest in the confidentiality of
items subject to legal privilege,
(b) there are no other means by which the information may reasonably be
obtained, and
(c) in the case of a warrant considered necessary for the purposes of
preventing or detecting serious crime or as mentioned in section
106(3)(a), obtaining the information is necessary for the purpose of
preventing death or significant injury.
Subsections (8) and (9) apply if—
(a) an application is made for a warrant under this Part,
(b) the applicant considers that the relevant material is likely to include
items subject to legal privilege, and
(c) subsections (2) to (5) do not apply.
The application must contain—
(a) a statement that the applicant considers that the relevant material is
likely to include items subject to legal privilege, and
(b) an assessment of how likely it is that the relevant material will include
such items.
(3)
(4)
(5)
(6)
(7)
(8)
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(9)
The person to whom the application is made may issue the warrant only if the
person considers that the arrangements made for the purposes of section 129
or (as the case may be) section 191 include specific arrangements for the
handling, retention, use and destruction of items subject to legal privilege.
In this section, “relevant material” means—
(a) in relation to a targeted equipment interference warrant, any material
the obtaining of which is authorised or required under the warrant;
(b) in relation to a targeted examination warrant, any protected material
which the warrant authorises to be selected for examination.
Subsections (12) and (13) apply if—
(a) an application is made for a warrant under this Part,
(b) the purpose, or one of the purposes, of the warrant is—
(i) in the case of a targeted equipment interference warrant, to
authorise or require interference with equipment for the
purpose of obtaining communications or other items of
information that, if they were not communications made or (as
the case may be) other items of information created or held with
the intention of furthering a criminal purpose, would be items
subject to legal privilege, or
(ii) in the case of a targeted examination warrant, to authorise the
selection of such communications or other items of information
for examination, and
(c) the applicant considers that the communications or the other items of
information (“the targeted communications or other items of
information”) are likely to be communications made or (as the case may
be) other items of information created or held with the intention of
furthering a criminal purpose.
The application must—
(a) contain a statement that the purpose, or one of the purposes, of the
warrant is—
(i) to authorise or require interference with equipment for the
purpose of obtaining communications or other items of
information that, if they were not communications made or (as
the case may be) other items of information created or held with
the intention of furthering a criminal purpose, would be items
subject to legal privilege, or
(ii) (in the case of a targeted examination warrant) to authorise the
selection of such communications or other items of information
for examination, and
(b) set out the reasons for believing that the targeted communications or
other items of information are likely to be communications made or (as
the case may be) other items of information created or held with the
intention of furthering a criminal purpose.
The person to whom the application is made may issue the warrant only if the
person considers that the targeted communications or other items of
information are likely to be communications made or (as the case may be) other
items of information created or held with the intention of furthering a criminal
purpose.
(10)
(11)
(12)
(13)
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92
113
(1)
Confidential journalistic material
Investigatory Powers Act 2016 (c.
25)
Part 5 — Equipment interference
This section applies if an application is made for a warrant under this Part and
the purpose, or one of the purposes, of the warrant—
(a) in the case of a targeted equipment interference warrant, to authorise or
require interference with equipment for the purpose of obtaining
communications or other items of information which the applicant for
the warrant believes will be communications or other items of
information containing confidential journalistic material, or
(b) in the case of a targeted examination warrant, to authorise the selection
for examination of journalistic material which the applicant for the
warrant believes is confidential journalistic material.
The application must contain a statement that the purpose, or one of the
purposes, of the warrant is—
(a) in the case of a targeted equipment interference warrant, to authorise or
require interference with equipment for the purpose of obtaining
communications or other items of information which the applicant for
the warrant believes will be communications or other items of
information containing confidential journalistic material, or
(b) in the case of a targeted examination warrant, to authorise the selection
for examination of journalistic material which the applicant for the
warrant believes is confidential journalistic material.
The person to whom the application is made may issue the warrant only if the
person considers that the arrangements made for the purposes of section 129
or (as the case may be) section 191 (safeguards relating to retention and
disclosure of material) include specific arrangements for the handling,
retention, use and destruction of communications or other items of
information containing confidential journalistic material.
For the meaning of “journalistic material” and “confidential journalistic
material”, see section 264.
Sources of journalistic information
This section applies if an application is made for a warrant under this Part and
the purpose, or one of the purposes, of the warrant is to identify or confirm a
source of journalistic information.
(For the meaning of “source of journalistic information”, see section 263(1).)
The application must contain a statement that the purpose, or one of the
purposes, of the warrant is to identify or confirm a source of journalistic
information.
The person to whom the application is made may issue the warrant only if the
person considers that the arrangements made for the purposes of section 129
or (as the case may be) section 191 (safeguards relating to retention and
disclosure of material) include specific arrangements for the handling,
retention, use and destruction of communications or other items of
information that identify sources of journalistic information.
(2)
(3)
(4)
114
(1)
(2)
(3)
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93
Further provision about warrants
115
(1)
(2)
Requirements that must be met by warrants
A warrant under this Part must contain a provision stating whether it is a
targeted equipment interference warrant or a targeted examination warrant.
A warrant under this Part must be addressed—
(a) in the case of a warrant issued under section 102 or 103, to the head of
the intelligence service by whom or on whose behalf the application for
the warrant was made;
(b) in the case of a warrant issued under section 104, to the Chief of Defence
Intelligence;
(c) in the case of a warrant issued under section 106 by a law enforcement
chief (or by an appropriate delegate in relation to a law enforcement
chief), to a person who—
(i) is an appropriate law enforcement officer in relation to the law
enforcement chief, and
(ii) is named or described in the warrant.
In the case of a targeted equipment interference warrant which relates to a
matter described in the first column of the Table below, the warrant must
include the details specified in the second column.
(3)
Matter
Equipment belonging to,
used by or in the possession
of a particular person or
organisation
Equipment belonging to,
used by or in the possession
of persons who form a
group which shares a
common purpose or who
carry on, or may carry on, a
particular activity
Equipment used by or in the
possession of more than one
person or organisation,
where the interference is for
the purpose of a single
investigation or operation
Details to be included in the
warrant
The name of the person or
organisation or a description
of the person or organisation
A description of the purpose
or activity and the name of,
or a description of, as many
of the persons as it is
reasonably practicable to
name or describe
A description of the nature
of the investigation or
operation and the name of,
or a description of, as many
of
the
persons
or
organisations as it is
reasonably practicable to
name or describe
A description of the location
Equipment in a particular
location
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Investigatory Powers Act 2016 (c.
25)
Part 5 — Equipment interference
Matter
Equipment in more than one
location,
where
the
interference is for the
purpose
of
a
single
investigation or operation
Equipment which is being,
or may be, used for the
purposes of a particular
activity or activities of a
particular description
Equipment which is being,
or may be, used to test,
maintain
or
develop
capabilities
relating
to
interference with equipment
Equipment which is being,
or may be, used for the
training of persons who
carry out, or are likely to
carry out, interference with
equipment
(4)
Details to be included in the
warrant
A description of the nature
of the investigation or
operation and a description
of as many of the locations
as
it
is
reasonably
practicable to describe
A
description
of
particular
activity
activities
the
or
A description of the nature
of the testing, maintenance
or
development
of
capabilities
A description of the nature
of the training
A targeted equipment interference warrant must also describe—
(a) the type of equipment which is to be interfered with, and
(b) the conduct which the person to whom the warrant is addressed is
authorised to take.
In the case of a targeted examination warrant which relates to a matter
described in the first column of the Table below, the warrant must include the
details specified in the second column.
(5)
Matter
A particular
organisation
person
or
Details to be included in the
warrant
The name of the person or
organisation or a description
of the person or organisation
A description of the purpose
or activity and the name of,
or a description of, as many
of the persons as it is
reasonably practicable to
name or describe
A group of persons who
share a common purpose or
who carry on or may carry
on a particular activity
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95
Matter
More than one person or
organisation, where the
interference is for the
purpose
of
a
single
investigation or operation
Details to be included in the
warrant
A description of the nature
of the investigation or
operation and the name of,
or a description of, as many
of
the
persons
or
organisations as it is
reasonably practicable to
name or describe
A description of the nature
of the testing, maintenance
or
development
of
capabilities
A description of the nature
of the training
The testing, maintenance or
development of capabilities
relating to the selection of
protected
material
for
examination
The training of persons who
carry out, or are likely to
carry out, the selection of
protected
material
for
examination
116
(1)
Duration of warrants
A warrant issued under this Part ceases to have effect at the end of the relevant
period (see subsection (2)), unless—
(a) it is renewed before the end of that period (see section 117), or
(b) it is cancelled or otherwise ceases to have effect before the end of that
period (see sections 109 and 125).
In this section, “the relevant period”—
(a) in the case of an urgent warrant which has not been renewed, means the
period ending with the fifth working day after the day on which the
warrant was issued;
(b) in any other case, means the period of 6 months beginning with—
(i) the day on which the warrant was issued, or
(ii) in the case of a warrant which has been renewed, the day after
the day at the end of which the warrant would have ceased to
have effect if it had not been renewed.
For the purposes of subsection (2)(a), a warrant is an “urgent warrant” if—
(a) the warrant was issued without the approval of a Judicial
Commissioner, and
(b) the person who decided to issue the warrant considered that there was
an urgent need to issue it.
Renewal of warrants
If the renewal conditions are met, a warrant issued under this Part may be
renewed, at any time during the renewal period, by an instrument issued by
the appropriate person (see subsection (3)).
(2)
(3)
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(2)
Investigatory Powers Act 2016 (c.
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Part 5 — Equipment interference
The renewal conditions are—
(a) that the appropriate person considers that the warrant continues to be
necessary on any relevant grounds,
(b) that the appropriate person considers that the conduct that would be
authorised by the renewed warrant continues to be proportionate to
what is sought to be achieved by that conduct,
(c) that, in the case of a targeted examination warrant, the appropriate
person considers that the warrant continues to be necessary to
authorise the selection of protected material for examination in breach
of the prohibition in section 193(4), and
(d) that the decision to renew the warrant has been approved by a Judicial
Commissioner.
The appropriate person is—
(a) in the case of a warrant issued under section 102 or 104, the Secretary of
State;
(b) in the case of a warrant issued under section 103, a member of the
Scottish Government;
(c) in the case of a warrant issued under section 106 by a law enforcement
chief or by an appropriate delegate in relation to the law enforcement
chief, either—
(i) the law enforcement chief, or
(ii) if the warrant was issued by an appropriate delegate, that
person.
In subsection (2)(a), “relevant grounds” means—
(a) in the case of a warrant issued under section 102, grounds falling within
section 102(5),
(b) in the case of a warrant issued under section 103, the purpose of
preventing or detecting serious crime,
(c) in the case of a warrant issued under section 104, the interests of
national security,
(d) in the case of a warrant issued under section 106(1), the purpose
mentioned in section 106(1)(a), or
(e) in the case of a warrant issued under section 106(3), the purpose
mentioned in section 106(3)(a).
“The renewal period” means—
(a) in the case of an urgent warrant which has not been renewed, the
relevant period;
(b) in any other case, the period of 30 days ending with the day at the end
of which the warrant would otherwise cease to have effect.
The decision to renew a warrant issued under section 102 or 104 must be taken
personally by the Secretary of State, and the instrument renewing the warrant
must be signed by the Secretary of State.
The decision to renew a warrant issued under section 103 must be taken
personally by a member of the Scottish Government, and the instrument
renewing the warrant must be signed by the person who took that decision.
The instrument renewing a warrant issued under section 106 must be signed
by the person who renews it.
(3)
(4)
(5)
(6)
(7)
(8)
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97
(9)
Section 108 (approval of warrants by Judicial Commissioners) applies in
relation to a decision to renew a warrant under this Part as it applies in relation
to a decision to issue such a warrant (and accordingly any reference in that
section to the person who decided to issue the warrant is to be read as a
reference to the person who decided to renew it).
Sections 111 to 114 (additional safeguards) apply in relation to a decision to
renew a warrant under this Part as they apply in relation to a decision to issue
such a warrant.
In this section—
“relevant period” has the same meaning as in section 116;
“urgent warrant” is to be read in accordance with subsection (3) of that
section.
Modification of warrants issued by the Secretary of State or Scottish
Ministers
The provisions of a warrant issued under section 102, 103 or 104 may be
modified at any time by an instrument issued by the person making the
modification.
The only modifications which may be made under this section are—
(a) adding to the matters to which the warrant relates (see section 101(1)
and (2)), by including the details required in relation to that matter by
section 115(3) or (5);
(b) removing a matter to which the warrant relates;
(c) adding (in relation to a matter to which the warrant relates) a name or
description to the names or descriptions included in the warrant in
accordance with section 115(3) or (5);
(d) varying or removing (in relation to a matter to which the warrant
relates) a name or description included in the warrant in accordance
with section 115(3) or (5);
(e) adding to the descriptions of types of equipment included in the
warrant in accordance with section 115(4)(a);
(f) varying or removing a description of a type of equipment included in
the warrant in accordance with section 115(4)(a).
But—
(a) where a targeted equipment interference warrant relates only to a
matter specified in section 101(1)(a), only to a matter specified in
section 101(1)(d), or only to both such matters, the details included in
the warrant in accordance with section 115(3) may not be modified;
(b) where a targeted examination warrant relates only to a matter specified
in section 101(2)(a), the details included in the warrant in accordance
with section 115(5) may not be modified.
The decision to modify the provisions of a warrant must be taken personally
by the person making the modification, and the instrument making the
modification must be signed by that person.
This is subject to section 120(7).
Nothing in this section applies in relation to modifying the provisions of a
warrant in a way which does not affect the conduct authorised or required by
it.
(10)
(11)
118
(1)
(2)
(3)
(4)
(5)
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(6)
Investigatory Powers Act 2016 (c.
25)
Part 5 — Equipment interference
Sections 119 to 122 contain further provision about making modifications
under this section.
Persons who may make modifications under section 118
The persons who may make modifications under section 118 of a warrant are
(subject to subsection (2))—
(a) in the case of a warrant issued by the Secretary of State under section
102 or 104—
(i) the Secretary of State, or
(ii) a senior official acting on behalf of the Secretary of State;
(b) in the case of a warrant issued by the Scottish Ministers under section
103—
(i) a member of the Scottish Government, or
(ii) a senior official acting on behalf of the Scottish Ministers.
Any of the following persons may also make modifications under section 118
of a warrant, but only where the person considers that there is an urgent need
to make the modification—
(a) the person to whom the warrant is addressed;
(b) a person who holds a senior position in the same public authority as the
person mentioned in paragraph (a).
Section 122 contains provision about the approval of modifications made in
urgent cases.
Subsection (2) is subject to section 120(4) and (5) (special rules where any of
sections 111 to 114 applies in relation to the making of a modification under
section 118).
For the purposes of subsection (2)(b), a person holds a senior position in a
public authority if—
(a) in the case of any of the intelligence services—
(i) the person is a member of the Senior Civil Service or a member
of the Senior Management Structure of Her Majesty’s
Diplomatic Service, or
(ii) the person holds a position in the intelligence service of
equivalent seniority to such a person;
(b) in the case of the Ministry of Defence—
(i) the person is a member of the Senior Civil Service, or
(ii) the person is of or above the rank of brigadier, commodore or
air commodore.
Further provision about modifications under section 118
A modification, other than a modification removing any matter, name or
description, may be made under section 118 only if the person making the
modification considers—
(a) that the modification is necessary on any relevant grounds (see
subsection (2)), and
(b) that the conduct authorised by the modification is proportionate to
what is sought to be achieved by that conduct.
In subsection (1)(a), “relevant grounds” means—
119
(1)
(2)
(3)
(4)
120
(1)
(2)
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99
(a)
(b)
(c)
(3)
in the case of a warrant issued under section 102, grounds falling within
section 102(5);
in the case of a warrant issued under section 103, the purpose of
preventing or detecting serious crime;
in the case of a warrant issued under section 104, the interests of
national security.
Sections 111 to 114 (additional safeguards) apply in relation to the making of a
modification to a warrant under section 118, other than a modification
removing any matter, name or description, as they apply in relation to the
issuing of a warrant.
Where section 111 applies in relation to the making of a modification—
(a) the modification must be made by the Secretary of State, and
(b) the modification has effect only if the decision to make the modification
has been approved by a Judicial Commissioner.
Where section 112, 113 or 114 applies in relation to the making of a
modification—
(a) the modification must be made by —
(i) the Secretary of State or (in the case of a warrant issued by the
Scottish Ministers) a member of the Scottish Government, or
(ii) if a senior official acting on behalf of a person within sub-
paragraph (i) considers that there is an urgent need to make the
modification, that senior official, and
(b) except where the person making the modification considers that there
is an urgent need to make it, the modification has effect only if the
decision to make the modification has been approved by a Judicial
Commissioner.
In a case where any of sections 111 to 114 applies in relation to the making of a
modification, section 108 (approval of warrants by Judicial Commissioners)
applies in relation to the decision to make the modification as it applies in
relation to a decision to issue a warrant, but as if—
(a) the references in subsection (1)(a) and (b) of that section to the warrant
were references to the modification, and
(b) any reference to the person who decided to issue the warrant were a
reference to the person who decided to make the modification.
Section 122 contains provision about the approval of modifications made in
urgent cases.
If, in a case where any of sections 111 to 114 applies in relation to the making
of a modification, it is not reasonably practicable for the instrument making the
modification to be signed by the Secretary of State or (as the case may be) a
member of the Scottish Government in accordance with section 118(4), the
instrument may be signed by a senior official designated by the Secretary of
State or (as the case may be) the Scottish Ministers for that purpose.
In such a case, the instrument making the modification must contain a
statement that—
(a) it is not reasonably practicable for the instrument to be signed by the
person who took the decision to make the modification, and
(b) the Secretary of State or (as the case may be) a member of the Scottish
Government has personally and expressly authorised the making of the
modification.
(4)
(5)
(6)
(7)
(8)
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100
121
(1)
Notification of modifications
Investigatory Powers Act 2016 (c.
25)
Part 5 — Equipment interference
As soon as is reasonably practicable after a person makes a modification of a
warrant under section 118, a Judicial Commissioner must be notified of the
modification and the reasons for making it.
But subsection (1) does not apply where—
(a) the modification is to remove any matter, name or description included
in the warrant in accordance with section 115(3) to (5),
(b) the modification is made by virtue of section 119(2), or
(c) any of sections 111 to 114 applies in relation to the making of the
modification.
Where a modification is made by a senior official in accordance with section
119(1) or section 120(5)(a)(ii), the Secretary of State or (in the case of a warrant
issued by the Scottish Ministers) a member of the Scottish Government must
be notified personally of the modification and the reasons for making it.
Approval of modifications under section 118 made in urgent cases
This section applies where a person makes a modification of a warrant by
virtue of section 119(2).
This section also applies where—
(a) section 112, 113 or 114 applies in relation to the making of a
modification under section 118,
(b) the person making the modification does so without the approval of a
Judicial Commissioner, and
(c) the person considered that there was an urgent need to make the
modification.
The person who made the modification must inform the appropriate person
that it has been made.
In this section—
“the appropriate person” is—
(a) in a case falling within subsection (1), a designated senior
official, and
(b) in a case falling within subsection (2), a Judicial Commissioner;
“designated senior official” means a senior official who has been
designated by the Secretary of State or (in the case of warrants issued
by the Scottish Ministers) the Scottish Ministers for the purposes of this
section.
The appropriate person must, before the end of the relevant period—
(a) decide whether to approve the decision to make the modification, and
(b) notify the person of the appropriate person’s decision.
“The relevant period” means the period ending with the third working day
after the day on which the modification was made.
As soon as is reasonably practicable after a designated senior official makes a
decision under subsection (5)—
(a) a Judicial Commissioner must be notified of—
(i) the decision, and
(2)
(3)
122
(1)
(2)
(3)
(4)
(5)
(6)
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101
(b)
if the senior official has decided to approve the decision to make
the modification, the modification in question, and
the Secretary of State or (in the case of a warrant issued by the Scottish
Ministers) a member of the Scottish Government must be notified
personally of the matters mentioned in paragraph (a)(i) and (ii).
(ii)
(7)
If the appropriate person refuses to approve the decision to make the
modification—
(a) the warrant (unless it no longer has effect) has effect as if the
modification had not been made, and
(b) the person to whom the warrant is addressed must, so far as is
reasonably practicable, secure that anything in the process of being
done under the warrant by virtue of that modification stops as soon as
possible;
and, in a case falling within subsection (2) above, section 108(5) does not apply
in relation to the refusal to approve the decision.
In a case where the appropriate person refuses to approve a decision to make
a modification of a targeted equipment interference warrant, the appropriate
person may authorise further interference with equipment for the purpose of
enabling the person to whom the warrant is addressed to secure that anything
in the process of being done under the warrant by virtue of the modification
stops as soon as possible.
If the appropriate person authorises further interference with equipment
under subsection (8), the Secretary of State or (in the case of a warrant issued
by the Scottish Ministers) a member of the Scottish Government must be
notified personally of the authorisation.
Nothing in this section affects the lawfulness of—
(a) anything done under the warrant by virtue of the modification before
the modification ceases to have effect;
(b) if anything is in the process of being done under the warrant by virtue
of the modification when the modification ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done which it is not reasonably practicable to stop.
Modification of warrants issued by law enforcement chiefs
The provisions of a warrant issued under section 106 by a law enforcement
chief, or by an appropriate delegate in relation to that chief, may be modified
at any time—
(a) by the law enforcement chief, or
(b) if the warrant was issued by an appropriate delegate, by that person.
The only modifications which may be made under this section are—
(a) adding to the matters to which the warrant relates (see section 101(1)
and (2)), by including the details required in relation to that matter by
section 115(3) or (5);
(b) removing a matter to which the warrant relates;
(c) adding (in relation to a matter to which the warrant relates) a name or
description to the names or descriptions included in the warrant in
accordance with section 115(3) or (5);
(8)
(9)
(10)
123
(1)
(2)
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102
(d)
(e)
(f)
(3)
Investigatory Powers Act 2016 (c.
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Part 5 — Equipment interference
varying or removing (in relation to a matter to which the warrant
relates) a name or description included in the warrant in accordance
with section 115(3) or (5);
adding to the descriptions of types of equipment included in the
warrant in accordance with section 115(4)(a);
varying or removing a description of a type of equipment included in
the warrant in accordance with section 115(4)(a).
But where a warrant relates only to a matter specified in section 101(1)(a), only
to a matter specified in section 101(1)(d), or only to both such matters, the
details included in the warrant in accordance with section 115(3) may not be
modified.
A modification may be made only if—
(a) except in the case of a modification removing any matter, name or
description, the person making the modification considers that—
(i) the modification is necessary on any relevant grounds (see
subsection (5)), and
(ii) the conduct authorised by the modification is proportionate to
what is sought to be achieved by that conduct, and
(b) except where the person making the modification considers that there
is an urgent need to make it, the decision to make the modification has
been approved by a Judicial Commissioner.
In subsection (4)(a), “relevant grounds” means—
(a) in the case of a warrant issued under section 106(1), the purpose
mentioned in section 106(1)(a);
(b) in the case of a warrant issued under section 106(3), the purpose
mentioned in section 106(3)(a).
The decision to make any modification must be taken personally by the person
making the modification, and the instrument making the modification must be
signed by that person.
Section 108 (approval of warrants by Judicial Commissioners) applies in
relation to a decision to make a modification of a warrant issued under section
106 as it applies in relation to a decision to issue such a warrant, but as if—
(a) the references in subsection (1)(a) and (b) of that section to the warrant
were references to the modification, and
(b) any reference to the person who decided to issue the warrant were a
reference to the person who decided to make the modification.
Sections 111 to 114 (additional safeguards) apply in relation to the making of a
modification to a warrant under this section, other than a modification
removing any matter, name or description, as they apply in relation to the
issuing of a warrant.
In the application of section 111 in accordance with subsection (8), subsection
(5) is to be read as if for the words from “unless” to the end of the subsection
there were substituted “unless the law enforcement chief believes that the
warrant (as modified) would authorise interference only with equipment
which would be in Scotland at the time of the making of the modification or
which the law enforcement chief believes would be in Scotland at that time”.
Where section 111 applies in relation to the making of a modification to a
warrant under this section, subsection (4)(b) of this section has effect in relation
(4)
(5)
(6)
(7)
(8)
(9)
(10)
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103
to the making of the modification as if the words “except where the person
making the modification considers that there is an urgent need to make it”
were omitted.
(11)
Nothing in this section applies in relation to modifying the provisions of a
warrant in a way which does not affect the conduct authorised or required by
it.
Approval of modifications under section 123 in urgent cases
This section applies where—
(a) a modification is made under section 123 without the approval of a
Judicial Commissioner, and
(b) the person who made the modification considered that there was an
urgent need to make it.
The person who made the modification must inform a Judicial Commissioner
that it has been made.
The Judicial Commissioner must, before the end of the relevant period—
(a) decide whether to approve the decision to make the modification, and
(b) notify the person of the Judicial Commissioner’s decision.
“The relevant period” means the period ending with the third working day
after the day on which the modification was made.
If the Judicial Commissioner refuses to approve the decision to make the
modification—
(a) the person who issued the warrant must be notified of the refusal,
(b) the warrant (unless it no longer has effect) has effect as if the
modification had not been made, and
(c) the person to whom the warrant is addressed must, so far as is
reasonably practicable, secure that anything in the process of being
done under the warrant by virtue of that modification stops as soon as
possible;
and section 108(5) does not apply in relation to the refusal to approve the
decision.
In a case where a Judicial Commissioner refuses to approve a decision to make
a modification of a targeted equipment interference warrant, the Judicial
Commissioner may authorise further interference with equipment for the
purpose of enabling the person to whom the warrant is addressed to secure
that anything in the process of being done under the warrant by virtue of the
modification stops as soon as possible.
If the Judicial Commissioner authorises further interference with equipment
under subsection (5), the person who issued the warrant must be informed of
the authorisation.
Nothing in this section affects the lawfulness of—
(a) anything done under the warrant by virtue of the modification before
the modification ceases to have effect;
(b) if anything is in the process of being done under the warrant by virtue
of the modification when the modification ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done which it is not reasonably practicable to stop.
124
(1)
(2)
(3)
(4)
(5)
(6)
(7)
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104
125
(1)
(2)
Cancellation of warrants
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Part 5 — Equipment interference
Any of the appropriate persons may cancel a warrant issued under this Part at
any time.
If any of the appropriate persons considers that—
(a) a warrant issued under this Part is no longer necessary on any relevant
grounds, or
(b) the conduct authorised by a warrant issued under this Part is no longer
proportionate to what is sought to be achieved by the conduct,
the person must cancel the warrant.
In subsection (2)(a), “relevant grounds” means—
(a) in the case of a warrant issued under section 102, grounds falling within
section 102(5);
(b) in the case of a warrant issued under section 103, the purpose of
preventing or detecting serious crime;
(c) in the case of a warrant issued under section 104, the interests of
national security;
(d) in the case of a warrant issued under section 106(1), the purpose
mentioned in section 106(1)(a);
(e) in the case of a warrant issued under section 106(3), the purpose
mentioned in section 106(3)(a).
For the purposes of this section, “the appropriate persons” are—
(a) in the case of a warrant issued by the Secretary of State under section
102 or 104, the Secretary of State or a senior official acting on behalf of
the Secretary of State;
(b) in the case of a warrant issued by the Scottish Ministers under section
103, a member of the Scottish Government or a senior official acting on
behalf of the Scottish Ministers;
(c) in the case of a warrant issued under section 106 by a law enforcement
chief or by an appropriate delegate in relation to the law enforcement
chief, either—
(i) the law enforcement chief, or
(ii) if the warrant was issued by an appropriate delegate, that
person.
Where a warrant is cancelled under this section, the person to whom the
warrant was addressed must, so far as is reasonably practicable, secure that
anything in the process of being done under the warrant stops as soon as
possible.
A warrant that has been cancelled under this section may not be renewed.
Implementation of warrants
(3)
(4)
(5)
(6)
126
(1)
Implementation of warrants
In giving effect to a targeted equipment interference warrant, the person to
whom it is addressed (“the implementing authority”) may (in addition to
acting alone) act through, or together with, such other persons as the
implementing authority may require (whether under subsection (2) or
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105
otherwise) to provide the authority with assistance in giving effect to the
warrant.
(2)
For the purpose of requiring any person to provide assistance in relation to a
targeted equipment interference warrant, the implementing authority may—
(a) serve a copy of the warrant on any person whom the implementing
authority considers may be able to provide such assistance, or
(b) make arrangements for the service of a copy of the warrant on any such
person.
A copy of a warrant may be served under subsection (2) on a person outside
the United Kingdom for the purpose of requiring the person to provide such
assistance in the form of conduct outside the United Kingdom.
For the purposes of this Act, the provision of assistance in giving effect to a
targeted equipment interference warrant includes any disclosure to the
implementing authority, or to persons acting on that person’s behalf, of
material obtained under the warrant.
The references in subsections (2) and (3) and sections 127 and 128 to the service
of a copy of a warrant include—
(a) the service of a copy of one or more schedules contained in the warrant
with the omission of the remainder of the warrant, and
(b) the service of a copy of the warrant with the omission of any schedule
contained in it.
Service of warrants
This section applies to the service of warrants under section 126(2).
A copy of the warrant must be served in such a way as to bring the contents of
the warrant to the attention of the person who the implementing authority
considers may be able to provide assistance in relation to it.
A copy of a warrant may be served on a person outside the United Kingdom in
any of the following ways (as well as by electronic or other means of service)—
(a) by serving it at the person’s principal office within the United Kingdom
or, if the person has no such office in the United Kingdom, at any place
in the United Kingdom where the person carries on business or
conducts activities;
(b) if the person has specified an address in the United Kingdom as one at
which the person, or someone on the person’s behalf, will accept
service of documents of the same description as a copy of a warrant, by
serving it at that address;
(c) by making it available for inspection (whether to the person or to
someone acting on the person’s behalf) at a place in the United
Kingdom (but this is subject to subsection (4)).
A copy of a warrant may be served on a person outside the United Kingdom in
the way mentioned in subsection (3)(c) only if—
(a) it is not reasonably practicable for a copy to be served by any other
means (whether as mentioned in subsection (3)(a) or (b) or otherwise),
and
(b) the implementing authority takes such steps as it considers appropriate
for the purpose of bringing the contents of the warrant, and the
availability of a copy for inspection, to the attention of the person.
(3)
(4)
(5)
127
(1)
(2)
(3)
(4)
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(5)
(6)
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Part 5 — Equipment interference
The steps mentioned in subsection (4)(b) must be taken as soon as reasonably
practicable after the copy of the warrant is made available for inspection.
In this section, “the implementing authority” has the same meaning as in
section 126.
Duty of telecommunications operators to assist with implementation
A telecommunications operator that has been served with a copy of a targeted
equipment interference warrant issued by the Secretary of State under section
102 or 104, or by the Scottish Ministers under section 103, must take all steps
for giving effect to the warrant which are notified to the telecommunications
operator by or on behalf of the person to whom the warrant is addressed.
A telecommunications operator that has been served with a copy of a targeted
equipment interference warrant issued under section 106 and addressed to a
law enforcement officer mentioned in subsection (3) must take all steps for
giving effect to the warrant which—
(a) were approved by the Secretary of State or, in the case of a warrant
addressed to a constable of the Police Service of Scotland, by the
Scottish Ministers, before the warrant was served, and
(b) are notified to the telecommunications operator by or on behalf of the
law enforcement officer.
The law enforcement officers mentioned in this subsection are—
(a) a National Crime Agency officer;
(b) an officer of Revenue and Customs;
(c) a constable of the Police Service of Scotland;
(d) a member of the Police Service of Northern Ireland;
(e) a member of the metropolitan police force.
The Secretary of State or the Scottish Ministers may give approval for the
purposes of subsection (2)(a) if the Secretary of State or (as the case may be) the
Scottish Ministers consider that—
(a) it is necessary for the telecommunications operator to be required to
take the steps, and
(b) the steps are proportionate to what is sought to be achieved by them.
A telecommunications operator is not required to take any steps which it is not
reasonably practicable for the telecommunications operator to take.
Where obligations have been imposed on a telecommunications operator (“P”)
under section 253 (technical capability notices), for the purposes of subsection
(5) the steps which it is reasonably practicable for P to take include every step
which it would have been reasonably practicable for P to take if P had
complied with all of those obligations.
The duty imposed by subsection (1) or (2) is enforceable against a person in the
United Kingdom by civil proceedings by the Secretary of State for an
injunction, or for specific performance of a statutory duty under section 45 of
the Court of Session Act 1988, or for any other appropriate relief.
128
(1)
(2)
(3)
(4)
(5)
(6)
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107
Supplementary provision
129
(1)
Safeguards relating to retention and disclosure of material
The issuing authority must ensure, in relation to every targeted equipment
interference warrant issued by that authority, that arrangements are in force
for securing that the requirements of subsections (2) and (5) are met in relation
to the material obtained under the warrant.
This is subject to subsection (10).
The requirements of this subsection are met in relation to the material obtained
under a warrant if each of the following is limited to the minimum that is
necessary for the authorised purposes (see subsection (3))—
(a) the number of persons to whom any of the material is disclosed or
otherwise made available;
(b) the extent to which any of the material is disclosed or otherwise made
available;
(c) the extent to which any of the material is copied;
(d) the number of copies that are made.
For the purposes of subsection (2), something is necessary for the authorised
purposes if, and only if—
(a) it is, or is likely to become, necessary on any relevant grounds (see
subsection (7)),
(b) it is necessary for facilitating the carrying out of any functions under
this Act of the Secretary of State, the Scottish Ministers or the person to
whom the warrant is or was addressed,
(c) it is necessary for facilitating the carrying out of any functions of the
Judicial Commissioners or of the Investigatory Powers Tribunal under
or in relation to this Act,
(d) it is necessary for the purpose of legal proceedings, or
(e) it is necessary for the performance of the functions of any person under
any enactment.
The arrangements for the time being in force under this section for securing
that the requirements of subsection (2) are met in relation to the material
obtained under the warrant must include arrangements for securing that every
copy made of any of that material is stored, for so long as it is retained, in a
secure manner.
The requirements of this subsection are met in relation to the material obtained
under a warrant if every copy made of any of that material (if not destroyed
earlier) is destroyed as soon as there are no longer any grounds for retaining it
(see subsection (6)).
For the purposes of subsection (5), there are no longer any grounds for
retaining a copy of any material if, and only if—
(a) its retention is not necessary, or not likely to become necessary, on any
relevant grounds (see subsection (7)), and
(b) its retention is not necessary for any of the purposes mentioned in
paragraphs (b) to (e) of subsection (3) above.
In subsections (3) and (6), “relevant grounds” means—
(a) in relation to a warrant issued under section 102, grounds falling within
section 102(5);
(2)
(3)
(4)
(5)
(6)
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(b)
(c)
(d)
(e)
(8)
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Part 5 — Equipment interference
in relation to a warrant issued under section 103, the purpose of
preventing or detecting serious crime;
in relation to a warrant issued under section 104, the interests of
national security;
in the case of a warrant issued under section 106(1), the purpose
mentioned in section 106(1)(a);
in the case of a warrant issued under section 106(3), the purpose
mentioned in section 106(3)(a).
Where—
(a) material obtained under a targeted equipment interference warrant is
retained, following its examination, for purposes other than the
destruction of the material, and
(b) it is material that contains confidential journalistic material or identifies
a source of journalistic material,
the person to whom the warrant is addressed must inform the Investigatory
Powers Commissioner as soon as is reasonably practicable.
Subsection (10) applies if—
(a) any material obtained under the warrant has been handed over to any
overseas authorities, or
(b) a copy of any such material has been given to any overseas authorities.
To the extent that the requirements of subsections (2) and (5) relate to any of
the material mentioned in subsection (9)(a), or to the copy mentioned in
subsection (9)(b), the arrangements made for the purpose of this section are not
required to secure that those requirements are met (see instead section 130).
In this section—
“copy”, in relation to material obtained under a warrant, means any of the
following (whether or not in documentary form)—
(a) any copy, extract or summary of the material which identifies
the material as having been obtained under the warrant, and
(b) any record which is a record of the identities of persons who
owned, used or were in possession of the equipment which was
interfered with to obtain that material,
and “copied” is to be read accordingly;
“the issuing authority” means—
(a) in the case of a warrant issued under section 102 or 104, the
Secretary of State;
(b) in the case of a warrant issued under section 103, the Scottish
Ministers;
(c) in the case of a warrant issued under section 106, the law
enforcement chief who issued the warrant (or on whose behalf
it was issued);
“overseas authorities” means authorities of a country or territory outside
the United Kingdom.
Safeguards relating to disclosure of material overseas
The issuing authority must ensure, in relation to every targeted equipment
interference warrant, that arrangements are in force for securing that—
(9)
(10)
(11)
130
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109
(a)
(b)
(2)
any material obtained under the warrant is handed over to overseas
authorities only if the requirements of subsection (2) are met, and
copies of any such material are given to overseas authorities only if
those requirements are met.
The requirements of this subsection are met in the case of a warrant if it appears
to the issuing authority that requirements corresponding to the requirements
of section 129(2) and (5) will apply, to such extent (if any) as the issuing
authority considers appropriate, in relation to any of the material which is
handed over, or any copy of which is given, to the authorities in question.
In this section—
“copy” has the same meaning as in section 129;
“issuing authority” also has the same meaning as in that section;
“overseas authorities” means authorities of a country or territory outside
the United Kingdom.
Additional safeguards for items subject to legal privilege
This section applies where an item subject to legal privilege which has been
obtained under a targeted equipment interference warrant is retained,
following its examination, for purposes other than the destruction of the item.
The person to whom the warrant is addressed must inform the Investigatory
Powers Commissioner of the retention of the item as soon as is reasonably
practicable.
Unless the Investigatory Powers Commissioner considers that subsection (5)
applies to the item, the Commissioner must—
(a) direct that the item is destroyed, or
(b) impose one or more conditions as to the use or retention of that item.
If the Investigatory Powers Commissioner considers that subsection (5) applies
to the item, the Commissioner may nevertheless impose such conditions under
subsection (3)(b) as the Commissioner considers necessary for the purpose of
protecting the public interest in the confidentiality of items subject to legal
privilege.
This subsection applies to an item subject to legal privilege if—
(a) the public interest in retaining the item outweighs the public interest in
the confidentiality of items subject to legal privilege, and
(b) retaining the item is necessary in the interests of national security or for
the purpose of preventing death or significant injury.
The Investigatory Powers Commissioner—
(a) may require an affected party to make representations about how the
Commissioner should exercise any function under subsection (3), and
(b) must have regard to any such representations made by an affected
party (whether or not as a result of a requirement imposed under
paragraph (a)).
Each of the following is an “affected party” for the purposes of subsection (6)—
(a) the issuing authority (within the meaning given by section 129(11));
(b) the person to whom the warrant is or was addressed.
(3)
131
(1)
(2)
(3)
(4)
(5)
(6)
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110
132
(1)
(2)
Duty not to make unauthorised disclosures
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Part 5 — Equipment interference
A person to whom this section applies must not make an unauthorised
disclosure to another person.
A person makes an unauthorised disclosure for the purposes of this section if—
(a) the person discloses any of the matters within subsection (4) in relation
to a warrant under this Part, and
(b) the disclosure is not an excepted disclosure (see section 133).
This section applies to the following persons—
(a) any person who may apply for a warrant under this Part;
(b) any person holding office under the Crown;
(c) any person employed by, or for the purposes of, a police force;
(d) any telecommunications operator;
(e) any person employed or engaged for the purposes of any business of a
telecommunications operator;
(f) any person to whom any of the matters within subsection (4) have been
disclosed in relation to a warrant under this Part.
The matters referred to in subsection (2)(a) are—
(a) the existence or contents of the warrant;
(b) the details of the issue of the warrant or of any renewal or modification
of the warrant;
(c) the existence or contents of any requirement to provide assistance in
giving effect to the warrant;
(d) the steps taken in pursuance of the warrant or of any such requirement;
(e) any of the material obtained under the warrant in a form which
identifies it as having been obtained under a warrant under this Part.
Section 132: meaning of “excepted disclosure”
For the purposes of section 132, a disclosure made in relation to a warrant is an
excepted disclosure if it falls within any of the Heads set out in—
(a) subsection (2) (disclosures authorised by warrant etc.);
(b) subsection (3) (oversight bodies);
(c) subsection (4) (legal proceedings);
(d) subsection (6) (disclosures of a general nature).
Head 1 is—
(a) a disclosure authorised by the warrant;
(b) a disclosure authorised by the person to whom the warrant is or was
addressed or under any arrangements made by that person for the
purposes of this section;
(c) a disclosure authorised by the terms of any requirement to provide
assistance in giving effect to the warrant (including any requirement
for disclosure imposed by virtue of section 126(4)).
Head 2 is—
(a) a disclosure made to, or authorised by, a Judicial Commissioner;
(b) a disclosure made to the Independent Police Complaints Commission
for the purposes of facilitating the carrying out of any of its functions;
(3)
(4)
133
(1)
(2)
(3)
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111
(c)
a disclosure made to the Intelligence and Security Committee of
Parliament for the purposes of facilitating the carrying out of any of its
functions.
(4)
Head 3 is—
(a) a disclosure made—
(i) in contemplation of, or in connection with, any legal
proceedings, and
(ii) for the purposes of those proceedings;
(b) a disclosure made—
(i) by a professional legal adviser (“L”) to L’s client or a
representative of L’s client, or
(ii) by L’s client, or by a representative of L’s client, to L,
in connection with the giving, by L to L’s client, of advice about the
effect of the provisions of this Part.
But a disclosure within Head 3 is not an excepted disclosure if it is made with
the intention of furthering a criminal purpose.
Head 4 is—
(a) a disclosure which—
(i) is made by a telecommunications operator in accordance with a
requirement imposed by regulations made by the Secretary of
State, and
(ii) consists of statistical information of a description specified in
the regulations;
(b) a disclosure of information that does not relate to any particular
warrant under this Part but relates to such warrants in general.
Offence of making unauthorised disclosure
A person commits an offence if—
(a) the person discloses any matter in breach of section 132(1), and
(b) the person knew that the disclosure was in breach of that section.
A person who is guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or
(ii) to a fine,
or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(5)
(6)
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(d)
(3)
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Part 5 — Equipment interference
on conviction on indictment, to imprisonment for a term not exceeding
5 years or to a fine, or to both.
In proceedings against any person for an offence under this section in respect
of any disclosure, it is a defence for the person to show that the person could
not reasonably have been expected, after first becoming aware of the matter
disclosed, to take steps to prevent the disclosure.
Part 5: interpretation
In this Part—
“communication” includes—
(a) anything comprising speech, music, sounds, visual images or
data of any description, and
(b) signals serving either for the impartation of anything between
persons, between a person and a thing or between things or for
the actuation or control of any apparatus;
“equipment” means equipment producing electromagnetic, acoustic or
other emissions or any device capable of being used in connection with
such equipment;
“equipment data” has the meaning given by section 100;
“private information” includes information relating to a person’s private
or family life;
“protected material”, in relation to a targeted examination warrant, has
the meaning given by section 99(9);
“senior official” means—
(a) in the case of a targeted equipment interference warrant which
is or may be issued by the Secretary of State or a law
enforcement chief, or in the case of a targeted examination
warrant which is or may be issued by the Secretary of State, a
member of the Senior Civil Service or a member of the Senior
Management Structure of Her Majesty’s Diplomatic Service;
(b) in the case of a targeted equipment interference warrant or a
targeted examination warrant which is or may be issued by the
Scottish Ministers, a member of the staff of the Scottish
Administration who is a member of the Senior Civil Service;
“targeted examination warrant” has the meaning given by section 99(9).
See also—
section 261 (telecommunications definitions),
section 263 (general definitions),
section 264 (general definitions: “journalistic material” etc.),
section 265 (index of defined expressions).
135
(1)
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Investigatory Powers Act 2016 (c.
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Part 6 — Bulk warrants
Chapter 1 — Bulk interception warrants
113
P
ART
6
B
ULK WARRANTS
C
HAPTER
1
B
ULK INTERCEPTION WARRANTS
Bulk interception warrants
136
(1)
(2)
Bulk interception warrants
For the purposes of this Act a “bulk interception warrant” is a warrant issued
under this Chapter which meets conditions A and B.
Condition A is that the main purpose of the warrant is one or more of the
following—
(a) the interception of overseas-related communications (see subsection
(3));
(b) the obtaining of secondary data from such communications (see section
137).
In this Chapter “overseas-related communications” means—
(a) communications sent by individuals who are outside the British
Islands, or
(b) communications received by individuals who are outside the British
Islands.
Condition B is that the warrant authorises or requires the person to whom it is
addressed to secure, by any conduct described in the warrant, any one or more
of the following activities—
(a) the interception, in the course of their transmission by means of a
telecommunication system, of communications described in the
warrant;
(b) the obtaining of secondary data from communications transmitted by
means of such a system and described in the warrant;
(c) the selection for examination, in any manner described in the warrant,
of intercepted content or secondary data obtained under the warrant;
(d) the disclosure, in any manner described in the warrant, of anything
obtained under the warrant to the person to whom the warrant is
addressed or to any person acting on that person’s behalf.
A bulk interception warrant also authorises the following conduct (in addition
to the conduct described in the warrant)—
(a) any conduct which it is necessary to undertake in order to do what is
expressly authorised or required by the warrant, including—
(i) the interception of communications not described in the
warrant, and
(ii) conduct for obtaining secondary data from such
communications;
(b) conduct by any person which is conduct in pursuance of a requirement
imposed by or on behalf of the person to whom the warrant is
addressed to be provided with assistance in giving effect to the
warrant;
(3)
(4)
(5)
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(c)
(6)
any conduct for obtaining
telecommunications operator.
related
systems
data
from
any
For the purposes of subsection (5)(c)—
“related systems data”, in relation to a warrant, means systems data
relating to a relevant communication or to the sender or recipient, or
intended recipient, of a relevant communication (whether or not a
person), and
“relevant communication”, in relation to a warrant, means—
(a) any communication intercepted in accordance with the warrant
in the course of its transmission by means of a
telecommunication system, or
(b) any communication from which secondary data is obtained
under the warrant.
Obtaining secondary data
This section has effect for the purposes of this Chapter.
References to obtaining secondary data from a communication transmitted by
means of a telecommunication system are references to obtaining such data—
(a) while the communication is being transmitted, or
(b) at any time when the communication is stored in or by the system
(whether before or after its transmission),
and references to secondary data obtained under a bulk interception warrant
are to be read accordingly.
“Secondary data”, in relation to a communication transmitted by means of a
telecommunication system, means any data falling within subsection (4) or (5).
The data falling within this subsection is systems data which is comprised in,
included as part of, attached to or logically associated with the communication
(whether by the sender or otherwise).
The data falling within this subsection is identifying data which—
(a) is comprised in, included as part of, attached to or logically associated
with the communication (whether by the sender or otherwise),
(b) is capable of being logically separated from the remainder of the
communication, and
(c) if it were so separated, would not reveal anything of what might
reasonably be considered to be the meaning (if any) of the
communication, disregarding any meaning arising from the fact of the
communication or from any data relating to the transmission of the
communication.
For the meaning of “systems data” and “identifying data”, see section 263.
Power to issue bulk interception warrants
The Secretary of State may, on an application made by or on behalf of the head
of an intelligence service, issue a bulk interception warrant if—
(a) the Secretary of State considers that the main purpose of the warrant is
one or more of the following—
(i) the interception of overseas-related communications, and
(ii) the obtaining of secondary data from such communications,
137
(1)
(2)
(3)
(4)
(5)
(6)
138
(1)
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the Secretary of State considers that the warrant is necessary—
(i) in the interests of national security, or
(ii) on that ground and on any other grounds falling within
subsection (2),
(c) the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(d) the Secretary of State considers that—
(i) each of the specified operational purposes (see section 142) is a
purpose for which the examination of intercepted content or
secondary data obtained under the warrant is or may be
necessary, and
(ii) the examination of intercepted content or secondary data for
each such purpose is necessary on any of the grounds on which
the Secretary of State considers the warrant to be necessary,
(e) the Secretary of State considers that satisfactory arrangements made for
the purposes of sections 150 and 151 (safeguards relating to disclosure
etc.) are in force in relation to the warrant,
(f) in a case where the Secretary of State considers that a
telecommunications operator outside the United Kingdom is likely to
be required to provide assistance in giving effect to the warrant if it is
issued, the Secretary of State has complied with section 139, and
(g) the decision to issue the warrant has been approved by a Judicial
Commissioner.
For the meaning of “head of an intelligence service”, see section 263.
(2)
A warrant is necessary on grounds falling within this subsection if it is
necessary—
(a) for the purpose of preventing or detecting serious crime, or
(b) in the interests of the economic well-being of the United Kingdom so
far as those interests are also relevant to the interests of national
security (but see subsection (3)).
A warrant may be considered necessary on the ground falling within
subsection (2)(b) only if the information which it is considered necessary to
obtain is information relating to the acts or intentions of persons outside the
British Islands.
A warrant may not be considered necessary in the interests of national security
or on any other grounds falling within subsection (2) if it is considered
necessary only for the purpose of gathering evidence for use in any legal
proceedings.
An application for the issue of a bulk interception warrant may only be made
on behalf of the head of an intelligence service by a person holding office under
the Crown.
Additional requirements in respect of warrants affecting overseas operators
This section applies where—
(a) an application for a bulk interception warrant has been made, and
(b) the Secretary of State considers that a telecommunications operator
outside the United Kingdom is likely to be required to provide
assistance in giving effect to the warrant if it is issued.
(b)
(3)
(4)
(5)
139
(1)
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(2)
(3)
Before issuing the warrant, the Secretary of State must consult the operator.
Before issuing the warrant, the Secretary of State must, among other matters,
take into account—
(a) the likely benefits of the warrant,
(b) the likely number of users (if known) of any telecommunications
service which is provided by the operator and to which the warrant
relates,
(c) the technical feasibility of complying with any requirement that may be
imposed on the operator to provide assistance in giving effect to the
warrant,
(d) the likely cost of complying with any such requirement, and
(e) any other effect of the warrant on the operator.
Approval of warrants by Judicial Commissioners
In deciding whether to approve a decision to issue a warrant under section 138,
a Judicial Commissioner must review the Secretary of State’s conclusions as to
the following matters—
(a) whether the warrant is necessary as mentioned in subsection (1)(b) of
that section,
(b) whether the conduct that would be authorised by the warrant is
proportionate to what is sought to be achieved by that conduct,
(c) whether—
(i) each of the specified operational purposes (see section 142) is a
purpose for which the examination of intercepted content or
secondary data obtained under the warrant is or may be
necessary, and
(ii) the examination of intercepted content or secondary data for
each such purpose is necessary as mentioned in section
138(1)(d)(ii), and
(d) any matters taken into account in accordance with section 139.
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).
Where a Judicial Commissioner refuses to approve a decision to issue a
warrant under section 138, the Judicial Commissioner must give the Secretary
of State written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to issue a warrant under section
138, the Secretary of State may ask the Investigatory Powers Commissioner to
decide whether to approve the decision to issue the warrant.
Decisions to issue warrants to be taken personally by Secretary of State
The decision to issue a bulk interception warrant must be taken personally by
the Secretary of State.
140
(1)
(2)
(3)
(4)
141
(1)
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(2)
Before a bulk interception warrant is issued, it must be signed by the Secretary
of State.
Requirements that must be met by warrants
A bulk interception warrant must contain a provision stating that it is a bulk
interception warrant.
A bulk interception warrant must be addressed to the head of the intelligence
service by whom, or on whose behalf, the application for the warrant was
made.
A bulk interception warrant must specify the operational purposes for which
any intercepted content or secondary data obtained under the warrant may be
selected for examination.
The operational purposes specified in the warrant must be ones specified, in a
list maintained by the heads of the intelligence services (“the list of operational
purposes”), as purposes which they consider are operational purposes for
which intercepted content or secondary data obtained under bulk interception
warrants may be selected for examination.
The warrant may, in particular, specify all of the operational purposes which,
at the time the warrant is issued, are specified in the list of operational
purposes.
An operational purpose may be specified in the list of operational purposes
only with the approval of the Secretary of State.
The Secretary of State may give such approval only if satisfied that the
operational purpose is specified in a greater level of detail than the descriptions
contained in section 138(1)(b) or (2).
At the end of each relevant three-month period the Secretary of State must give
a copy of the list of operational purposes to the Intelligence and Security
Committee of Parliament.
In subsection (8) “relevant three-month period” means—
(a) the period of three months beginning with the day on which this
section comes into force, and
(b) each successive period of three months.
The Prime Minister must review the list of operational purposes at least once a
year.
In this Chapter “the specified operational purposes”, in relation to a bulk
interception warrant, means the operational purposes specified in the warrant
in accordance with this section.
Duration, modification and cancellation of warrants
142
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
143
(1)
Duration of warrants
A bulk interception warrant (unless already cancelled) ceases to have effect at
the end of the period of 6 months beginning with—
(a) the day on which the warrant was issued, or
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(b)
in the case of a warrant that has been renewed, the day after the day at
the end of which the warrant would have ceased to have effect if it had
not been renewed.
(2)
144
(1)
For provision about the renewal of warrants, see section 144.
Renewal of warrants
If the renewal conditions are met, a bulk interception warrant may be renewed,
at any time during the renewal period, by an instrument issued by the
Secretary of State.
This is subject to subsection (6).
The renewal conditions are—
(a) that the Secretary of State considers that the warrant continues to be
necessary—
(i) in the interests of national security, or
(ii) on that ground and on any other grounds falling within section
138(2),
(b) that the Secretary of State considers that the conduct that would be
authorised by the renewed warrant continues to be proportionate to
what is sought to be achieved by that conduct,
(c) that the Secretary of State considers that—
(i) each of the specified operational purposes (see section 142) is a
purpose for which the examination of intercepted content or
secondary data obtained under the warrant continues to be, or
may be, necessary, and
(ii) the examination of intercepted content or secondary data for
each such purpose continues to be necessary on any of the
grounds on which the Secretary of State considers that the
warrant continues to be necessary, and
(d) that the decision to renew the warrant has been approved by a Judicial
Commissioner.
“The renewal period” means the period of 30 days ending with the day at the
end of which the warrant would otherwise cease to have effect.
The decision to renew a bulk interception warrant must be taken personally by
the Secretary of State, and the instrument renewing the warrant must be signed
by the Secretary of State.
Section 140 (approval of warrants by Judicial Commissioners) applies in
relation to a decision to renew a bulk interception warrant as it applies in
relation to a decision to issue a bulk interception warrant, but with the
omission of paragraph (d) of subsection (1).
This is subject to subsection (6).
In the case of the renewal of a bulk interception warrant that has been modified
so that it no longer authorises or requires the interception of communications
or the obtaining of secondary data—
(a) the renewal condition in subsection (2)(a) is to be disregarded,
(b) the reference in subsection (2)(c)(ii) to the grounds on which the
Secretary of State considers the warrant to be necessary is to be read as
a reference to any grounds falling within section 138(1)(b) or (2), and
(c) section 140 has effect as if—
(2)
(3)
(4)
(5)
(6)
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(i)
(ii)
paragraph (a) of subsection (1) were omitted, and
the reference in subsection (1)(c)(ii) to the grounds on which the
Secretary of State considers the warrant to be necessary were a
reference to any grounds falling within section 138(1)(b) or (2).
145
(1)
(2)
Modification of warrants
The provisions of a bulk interception warrant may be modified at any time by
an instrument issued by the person making the modification.
The only modifications that may be made under this section are—
(a) adding, varying or removing any operational purpose specified in the
warrant as a purpose for which any intercepted content or secondary
data obtained under the warrant may be selected for examination, and
(b) providing that the warrant no longer authorises or requires (to the
extent that it did so previously)—
(i) the interception of any communications in the course of their
transmission by means of a telecommunication system, or
(ii) the obtaining of any secondary data from communications
transmitted by means of such a system.
In this section—
(a) a modification adding or varying any operational purpose as
mentioned in paragraph (a) of subsection (2) is referred to as a “major
modification”, and
(b) any other modification within that subsection is referred to as a “minor
modification”.
A major modification—
(a) must be made by the Secretary of State, and
(b) may be made only if the Secretary of State considers that it is necessary
on any of the grounds on which the Secretary of State considers the
warrant to be necessary (see section 138(1)(b)).
Except where the Secretary of State considers that there is an urgent need to
make the modification, a major modification has effect only if the decision to
make the modification is approved by a Judicial Commissioner.
A minor modification may be made by—
(a) the Secretary of State, or
(b) a senior official acting on behalf of the Secretary of State.
Where a minor modification is made by a senior official, the Secretary of State
must be notified personally of the modification and the reasons for making it.
If at any time a person mentioned in subsection (6) considers that any
operational purpose specified in a warrant is no longer a purpose for which the
examination of intercepted content or secondary data obtained under the
warrant is or may be necessary, the person must modify the warrant by
removing that operational purpose.
The decision to modify the provisions of a warrant must be taken personally
by the person making the modification, and the instrument making the
modification must be signed by that person.
This is subject to subsection (10).
(3)
(4)
(5)
(6)
(7)
(8)
(9)
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(10)
If it is not reasonably practicable for an instrument making a major
modification to be signed by the Secretary of State, the instrument may be
signed by a senior official designated by the Secretary of State for that purpose.
In such a case, the instrument making the modification must contain a
statement that—
(a) it is not reasonably practicable for the instrument to be signed by the
Secretary of State, and
(b) the Secretary of State has personally and expressly authorised the
making of the modification.
Despite section 136(2), the modification of a bulk interception warrant as
mentioned in subsection (2)(b) above does not prevent the warrant from being
a bulk interception warrant.
Nothing in this section applies in relation to modifying the provisions of a
warrant in a way which does not affect the conduct authorised or required by
it.
Approval of major modifications by Judicial Commissioners
In deciding whether to approve a decision to make a major modification of a
bulk interception warrant, a Judicial Commissioner must review the Secretary
of State’s conclusions as to whether the modification is necessary on any of the
grounds on which the Secretary of State considers the warrant to be necessary.
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matter referred to in subsection (1) with a sufficient degree
of care as to ensure that the Judicial Commissioner complies with the
duties imposed by section 2 (general duties in relation to privacy).
Where a Judicial Commissioner refuses to approve a decision to make a major
modification under section 145, the Judicial Commissioner must give the
Secretary of State written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to make a major modification
under section 145, the Secretary of State may ask the Investigatory Powers
Commissioner to decide whether to approve the decision to make the
modification.
Approval of major modifications made in urgent cases
This section applies where—
(a) the Secretary of State makes a major modification of a bulk interception
warrant without the approval of a Judicial Commissioner, and
(b) the Secretary of State considered that there was an urgent need to make
the modification.
The Secretary of State must inform a Judicial Commissioner that the
modification has been made.
The Judicial Commissioner must, before the end of the relevant period—
(a) decide whether to approve the decision to make the modification, and
(11)
(12)
(13)
146
(1)
(2)
(3)
(4)
147
(1)
(2)
(3)
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(b) notify the Secretary of State of the Judicial Commissioner’s decision.
“The relevant period” means the period ending with the third working day
after the day on which the modification was made.
(4)
If the Judicial Commissioner refuses to approve the decision to make the
modification—
(a) the warrant (unless it no longer has effect) has effect as if the
modification had not been made, and
(b) the person to whom the warrant is addressed must, so far as is
reasonably practicable, secure that anything in the process of being
done under the warrant by virtue of that modification stops as soon as
possible,
and section 146(4) does not apply in relation to the refusal to approve the
decision.
Nothing in this section affects the lawfulness of—
(a) anything done under the warrant by virtue of the modification before
the modification ceases to have effect;
(b) if anything is in the process of being done under the warrant by virtue
of the modification when the modification ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done which it is not reasonably practicable to stop.
Cancellation of warrants
The Secretary of State, or a senior official acting on behalf of the Secretary of
State, may cancel a bulk interception warrant at any time.
If the Secretary of State, or a senior official acting on behalf of the Secretary of
State, considers that any of the cancellation conditions are met in relation to a
bulk interception warrant, the person must cancel the warrant.
The cancellation conditions are—
(a) that the warrant is no longer necessary in the interests of national
security;
(b) that the conduct authorised by the warrant is no longer proportionate
to what is sought to be achieved by that conduct;
(c) that the examination of intercepted content or secondary data obtained
under the warrant is no longer necessary for any of the specified
operational purposes (see section 142).
But the condition in subsection (3)(a) does not apply where the warrant has
been modified so that it no longer authorises or requires the interception of
communications or the obtaining of secondary data.
Where a warrant is cancelled under this section, the person to whom the
warrant was addressed must, so far as is reasonably practicable, secure that
anything in the process of being done under the warrant stops as soon as
possible.
A warrant that has been cancelled under this section may not be renewed.
(5)
148
(1)
(2)
(3)
(4)
(5)
(6)
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149
(1)
Implementation of warrants
In giving effect to a bulk interception warrant, the person to whom it is
addressed (“the implementing authority”) may (in addition to acting alone) act
through, or together with, such other persons as the implementing authority
may require (whether under subsection (2) or otherwise) to provide the
authority with assistance in giving effect to the warrant.
For the purpose of requiring any person to provide assistance in relation to a
bulk interception warrant, the implementing authority may—
(a) serve a copy of the warrant on any person who the implementing
authority considers may be able to provide such assistance, or
(b) make arrangements for the service of a copy of the warrant on any such
person.
A copy of a warrant may be served under subsection (2) on a person outside
the United Kingdom for the purpose of requiring the person to provide such
assistance in the form of conduct outside the United Kingdom.
For the purposes of this Act, the provision of assistance in giving effect to a
bulk interception warrant includes any disclosure to the implementing
authority, or to persons acting on behalf of the implementing authority, of
anything obtained under the warrant.
Sections 42 (service of warrants) and 43 (duty of operators to assist with
implementation) apply in relation to a bulk interception warrant as they apply
in relation to a targeted interception warrant.
References in this section (and in sections 42 and 43 as they apply in relation to
bulk interception warrants) to the service of a copy of a warrant include—
(a) the service of a copy of one or more schedules contained in the warrant
with the omission of the remainder of the warrant, and
(b) the service of a copy of the warrant with the omission of any schedule
contained in the warrant.
Restrictions on use or disclosure of material obtained under warrants etc.
150
(1)
Safeguards relating to retention and disclosure of material
The Secretary of State must ensure, in relation to every bulk interception
warrant, that arrangements are in force for securing—
(a) that the requirements of subsections (2) and (5) are met in relation to the
material obtained under the warrant, and
(b) that the requirements of section 152 are met in relation to the
intercepted content or secondary data obtained under the warrant.
This is subject to subsection (8).
The requirements of this subsection are met in relation to the material obtained
under a warrant if each of the following is limited to the minimum that is
necessary for the authorised purposes (see subsection (3))—
(a) the number of persons to whom any of the material is disclosed or
otherwise made available;
(2)
(3)
(4)
(5)
(6)
(2)
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(b)
(c)
(d)
(3)
the extent to which any of the material is disclosed or otherwise made
available;
the extent to which any of the material is copied;
the number of copies that are made.
For the purposes of subsection (2) something is necessary for the authorised
purposes if, and only if—
(a) it is, or is likely to become, necessary in the interests of national security
or on any other grounds falling within section 138(2),
(b) it is necessary for facilitating the carrying out of any functions under
this Act of the Secretary of State, the Scottish Ministers or the head of
the intelligence service to whom the warrant is or was addressed,
(c) it is necessary for facilitating the carrying out of any functions of the
Judicial Commissioners or the Investigatory Powers Tribunal under or
in relation to this Act,
(d) it is necessary to ensure that a person (“P”) who is conducting a
criminal prosecution has the information P needs to determine what is
required of P by P’s duty to secure the fairness of the prosecution, or
(e) it is necessary for the performance of any duty imposed on any person
by the Public Records Act 1958 or the Public Records Act (Northern
Ireland) 1923.
The arrangements for the time being in force under this section for securing
that the requirements of subsection (2) are met in relation to the material
obtained under the warrant must include arrangements for securing that every
copy made of any of that material is stored, for so long as it is retained, in a
secure manner.
The requirements of this subsection are met in relation to the material obtained
under a warrant if every copy made of any of that material (if not destroyed
earlier) is destroyed as soon as there are no longer any relevant grounds for
retaining it (see subsection (6)).
For the purposes of subsection (5), there are no longer any relevant grounds for
retaining a copy of any material if, and only if—
(a) its retention is not necessary, or not likely to become necessary, in the
interests of national security or on any other grounds falling within
section 138(2), and
(b) its retention is not necessary for any of the purposes mentioned in
paragraphs (b) to (e) of subsection (3) above.
Subsection (8) applies if—
(a) any material obtained under the warrant has been handed over to any
overseas authorities, or
(b) a copy of any such material has been given to any overseas authorities.
To the extent that the requirements of subsections (2) and (5) and section 152
relate to any of the material mentioned in subsection (7)(a), or to the copy
mentioned in subsection (7)(b), the arrangements made for the purposes of this
section are not required to secure that those requirements are met (see instead
section 151).
In this section—
“copy”, in relation to material obtained under a warrant, means any of the
following (whether or not in documentary form)—
(4)
(5)
(6)
(7)
(8)
(9)
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any copy, extract or summary of the material which identifies
the material as having been obtained under the warrant, and
(b) any record which—
(i) refers to any interception or to the obtaining of any
material, and
(ii) is a record of the identities of the persons to or by whom
the material was sent, or to whom the material relates,
and “copied” is to be read accordingly;
“overseas authorities” means authorities of a country or territory outside
the United Kingdom.
151
(1)
Safeguards relating to disclosure of material overseas
The Secretary of State must ensure, in relation to every bulk interception
warrant, that arrangements are in force for securing that—
(a) any material obtained under the warrant is handed over to overseas
authorities only if the requirements of subsection (2) are met, and
(b) copies of any such material are given to overseas authorities only if
those requirements are met.
The requirements of this subsection are met in the case of a warrant if it appears
to the Secretary of State—
(a) that requirements corresponding to the requirements of section 150(2)
and (5) and section 152 will apply, to such extent (if any) as the
Secretary of State considers appropriate, in relation to any of the
material which is handed over, or any copy of which is given, to the
authorities in question, and
(b) that restrictions are in force which would prevent, to such extent (if
any) as the Secretary of State considers appropriate, the doing of
anything in, for the purposes of or in connection with any proceedings
outside the United Kingdom which would result in a prohibited
disclosure.
In subsection (2)(b) “prohibited disclosure” means a disclosure which, if made
in the United Kingdom, would breach the prohibition in section 56(1) (see
section 156).
In this section—
“copy” has the same meaning as in section 150;
“overseas authorities” means authorities of a country or territory outside
the United Kingdom.
Safeguards relating to examination of material
For the purposes of section 150 the requirements of this section are met in
relation to the intercepted content and secondary data obtained under a
warrant if—
(a) the selection of any of the intercepted content or secondary data for
examination is carried out only for the specified purposes (see
subsection (2)),
(b) the selection of any of the intercepted content or secondary data for
examination is necessary and proportionate in all the circumstances,
and
(a)
(2)
(3)
(4)
152
(1)
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(c)
(2)
the selection of any of the intercepted content for examination meets
any of the selection conditions (see subsection (3)).
The selection of intercepted content or secondary data for examination is
carried out only for the specified purposes if the intercepted content or
secondary data is selected for examination only so far as is necessary for the
operational purposes specified in the warrant in accordance with section 142.
In this subsection “specified in the warrant” means specified in the warrant at
the time of the selection of the intercepted content or secondary data for
examination.
The selection conditions referred to in subsection (1)(c) are—
(a) that the selection of the intercepted content for examination does not
breach the prohibition in subsection (4);
(b) that the person to whom the warrant is addressed considers that the
selection of the intercepted content for examination would not breach
that prohibition;
(c) that the selection of the intercepted content for examination in breach
of that prohibition is authorised by subsection (5);
(d) that the selection of the intercepted content for examination in breach
of that prohibition is authorised by a targeted examination warrant
issued under Chapter 1 of Part 2.
The prohibition referred to in subsection (3)(a) is that intercepted content may
not at any time be selected for examination if—
(a) any criteria used for the selection of the intercepted content for
examination are referable to an individual known to be in the British
Islands at that time, and
(b) the purpose of using those criteria is to identify the content of
communications sent by, or intended for, that individual.
It does not matter for the purposes of this subsection whether the identity of
the individual is known.
The selection of intercepted content (“the relevant content”) for examination is
authorised by this subsection if—
(a) criteria referable to an individual have been, or are being, used for the
selection of intercepted content for examination in circumstances
falling within subsection (3)(a) or (b),
(b) at any time it appears to the person to whom the warrant is addressed
that there has been a relevant change of circumstances in relation to the
individual (see subsection (6)) which would mean that the selection of
the relevant content for examination would breach the prohibition in
subsection (4),
(c) since that time, a written authorisation to examine the relevant content
using those criteria has been given by a senior officer, and
(d) the selection of the relevant content for examination is made before the
end of the permitted period (see subsection (7)).
For the purposes of subsection (5)(b) there is a relevant change of
circumstances in relation to an individual if—
(a) the individual has entered the British Islands, or
(b) a belief by the person to whom the warrant is addressed that the
individual was outside the British Islands was in fact mistaken.
In subsection (5)—
(3)
(4)
(5)
(6)
(7)
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“senior officer”, in relation to a warrant addressed to the head of an
intelligence service, means a member of the intelligence service who—
(a) is a member of the Senior Civil Service or a member of the
Senior Management Structure of Her Majesty’s Diplomatic
Service, or
(b) holds a position in the intelligence service of equivalent
seniority to such a member;
“the permitted period” means the period ending with the fifth working
day after the time mentioned in subsection (5)(b).
(8)
In a case where the selection of intercepted content for examination is
authorised by subsection (5), the person to whom the warrant is addressed
must notify the Secretary of State that the selection is being carried out.
Additional safeguards for items subject to legal privilege
Subsection (2) applies if, in a case where intercepted content obtained under a
bulk interception warrant is to be selected for examination—
(a) the selection of the intercepted content for examination meets any of
the selection conditions in section 152(3)(a) to (c), and
(b) either—
(i) the purpose, or one of the purposes, of using the criteria to be
used for the selection of the intercepted content for examination
(“the relevant criteria”) is to identify any items subject to legal
privilege, or
(ii) the use of the relevant criteria is likely to identify such items.
The intercepted content may be selected for examination using the relevant
criteria only if a senior official acting on behalf of the Secretary of State has
approved the use of those criteria.
In deciding whether to give an approval under subsection (2) in a case where
subsection (1)(b)(i) applies, a senior official must have regard to the public
interest in the confidentiality of items subject to legal privilege.
A senior official may give an approval under subsection (2) only if—
(a) the official considers that the arrangements made for the purposes of
section 150 (safeguards relating to retention and disclosure of material)
include specific arrangements for the handling, retention, use and
destruction of items subject to legal privilege, and
(b) where subsection (1)(b)(i) applies, the official considers that there are
exceptional and compelling circumstances that make it necessary to
authorise the use of the relevant criteria.
For the purposes of subsection (4)(b), there cannot be exceptional and
compelling circumstances that make it necessary to authorise the use of the
relevant criteria unless—
(a) the public interest in obtaining the information that would be obtained
by the selection of the intercepted content for examination outweighs
the public interest in the confidentiality of items subject to legal
privilege,
(b) there are no other means by which the information may reasonably be
obtained, and
(c) obtaining the information is necessary in the interests of national
security or for the purpose of preventing death or significant injury.
153
(1)
(2)
(3)
(4)
(5)
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(6)
Subsection (7) applies if, in a case where intercepted content obtained under a
bulk interception warrant is to be selected for examination—
(a) the selection of the intercepted content for examination meets any of
the selection conditions in section 152(3)(a) to (c),
(b) the purpose, or one of the purposes, of using the criteria to be used for
the selection of the intercepted content for examination (“the relevant
criteria”) is to identify communications that, if they were not made with
the intention of furthering a criminal purpose, would be items subject
to legal privilege, and
(c) the person to whom the warrant is addressed considers that the
communications (“the targeted communications”) are likely to be
communications made with the intention of furthering a criminal
purpose.
The intercepted content may be selected for examination using the relevant
criteria only if a senior official acting on behalf of the Secretary of State has
approved the use of those criteria.
A senior official may give an approval under subsection (7) only if the official
considers that the targeted communications are likely to be communications
made with the intention of furthering a criminal purpose.
Where an item subject to legal privilege which has been intercepted in
accordance with a bulk interception warrant is retained following its
examination, for purposes other than the destruction of the item, the person to
whom the warrant is addressed must inform the Investigatory Powers
Commissioner as soon as is reasonably practicable.
(For provision about the grounds for retaining material obtained under a
warrant, see section 150.)
Unless the Investigatory Powers Commissioner considers that subsection (12)
applies to the item, the Commissioner must—
(a) direct that the item is destroyed, or
(b) impose one or more conditions as to the use or retention of that item.
If the Investigatory Powers Commissioner considers that subsection (12)
applies to the item, the Commissioner may nevertheless impose such
conditions under subsection (10)(b) as the Commissioner considers necessary
for the purpose of protecting the public interest in the confidentiality of items
subject to legal privilege.
This subsection applies to an item subject to legal privilege if—
(a) the public interest in retaining the item outweighs the public interest in
the confidentiality of items subject to legal privilege, and
(b) retaining the item is necessary in the interests of national security or for
the purpose of preventing death or significant injury.
The Investigatory Powers Commissioner—
(a) may require an affected party to make representations about how the
Commissioner should exercise any function under subsection (10), and
(b) must have regard to any such representations made by an affected
party (whether or not as a result of a requirement imposed under
paragraph (a)).
Each of the following is an “affected party” for the purposes of subsection
(13)—
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
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(a)
(b)
154
the Secretary of State;
the person to whom the warrant is or was addressed.
Additional safeguard for confidential journalistic material
Where—
(a) a communication which has been intercepted in accordance with a bulk
interception warrant is retained, following its examination, for
purposes other than the destruction of the communication, and
(b) it is a communication containing confidential journalistic material,
the person to whom the warrant is addressed must inform the Investigatory
Powers Commissioner as soon as is reasonably practicable.
(For provision about the grounds for retaining material obtained under a
warrant, see section 150.)
155
(1)
Offence of breaching safeguards relating to examination of material
A person commits an offence if—
(a) the person selects for examination any intercepted content or
secondary data obtained under a bulk interception warrant,
(b) the person knows or believes that the selection of that intercepted
content or secondary data for examination does not comply with a
requirement imposed by section 152 or 153, and
(c) the person deliberately selects that intercepted content or secondary
data for examination in breach of that requirement.
A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or
(ii) to a fine,
or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.
No proceedings for any offence which is an offence by virtue of this section
may be instituted—
(a) in England and Wales, except by or with the consent of the Director of
Public Prosecutions;
(b) in Northern Ireland, except by or with the consent of the Director of
Public Prosecutions for Northern Ireland.
(2)
(3)
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129
156
(1)
Application of other restrictions in relation to warrants
Section 56 and Schedule 3 (exclusion of matters from legal proceedings etc.)
apply in relation to bulk interception warrants as they apply in relation to
targeted interception warrants.
Sections 57 to 59 (duty not to make unauthorised disclosures) apply in relation
to bulk interception warrants as they apply in relation to targeted interception
warrants, but as if the reference in section 58(2)(c) to a requirement for
disclosure imposed by virtue of section 41(5) were a reference to such a
requirement imposed by virtue of section 149(4).
Interpretation
(2)
157
(1)
Chapter 1: interpretation
In this Chapter—
“intercepted content”, in relation to a bulk interception warrant, means
any content of communications intercepted by an interception
authorised or required by the warrant;
“overseas-related communications” has the meaning given by section 136;
“secondary data” has the meaning given by section 137, and references to
obtaining secondary data from a communication are to be read in
accordance with that section;
“senior official” means a member of the Senior Civil Service or a member
of the Senior Management Structure of Her Majesty’s Diplomatic
Service;
“the specified operational purposes” has the meaning given by section
142(11).
See also—
section 261 (telecommunications definitions),
section 263 (general definitions),
section 264 (general definitions: “journalistic material” etc.),
section 265 (index of defined expressions).
C
HAPTER
2
B
ULK ACQUISITION WARRANTS
Bulk acquisition warrants
(2)
158
(1)
Power to issue bulk acquisition warrants
The Secretary of State may, on an application made by or on behalf of the head
of an intelligence service, issue a bulk acquisition warrant if—
(a) the Secretary of State considers that the warrant is necessary—
(i) in the interests of national security, or
(ii) on that ground and on any other grounds falling within
subsection (2),
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the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(c) the Secretary of State considers that—
(i) each of the specified operational purposes (see section 161) is a
purpose for which the examination of communications data
obtained under the warrant is or may be necessary, and
(ii) the examination of such data for each such purpose is necessary
on any of the grounds on which the Secretary of State considers
the warrant to be necessary,
(d) the Secretary of State considers that satisfactory arrangements made for
the purposes of section 171 (safeguards relating to the retention and
disclosure of data) are in force in relation to the warrant, and
(e) the decision to issue the warrant has been approved by a Judicial
Commissioner.
For the meaning of “head of an intelligence service”, see section 263.
(2)
A warrant is necessary on grounds falling within this subsection if it is
necessary—
(a) for the purpose of preventing or detecting serious crime, or
(b) in the interests of the economic well-being of the United Kingdom so
far as those interests are also relevant to the interests of national
security (but see subsection (3)).
A warrant may be considered necessary on the ground falling within
subsection (2)(b) only if the communications data which it is considered
necessary to obtain is communications data relating to the acts or intentions of
persons outside the British Islands.
The fact that the communications data which would be obtained under a
warrant relates to the activities in the British Islands of a trade union is not, of
itself, sufficient to establish that the warrant is necessary in the interests of
national security or on that ground and a ground falling within subsection (2).
A bulk acquisition warrant is a warrant which authorises or requires the
person to whom it is addressed to secure, by any conduct described in the
warrant, any one or more of the activities in subsection (6).
The activities are—
(a) requiring a telecommunications operator specified in the warrant—
(i) to disclose to a person specified in the warrant any
communications data which is specified in the warrant and is in
the possession of the operator,
(ii) to obtain any communications data specified in the warrant
which is not in the possession of the operator but which the
operator is capable of obtaining, or
(iii) to disclose to a person specified in the warrant any data
obtained as mentioned in sub-paragraph (ii),
(b) the selection for examination, in any manner described in the warrant,
of communications data obtained under the warrant,
(c) the disclosure, in any manner described in the warrant, of
communications data obtained under the warrant to the person to
whom the warrant is addressed or to any person acting on that person’s
behalf.
(b)
(3)
(4)
(5)
(6)
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(7)
A bulk acquisition warrant also authorises the following conduct (in addition
to the conduct described in the warrant)—
(a) any conduct which it is necessary to undertake in order to do what is
expressly authorised or required by the warrant, and
(b) conduct by any person which is conduct in pursuance of a requirement
imposed by or on behalf of the person to whom the warrant is
addressed to be provided with assistance in giving effect to the
warrant.
A bulk acquisition warrant may relate to data whether or not in existence at the
time of the issuing of the warrant.
An application for the issue of a bulk acquisition warrant may only be made on
behalf of the head of an intelligence service by a person holding office under
the Crown.
Approval of warrants by Judicial Commissioners
In deciding whether to approve a decision to issue a warrant under section 158,
a Judicial Commissioner must review the Secretary of State’s conclusions as to
the following matters—
(a) whether the warrant is necessary as mentioned in subsection (1)(a) of
that section,
(b) whether the conduct that would be authorised by the warrant is
proportionate to what is sought to be achieved by that conduct, and
(c) whether—
(i) each of the specified operational purposes (see section 161) is a
purpose for which the examination of communications data
obtained under the warrant is or may be necessary, and
(ii) the examination of such data for each such purpose is necessary
as mentioned in section 158(1)(c)(ii).
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).
Where a Judicial Commissioner refuses to approve a decision to issue a
warrant under section 158, the Judicial Commissioner must give the Secretary
of State written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to issue a warrant under section
158, the Secretary of State may ask the Investigatory Powers Commissioner to
decide whether to approve the decision to issue the warrant.
Decisions to issue warrants to be taken personally by Secretary of State
The decision to issue a bulk acquisition warrant must be taken personally by
the Secretary of State.
(8)
(9)
159
(1)
(2)
(3)
(4)
160
(1)
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(2)
Before a bulk acquisition warrant is issued, it must be signed by the Secretary
of State.
Requirements that must be met by warrants
A bulk acquisition warrant must contain a provision stating that it is a bulk
acquisition warrant.
A bulk acquisition warrant must be addressed to the head of the intelligence
service by whom, or on whose behalf, the application for the warrant was
made.
A bulk acquisition warrant must specify the operational purposes for which
any communications data obtained under the warrant may be selected for
examination.
The operational purposes specified in the warrant must be ones specified, in a
list maintained by the heads of the intelligence services (“the list of operational
purposes”), as purposes which they consider are operational purposes for
which communications data obtained under bulk acquisition warrants may be
selected for examination.
The warrant may, in particular, specify all of the operational purposes which,
at the time the warrant is issued, are specified in the list of operational
purposes.
An operational purpose may be specified in the list of operational purposes
only with the approval of the Secretary of State.
The Secretary of State may give such approval only if satisfied that the
operational purpose is specified in a greater level of detail than the descriptions
contained in section 158(1)(a) or (2).
At the end of each relevant three-month period the Secretary of State must give
a copy of the list of operational purposes to the Intelligence and Security
Committee of Parliament.
In subsection (8) “relevant three-month period” means—
(a) the period of three months beginning with the day on which this
section comes into force, and
(b) each successive period of three months.
The Prime Minister must review the list of operational purposes at least once a
year.
In this Chapter “the specified operational purposes”, in relation to a bulk
acquisition warrant, means the operational purposes specified in the warrant
in accordance with this section.
Duration, modification and cancellation of warrants
161
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
162
(1)
Duration of warrants
A bulk acquisition warrant (unless already cancelled) ceases to have effect at
the end of the period of 6 months beginning with—
(a) the day on which the warrant was issued, or
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(b)
in the case of a warrant that has been renewed, the day after the day at
the end of which the warrant would have ceased to have effect if it had
not been renewed.
(2)
163
(1)
For provision about the renewal of warrants, see section 163.
Renewal of warrants
If the renewal conditions are met, a bulk acquisition warrant may be renewed,
at any time during the renewal period, by an instrument issued by the
Secretary of State.
This is subject to subsection (6).
The renewal conditions are—
(a) that the Secretary of State considers that the warrant continues to be
necessary—
(i) in the interests of national security, or
(ii) on that ground and on any other grounds falling within section
158(2),
(b) that the Secretary of State considers that the conduct that would be
authorised by the renewed warrant continues to be proportionate to
what is sought to be achieved by that conduct,
(c) that the Secretary of State considers that—
(i) each of the specified operational purposes (see section 161) is a
purpose for which the examination of communications data
obtained under the warrant continues to be, or may be,
necessary, and
(ii) the examination of such data for each such purpose continues to
be necessary on any of the grounds on which the Secretary of
State considers that the warrant continues to be necessary, and
(d) that the decision to renew the warrant has been approved by a Judicial
Commissioner.
“The renewal period” means the period of 30 days ending with the day at the
end of which the warrant would otherwise cease to have effect.
The decision to renew a bulk acquisition warrant must be taken personally by
the Secretary of State, and the instrument renewing the warrant must be signed
by the Secretary of State.
Section 159 (approval of warrants by Judicial Commissioners) applies in
relation to a decision to renew a bulk acquisition warrant as it applies in
relation to a decision to issue a bulk acquisition warrant.
This is subject to subsection (6).
In the case of the renewal of a bulk acquisition warrant that has been modified
so that it no longer authorises or requires the carrying out of activities falling
within section 158(6)(a)—
(a) the renewal condition in subsection (2)(a) is to be disregarded,
(b) the reference in subsection (2)(c)(ii) to the grounds on which the
Secretary of State considers the warrant to be necessary is to be read as
a reference to any grounds falling within section 158(1)(a) or (2), and
(c) section 159 has effect as if—
(i) paragraph (a) of subsection (1) were omitted, and
(2)
(3)
(4)
(5)
(6)
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(ii)
the reference in subsection (1)(c)(ii) to the grounds on which the
Secretary of State considers the warrant to be necessary were a
reference to any grounds falling within section 158(1)(a) or (2).
164
(1)
(2)
Modification of warrants
The provisions of a bulk acquisition warrant may be modified at any time by
an instrument issued by the person making the modification.
The only modifications that may be made under this section are—
(a) adding, varying or removing any operational purpose specified in the
warrant as a purpose for which any communications data obtained
under the warrant may be selected for examination, and
(b) providing that the warrant no longer authorises or requires the
carrying out of activities falling within section 158(6)(a).
In this section—
(a) a modification adding or varying any operational purpose as
mentioned in paragraph (a) of subsection (2) is referred to as a “major
modification”, and
(b) any other modification within that subsection is referred to as a “minor
modification”.
A major modification—
(a) must be made by the Secretary of State, and
(b) may be made only if the Secretary of State considers that it is necessary
on any of the grounds on which the Secretary of State considers the
warrant to be necessary (see section 158(1)(a)).
Except where the Secretary of State considers that there is an urgent need to
make the modification, a major modification has effect only if the decision to
make the modification is approved by a Judicial Commissioner.
A minor modification may be made by—
(a) the Secretary of State, or
(b) a senior official acting on behalf of the Secretary of State.
Where a minor modification is made by a senior official, the Secretary of State
must be notified personally of the modification and the reasons for making it.
If at any time a person mentioned in subsection (6) considers that any
operational purpose specified in a warrant is no longer a purpose for which the
examination of communications data obtained under the warrant is or may be
necessary, the person must modify the warrant by removing that operational
purpose.
The decision to modify the provisions of a warrant must be taken personally
by the person making the modification, and the instrument making the
modification must be signed by that person.
This is subject to subsection (10).
If it is not reasonably practicable for an instrument making a major
modification to be signed by the Secretary of State, the instrument may be
signed by a senior official designated by the Secretary of State for that purpose.
In such a case, the instrument making the modification must contain a
statement that—
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
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(a)
(b)
(12)
it is not reasonably practicable for the instrument to be signed by the
Secretary of State, and
the Secretary of State has personally and expressly authorised the
making of the modification.
Nothing in this section applies in relation to modifying the provisions of a
warrant in a way which does not affect the conduct authorised or required by
it.
Approval of major modifications by Judicial Commissioners
In deciding whether to approve a decision to make a major modification of a
bulk acquisition warrant, a Judicial Commissioner must review the Secretary
of State’s conclusions as to whether the modification is necessary on any of the
grounds on which the Secretary of State considers the warrant to be necessary.
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matter referred to in subsection (1) with a sufficient degree
of care as to ensure that the Judicial Commissioner complies with the
duties imposed by section 2 (general duties in relation to privacy).
Where a Judicial Commissioner refuses to approve a decision to make a major
modification under section 164, the Judicial Commissioner must give the
Secretary of State written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to make a major modification
under section 164, the Secretary of State may ask the Investigatory Powers
Commissioner to decide whether to approve the decision to make the
modification.
Approval of major modifications made in urgent cases
This section applies where—
(a) the Secretary of State makes a major modification of a bulk acquisition
warrant without the approval of a Judicial Commissioner, and
(b) the Secretary of State considered that there was an urgent need to make
the modification.
The Secretary of State must inform a Judicial Commissioner that the
modification has been made.
The Judicial Commissioner must, before the end of the relevant period—
(a) decide whether to approve the decision to make the modification, and
(b) notify the Secretary of State of the Judicial Commissioner’s decision.
“The relevant period” means the period ending with the third working day
after the day on which the modification was made.
If the Judicial Commissioner refuses to approve the decision to make the
modification—
(a) the warrant (unless it no longer has effect) has effect as if the
modification had not been made, and
165
(1)
(2)
(3)
(4)
166
(1)
(2)
(3)
(4)
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the person to whom the warrant is addressed must, so far as is
reasonably practicable, secure that anything in the process of being
done under the warrant by virtue of that modification stops as soon as
possible,
and section 165(4) does not apply in relation to the refusal to approve the
decision.
(5)
Nothing in this section affects the lawfulness of—
(a) anything done under the warrant by virtue of the modification before
the modification ceases to have effect,
(b) if anything is in the process of being done under the warrant by virtue
of the modification when the modification ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done which it is not reasonably practicable to stop.
Cancellation of warrants
The Secretary of State, or a senior official acting on behalf of the Secretary of
State, may cancel a bulk acquisition warrant at any time.
If the Secretary of State, or a senior official acting on behalf of the Secretary of
State, considers that any of the cancellation conditions are met in relation to a
bulk acquisition warrant, the person must cancel the warrant.
The cancellation conditions are—
(a) that the warrant is no longer necessary in the interests of national
security,
(b) that the conduct authorised by the warrant is no longer proportionate
to what is sought to be achieved by that conduct,
(c) that the examination of communications data obtained under the
warrant is no longer necessary for any of the specified operational
purposes (see section 161).
But the condition in subsection (3)(a) does not apply where the warrant has
been modified so that it no longer authorises or requires the carrying out of
activities falling within section 158(6)(a).
Where a warrant is cancelled under this section, the person to whom the
warrant was addressed must, so far as is reasonably practicable, secure that
anything in the process of being done under the warrant stops as soon as
possible.
A warrant that has been cancelled under this section may not be renewed.
Implementation of warrants
168
(1)
Implementation of warrants
In giving effect to a bulk acquisition warrant, the person to whom it is
addressed (“the implementing authority”) may (in addition to acting alone) act
through, or together with, such other persons as the implementing authority
may require (whether under subsection (2) or otherwise) to provide the
authority with assistance in giving effect to the warrant.
(b)
167
(1)
(2)
(3)
(4)
(5)
(6)
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(2)
For the purpose of requiring any person to provide assistance in relation to a
bulk acquisition warrant, the implementing authority may—
(a) serve a copy of the warrant on any person whom the implementing
authority considers may be able to provide such assistance, or
(b) make arrangements for the service of a copy of the warrant on any such
person.
A copy of a warrant may be served under subsection (2) on a person outside
the United Kingdom for the purpose of requiring the person to provide such
assistance in the form of conduct outside the United Kingdom.
For the purposes of this Act, the provision of assistance in giving effect to a
bulk acquisition warrant includes any disclosure to the implementing
authority, or to persons acting on behalf of the implementing authority, of
communications data as authorised or required under the warrant.
References in this section and in sections 169 and 170 to the service of a copy of
a warrant include—
(a) the service of a copy of one or more schedules contained in the warrant
with the omission of the remainder of the warrant, and
(b) the service of a copy of the warrant with the omission of any schedule
contained in the warrant.
Service of warrants
This section applies to the service of bulk acquisition warrants under section
168(2).
A copy of the warrant must be served in such a way as to bring the contents of
the warrant to the attention of the person whom the implementing authority
considers may be able to provide assistance in relation to it.
A copy of a warrant may be served on a person outside the United Kingdom in
any of the following ways (as well as by electronic or other means of service)—
(a) by serving it at the person’s principal office within the United Kingdom
or, if the person has no such office in the United Kingdom, at any place
in the United Kingdom where the person carries on business or
conducts activities;
(b) if the person has specified an address in the United Kingdom as one at
which the person, or someone on the person’s behalf, will accept
service of documents of the same description as a copy of a warrant, by
serving it at that address;
(c) by making it available for inspection (whether to the person or to
someone acting on the person’s behalf) at a place in the United
Kingdom (but this is subject to subsection (4)).
A copy of a warrant may be served on a person outside the United Kingdom in
the way mentioned in subsection (3)(c) only if—
(a) it is not reasonably practicable for a copy to be served by any other
means (whether as mentioned in subsection (3)(a) or (b) or otherwise),
and
(b) the implementing authority takes such steps as the authority considers
appropriate for the purpose of bringing the contents of the warrant, and
the availability of a copy for inspection, to the attention of the person.
(3)
(4)
(5)
169
(1)
(2)
(3)
(4)
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(5)
(6)
The steps mentioned in subsection (4)(b) must be taken as soon as reasonably
practicable after the copy of the warrant is made available for inspection.
In this section “the implementing authority” has the same meaning as in
section 168.
Duty of operators to assist with implementation
A telecommunications operator that has been served with a copy of a bulk
acquisition warrant by (or on behalf of) the implementing authority must take
all steps for giving effect to the warrant that are notified to the operator by (or
on behalf of) the implementing authority.
This is subject to subsection (3).
Subsection (1) applies whether or not the operator is in the United Kingdom.
The operator is not required to take any steps which it is not reasonably
practicable for the operator to take.
Where obligations have been imposed on a telecommunications operator (“P”)
under section 253 (technical capability notices), for the purposes of subsection
(3) the steps which it is reasonably practicable for P to take include every step
which it would have been reasonably practicable for P to take if P had
complied with all of those obligations.
The duty imposed by subsection (1) is enforceable against a person in the
United Kingdom by civil proceedings by the Secretary of State for an
injunction, or for specific performance of a statutory duty under section 45 of
the Court of Session Act 1988, or for any other appropriate relief.
In this section “the implementing authority” has the same meaning as in
section 168.
Restrictions on use or disclosure of data obtained under warrants etc.
170
(1)
(2)
(3)
(4)
(5)
(6)
171
(1)
Safeguards relating to the retention and disclosure of data
The Secretary of State must ensure, in relation to every bulk acquisition
warrant, that arrangements are in force for securing—
(a) that the requirements of subsections (2) and (5) are met in relation to the
communications data obtained under the warrant, and
(b) that the requirements of section 172 are met in relation to that data.
This is subject to subsection (8).
The requirements of this subsection are met in relation to the communications
data obtained under a warrant if each of the following is limited to the
minimum that is necessary for the authorised purposes (see subsection (3))—
(a) the number of persons to whom any of the data is disclosed or
otherwise made available,
(b) the extent to which any of the data is disclosed or otherwise made
available,
(c) the extent to which any of the data is copied,
(d) the number of copies that are made.
For the purposes of subsection (2) something is necessary for the authorised
purposes if, and only if—
(2)
(3)
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(a)
(b)
(c)
(d)
(e)
(f)
it is, or is likely to become, necessary in the interests of national security
or on any other grounds falling within section 158(2),
it is necessary for facilitating the carrying out of any functions under
this Act of the Secretary of State, the Scottish Ministers or the head of
the intelligence service to whom the warrant is or was addressed,
it is necessary for facilitating the carrying out of any functions of the
Judicial Commissioners or the Investigatory Powers Tribunal under or
in relation to this Act,
it is necessary to ensure that a person (“P”) who is conducting a
criminal prosecution has the information P needs to determine what is
required of P by P’s duty to secure the fairness of the prosecution,
it is necessary for use as evidence in legal proceedings, or
it is necessary for the performance of any duty imposed on any person
by the Public Records Act 1958 or the Public Records Act (Northern
Ireland) 1923.
(4)
The arrangements for the time being in force under subsection (1) for securing
that the requirements of subsection (2) are met in relation to the
communications data obtained under the warrant must include arrangements
for securing that every copy made of any of that data is stored, for so long as it
is retained, in a secure manner.
The requirements of this subsection are met in relation to the communications
data obtained under a warrant if every copy made of any of that data (if not
destroyed earlier) is destroyed as soon as there are no longer any relevant
grounds for retaining it (see subsection (6)).
For the purposes of subsection (5), there are no longer any relevant grounds for
retaining a copy of any data if, and only if—
(a) its retention is not necessary, or not likely to become necessary, in the
interests of national security or on any other grounds falling within
section 158(2), and
(b) its retention is not necessary for any of the purposes mentioned in
paragraphs (b) to (f) of subsection (3) above.
Subsection (8) applies if—
(a) any communications data obtained under the warrant has been handed
over to any overseas authorities, or
(b) a copy of any such data has been given to any overseas authorities.
To the extent that the requirements of subsections (2) and (5) and section 172
relate to any of the data mentioned in subsection (7)(a), or to the copy
mentioned in subsection (7)(b), the arrangements made for the purposes of
subsection (1) are not required to secure that those requirements are met.
But the Secretary of State must instead ensure that arrangements are in force
for securing that communications data obtained under a bulk acquisition
warrant, or any copy of such data, is handed over or given to an overseas
authority only if the Secretary of State considers that requirements
corresponding to the requirements of subsections (2) and (5) and section 172
will apply, to such extent (if any) as the Secretary of State considers
appropriate, in relation to such data or copy.
In this section—
“copy”, in relation to communications data obtained under a warrant,
means any of the following (whether or not in documentary form)—
(5)
(6)
(7)
(8)
(9)
(10)
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any copy, extract or summary of the data which identifies the
data as having been obtained under the warrant, and
(b) any record referring to the obtaining of the data which is a
record of the identities of the persons to whom the data relates,
and “copied” is to be read accordingly,
“overseas authorities” means authorities of a country or territory outside
the United Kingdom.
172
(1)
Safeguards relating to examination of data
For the purposes of section 171 the requirements of this section are met in
relation to the communications data obtained under a warrant if—
(a) any selection of the data for examination is carried out only for the
specified purposes (see subsection (2)), and
(b) the selection of any of the data for examination is necessary and
proportionate in all the circumstances.
The selection of communications data for examination is carried out only for
the specified purposes if the data is selected for examination only so far as is
necessary for the operational purposes specified in the warrant in accordance
with section 161.
In subsection (2) “specified in the warrant” means specified in the warrant at
the time of the selection of the data for examination.
Offence of breaching safeguards relating to examination of data
A person commits an offence if—
(a) the person selects for examination any communications data obtained
under a bulk acquisition warrant,
(b) the person knows or believes that the selection of that data for
examination does not comply with a requirement imposed by section
172, and
(c) the person deliberately selects that data for examination in breach of
that requirement.
A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or
(ii) to a fine,
or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(a)
(2)
(3)
173
(1)
(2)
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(d)
(3)
on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.
No proceedings for any offence which is an offence by virtue of this section
may be instituted—
(a) in England and Wales, except by or with the consent of the Director of
Public Prosecutions;
(b) in Northern Ireland, except by or with the consent of the Director of
Public Prosecutions for Northern Ireland.
Supplementary provision
174
(1)
Offence of making unauthorised disclosure
It is an offence for—
(a) a telecommunications operator who is under a duty by virtue of section
170 to assist in giving effect to a bulk acquisition warrant, or
(b) any person employed or engaged for the purposes of the business of
such an operator,
to disclose to any person, without reasonable excuse, the existence or contents
of the warrant.
For the purposes of subsection (1), it is, in particular, a reasonable excuse if the
disclosure is made with the permission of the Secretary of State.
A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or
(ii) to a fine,
or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.
Chapter 2: interpretation
In this Chapter—
“communications data” does not include communications data within the
meaning given by section 262(3),
“senior official” means—
(a) a member of the Senior Civil Service, or
(2)
(3)
175
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a member of the Senior Management Structure of Her Majesty’s
Diplomatic Service,
“the specified operational purposes” has the meaning given by section
161(11).
(2)
See also—
section 261 (telecommunications definitions),
section 263 (general definitions),
section 265 (index of defined expressions).
C
HAPTER
3
B
ULK EQUIPMENT INTERFERENCE WARRANTS
Bulk equipment interference warrants
176
(1)
Bulk equipment interference warrants: general
For the purposes of this Act, a warrant is a “bulk equipment interference
warrant” if—
(a) it is issued under this Chapter;
(b) it authorises or requires the person to whom it is addressed to secure
interference with any equipment for the purpose of obtaining—
(i) communications (see section 198);
(ii) equipment data (see section 177);
(iii) any other information; and
(c) the main purpose of the warrant is to obtain one or more of the
following—
(i) overseas-related communications;
(ii) overseas-related information;
(iii) overseas-related equipment data.
In this Chapter—
“overseas-related communications” means—
(a) communications sent by individuals who are outside the British
Islands, or
(b) communications received by individuals who are outside the
British Islands;
“overseas-related information” means information of individuals who are
outside the British Islands.
For the purpose of this Chapter, equipment data is “overseas-related
equipment data” if—
(a) it forms part of, or is connected with, overseas-related communications
or overseas-related information;
(b) it would or may assist in establishing the existence of overseas-related
communications or overseas-related information or in obtaining such
communications or information;
(c) it would or may assist in developing capabilities in relation to obtaining
overseas-related communications or overseas-related information.
A bulk equipment interference warrant—
(b)
(2)
(3)
(4)
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(a)
(b)
must authorise or require the person to whom it is addressed to secure
the obtaining of the communications, equipment data or other
information to which the warrant relates;
may also authorise or require the person to whom it is addressed to
secure—
(i) the selection for examination, in any manner described in the
warrant, of any material obtained under the warrant by virtue
of paragraph (a);
(ii) the disclosure, in any manner described in the warrant, of any
such material to the person to whom the warrant is addressed
or to any person acting on that person’s behalf.
(5)
A bulk equipment interference warrant also authorises the following conduct
(in addition to the conduct described in the warrant)—
(a) any conduct which it is necessary to undertake in order to do what is
expressly authorised or required by the warrant, including conduct for
securing the obtaining of communications, equipment data or other
information;
(b) any conduct by any person which is conduct in pursuance of a
requirement imposed by or on behalf of the person to whom the
warrant is addressed to be provided with assistance in giving effect to
the warrant.
A bulk equipment interference warrant may not, by virtue of subsection (4)(a),
authorise a person to engage in conduct, in relation to a communication other
than a stored communication, which would (unless done with lawful
authority) constitute an offence under section 3(1) (unlawful interception).
Subsection (5)(a) does not authorise a person to engage in conduct which could
not be expressly authorised under the warrant because of the restriction
imposed by subsection (6).
In subsection (6), “stored communication” means a communication stored in or
by a telecommunication system (whether before or after its transmission).
Any conduct which is carried out in accordance with a bulk equipment
interference warrant is lawful for all purposes.
Meaning of “equipment data”
In this Chapter, “equipment data” means—
(a) systems data;
(b) data which falls within subsection (2).
The data falling within this subsection is identifying data which—
(a) is, for the purposes of a relevant system, comprised in, included as part
of, attached to or logically associated with a communication (whether
by the sender or otherwise) or any other item of information,
(b) is capable of being logically separated from the remainder of the
communication or the item of information, and
(c) if it were so separated, would not reveal anything of what might
reasonably be considered to be the meaning (if any) of the
communication or the item of information, disregarding any meaning
arising from the fact of the communication or the existence of the item
of information or from any data relating to that fact.
(6)
(7)
(8)
(9)
177
(1)
(2)
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(3)
(4)
178
(1)
In subsection (2), “relevant system” means any system on or by means of which
the data is held.
For the meaning of “systems data” and “identifying data”, see section 263.
Power to issue bulk equipment interference warrants
The Secretary of State may, on an application made by or on behalf of the head
of an intelligence service, issue a bulk equipment interference warrant if—
(a) the Secretary of State considers that the main purpose of the warrant is
to obtain overseas-related communications, overseas-related
information or overseas-related equipment data,
(b) the Secretary of State considers that the warrant is necessary—
(i) in the interests of national security, or
(ii) on that ground and on any other grounds falling within
subsection (2),
(c) the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,
(d) the Secretary of State considers that—
(i) each of the specified operational purposes (see section 183) is a
purpose for which the examination of material obtained under
the warrant is or may be necessary, and
(ii) the examination of such material for each such purpose is
necessary on any of the grounds on which the Secretary of State
considers the warrant to be necessary,
(e) the Secretary of State considers that satisfactory arrangements made for
the purposes of sections 191 and 192 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and
(f) except where the Secretary of State considers that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.
For the meaning of “head of an intelligence service”, see section 263.
A warrant is necessary on grounds falling within this subsection if it is
necessary—
(a) for the purpose of preventing or detecting serious crime, or
(b) in the interests of the economic well-being of the United Kingdom so
far as those interests are also relevant to the interests of national
security (but see subsection (3)).
A warrant may be considered necessary on the ground falling within
subsection (2)(b) only if the interference with equipment which would be
authorised by the warrant is considered necessary for the purpose of obtaining
information relating to the acts or intentions of persons outside the British
Islands.
An application for the issue of a bulk equipment interference warrant may only
be made on behalf of the head of an intelligence service by a person holding
office under the Crown.
(2)
(3)
(4)
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179
(1)
Approval of warrants by Judicial Commissioners
In deciding whether to approve a decision to issue a warrant under section 178,
a Judicial Commissioner must review the Secretary of State’s conclusions as to
the following matters—
(a) whether the warrant is necessary as mentioned in subsection (1)(b) of
that section,
(b) whether the conduct that would be authorised by the warrant is
proportionate to what is sought to be achieved by that conduct, and
(c) whether—
(i) each of the specified operational purposes (see section 183) is a
purpose for which the examination of material obtained under
the warrant is or may be necessary, and
(ii) the examination of such material for each such purpose is
necessary as mentioned in section 178(1)(d)(ii).
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).
Where a Judicial Commissioner refuses to approve a decision to issue a
warrant under section 178, the Judicial Commissioner must give the Secretary
of State written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to issue a warrant under section
178, the Secretary of State may ask the Investigatory Powers Commissioner to
decide whether to approve the decision to issue the warrant.
Approval of warrants issued in urgent cases
This section applies where—
(a) a warrant under section 178 is issued without the approval of a Judicial
Commissioner, and
(b) the Secretary of State considered that there was an urgent need to issue
it.
The Secretary of State must inform a Judicial Commissioner that it has been
issued.
The Judicial Commissioner must, before the end of the relevant period—
(a) decide whether to approve the decision to issue the warrant, and
(b) notify the Secretary of State of the Judicial Commissioner’s decision.
“The relevant period” means the period ending with the third working day
after the day on which the warrant was issued.
If a Judicial Commissioner refuses to approve the decision to issue a warrant,
the warrant—
(a) ceases to have effect (unless already cancelled), and
(b) may not be renewed,
(2)
(3)
(4)
180
(1)
(2)
(3)
(4)
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and section 179(4) does not apply in relation to the refusal to approve the
decision.
(5)
Section 181 contains further provision about what happens if a Judicial
Commissioner refuses to approve a decision to issue a warrant.
Failure to approve warrant issued in urgent case
This section applies where under section 180(3) a Judicial Commissioner
refuses to approve a decision to issue a warrant.
The person to whom the warrant was addressed must, so far as is reasonably
practicable, secure that anything in the process of being done under the
warrant stops as soon as possible.
The Judicial Commissioner may—
(a) authorise further interference with equipment for the purpose of
enabling the person to whom the warrant was addressed to secure that
anything in the process of being done under the warrant stops as soon
as possible;
(b) direct that any material obtained under the warrant is destroyed;
(c) impose conditions as to the use or retention of any of that material.
The Judicial Commissioner—
(a) may require an affected party to make representations about how the
Judicial Commissioner should exercise any function under subsection
(3), and
(b) must have regard to any such representations made by an affected
party (whether or not as a result of a requirement imposed under
paragraph (a)).
Each of the following is an “affected party” for the purposes of subsection (4)—
(a) the Secretary of State;
(b) the person to whom the warrant was addressed.
The Secretary of State may ask the Investigatory Powers Commissioner to
review a decision made by any other Judicial Commissioner under subsection
(3).
On a review under subsection (6), the Investigatory Powers Commissioner
may—
(a) confirm the Judicial Commissioner’s decision, or
(b) make a fresh determination.
Nothing in this section or section 180 affects the lawfulness of—
(a) anything done under the warrant before it ceases to have effect;
(b) if anything is in the process of being done under the warrant when it
ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done that it is not reasonably practicable to stop.
Decisions to issue warrants to be taken personally by Secretary of State
The decision to issue a bulk equipment interference warrant must be taken
personally by the Secretary of State.
181
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
182
(1)
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(2)
(3)
Before a bulk equipment interference warrant is issued, it must be signed by
the Secretary of State.
If it is not reasonably practicable for a warrant to be signed by the Secretary of
State, the warrant may be signed by a senior official designated by the
Secretary of State for that purpose.
In such a case, the warrant must contain a statement that—
(a) it is not reasonably practicable for the warrant to be signed by the
Secretary of State, and
(b) the Secretary of State has personally and expressly authorised the issue
of the warrant.
Requirements that must be met by warrants
A bulk equipment interference warrant must contain a provision stating that it
is a bulk equipment interference warrant.
A bulk equipment interference warrant must be addressed to the head of the
intelligence service by whom, or on whose behalf, the application for the
warrant was made.
A bulk equipment interference warrant must describe the conduct that is
authorised by the warrant.
A bulk equipment interference warrant must specify the operational purposes
for which any material obtained under the warrant may be selected for
examination.
The operational purposes specified in the warrant must be ones specified, in a
list maintained by the heads of the intelligence services (“the list of operational
purposes”), as purposes which they consider are operational purposes for
which material obtained under bulk equipment interference warrants may be
selected for examination.
The warrant may, in particular, specify all of the operational purposes which,
at the time the warrant is issued, are specified in the list of operational
purposes.
An operational purpose may be specified in the list of operational purposes
only with the approval of the Secretary of State.
The Secretary of State may give such approval only if satisfied that the
operational purpose is specified in a greater level of detail than the descriptions
contained in section 178(1)(b) or (2).
At the end of each relevant three-month period, the Secretary of State must
give a copy of the list of operational purposes to the Intelligence and Security
Committee of Parliament.
In subsection (9), “relevant three-month period” means—
(a) the period of three months beginning with the day on which this
section comes into force, and
(b) each successive period of three months.
The Prime Minister must review the list of operational purposes at least once a
year.
(4)
183
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
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(12)
In this Chapter, “the specified operational purposes”, in relation to a bulk
equipment interference warrant, means the operational purposes specified in
the warrant in accordance with this section.
Duration, modification and cancellation of warrants
184
(1)
Duration of warrants
A bulk equipment interference warrant ceases to have effect at the end of the
relevant period (see subsection (2)), unless—
(a) it is renewed before the end of that period (see section 185), or
(b) it is cancelled or otherwise ceases to have effect before the end of that
period (see sections 180 and 189).
In this section, “the relevant period”—
(a) in the case of an urgent warrant (see subsection (3)), means the period
ending with the fifth working day after the day on which the warrant
was issued;
(b) in any other case, means the period of 6 months beginning with—
(i) the day on which the warrant was issued, or
(ii) in the case of a warrant which has been renewed, the day after
the day at the end of which the warrant would have ceased to
have effect if it had not been renewed.
For the purposes of subsection (2)(a), a warrant is an “urgent warrant” if—
(a) the warrant was issued without the approval of a Judicial
Commissioner, and
(b) the person who decided to issue the warrant considered that there was
an urgent need to issue it.
Renewal of warrants
If the renewal conditions are met, a bulk equipment interference warrant may
be renewed, at any time during the renewal period, by an instrument issued by
the Secretary of State.
This is subject to subsection (6).
The renewal conditions are—
(a) that the Secretary of State considers that the warrant continues to be
necessary—
(i) in the interests of national security, or
(ii) on that ground and on any other grounds falling within section
178(2),
(b) that the Secretary of State considers that the conduct that would be
authorised by the renewed warrant continues to be proportionate to
what is sought to be achieved by that conduct,
(c) that the Secretary of State considers that—
(i) each of the specified operational purposes (see section 183) is a
purpose for which the examination of material obtained under
the warrant continues to be, or may be, necessary, and
(ii) the examination of such material for each such purpose
continues to be necessary on any of the grounds on which the
(2)
(3)
185
(1)
(2)
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(d)
(3)
Secretary of State considers that the warrant continues to be
necessary, and
that the decision to renew the warrant has been approved by a Judicial
Commissioner.
“The renewal period” means—
(a) in the case of an urgent warrant which has not been renewed, the
relevant period;
(b) in any other case, the period of 30 days ending with the day at the end
of which the warrant would otherwise cease to have effect.
The decision to renew a bulk equipment interference warrant must be taken
personally by the Secretary of State, and the instrument renewing the warrant
must be signed by the Secretary of State.
Section 179 (approval of warrants by Judicial Commissioners) applies in
relation to a decision to renew a bulk equipment interference warrant as it
applies in relation to a decision to issue a bulk equipment interference warrant.
This is subject to subsection (6).
In the case of a bulk equipment interference warrant which has been modified
so that it no longer authorises or requires the securing of interference with any
equipment or the obtaining of any communications, equipment data or other
information—
(a) the renewal condition in subsection (2)(a) is to be disregarded,
(b) the reference in subsection (2)(c)(ii) to the grounds on which the
Secretary of State considers the warrant to be necessary is to be read as
a reference to any grounds falling within section 178(1)(b) or (2), and
(c) section 179 has effect as if—
(i) paragraph (a) of subsection (1) were omitted, and
(ii) the reference in subsection (1)(c)(ii) to the grounds on which the
Secretary of State considers the warrant to be necessary were a
reference to any grounds falling within section 178(1)(b) or (2).
In this section—
“the relevant period” has the same meaning as in section 184;
“urgent warrant” is to be read in accordance with subsection (3) of that
section.
Modification of warrants
The provisions of a bulk equipment interference warrant may be modified at
any time by an instrument issued by the person making the modification.
The modifications which may be made under this section are—
(a) adding, varying or removing any operational purpose specified in the
warrant as a purpose for which any material obtained under the
warrant may be selected for examination, and
(b) adding, varying or removing any description of conduct authorised by
the warrant.
In this section—
(a) a modification adding or varying any operational purpose, or any
description of conduct, as mentioned in subsection (2) is referred to as
a “major modification”, and
(4)
(5)
(6)
(7)
186
(1)
(2)
(3)
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(b)
(4)
any other modification within that subsection is referred to as a “minor
modification”.
A major modification adding or varying any operational purpose—
(a) must be made by the Secretary of State, and
(b) may be made only if the Secretary of State considers that it is necessary
on any of the grounds on which the Secretary of State considers the
warrant to be necessary (see section 178(1)(b)).
A major modification adding or varying any description of conduct—
(a) must be made by the Secretary of State, and
(b) may be made only if the Secretary of State considers—
(i) that the modification is necessary on any of the grounds on
which the Secretary of State considers the warrant to be
necessary (see section 178(1)(b)), and
(ii) that the conduct authorised by the modification is
proportionate to what is sought to be achieved by that conduct.
Except where the Secretary of State considers that there is an urgent need to
make the modification, a major modification has effect only if the decision to
make the modification is approved by a Judicial Commissioner.
A minor modification may be made by—
(a) the Secretary of State, or
(b) a senior official acting on behalf of the Secretary of State.
Where a minor modification is made by a senior official, the Secretary of State
must be notified personally of the modification and the reasons for making it.
If at any time a person mentioned in subsection (7) considers that any
operational purpose specified in a warrant is no longer a purpose for which the
examination of material obtained under the warrant is or may be necessary, the
person must modify the warrant by removing that operational purpose.
The decision to modify the provisions of a warrant must be taken personally
by the person making the modification, and the instrument making the
modification must be signed by that person.
This is subject to subsection (11).
If it is not reasonably practicable for an instrument making a major
modification to be signed by the Secretary of State, the instrument may be
signed by a senior official designated by the Secretary of State for that purpose.
In such a case, the instrument making the modification must contain a
statement that—
(a) it is not reasonably practicable for the instrument to be signed by the
Secretary of State, and
(b) the Secretary of State has personally and expressly authorised the
making of the modification.
Despite section 176(1)(b) and (4)(a), the modification of a bulk equipment
interference warrant so that it no longer authorises or requires the securing of
interference with any equipment or the obtaining of any communications,
equipment data or other information does not prevent the warrant from being
a bulk equipment interference warrant.
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
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(14)
Nothing in this section applies in relation to modifying the provisions of a
warrant in a way which does not affect the conduct authorised by it.
Approval of major modifications by Judicial Commissioners
In deciding whether to approve a decision to make a major modification of a
bulk equipment interference warrant, a Judicial Commissioner must review
the Secretary of State’s conclusions as to the following matters—
(a) whether the modification is necessary on any of the grounds on which
the Secretary of State considers the warrant to be necessary, and
(b) in the case of a major modification adding or varying any description
of conduct authorised by the warrant, whether the conduct authorised
by the modification is proportionate to what is sought to be achieved
by that conduct.
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).
Where a Judicial Commissioner refuses to approve a decision to make a major
modification under section 186, the Judicial Commissioner must give the
Secretary of State written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to make a major modification
under section 186, the Secretary of State may ask the Investigatory Powers
Commissioner to decide whether to approve the decision to make the
modification.
Approval of major modifications made in urgent cases
This section applies where—
(a) the Secretary of State makes a major modification of a bulk equipment
interference warrant without the approval of a Judicial Commissioner,
and
(b) the Secretary of State considered that there was an urgent need to make
the modification.
The Secretary of State must inform a Judicial Commissioner that the
modification has been made.
The Judicial Commissioner must, before the end of the relevant period—
(a) decide whether to approve the decision to make the modification, and
(b) notify the Secretary of State of the Judicial Commissioner’s decision.
“The relevant period” means the period ending with the third working day
after the day on which the modification was made.
If the Judicial Commissioner refuses to approve the decision to make the
modification—
(a) the warrant (unless it no longer has effect) has effect as if the
modification had not been made, and
187
(1)
(2)
(3)
(4)
188
(1)
(2)
(3)
(4)
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the person to whom the warrant is addressed must, so far as is
reasonably practicable, secure that anything in the process of being
done under the warrant by virtue of that modification stops as soon as
possible,
and section 187(4) does not apply in relation to the refusal to approve the
decision.
(5)
The Judicial Commissioner may authorise further interference with equipment
for the purpose of enabling the person to whom the warrant is addressed to
secure that anything in the process of being done under the warrant by virtue
of the modification stops as soon as possible.
Nothing in this section affects the lawfulness of—
(a) anything done under the warrant by virtue of the modification before
the modification ceases to have effect;
(b) if anything is in the process of being done under the warrant by virtue
of the modification when the modification ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done which it is not reasonably practicable to stop.
Cancellation of warrants
The Secretary of State, or a senior official acting on behalf of the Secretary of
State, may cancel a bulk equipment interference warrant at any time.
If the Secretary of State, or a senior official acting on behalf of the Secretary of
State, considers that any of the cancellation conditions are met in relation to a
bulk equipment interference warrant, the person must cancel the warrant.
The cancellation conditions are—
(a) that the warrant is no longer necessary in the interests of national
security;
(b) that the conduct authorised by the warrant is no longer proportionate
to what is sought to be achieved by that conduct;
(c) that the examination of material obtained under the warrant is no
longer necessary for any of the specified operational purposes (see
section 183).
But the condition in subsection (3)(a) does not apply where the warrant has
been modified so that it no longer authorises or requires the securing of
interference with any equipment or the obtaining of any communications,
equipment data or other information.
Where a warrant is cancelled under this section, the person to whom the
warrant was addressed must, so far as is reasonably practicable, secure that
anything in the process of being done under the warrant stops as soon as
possible.
A warrant that has been cancelled under this section may not be renewed.
(b)
(6)
189
(1)
(2)
(3)
(4)
(5)
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Implementation of warrants
190
(1)
Implementation of warrants
In giving effect to a bulk equipment interference warrant, the person to whom
it is addressed (“the implementing authority”) may (in addition to acting
alone) act through, or together with, such other persons as the implementing
authority may require (whether under subsection (2) or otherwise) to provide
the authority with assistance in giving effect to the warrant.
For the purpose of requiring any person to provide assistance in relation to a
bulk equipment interference warrant, the implementing authority may—
(a) serve a copy of the warrant on any person who the implementing
authority considers may be able to provide such assistance, or
(b) make arrangements for the service of a copy of the warrant on any such
person.
A copy of a warrant may be served under subsection (2) on a person outside
the United Kingdom for the purpose of requiring the person to provide such
assistance in the form of conduct outside the United Kingdom.
For the purposes of this Act, the provision of assistance in giving effect to a
bulk equipment interference warrant includes any disclosure to the
implementing authority, or to persons acting on behalf of the implementing
authority, of material obtained under the warrant.
Sections 127 (service of warrants) and 128 (duty of telecommunications
operators to assist with implementation) apply in relation to a bulk equipment
interference warrant as they apply in relation to a targeted equipment
interference warrant issued under section 102 by the Secretary of State.
References in this section (and in sections 127 and 128 as they apply in relation
to bulk equipment interference warrants) to the service of a copy of a warrant
include—
(a) the service of a copy of one or more schedules contained in the warrant
with the omission of the remainder of the warrant, and
(b) the service of a copy of the warrant with the omission of any schedule
contained in the warrant.
Restrictions on use or disclosure of material obtained under warrants etc.
191
(1)
Safeguards relating to retention and disclosure of material
The Secretary of State must ensure, in relation to every bulk equipment
interference warrant, that arrangements are in force for securing—
(a) that the requirements of subsections (2) and (5) are met in relation to the
material obtained under the warrant, and
(b) that the requirements of section 193 are met in relation to that material.
This is subject to subsection (8).
The requirements of this subsection are met in relation to the material obtained
under the warrant if each of the following is limited to the minimum that is
necessary for the authorised purposes (see subsection (3))—
(a) the number of persons to whom any of the material is disclosed or
otherwise made available;
(2)
(3)
(4)
(5)
(6)
(2)
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(b)
(c)
(d)
(3)
the extent to which any of the material is disclosed or otherwise made
available;
the extent to which any of the material is copied;
the number of copies that are made.
For the purposes of subsection (2) something is necessary for the authorised
purposes if, and only if—
(a) it is, or is likely to become, necessary in the interests of national security
or on any other grounds falling within section 178(2),
(b) it is necessary for facilitating the carrying out of any functions under
this Act of the Secretary of State, the Scottish Ministers or the head of
the intelligence service to whom the warrant is or was addressed,
(c) it is necessary for facilitating the carrying out of any functions of the
Judicial Commissioners or of the Investigatory Powers Tribunal under
or in relation to this Act,
(d) it is necessary for the purpose of legal proceedings, or
(e) it is necessary for the performance of the functions of any person under
any enactment.
The arrangements for the time being in force under this section for securing
that the requirements of subsection (2) are met in relation to the material
obtained under the warrant must include arrangements for securing that every
copy made of any of that material is stored, for so long as it is retained, in a
secure manner.
The requirements of this subsection are met in relation to the material obtained
under the warrant if every copy made of any of that material (if not destroyed
earlier) is destroyed as soon as there are no longer any relevant grounds for
retaining it (see subsection (6)).
For the purposes of subsection (5), there are no longer any relevant grounds for
retaining a copy of any material if, and only if—
(a) its retention is not necessary, or not likely to become necessary, in the
interests of national security or on any other grounds falling within
section 178(2), and
(b) its retention is not necessary for any of the purposes mentioned in
paragraphs (b) to (e) of subsection (3) above.
Subsection (8) applies if—
(a) any material obtained under the warrant has been handed over to any
overseas authorities, or
(b) a copy of any such material has been given to any overseas authorities.
To the extent that the requirements of subsections (2) and (5) and section 193
relate to any of the material mentioned in subsection (7)(a), or to the copy
mentioned in subsection (7)(b), the arrangements made for the purpose of this
section are not required to secure that those requirements are met (see instead
section 192).
In this section—
“copy”, in relation to any material obtained under a warrant, means any
of the following (whether or not in documentary form)—
(a) any copy, extract or summary of the material which identifies
the material as having been obtained under the warrant, and
(4)
(5)
(6)
(7)
(8)
(9)
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any record which is a record of the identities of persons who
owned, used or were in possession of the equipment which was
interfered with to obtain that material,
and “copied” is to be read accordingly;
“overseas authorities” means authorities of a country or territory outside
the United Kingdom.
192
(1)
Safeguards relating to disclosure of material overseas
The Secretary of State must ensure, in relation to every bulk equipment
interference warrant, that arrangements are in force for securing that—
(a) any material obtained under the warrant is handed over to overseas
authorities only if the requirements of subsection (2) are met, and
(b) copies of any such material are given to overseas authorities only if
those requirements are met.
The requirements of this subsection are met in the case of a warrant if it appears
to the Secretary of State that requirements corresponding to the requirements
of section 191(2) and (5) and section 193 will apply, to such extent (if any) as the
Secretary of State considers appropriate, in relation to any of the material
which is handed over, or any copy of which is given, to the authorities in
question.
In this section—
“copy” has the same meaning as in section 191;
“overseas authorities” means authorities of a country or territory outside
the United Kingdom.
Safeguards relating to examination of material etc.
For the purposes of section 191, the requirements of this section are met in
relation to the material obtained under a warrant if—
(a) the selection of any of the material obtained under the warrant for
examination is carried out only for the specified purposes (see
subsection (2)),
(b) the selection of any of the material for examination is necessary and
proportionate in all the circumstances, and
(c) where any such material is protected material, the selection of the
material for examination meets any of the selection conditions (see
subsection (3)).
The selection of material obtained under the warrant for examination is carried
out only for the specified purposes if the material is selected for examination
only so far as is necessary for the operational purposes specified in the warrant
in accordance with section 183.
In this subsection “specified in the warrant” means specified in the warrant at
the time of the selection of the material for examination.
The selection conditions referred to in subsection (1)(c) are—
(a) that the selection of the protected material for examination does not
breach the prohibition in subsection (4);
(b) that the person to whom the warrant is addressed reasonably considers
that the selection of the protected material for examination would not
breach that prohibition;
(b)
(2)
(3)
193
(1)
(2)
(3)
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(c)
(d)
that the selection of the protected material for examination in breach of
that prohibition is authorised by subsection (5);
that the selection of the protected material for examination in breach of
that prohibition is authorised by a targeted examination warrant issued
under Part 5.
(4)
The prohibition referred to in subsection (3)(a) is that the protected material
may not at any time be selected for examination if—
(a) any criteria used for the selection of the material for examination are
referable to an individual known to be in the British Islands at that time,
and
(b) the purpose of using those criteria is to identify protected material
consisting of communications sent by, or intended for, that individual
or private information relating to that individual.
It does not matter for the purposes of this subsection whether the identity of
the individual is known.
The selection of protected material (“the relevant material”) for examination is
authorised by this subsection if—
(a) criteria referable to an individual have been, or are being, used for the
selection of material for examination in circumstances falling within
subsection (3)(a) or (b),
(b) at any time it appears to the person to whom the warrant is addressed
that there has been a relevant change of circumstances in relation to the
individual (see subsection (6)) which would mean that the selection of
the relevant material for examination would breach the prohibition in
subsection (4),
(c) since that time, a written authorisation to examine the relevant material
using those criteria has been given by a senior officer, and
(d) the selection of the relevant material for examination is made before the
end of the permitted period (see subsection (7)).
For the purposes of subsection (5)(b) there is a relevant change of
circumstances in relation to an individual if—
(a) the individual has entered the British Islands, or
(b) a belief by the person to whom the warrant is addressed that the
individual was outside the British Islands was in fact mistaken.
In subsection (5)—
“senior officer”, in relation to a warrant addressed to the head of an
intelligence service, means a member of the intelligence service who—
(a) is a member of the Senior Civil Service or a member of the
Senior Management Structure of Her Majesty’s Diplomatic
Service, or
(b) holds a position in the intelligence service of equivalent
seniority to such a member;
“the permitted period” means the period ending with the fifth working
day after the time mentioned in subsection (5)(b).
In a case where the selection of protected material for examination is
authorised by subsection (5), the person to whom the warrant is addressed
must notify the Secretary of State that the selection is being carried out.
In this Part, “protected material” means any material obtained under the
warrant other than material which is—
(5)
(6)
(7)
(8)
(9)
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(a)
(b)
equipment data;
information (other than a communication or equipment data) which is
not private information.
194
(1)
Additional safeguards for items subject to legal privilege
Subsection (2) applies if, in a case where protected material obtained under a
bulk equipment interference warrant is to be selected for examination—
(a) the selection of the material for examination meets any of the selection
conditions in section 193(3)(a) to (c), and
(b) either—
(i) the purpose, or one of the purposes, of using the criteria to be
used for the selection of the material for examination (“the
relevant criteria”) is to identify any items subject to legal
privilege, or
(ii) the use of the relevant criteria is likely to identify such items.
The material may be selected for examination using the relevant criteria only if
a senior official acting on behalf of the Secretary of State has approved the use
of those criteria.
In deciding whether to give an approval under subsection (2) in a case where
subsection (1)(b)(i) applies, a senior official must have regard to the public
interest in the confidentiality of items subject to legal privilege.
A senior official may give an approval under subsection (2) only if—
(a) the official considers that the arrangements made for the purposes of
section 191 (safeguards relating to retention and disclosure of material)
include specific arrangements for the handling, retention, use and
destruction of items subject to legal privilege, and
(b) where subsection (1)(b)(i) applies, the official considers that there are
exceptional and compelling circumstances that make it necessary to
authorise the use of the relevant criteria.
For the purposes of subsection (4)(b), there cannot be exceptional and
compelling circumstances that make it necessary to authorise the use of the
relevant criteria unless—
(a) the public interest in obtaining the information that would be obtained
by the selection of the material for examination outweighs the public
interest in the confidentiality of items subject to legal privilege,
(b) there are no other means by which the information may reasonably be
obtained, and
(c) obtaining the information is necessary in the interests of national
security or for the purpose of preventing death or significant injury.
Subsection (7) applies if, in a case where protected material obtained under a
bulk equipment interference warrant is to be selected for examination—
(a) the selection of the material for examination meets any of the selection
conditions in section 193(3)(a) to (c),
(b) the purpose, or one of the purposes, of using the criteria to be used for
the selection of the material for examination (“the relevant criteria”) is
to identify communications or other items of information that, if they
were not communications made or (as the case may be) other items of
information created or held with the intention of furthering a criminal
purpose, would be items subject to legal privilege, and
(2)
(3)
(4)
(5)
(6)
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(c)
the person to whom the warrant is addressed considers that the
communications or other items of information (“the targeted
communications or other items of information”) are likely to be
communications made or (as the case may be) other items of
information created or held with the intention of furthering a criminal
purpose.
(7)
The material may be selected for examination using the relevant criteria only if
a senior official acting on behalf of the Secretary of State has approved the use
of those criteria.
A senior official may give an approval under subsection (7) only if the official
considers that the targeted communications or other items of information are
likely to be communications made or (as the case may be) other items of
information created or held with the intention of furthering a criminal purpose.
Where an item subject to legal privilege which has been obtained under a bulk
equipment interference warrant is retained following its examination, for
purposes other than the destruction of the item, the person to whom the
warrant is addressed must inform the Investigatory Powers Commissioner as
soon as is reasonably practicable.
(For provision about the grounds for retaining material obtained under a bulk
equipment interference warrant, see section 191.)
Unless the Investigatory Powers Commissioner considers that subsection (12)
applies to the item, the Commissioner must—
(a) direct that the item is destroyed, or
(b) impose one or more conditions as to the use or retention of that item.
If the Investigatory Powers Commissioner considers that subsection (12)
applies to the item, the Commissioner may nevertheless impose such
conditions under subsection (10)(b) as the Commissioner considers necessary
for the purpose of protecting the public interest in the confidentiality of items
subject to legal privilege.
This subsection applies to an item subject to legal privilege if—
(a) the public interest in retaining the item outweighs the public interest in
the confidentiality of items subject to legal privilege, and
(b) retaining the item is necessary in the interests of national security or for
the purpose of preventing death or significant injury.
The Investigatory Powers Commissioner—
(a) may require an affected party to make representations about how the
Commissioner should exercise any function under subsection (10), and
(b) must have regard to any such representations made by an affected
party (whether or not as a result of a requirement imposed under
paragraph (a)).
Each of the following is an “affected party” for the purposes of subsection
(13)—
(a) the Secretary of State;
(b) the person to whom the warrant is or was addressed.
Additional safeguard for confidential journalistic material
Where—
(8)
(9)
(10)
(11)
(12)
(13)
(14)
195
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material obtained under a bulk equipment interference warrant is
retained, following its examination, for purposes other than the
destruction of the material, and
(b) it is material containing confidential journalistic material,
the person to whom the warrant is addressed must inform the Investigatory
Powers Commissioner as soon as is reasonably practicable.
(For provision about the grounds for retaining material obtained under a bulk
equipment interference warrant, see section 191.)
196
(1)
Offence of breaching safeguards relating to examination of material
A person commits an offence if—
(a) the person selects for examination any material obtained under a bulk
equipment interference warrant,
(b) the person knows or believes that the selection of that material does not
comply with a requirement imposed by section 193 or 194, and
(c) the person deliberately selects that material in breach of that
requirement.
A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or
(ii) to a fine,
or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.
No proceedings for any offence which is an offence by virtue of this section
may be instituted—
(a) in England and Wales, except by or with the consent of the Director of
Public Prosecutions;
(b) in Northern Ireland, except by or with the consent of the Director of
Public Prosecutions for Northern Ireland.
Application of other restrictions in relation to warrants
Sections 132 to 134 (duty not to make unauthorised disclosures) apply in
relation to bulk equipment interference warrants as they apply in relation to
targeted equipment interference warrants, but as if the reference in section
133(2)(c) to a requirement for disclosure imposed by virtue of section 126(4)
were a reference to such a requirement imposed by virtue of section 190(4).
(a)
(2)
(3)
197
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Interpretation
198
(1)
Chapter 3: interpretation
In this Chapter—
“communication” includes—
(a) anything comprising speech, music, sounds, visual images or
data of any description, and
(b) signals serving either for the impartation of anything between
persons, between a person and a thing or between things or for
the actuation or control of any apparatus;
“equipment” means equipment producing electromagnetic, acoustic or
other emissions or any device capable of being used in connection with
such equipment;
“equipment data” has the meaning given by section 177;
“private information” includes information relating to a person’s private
or family life;
“protected material”, in relation to a bulk equipment interference warrant,
has the meaning given by section 193(9);
“senior official” means a member of the Senior Civil Service or a member
of the Senior Management Structure of Her Majesty’s Diplomatic
Service;
“the specified operational purposes” has the meaning given by section
183(12).
See also—
section 261 (telecommunications definitions);
section 263 (general definitions);
section 264 (general definitions: “journalistic material” etc.);
section 265 (index of defined expressions).
P
ART
7
B
ULK PERSONAL DATASET WARRANTS
Bulk personal datasets: interpretation
199
(1)
Bulk personal datasets: interpretation
For the purposes of this Part, an intelligence service retains a bulk personal
dataset if—
(a) the intelligence service obtains a set of information that includes
personal data relating to a number of individuals,
(b) the nature of the set is such that the majority of the individuals are not,
and are unlikely to become, of interest to the intelligence service in the
exercise of its functions,
(c) after any initial examination of the contents, the intelligence service
retains the set for the purpose of the exercise of its functions, and
(d) the set is held, or is to be held, electronically for analysis in the exercise
of those functions.
(2)
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(2)
In this Part, “personal data” has the same meaning as in the Data Protection Act
1998 except that it also includes data relating to a deceased individual where
the data would be personal data within the meaning of that Act if it related to
a living individual.
Requirement for warrant
200
(1)
Requirement for authorisation by warrant: general
An intelligence service may not exercise a power to retain a bulk personal
dataset unless the retention of the dataset is authorised by a warrant under this
Part.
An intelligence service may not exercise a power to examine a bulk personal
dataset retained by it unless the examination is authorised by a warrant under
this Part.
For the purposes of this Part, there are two kinds of warrant—
(a) a warrant, referred to in this Part as “a class BPD warrant”, authorising
an intelligence service to retain, or to retain and examine, any bulk
personal dataset of a class described in the warrant;
(b) a warrant, referred to in this Part as “a specific BPD warrant”,
authorising an intelligence service to retain, or to retain and examine,
any bulk personal dataset described in the warrant.
Section 201 sets out exceptions to the restrictions imposed by subsections (1)
and (2) of this section.
Exceptions to section 200(1) and (2)
Section 200(1) or (2) does not apply to the exercise of a power of an intelligence
service to retain or (as the case may be) examine a bulk personal dataset if the
intelligence service obtained the bulk personal dataset under a warrant or
other authorisation issued or given under this Act.
Section 200(1) or (2) does not apply at any time when a bulk personal dataset
is being retained or (as the case may be) examined for the purpose of enabling
any of the information contained in it to be destroyed.
Sections 210(8), 219(8) and 220(5) provide for other exceptions to section 200(1)
or (2) (in connection with cases where a Judicial Commissioner refuses to
approve a specific BPD warrant, the non-renewal or cancellation of BPD
warrants and initial examinations).
Restriction on use of class BPD warrants
An intelligence service may not retain, or retain and examine, a bulk personal
dataset in reliance on a class BPD warrant if the head of the intelligence service
considers that the bulk personal dataset consists of, or includes, protected data.
For the meaning of “protected data”, see section 203.
An intelligence service may not retain, or retain and examine, a bulk personal
dataset in reliance on a class BPD warrant if the head of the intelligence service
considers—
(a) that the bulk personal dataset consists of, or includes, health records, or
(2)
(3)
(4)
201
(1)
(2)
(3)
202
(1)
(2)
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(b)
(3)
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that a substantial proportion of the bulk personal dataset consists of
sensitive personal data.
An intelligence service may not retain, or retain and examine, a bulk personal
dataset in reliance on a class BPD warrant if the head of the intelligence service
considers that the nature of the bulk personal dataset, or the circumstances in
which it was created, is or are such that its retention, or retention and
examination, by the intelligence service raises novel or contentious issues
which ought to be considered by the Secretary of State and a Judicial
Commissioner on an application by the head of the intelligence service for a
specific BPD warrant.
In subsection (2)—
“health records” has the same meaning as in section 206;
“sensitive personal data” means personal data consisting of information
about an individual (whether living or deceased) which is of a kind
mentioned in section 2(a) to (f) of the Data Protection Act 1998.
Meaning of “protected data”
In this Part, “protected data” means any data contained in a bulk personal
dataset other than data which is one or more of the following—
(a) systems data;
(b) data which falls within subsection (2);
(c) data which is not private information.
The data falling within this subsection is identifying data which—
(a) is contained in the bulk personal dataset,
(b) is capable of being logically separated from the bulk personal dataset,
and
(c) if it were so separated, would not reveal anything of what might
reasonably be considered to be the meaning (if any) of any of the data
which would remain in the bulk personal dataset or of the bulk
personal dataset itself, disregarding any meaning arising from the
existence of that data or (as the case may be) the existence of the bulk
personal dataset or from any data relating to that fact.
For the meaning of “systems data” see section 263(4).
In this section, “private information” includes information relating to a
person’s private or family life.
Issue of warrants
(4)
203
(1)
(2)
(3)
(4)
204
(1)
(2)
Class BPD warrants
The head of an intelligence service, or a person acting on his or her behalf, may
apply to the Secretary of State for a class BPD warrant.
The application must include—
(a) a description of the class of bulk personal datasets to which the
application relates, and
(b) in a case where the intelligence service is seeking authorisation for the
examination of bulk personal datasets of that class, the operational
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purposes which it is proposing should be specified in the warrant (see
section 212).
(3)
The Secretary of State may issue the warrant if—
(a) the Secretary of State considers that the warrant is necessary—
(i) in the interests of national security,
(ii) for the purposes of preventing or detecting serious crime, or
(iii) in the interests of the economic well-being of the United
Kingdom so far as those interests are also relevant to the
interests of national security,
(b) the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by the
conduct,
(c) where the warrant authorises the examination of bulk personal datasets
of the class described in the warrant, the Secretary of State considers
that—
(i) each of the specified operational purposes (see section 212) is a
purpose for which the examination of bulk personal datasets of
that class is or may be necessary, and
(ii) the examination of bulk personal datasets of that class for each
such purpose is necessary on any of the grounds on which the
Secretary of State considers the warrant to be necessary,
(d) the Secretary of State considers that the arrangements made by the
intelligence service for storing bulk personal datasets of the class to
which the application relates and for protecting them from
unauthorised disclosure are satisfactory, and
(e) the decision to issue the warrant has been approved by a Judicial
Commissioner.
The fact that a class BPD warrant would authorise the retention, or the
retention and examination, of bulk personal datasets relating to activities in the
British Islands of a trade union is not, of itself, sufficient to establish that the
warrant is necessary on grounds falling within subsection (3)(a).
An application for a class BPD warrant may only be made on behalf of the head
of an intelligence service by a person holding office under the Crown.
Specific BPD warrants
The head of an intelligence service, or a person acting on his or her behalf, may
apply to the Secretary of State for a specific BPD warrant in the following cases.
Case 1 is where—
(a) the intelligence service is seeking authorisation to retain, or to retain
and examine, a bulk personal dataset, and
(b) the bulk personal dataset does not fall within a class described in a class
BPD warrant.
Case 2 is where—
(a) the intelligence service is seeking authorisation to retain, or to retain
and examine, a bulk personal dataset, and
(b) the bulk personal dataset falls within a class described in a class BPD
warrant but either—
(4)
(5)
205
(1)
(2)
(3)
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(i)
(ii)
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the intelligence service is prevented by section 202(1), (2) or (3)
from retaining, or retaining and examining, the bulk personal
dataset in reliance on the class BPD warrant, or
the intelligence service at any time considers that it would be
appropriate to seek a specific BPD warrant.
The application must include—
(a) a description of the bulk personal dataset to which the application
relates, and
(b) in a case where the intelligence service is seeking authorisation for the
examination of the bulk personal dataset, the operational purposes
which it is proposing should be specified in the warrant (see section
212).
Where subsection (3)(b)(i) applies, the application must include an explanation
of why the intelligence service is prevented by section 202(1), (2) or (3) from
retaining, or retaining and examining, the bulk personal dataset in reliance on
a class BPD warrant.
The Secretary of State may issue the warrant if—
(a) the Secretary of State considers that the warrant is necessary—
(i) in the interests of national security,
(ii) for the purposes of preventing or detecting serious crime, or
(iii) in the interests of the economic well-being of the United
Kingdom so far as those interests are also relevant to the
interests of national security,
(b) the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by the
conduct,
(c) where the warrant authorises the examination of a bulk personal
dataset, the Secretary of State considers that—
(i) each of the specified operational purposes (see section 212) is a
purpose for which the examination of the bulk personal dataset
is or may be necessary, and
(ii) the examination of the bulk personal dataset for each such
purpose is necessary on any of the grounds on which the
Secretary of State considers the warrant to be necessary,
(d) the Secretary of State considers that the arrangements made by the
intelligence service for storing the bulk personal dataset and for
protecting it from unauthorised disclosure are satisfactory, and
(e) except where the Secretary of State considers that there is an urgent
need to issue the warrant, the decision to issue it has been approved by
a Judicial Commissioner.
The fact that a specific BPD warrant would authorise the retention, or the
retention and examination, of bulk personal datasets relating to activities in the
British Islands of a trade union is not, of itself, sufficient to establish that the
warrant is necessary on grounds falling within subsection (6)(a).
A specific BPD warrant relating to a bulk personal dataset (“dataset A”) may
also authorise the retention or examination of other bulk personal datasets
(“replacement datasets”) that do not exist at the time of the issue of the warrant
but may reasonably be regarded as replacements for dataset A.
(5)
(6)
(7)
(8)
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(9)
An application for a specific BPD warrant may only be made on behalf of the
head of an intelligence service by a person holding office under the Crown.
Additional safeguards for health records
Subsections (2) and (3) apply if—
(a) an application is made by or on behalf of the head of an intelligence
service for the issue of a specific BPD warrant, and
(b) the purpose, or one of the purposes, of the warrant is to authorise the
retention, or the retention and examination, of health records.
The application must contain a statement that the purpose, or one of the
purposes, of the warrant is to authorise the retention, or the retention and
examination, of health records.
The Secretary of State may issue the warrant only if the Secretary of State
considers that there are exceptional and compelling circumstances that make it
necessary to authorise the retention, or the retention and examination, of
health records.
Subsection (5) applies if—
(a) an application is made by or on behalf of the head of an intelligence
service for a specific BPD warrant,
(b) the head of the intelligence service considers that the bulk personal
dataset includes, or is likely to include, health records, and
(c) subsections (2) and (3) do not apply.
The application must contain either—
(a) a statement that the head of the intelligence service considers that the
bulk personal dataset includes health records, or
(b) a statement that the head of the intelligence service considers that it is
likely that the bulk personal dataset includes health records and an
assessment of how likely this is.
In this section, “health record” means a record, or a copy of a record, which—
(a) consists of information relating to the physical or mental health or
condition of an individual,
(b) was made by or on behalf of a health professional in connection with
the care of that individual, and
(c) was obtained by the intelligence service from a health professional or a
health service body or from a person acting on behalf of a health
professional or a health service body in relation to the record or the
copy.
In subsection (6)—
“health professional” has the same meaning as in the Data Protection Act
1998 (see section 69 of that Act);
“health service body” has the meaning given by section 69(3) of that Act.
Protected data: power to impose conditions
Where the Secretary of State decides to issue a specific BPD warrant, the
Secretary of State may impose conditions which must be satisfied before
protected data retained in reliance on the warrant may be selected for
206
(1)
(2)
(3)
(4)
(5)
(6)
(7)
207
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examination on the basis of criteria which are referable to an individual known
to be in the British Islands at the time of the selection.
208
(1)
Approval of warrants by Judicial Commissioners
In deciding whether to approve a decision to issue a class BPD warrant or a
specific BPD warrant, a Judicial Commissioner must review the Secretary of
State’s conclusions as to the following matters—
(a) whether the warrant is necessary on grounds falling within section
204(3)(a) or (as the case may be) section 205(6)(a),
(b) whether the conduct that would be authorised by the warrant is
proportionate to what is sought to be achieved by that conduct, and
(c) where the warrant authorises examination of bulk personal datasets of
a class described in the warrant or (as the case may be) of a bulk
personal dataset described in the warrant, whether—
(i) each of the specified operational purposes (see section 212) is a
purpose for which the examination of bulk personal datasets of
that class or (as the case may be) the bulk personal dataset is or
may be necessary, and
(ii) the examination of bulk personal datasets of that class or (as the
case may be) the bulk personal dataset is necessary as
mentioned in section 204(3)(c)(ii) or (as the case may be) section
205(6)(c)(ii).
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).
Where a Judicial Commissioner refuses to approve a decision to issue a class
BPD warrant or a specific BPD warrant, the Judicial Commissioner must give
the Secretary of State written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to issue a class BPD warrant or a
specific BPD warrant, the Secretary of State may ask the Investigatory Powers
Commissioner to decide whether to approve the decision to issue the warrant.
Approval of specific BPD warrants issued in urgent cases
This section applies where—
(a) a specific BPD warrant is issued without the approval of a Judicial
Commissioner, and
(b) the Secretary of State considered that there was an urgent need to issue
it.
The Secretary of State must inform a Judicial Commissioner that it has been
issued.
The Judicial Commissioner must, before the end of the relevant period—
(a) decide whether to approve the decision to issue the warrant, and
(b) notify the Secretary of State of the Judicial Commissioner’s decision.
(2)
(3)
(4)
209
(1)
(2)
(3)
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“The relevant period” means the period ending with the third working day
after the day on which the warrant was issued.
(4)
If a Judicial Commissioner refuses to approve the decision to issue a specific
BPD warrant, the warrant—
(a) ceases to have effect (unless already cancelled), and
(b) may not be renewed,
and section 208(4) does not apply in relation to the refusal to approve the
decision.
Section 210 contains further provision about what happens if a Judicial
Commissioner refuses to approve a decision to issue a warrant.
Failure to approve specific BPD warrant issued in urgent case
This section applies where under section 209(3) a Judicial Commissioner
refuses to approve the decision to issue a warrant.
The head of the intelligence service to whom the warrant was addressed must,
so far as is reasonably practicable, secure that anything in the process of being
done in reliance on the warrant stops as soon as possible.
The Judicial Commissioner may—
(a) direct that the whole or part of a bulk personal dataset retained in
reliance on the warrant is destroyed;
(b) impose conditions as to the use or retention of the whole or part of any
such bulk personal dataset.
The Judicial Commissioner—
(a) may require an affected party to make representations about how the
Judicial Commissioner should exercise any function under subsection
(3), and
(b) must have regard to any such representations made by an affected
party (whether or not as a result of a requirement imposed under
paragraph (a)).
Each of the following is an “affected party” for the purposes of subsection (4)—
(a) the Secretary of State;
(b) the head of the intelligence service to whom the warrant was
addressed.
The Secretary of State may ask the Investigatory Powers Commissioner to
review a decision made by any other Judicial Commissioner under subsection
(3).
On a review under subsection (6), the Investigatory Powers Commissioner
may—
(a) confirm the Judicial Commissioner’s decision, or
(b) make a fresh determination.
An intelligence service is not to be regarded as in breach of section 200(1) or (2)
where it retains or (as the case may be) examines a bulk personal dataset in
accordance with conditions imposed under subsection (3)(b).
Nothing in this section or section 209 affects the lawfulness of—
(a) anything done in reliance on the warrant before it ceases to have effect;
(5)
210
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
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if anything is in the process of being done in reliance on the warrant
when it ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done that it is not reasonably practicable to stop.
211
(1)
(2)
(3)
(4)
Decisions to issue warrants to be taken personally by Secretary of State
The decision to issue a class BPD warrant or a specific BPD warrant must be
taken personally by the Secretary of State.
Before a class BPD warrant is issued, it must be signed by the Secretary of State.
Before a specific BPD warrant is issued, it must be signed by the Secretary of
State (subject to subsection (4)).
If it is not reasonably practicable for a specific BPD warrant to be signed by the
Secretary of State, it may be signed by a senior official designated by the
Secretary of State for that purpose.
In such a case, the warrant must contain a statement that—
(a) it is not reasonably practicable for the warrant to be signed by the
Secretary of State, and
(b) the Secretary of State has personally and expressly authorised the issue
of the warrant.
Requirements that must be met by warrants
A class BPD warrant or a specific BPD warrant must contain a provision stating
whether it is a class BPD warrant or (as the case may be) a specific BPD
warrant.
A class BPD warrant or a specific BPD warrant must be addressed to the head
of the intelligence service by whom, or on whose behalf, the application for the
warrant was made.
A class BPD warrant must—
(a) include a description of the class of bulk personal datasets to which the
warrant relates, and
(b) where the warrant authorises examination of bulk personal datasets of
that class, specify the operational purposes for which data contained in
bulk personal datasets of that class may be selected for examination.
A specific BPD warrant must—
(a) describe the bulk personal dataset to which the warrant relates,
(b) where the warrant authorises the retention or examination of
replacement datasets, include a description that will enable those
datasets to be identified,
(c) where the warrant authorises the examination of the bulk personal
dataset or replacement datasets, specify the operational purposes for
which data contained in the bulk personal dataset and any replacement
datasets may be selected for examination, and
(d) where the Secretary of State has imposed conditions under section 207,
specify those conditions.
The operational purposes specified in a class BPD warrant or a specific BPD
warrant must be ones specified, in a list maintained by the heads of the
(5)
212
(1)
(2)
(3)
(4)
(5)
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intelligence services (“the list of operational purposes”), as purposes which
they consider are operational purposes for which data contained in bulk
personal datasets retained in reliance on class BPD warrants or specific BPD
warrants may be selected for examination.
(6)
A class BPD warrant or a specific BPD warrant may, in particular, specify all of
the operational purposes which, at the time the warrant is issued, are specified
in the list of operational purposes.
An operational purpose may be specified in the list of operational purposes
only with the approval of the Secretary of State.
The Secretary of State may give such approval only if satisfied that the
operational purpose is specified in a greater level of detail than the descriptions
contained in section 204(3)(a) or (as the case may be) section 205(6)(a).
At the end of each relevant three-month period, the Secretary of State must
give a copy of the list of operational purposes to the Intelligence and Security
Committee of Parliament.
In subsection (9), “relevant three-month period” means—
(a) the period of three months beginning with the day on which this
section comes into force, and
(b) each successive period of three months.
The Prime Minister must review the list of operational purposes at least once a
year.
In this Part, “the specified operational purposes”, in relation to a class BPD
warrant or a specific BPD warrant, means the operational purposes specified
in the warrant in accordance with this section.
Duration, modification and cancellation
213
(1)
Duration of warrants
A class BPD warrant or a specific BPD warrant ceases to have effect at the end
of the relevant period (see subsection (2)) unless—
(a) it is renewed before the end of that period (see section 214), or
(b) it is cancelled or (in the case of a specific BPD warrant) otherwise ceases
to have effect before the end of that period (see sections 209 and 218).
In this section, “the relevant period”—
(a) in the case of an urgent specific BPD warrant (see subsection (3)), means
the period ending with the fifth working day after the day on which the
warrant was issued;
(b) in any other case, means the period of 6 months beginning with—
(i) the day on which the warrant was issued, or
(ii) in the case of a warrant that has been renewed, the day after the
day at the end of which the warrant would have ceased to have
effect if it had not been renewed.
For the purposes of subsection (2)(a), a specific BPD warrant is an “urgent
specific BPD warrant” if—
(a) the warrant was issued without the approval of a Judicial
Commissioner, and
(7)
(8)
(9)
(10)
(11)
(12)
(2)
(3)
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(b)
(4)
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the Secretary of State considered that there was an urgent need to issue
it.
For provision about the renewal of warrants, see section 214.
Renewal of warrants
If the renewal conditions are met, a class BPD warrant or a specific BPD
warrant may be renewed, at any time during the renewal period, by an
instrument issued by the Secretary of State.
The renewal conditions are—
(a) that the Secretary of State considers that the warrant continues to be
necessary on grounds falling within section 204(3)(a) or (as the case
may be) section 205(6)(a),
(b) that the Secretary of State considers that the conduct that would be
authorised by the renewed warrant continues to be proportionate to
what is sought to be achieved by the conduct,
(c) where the warrant authorises examination of bulk personal datasets of
a class described in the warrant or (as the case may be) of a bulk
personal dataset described in the warrant, that the Secretary of State
considers that—
(i) each of the specified operational purposes (see section 212) is a
purpose for which the examination of bulk personal datasets of
that class or (as the case may be) the bulk personal dataset
continues to be, or may be, necessary, and
(ii) the examination of bulk personal datasets of that class or (as the
case may be) the bulk personal dataset continues to be
necessary on any of the grounds on which the Secretary of State
considers that the warrant continues to be necessary, and
(d) that the decision to renew the warrant has been approved by a Judicial
Commissioner.
“The renewal period” means—
(a) in the case of an urgent specific BPD warrant which has not been
renewed, the relevant period;
(b) in any other case, the period of 30 days ending with the day at the end
of which the warrant would otherwise cease to have effect.
The decision to renew a class BPD warrant or a specific BPD warrant must be
taken personally by the Secretary of State, and the instrument renewing the
warrant must be signed by the Secretary of State.
Section 207 (protected data: power to impose conditions) applies in relation to
the renewal of a specific BPD warrant as it applies in relation to the issue of
such a warrant (whether or not any conditions have previously been imposed
in relation to the warrant under that section).
Section 208 (approval of warrants by Judicial Commissioner) applies in
relation to a decision to renew a warrant as it applies in relation to a decision
to issue a warrant.
In this section—
“the relevant period” has the same meaning as in section 213;
“urgent specific BPD warrant” is to be read in accordance with subsection
(3) of that section.
(2)
(3)
(4)
(5)
(6)
(7)
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215
(1)
Modification of warrants
The provisions of a class BPD warrant or a specific BPD warrant may be
modified at any time by an instrument issued by the person making the
modification.
The only modifications which may be made under this section are—
(a) in the case of a class BPD warrant, adding, varying or removing any
operational purpose specified in the warrant as a purpose for which
bulk personal datasets of a class described in the warrant may be
examined;
(b) in the case of a specific BPD warrant, adding, varying or removing any
operational purpose specified in the warrant as a purpose for which the
bulk personal dataset described in the warrant may be examined.
In this section—
(a) a modification adding or varying any operational purpose is referred to
as a “major modification”, and
(b) a modification removing any operational purpose is referred to as a
“minor modification”.
A major modification—
(a) must be made by the Secretary of State, and
(b) may be made only if the Secretary of State considers that it is necessary
on any of the grounds on which the Secretary of State considers the
warrant to be necessary (see section 204(3)(a) or (as the case may be)
section 205(6)(a)).
Except where the Secretary of State considers that there is an urgent need to
make the modification, a major modification has effect only if the decision to
make the modification is approved by a Judicial Commissioner.
A minor modification may be made by—
(a) the Secretary of State, or
(b) a senior official acting on behalf of the Secretary of State.
Where a minor modification is made by a senior official, the Secretary of State
must be notified personally of the modification and the reasons for making it.
If at any time a person mentioned in subsection (6) considers that any
operational purpose specified in a warrant is no longer a purpose for which the
examination of any bulk personal datasets to which the warrant relates is or
may be necessary, the person must modify the warrant by removing that
operational purpose.
The decision to modify the provisions of a class BPD warrant or a specific BPD
warrant must be taken personally by the person making the modification, and
the instrument making the modification must be signed by that person.
This is subject to subsection (10).
If it is not reasonably practicable for an instrument making a major
modification to be signed by the Secretary of State, the instrument may be
signed by a senior official designated by the Secretary of State for that purpose.
In such a case, the instrument making the modification must contain a
statement that—
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
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(a)
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it is not reasonably practicable for the instrument to be signed by the
Secretary of State, and
the Secretary of State has personally and expressly authorised the
making of the modification.
216
(1)
Approval of major modifications by Judicial Commissioners
In deciding whether to approve a decision to make a major modification of a
class BPD warrant or a specific BPD warrant, a Judicial Commissioner must
review the Secretary of State’s conclusions as to whether the modification is
necessary on any of the grounds on which the Secretary of State considers the
warrant to be necessary.
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matter referred to in subsection (1) with a sufficient degree
of care as to ensure that the Judicial Commissioner complies with the
duties imposed by section 2 (general duties in relation to privacy).
Where a Judicial Commissioner refuses to approve a decision to make a major
modification under section 215, the Judicial Commissioner must give the
Secretary of State written reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to make a major modification
under section 215, the Secretary of State may ask the Investigatory Powers
Commissioner to decide whether to approve the decision to make the
modification.
Approval of major modifications made in urgent cases
This section applies where—
(a) the Secretary of State makes a major modification of a class BPD
warrant or a specific BPD warrant without the approval of a Judicial
Commissioner, and
(b) the Secretary of State considered that there was an urgent need to make
the modification.
The Secretary of State must inform a Judicial Commissioner that the
modification has been made.
The Judicial Commissioner must, before the end of the relevant period—
(a) decide whether to approve the decision to make the modification, and
(b) notify the Secretary of State of the Judicial Commissioner’s decision.
“The relevant period” means the period ending with the third working day
after the day on which the modification was made.
If the Judicial Commissioner refuses to approve the decision to make the
modification—
(a) the warrant (unless it no longer has effect) has effect as if the
modification had not been made, and
(b) the person to whom the warrant is addressed must, so far as is
reasonably practicable, secure that anything in the process of being
(2)
(3)
(4)
217
(1)
(2)
(3)
(4)
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done in reliance on the warrant by virtue of that modification stops as
soon as possible,
and section 216(4) does not apply in relation to the refusal to approve the
decision.
(5)
Nothing in this section affects the lawfulness of—
(a) anything done in reliance on the warrant by virtue of the modification
before the modification ceases to have effect;
(b) if anything is in the process of being done in reliance on the warrant by
virtue of the modification when the modification ceases to have effect—
(i) anything done before that thing could be stopped, or
(ii) anything done which it is not reasonably practicable to stop.
Cancellation of warrants
The Secretary of State, or a senior official acting on behalf of the Secretary of
State, may cancel a class BPD warrant or a specific BPD warrant at any time.
If the Secretary of State, or a senior official acting on behalf of the Secretary of
State, considers that any of the cancellation conditions are met in relation to a
class BPD warrant or a specific BPD warrant, the person must cancel the
warrant.
The cancellation conditions are—
(a) that the warrant is no longer necessary on any grounds falling within
section 204(3)(a) or (as the case may be) section 205(6)(a);
(b) that the conduct authorised by the warrant is no longer proportionate
to what is sought to be achieved by that conduct;
(c) where the warrant authorises examination of bulk personal datasets of
a class described in the warrant or (as the case may be) of a bulk
personal dataset described in the warrant, that the examination of bulk
personal datasets of that class or (as the case may be) of the bulk
personal dataset is no longer necessary for any of the specified
operational purposes (see section 212).
Non-renewal or cancellation of BPD warrants
This section applies where a class BPD warrant or a specific BPD warrant
ceases to have effect because it expires without having been renewed or
because it is cancelled.
The head of the intelligence service to whom the warrant was addressed may,
before the end of the period of 5 working days beginning with the day on
which the warrant ceases to have effect—
(a) apply for—
(i) a specific BPD warrant authorising the retention, or the
retention and examination, of the whole or any part of the
material retained by the intelligence service in reliance on the
warrant which has ceased to have effect;
(ii) a class BPD warrant authorising the retention or (as the case
may be) the retention and examination of bulk personal
datasets of a class that is described in a way that would
authorise the retention or (as the case may be) the retention and
examination of the whole or any part of such material, or
218
(1)
(2)
(3)
219
(1)
(2)
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(b)
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where the head of the intelligence service wishes to give further
consideration to whether to apply for a warrant of a kind mentioned in
paragraph (a)(i) or (ii), apply to the Secretary of State for authorisation
to retain, or to retain and examine, the whole or any part of the material
retained by the intelligence service in reliance on the warrant.
(3)
On an application under subsection (2)(b), the Secretary of State may—
(a) direct that any of the material to which the application relates be
destroyed;
(b) with the approval of a Judicial Commissioner, authorise the retention
or (as the case may be) the retention and examination of any of that
material, subject to such conditions as the Secretary of State considers
appropriate, for a period specified by the Secretary of State which may
not exceed 3 months.
In deciding whether to give approval for the purposes of subsection (3)(b), the
Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matter with a sufficient degree of care as to ensure that the
Judicial Commissioner complies with the duties imposed by section 2
(general duties in relation to privacy).
Where a Judicial Commissioner refuses to approve a decision by the Secretary
of State to authorise the retention or (as the case may be) the retention and
examination of any material under subsection (3)(b), the Judicial
Commissioner must give the Secretary of State written reasons for the decision.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve such a decision, the Secretary of State may
ask the Investigatory Powers Commissioner to decide whether to approve the
decision.
If, during the period specified by the Secretary of State under subsection (3)(b),
the head of the intelligence service decides to apply for a warrant of a kind
mentioned in subsection (2)(a)(i) or (ii), the head of the intelligence service
must make the application as soon as reasonably practicable and before the end
of the period specified by the Secretary of State.
Where a class BPD warrant or a specific BPD warrant ceases to have effect
because it expires without having been renewed or it is cancelled, an
intelligence service is not to be regarded as in breach of section 200(1) or (2) by
virtue of its retention or examination of any material to which the warrant
related during any of the following periods.
First period
The period of 5 working days beginning with the day on which the warrant
ceases to have effect.
Second period
The period beginning with the day on which the head of the intelligence
service makes an application under subsection (2)(a) or (b) in relation to the
material and ending with the determination of the application.
Third period
(4)
(5)
(6)
(7)
(8)
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The period during which the retention or examination of the material is
authorised under subsection (3)(b).
Fourth period
Where authorisation under subsection (3)(b) is given and the head of the
intelligence service subsequently makes, in accordance with subsection (7), an
application for a specific BPD warrant or a class BPD warrant in relation to the
material, the period (if any) beginning with the expiry of the authorisation
under subsection (3)(b) and ending with the determination of the application
for the warrant.
Further and supplementary provision
220
(1)
Initial examinations: time limits
This section applies where—
(a) an intelligence service obtains a set of information otherwise than in the
exercise of a power conferred by a warrant or other authorisation
issued or given under this Act, and
(b) the head of the intelligence service believes that—
(i) the set includes, or may include, personal data relating to a
number of individuals, and
(ii) the nature of the set is, or may be, such that the majority of the
individuals are not, and are unlikely to become, of interest to
the intelligence service in the exercise of its functions.
The head of the intelligence service must take the following steps before the
end of the permitted period.
Step 1
Carry out an initial examination of the set for the purpose of deciding whether,
if the intelligence service were to retain it after that initial examination and
hold it electronically for analysis for the purposes of the exercise of its
functions, the intelligence service would be retaining a bulk personal dataset
(see section 199).
Step 2
If the intelligence service would be retaining a bulk personal dataset as
mentioned in step 1, decide whether to retain the set and hold it electronically
for analysis for the purposes of the exercise of the functions of the intelligence
service.
Step 3
If the head of the intelligence service decides to retain the set and hold it
electronically for analysis as mentioned in step 2, apply for a specific BPD
warrant as soon as reasonably practicable after making that decision (unless
the retention of the dataset is authorised by a class BPD warrant).
(3)
(4)
The permitted period begins when the head of the intelligence service first
forms the beliefs mentioned in subsection (1)(b).
The permitted period ends—
(2)
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(a)
(b)
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where the set of information was created in the United Kingdom, 3
months after the day on which it begins;
where the set of information was created outside the United Kingdom,
6 months after the day on which it begins.
If the head of the intelligence service applies for a specific BPD warrant in
accordance with step 3 (set out in subsection (2))—
(a) the intelligence service is not to be regarded as in breach of section
200(1) by virtue of retaining the bulk personal dataset during the period
between the taking of the decision mentioned in step 2 and the
determination of the application for the specific BPD warrant, and
(b) the intelligence service is not to be regarded as in breach of section
200(2) by virtue of examining the bulk personal dataset during that
period if the examination is necessary for the purposes of the making of
the application for the warrant.
Safeguards relating to examination of bulk personal datasets
The Secretary of State must ensure, in relation to every class BPD warrant or
specific BPD warrant which authorises examination of bulk personal datasets
of a class described in the warrant or (as the case may be) of a bulk personal
dataset described in the warrant, that arrangements are in force for securing
that—
(a) any selection of data contained in the datasets (or dataset) for
examination is carried out only for the specified purposes (see
subsection (2)), and
(b) the selection of any such data for examination is necessary and
proportionate in all the circumstances.
The selection of data contained in bulk personal datasets for examination is
carried out only for the specified purposes if the data is selected for
examination only so far as is necessary for the operational purposes specified
in the warrant in accordance with section 212.
The Secretary of State must also ensure, in relation to every specific BPD
warrant which specifies conditions imposed under section 207, that
arrangements are in force for securing that any selection for examination of
protected data on the basis of criteria which are referable to an individual
known to be in the British Islands at the time of the selection is in accordance
with the conditions specified in the warrant.
In this section “specified in the warrant” means specified in the warrant at the
time of the selection of the data for examination.
Additional safeguards for items subject to legal privilege: examination
Subsections (2) and (3) apply if, in a case where protected data retained in
reliance on a specific BPD warrant is to be selected for examination—
(a) the purpose, or one of the purposes, of using the criteria to be used for
the selection of the data for examination (“the relevant criteria”) is to
identify any items subject to legal privilege, or
(b) the use of the relevant criteria is likely to identify such items.
If the relevant criteria are referable to an individual known to be in the British
Islands at the time of the selection, the data may be selected for examination
221
(1)
(2)
(3)
(4)
222
(1)
(2)
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using the relevant criteria only if the Secretary of State has approved the use of
those criteria.
(3)
In any other case, the data may be selected for examination using the relevant
criteria only if a senior official acting on behalf of the Secretary of State has
approved the use of those criteria.
The Secretary of State may give approval for the purposes of subsection (2)
only with the approval of a Judicial Commissioner.
Approval may be given under subsection (2) or (3) only if—
(a) the Secretary of State or (as the case may be) the senior official considers
that the arrangements mentioned in section 205(6)(d) include specific
arrangements in respect of items subject to legal privilege, and
(b) where subsection (1)(a) applies, the Secretary of State or (as the case
may be) the senior official considers that there are exceptional and
compelling circumstances that make it necessary to authorise the use of
the relevant criteria.
In deciding whether to give an approval under subsection (2) or (3) in a case
where subsection (1)(a) applies, the Secretary of State or (as the case may be)
the senior official must have regard to the public interest in the confidentiality
of items subject to legal privilege.
For the purposes of subsection (5)(b), there cannot be exceptional and
compelling circumstances that make it necessary to authorise the use of the
relevant criteria unless—
(a) the public interest in obtaining the information that would be obtained
by the selection of the data for examination outweighs the public
interest in the confidentiality of items subject to legal privilege,
(b) there are no other means by which the information may reasonably be
obtained, and
(c) obtaining the information is necessary in the interests of national
security or for the purpose of preventing death or significant injury.
In deciding whether to give approval for the purposes of subsection (4), the
Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matter with a sufficient degree of care as to ensure that the
Judicial Commissioner complies with the duties imposed by section 2
(general duties in relation to privacy).
Subsections (10) and (11) apply if, in a case where protected data retained in
reliance on a specific BPD warrant is to be selected for examination—
(a) the purpose, or one of the purposes, of using the criteria to be used for
the selection of the data for examination (“the relevant criteria”) is to
identify data that, if the data or any underlying material were not
created or held with the intention of furthering a criminal purpose,
would be an item subject to legal privilege, and
(b) the person to whom the warrant is addressed considers that the data
(“the targeted data”) or any underlying material is likely to be data or
underlying material created or held with the intention of furthering a
criminal purpose.
(4)
(5)
(6)
(7)
(8)
(9)
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(10)
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Part 7 — Bulk personal dataset warrants
If the relevant criteria are referable to an individual known to be in the British
Islands at the time of the selection, the data may be selected for examination
using the relevant criteria only if the Secretary of State has approved the use of
those criteria.
In any other case, the data may be selected for examination using the relevant
criteria only if a senior official acting on behalf of the Secretary of State has
approved the use of those criteria.
Approval may be given under subsection (10) or (11) only if the Secretary of
State or (as the case may be) the senior official considers that the targeted data
or the underlying material is likely to be data or underlying material created or
held with the intention of furthering a criminal purpose.
In this section, “underlying material”, in relation to data retained in reliance on
a specific BPD warrant, means any communications or other items of
information from which the data was produced.
Additional safeguards for items subject to legal privilege: retention following
examination
Where an item subject to legal privilege is retained following its examination
in reliance on a specific BPD warrant, for purposes other than the destruction
of the item, the person to whom the warrant is addressed must inform the
Investigatory Powers Commissioner as soon as is reasonably practicable.
Unless the Investigatory Powers Commissioner considers that subsection (4)
applies to the item, the Commissioner must—
(a) direct that the item is destroyed, or
(b) impose one or more conditions as to the use or retention of that item.
If the Investigatory Powers Commissioner considers that subsection (4) applies
to the item, the Commissioner may nevertheless impose such conditions under
subsection (2)(b) as the Commissioner considers necessary for the purpose of
protecting the public interest in the confidentiality of items subject to legal
privilege.
This subsection applies to an item subject to legal privilege if—
(a) the public interest in retaining the item outweighs the public interest in
the confidentiality of items subject to legal privilege, and
(b) retaining the item is necessary in the interests of national security or for
the purpose of preventing death or significant injury.
The Investigatory Powers Commissioner—
(a) may require an affected party to make representations about how the
Commissioner should exercise any function under subsection (2), and
(b) must have regard to any such representations made by an affected
party (whether or not as a result of a requirement imposed under
paragraph (a)).
Each of the following is an “affected party” for the purposes of subsection (5)—
(a) the Secretary of State;
(b) the person to whom the warrant is or was addressed.
(11)
(12)
(13)
223
(1)
(2)
(3)
(4)
(5)
(6)
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179
224
(1)
Offence of breaching safeguards relating to examination of material
A person commits an offence if—
(a) the person selects for examination any data contained in a bulk
personal dataset retained in reliance on a class BPD warrant or a
specific BPD warrant,
(b) the person knows or believes that the selection of that data is in breach
of a requirement specified in subsection (2), and
(c) the person deliberately selects that data in breach of that requirement.
The requirements specified in this subsection are that any selection for
examination of the data—
(a) is carried out only for the specified purposes (see subsection (3)),
(b) is necessary and proportionate, and
(c) if the data is protected data, satisfies any conditions imposed under
section 207.
The selection for examination of the data is carried out only for the specified
purposes if the data is selected for examination only so far as is necessary for
the operational purposes specified in the warrant in accordance with section
212.
In this subsection, “specified in the warrant” means specified in the warrant at
the time of the selection of the data for examination.
A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or
(ii) to a fine,
or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.
No proceedings for any offence which is an offence by virtue of this section
may be instituted—
(a) in England and Wales, except by or with the consent of the Director of
Public Prosecutions;
(b) in Northern Ireland, except by or with the consent of the Director of
Public Prosecutions for Northern Ireland.
(2)
(3)
(4)
(5)
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225
(1)
Investigatory Powers Act 2016 (c.
25)
Part 7 — Bulk personal dataset warrants
Application of Part to bulk personal datasets obtained under this Act
Subject to subsection (2), this section applies where a bulk personal dataset has
been obtained by an intelligence service under a warrant or other authorisation
issued or given under this Act (and, accordingly, section 200(1) and (2) do not
apply by virtue of section 201(1)).
This section does not apply where the bulk personal dataset was obtained by
the intelligence service under a bulk acquisition warrant issued under Chapter
2 of Part 6.
Where this section applies, the Secretary of State may, on the application of the
head of the intelligence service, give a direction that—
(a) the intelligence service may retain, or retain and examine, the bulk
personal dataset by virtue of the direction,
(b) any other power of the intelligence service to retain or examine the bulk
personal dataset, and any associated regulatory provision, ceases to
apply in relation to the bulk personal dataset (subject to subsection (5)),
and
(c) section 201(1) also ceases to apply in relation to the bulk personal
dataset.
Accordingly, where a direction is given under subsection (3), the intelligence
service may exercise its power by virtue of the direction to retain, or to retain
and examine, the bulk personal dataset only if authorised to do so by a class
BPD warrant or a specific BPD warrant under this Part.
A direction under subsection (3) may provide for any associated regulatory
provision specified in the direction to continue to apply in relation to the bulk
personal dataset, with or without modifications specified in the direction.
The power conferred by subsection (5) must be exercised to ensure that—
(a) where section 56 and Schedule 3 applied in relation to the bulk personal
dataset immediately before the giving of the direction, they continue to
apply in relation to it (without modification);
(b) where sections 57 to 59 applied in relation to the bulk personal dataset
immediately before the giving of the direction, they continue to apply
in relation to it with the modification that the reference in section
58(7)(a) to the provisions of Part 2 is to be read as including a reference
to the provisions of this Part.
The Secretary of State may only give a direction under subsection (3) with the
approval of a Judicial Commissioner.
In deciding whether to give approval for the purposes of subsection (7), the
Judicial Commissioner must apply the same principles as would be applied by
a court on an application for judicial review.
Where a Judicial Commissioner refuses to approve a decision by the Secretary
of State to give a direction under subsection (3), the Judicial Commissioner
must give the Secretary of State written reasons for the decision.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve such a decision, the Secretary of State may
ask the Investigatory Powers Commissioner to decide whether to approve the
decision.
A direction under subsection (3)—
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
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181
(a)
(b)
(12)
may not be revoked;
may be varied but only for the purpose of altering or removing any
provision included in the direction under subsection (5).
Subsections (7) to (10) apply in relation to the variation of a direction under
subsection (3) as they apply in relation to the giving of a direction under that
subsection.
The head of an intelligence service may, at the same time as applying for a
direction under subsection (3), apply for a specific BPD warrant under section
205 (and the Secretary of State may issue such a warrant at the same time as
giving the direction).
In this section, “associated regulatory provision”, in relation to a power of an
intelligence service to retain or examine a bulk personal dataset, means any
provision which—
(a) is made by or for the purposes of this Act (other than this Part), and
(b) applied in relation to the retention, examination, disclosure or other use
of the bulk personal dataset immediately before the giving of a
direction under subsection (3).
(13)
(14)
226
(1)
Part 7: interpretation
In this Part—
“class BPD warrant” has the meaning given by section 200(3)(a);
“personal data” has the meaning given by section 199(2);
“senior official” means a member of the Senior Civil Service or a member
of the Senior Management Structure of Her Majesty’s Diplomatic
Service;
“specific BPD warrant” has the meaning given by section 200(3)(b);
“the specified operational purposes” has the meaning given by section
212(12).
See also—
section 263 (general definitions),
section 265 (index of defined expressions).
P
ART
8
O
VERSIGHT ARRANGEMENTS
C
HAPTER
1
I
NVESTIGATORY
P
OWERS
C
OMMISSIONER AND OTHER
J
UDICIAL
C
OMMISSIONERS
The Commissioners
(2)
227
(1)
Investigatory Powers Commissioner and other Judicial Commissioners
The Prime Minister must appoint—
(a) the Investigatory Powers Commissioner, and
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Part 8 — Oversight arrangements
Chapter 1 — Investigatory Powers Commissioner and other Judicial Commissioners
(b)
such number of other Judicial Commissioners as the Prime Minister
considers necessary for the carrying out of the functions of the Judicial
Commissioners.
(2)
A person is not to be appointed as the Investigatory Powers Commissioner or
another Judicial Commissioner unless the person holds or has held a high
judicial office (within the meaning of Part 3 of the Constitutional Reform Act
2005).
A person is not to be appointed as the Investigatory Powers Commissioner
unless recommended jointly by—
(a) the Lord Chancellor,
(b) the Lord Chief Justice of England and Wales,
(c) the Lord President of the Court of Session, and
(d) the Lord Chief Justice of Northern Ireland.
A person is not to be appointed as a Judicial Commissioner under subsection
(1)(b) unless recommended jointly by—
(a) the Lord Chancellor,
(b) the Lord Chief Justice of England and Wales,
(c) the Lord President of the Court of Session,
(d) the Lord Chief Justice of Northern Ireland, and
(e) the Investigatory Powers Commissioner.
Before appointing any person under subsection (1), the Prime Minister must
consult the Scottish Ministers.
The Prime Minister must have regard to a memorandum of understanding
agreed between the Prime Minister and the Scottish Ministers when exercising
functions under subsection (1) or (5).
The Investigatory Powers Commissioner is a Judicial Commissioner and the
Investigatory Powers Commissioner and the other Judicial Commissioners are
to be known, collectively, as the Judicial Commissioners.
The Investigatory Powers Commissioner may, to such extent as the
Investigatory Powers Commissioner may decide, delegate the exercise of
functions of the Investigatory Powers Commissioner to any other Judicial
Commissioner.
Subsection (8) does not apply to the function of the Investigatory Powers
Commissioner of making a recommendation under subsection (4)(e) or making
an appointment under section 247(1).
The delegation under subsection (8) to any extent of functions by the
Investigatory Powers Commissioner does not prevent the exercise of the
functions to that extent by that Commissioner.
Any function exercisable by a Judicial Commissioner or any description of
Judicial Commissioners is exercisable by any of the Judicial Commissioners or
(as the case may be) any of the Judicial Commissioners of that description.
Subsection (11) does not apply to—
(a) any function conferred on the Investigatory Powers Commissioner by
name (except so far as its exercise by any of the Judicial Commissioners
or any description of Judicial Commissioners is permitted by a
delegation under subsection (8)), or
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
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Chapter 1 — Investigatory Powers Commissioner and other Judicial Commissioners
183
(b)
(13)
any function conferred on, or delegated under subsection (8) to, any
other particular named Judicial Commissioner.
References in any enactment—
(a) to a Judicial Commissioner are to be read as including the Investigatory
Powers Commissioner, and
(b) to the Investigatory Powers Commissioner are to be read, so far as
necessary for the purposes of subsection (8), as references to the
Investigatory Powers Commissioner or any other Judicial
Commissioner.
Terms and conditions of appointment
Subject as follows, each Judicial Commissioner holds and vacates office in
accordance with the Commissioner’s terms and conditions of appointment.
Each Judicial Commissioner is to be appointed for a term of three years.
A person who ceases to be a Judicial Commissioner (otherwise than under
subsection (5)) may be re-appointed under section 227(1).
A Judicial Commissioner may not, subject to subsection (5), be removed from
office before the end of the term for which the Commissioner is appointed
unless a resolution approving the removal has been passed by each House of
Parliament.
A Judicial Commissioner may be removed from office by the Prime Minister if,
after the appointment of the Commissioner—
(a) a bankruptcy order is made against the Commissioner or the
Commissioner’s estate is sequestrated or the Commissioner makes a
composition or arrangement with, or grants a trust deed for, the
Commissioner’s creditors,
(b) any of the following orders is made against the Commissioner—
(i) a disqualification order under the Company Directors
Disqualification Act 1986 or the Company Directors
Disqualification (Northern Ireland) Order 2002,
(ii) an order under section 429(2)(b) of the Insolvency Act 1986
(failure to pay under county court administration order),
(iii) an order under section 429(2) of the Insolvency Act 1986
(disabilities on revocation of county court administration
order),
(c) the Commissioner’s disqualification undertaking is accepted under
section 7 or 8 of the Company Directors Disqualification Act 1986 or
under the Company Directors Disqualification (Northern Ireland)
Order 2002, or
(d) the Commissioner is convicted in the United Kingdom, the Channel
Islands or the Isle of Man of an offence and receives a sentence of
imprisonment (whether suspended or not).
228
(1)
(2)
(3)
(4)
(5)
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Investigatory Powers Act 2016 (c.
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Part 8 — Oversight arrangements
Chapter 1 — Investigatory Powers Commissioner and other Judicial Commissioners
Main functions of Commissioners
229
(1)
Main oversight functions
The Investigatory Powers Commissioner must keep under review (including
by way of audit, inspection and investigation) the exercise by public
authorities of statutory functions relating to—
(a) the interception of communications,
(b) the acquisition or retention of communications data,
(c) the acquisition of secondary data or related systems data under
Chapter 1 of Part 2 or Chapter 1 of Part 6, or
(d) equipment interference.
Such statutory functions include, in particular, functions relating to the
disclosure, retention or other use of—
(a) any content of communications intercepted by an interception
authorised or required by a warrant under Chapter 1 of Part 2 or
Chapter 1 of Part 6,
(b) acquired or retained communications data,
(c) data acquired as mentioned in subsection (1)(c), or
(d) communications, equipment data or other information acquired by
means of equipment interference.
The Investigatory Powers Commissioner must keep under review (including
by way of audit, inspection and investigation)—
(a) the acquisition, retention, use or disclosure of bulk personal datasets by
an intelligence service,
(b) the giving and operation of notices under section 252 (national security
notices),
(c) the exercise of functions by virtue of section 80 of the Serious Crime Act
2015 (prevention or restriction of use of communication devices by
prisoners etc.),
(d) the exercise of functions by virtue of sections 1 to 4 of the Prisons
(Interference with Wireless Telegraphy) Act 2012,
(e) the exercise of functions by virtue of Part 2 or 3 of the Regulation of
Investigatory Powers Act 2000 (surveillance, covert human intelligence
sources and investigation of electronic data protected by encryption
etc.),
(f) the adequacy of the arrangements by virtue of which the duties
imposed by section 55 of that Act are sought to be discharged,
(g) the exercise of functions by virtue of the Regulation of Investigatory
Powers (Scotland) Act 2000 (2000 asp 11) (surveillance and covert
human intelligence sources),
(h) the exercise of functions under Part 3 of the Police Act 1997
(authorisation of action in respect of property),
(i) the exercise by the Secretary of State of functions under sections 5 to 7
of the Intelligence Services Act 1994 (warrants for interference with
wireless telegraphy, entry and interference with property etc.), and
(j) the exercise by the Scottish Ministers (by virtue of provision made
under section 63 of the Scotland Act 1998) of functions under sections 5
and 6(3) and (4) of the Act of 1994.
But the Investigatory Powers Commissioner is not to keep under review—
(2)
(3)
(4)
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Chapter 1 — Investigatory Powers Commissioner and other Judicial Commissioners
185
(a)
(b)
(c)
(d)
(e)
(f)
the exercise of any function of a relevant Minister to make subordinate
legislation,
the exercise of any function by a judicial authority,
the exercise of any function by virtue of Part 3 of the Regulation of
Investigatory Powers Act 2000 which is exercisable with the permission
of a judicial authority,
the exercise of any function which—
(i) is for the purpose of obtaining information or taking possession
of any document or other property in connection with
communications stored in or by a telecommunication system, or
(ii) is carried out in accordance with an order made by a judicial
authority for that purpose,
and is not exercisable by virtue of this Act, the Regulation of
Investigatory Powers Act 2000, the Regulation of Investigatory Powers
(Scotland) Act 2000 or an enactment mentioned in subsection (3)(c), (h),
(i) or (j) above,
the exercise of any function where the conduct concerned is—
(i) conduct authorised by section 45, 47 or 50, or
(ii) conduct authorised by section 46 which is not conduct by or on
behalf of an intercepting authority (within the meaning given
by section 18(1)), or
the exercise of any function which is subject to review by the
Information Commissioner or the Investigatory Powers Commissioner
for Northern Ireland.
(5)
In keeping matters under review in accordance with this section, the
Investigatory Powers Commissioner must, in particular, keep under review
the operation of safeguards to protect privacy.
In exercising functions under this Act, a Judicial Commissioner must not act in
a way which the Commissioner considers to be contrary to the public interest
or prejudicial to—
(a) national security,
(b) the prevention or detection of serious crime, or
(c) the economic well-being of the United Kingdom.
A Judicial Commissioner must, in particular, ensure that the Commissioner
does not—
(a) jeopardise the success of an intelligence or security operation or a law
enforcement operation,
(b) compromise the safety or security of those involved, or
(c) unduly impede the operational effectiveness of an intelligence service,
a police force, a government department or Her Majesty’s forces.
Subsections (6) and (7) do not apply in relation to any of the following
functions of a Judicial Commissioner—
(a) deciding—
(i) whether to serve, vary or cancel a monetary penalty notice
under section 7 or paragraph 16 of Schedule 1, a notice of intent
under paragraph 4 of that Schedule or an information notice
under Part 2 of that Schedule, or
(ii) the contents of any such notice,
(6)
(7)
(8)
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Chapter 1 — Investigatory Powers Commissioner and other Judicial Commissioners
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
deciding whether to approve the issue, modification or renewal of a
warrant,
deciding whether to direct the destruction of material or how otherwise
to deal with the situation where—
(i) a warrant issued, or modification made, for what was
considered to be an urgent need is not approved, or
(ii) an item subject to legal privilege is retained, following its
examination, for purposes other than the destruction of the
item,
deciding whether to—
(i) approve the grant, modification or renewal of an authorisation,
or
(ii) quash or cancel an authorisation or renewal,
deciding whether to approve—
(i) the giving or varying of a retention notice under Part 4 or a
notice under section 252 or 253, or
(ii) the giving of a notice under section 90(10)(b) or 257(9)(b),
participating in a review under section 90 or 257,
deciding whether to approve an authorisation under section 219(3)(b),
deciding whether to give approval under section 222(4),
deciding whether to approve the giving or varying of a direction under
section 225(3),
making a decision under section 231(1),
deciding whether to order the destruction of records under section 103
of the Police Act 1997, section 37 of the Regulation of Investigatory
Powers Act 2000 or section 15 of the Regulation of Investigatory Powers
(Scotland) Act 2000,
deciding whether to make an order under section 103(6) of the Police
Act 1997 (order enabling the taking of action to retrieve anything left on
property in pursuance of an authorisation),
deciding—
(i) an appeal against, or a review of, a decision by another Judicial
Commissioner, and
(ii) any action to take as a result.
(9)
In this section—
“bulk personal dataset” is to be read in accordance with section 199,
“equipment data” has the same meaning as in Part 5 (see section 100),
“judicial authority” means a judge, court or tribunal or any person
exercising the functions of a judge, court or tribunal (but does not
include a Judicial Commissioner),
“police force” has the same meaning as in Part 2 (see section 60(1)),
“related systems data” has the meaning given by section 15(6),
“relevant Minister” means a Minister of the Crown or government
department, the Scottish Ministers, the Welsh Ministers or a Northern
Ireland department,
“secondary data” has the same meaning as in Part 2 (see section 16).
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Chapter 1 — Investigatory Powers Commissioner and other Judicial Commissioners
187
230
(1)
Additional directed oversight functions
So far as directed to do so by the Prime Minister and subject to subsection (2),
the Investigatory Powers Commissioner must keep under review the carrying
out of any aspect of the functions of—
(a) an intelligence service,
(b) a head of an intelligence service, or
(c) any part of Her Majesty’s forces, or of the Ministry of Defence, so far as
engaging in intelligence activities.
Subsection (1) does not apply in relation to anything which is required to be
kept under review by the Investigatory Powers Commissioner under section
229.
The Prime Minister may give a direction under this section at the request of the
Investigatory Powers Commissioner or the Intelligence and Security
Committee of Parliament or otherwise.
The Prime Minister must publish, in a manner which the Prime Minister
considers appropriate, any direction under this section (and any revocation of
such a direction) except so far as it appears to the Prime Minister that such
publication would be contrary to the public interest or prejudicial to—
(a) national security,
(b) the prevention or detection of serious crime,
(c) the economic well-being of the United Kingdom, or
(d) the continued discharge of the functions of any public authority whose
activities include activities that are subject to review by the
Investigatory Powers Commissioner.
Error reporting
The Investigatory Powers Commissioner must inform a person of any relevant
error relating to that person of which the Commissioner is aware if the
Commissioner considers that—
(a) the error is a serious error, and
(b) it is in the public interest for the person to be informed of the error.
In making a decision under subsection (1)(a), the Investigatory Powers
Commissioner may not decide that an error is a serious error unless the
Commissioner considers that the error has caused significant prejudice or
harm to the person concerned.
Accordingly, the fact that there has been a breach of a person’s Convention
rights (within the meaning of the Human Rights Act 1998) is not sufficient by
itself for an error to be a serious error.
In making a decision under subsection (1)(b), the Investigatory Powers
Commissioner must, in particular, consider—
(a) the seriousness of the error and its effect on the person concerned, and
(b) the extent to which disclosing the error would be contrary to the public
interest or prejudicial to—
(i) national security,
(ii) the prevention or detection of serious crime,
(iii) the economic well-being of the United Kingdom, or
(2)
(3)
(4)
231
(1)
(2)
(3)
(4)
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Part 8 — Oversight arrangements
Chapter 1 — Investigatory Powers Commissioner and other Judicial Commissioners
(iv)
(5)
the continued discharge of the functions of any of the
intelligence services.
Before making a decision under subsection (1)(a) or (b), the Investigatory
Powers Commissioner must ask the public authority which has made the error
to make submissions to the Commissioner about the matters concerned.
When informing a person under subsection (1) of an error, the Investigatory
Powers Commissioner must—
(a) inform the person of any rights that the person may have to apply to the
Investigatory Powers Tribunal, and
(b) provide such details of the error as the Commissioner considers to be
necessary for the exercise of those rights, having regard in particular to
the extent to which disclosing the details would be contrary to the
public interest or prejudicial to anything falling within subsection
(4)(b)(i) to (iv).
The Investigatory Powers Commissioner may not inform the person to whom
it relates of a relevant error except as provided by this section.
A report under section 234(1) must include information about—
(a) the number of relevant errors of which the Investigatory Powers
Commissioner has become aware during the year to which the report
relates,
(b) the number of relevant errors which the Commissioner has decided
during that year were serious errors, and
(c) the number of persons informed under subsection (1) during that year.
In this section “relevant error” means an error—
(a) by a public authority in complying with any requirements which are
imposed on it by virtue of this Act or any other enactment and which
are subject to review by a Judicial Commissioner, and
(b) of a description identified for this purpose in a code of practice under
Schedule 7,
and the Investigatory Powers Commissioner must keep under review the
definition of “relevant error”.
Additional functions under this Part
A Judicial Commissioner must give the Investigatory Powers Tribunal all such
documents, information and other assistance (including the Commissioner’s
opinion as to any issue falling to be determined by the Tribunal) as the Tribunal
may require—
(a) in connection with the investigation of any matter by the Tribunal, or
(b) otherwise for the purposes of the Tribunal’s consideration or
determination of any matter.
A Judicial Commissioner may provide advice or information to any public
authority or other person in relation to matters for which a Judicial
Commissioner is responsible.
But a Judicial Commissioner must consult the Secretary of State before
providing any advice or information under subsection (2) if it appears to the
Commissioner that providing the advice or information might be contrary to
the public interest or prejudicial to—
(6)
(7)
(8)
(9)
232
(1)
(2)
(3)
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(a)
(b)
(c)
(d)
national security,
the prevention or detection of serious crime,
the economic well-being of the United Kingdom, or
the continued discharge of the functions of any public authority whose
activities include activities that are subject to review by the
Investigatory Powers Commissioner.
(4)
In addition to consulting the Secretary of State under subsection (3), the
Judicial Commissioner must also consult the Scottish Ministers if it appears to
the Commissioner that providing the advice or information might be
prejudicial to—
(a) the prevention or detection of serious crime by a Scottish public
authority, or
(b) the continued discharge of any devolved functions of a Scottish public
authority whose activities include activities that are subject to review
by the Investigatory Powers Commissioner.
In subsection (4)—
“devolved function” means a function that does not relate to reserved
matters (within the meaning of the Scotland Act 1998), and
“Scottish public authority” has the same meaning as in the Scotland Act
1998.
Subsections (3) and (4) do not apply to any advice or information provided
under subsection (2) to the Investigatory Powers Tribunal.
Functions under other Parts and other enactments
The Investigatory Powers Commissioner and the other Judicial
Commissioners have the functions that are exercisable by them by virtue of any
other Part of this Act or by virtue of any other enactment.
In Part 3 of the Police Act 1997 (authorisations of action in respect of property:
approval by Commissioners)—
(a) in sections 96(1), 103(7)(b) and (8), 104(3) to (8) and 105(1) and (2) for
“Chief
Commissioner”
substitute
“Investigatory
Powers
Commissioner”,
(b) in sections 96(1), 97(1)(a) and 103(1), (2), (4) and (5)(b) for “a
Commissioner appointed under section 91(1)(b)” substitute “a Judicial
Commissioner”,
(c) in sections 96(4), 97(4) and (6) and 103(3) and (6) for “a Commissioner”
substitute “a Judicial Commissioner”,
(d) in section 103(7) for “a Commissioner” substitute “a Judicial
Commissioner (other than the Investigatory Powers Commissioner)”,
(e) in section 104(1) for “Chief Commissioner” substitute “Investigatory
Powers Commissioner (except where the original decision was made
by that Commissioner)”,
(f) in section 104(3) and (8)(a) for “the Commissioner” substitute “the
Judicial Commissioner concerned”,
(g) in section 105(1)(a)(ii) and (b)(ii) for “the Commissioner” substitute “the
Judicial Commissioner”, and
(h) in sections 97(5) and 103(9) for “A Commissioner” substitute “A Judicial
Commissioner”.
(5)
(6)
233
(1)
(2)
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(3)
In Part 2 of the Regulation of Investigatory Powers Act 2000 (surveillance and
covert human intelligence sources: approval by Commissioners)—
(a) in sections 35(1) and (4), 36(2)(a) and (5) and 37(2) to (6) and (8) for “an
ordinary Surveillance Commissioner”, wherever it appears, substitute
“a Judicial Commissioner”,
(b) in sections 35(2)(b), 36(6)(g), 37(9)(b), 38(1) and (4) to (6) and 39(1), (2)
and (4) and in the heading of section 39 for “Chief Surveillance
Commissioner”, wherever it appears, substitute “Investigatory Powers
Commissioner”,
(c) in sections 35(3)(a) and 36(4)(a) and (b) for “Surveillance
Commissioner” substitute “Judicial Commissioner”,
(d) in section 37(8)(b) for “Chief Surveillance Commissioner” substitute
“Investigatory Powers Commissioner (if he is not that Commissioner)”,
(e) in section 38(1)(a) for “an ordinary Surveillance Commissioner”
substitute “a Judicial Commissioner (other than the Investigatory
Powers Commissioner)”,
(f) in sections 38(5)(b) and 39(1)(b) for “ordinary Surveillance
Commissioner” substitute “Judicial Commissioner”, and
(g) in the heading of section 38 for “Surveillance Commissioners”
substitute “Judicial Commissioners”.
In Part 3 of the Act of 2000 (investigation of electronic data protected by
encryption etc.)—
(a) in section 51(6) (notification to Intelligence Services Commissioner or
Chief Surveillance Commissioner of certain directions relating to the
disclosure of a key to protected information) for the words from “done
so” to the end substitute “done so to the Investigatory Powers
Commissioner”,
(b) in section 54(9) (tipping-off: protected disclosures to a relevant
Commissioner) for “relevant Commissioner” substitute “Judicial
Commissioner”,
(c) in section 55(7) (court to have regard to opinion of a relevant
Commissioner in certain circumstances relating to a disclosed key) for
“relevant Commissioner” substitute “Judicial Commissioner or the
Investigatory Powers Commissioner for Northern Ireland”, and
(d) omit sections 54(11) and 55(8) (definitions of “relevant Commissioner”).
In the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11)
(surveillance and covert human intelligence sources: approval by
Commissioners and review by the Chief Commissioner)—
(a) in sections 13(1) and (4), 14(1)(a) and (4) and 15(1) to (5) and (7) for “an
ordinary Surveillance Commissioner”, wherever it appears, substitute
“a Judicial Commissioner”,
(b) in sections 13(2)(b), 15(8)(b), 16(1) and (4) to (6) and 17 and in the
heading of section 17 for “Chief Surveillance Commissioner”, wherever
it appears, substitute “Investigatory Powers Commissioner”,
(c) in sections 13(3)(a) and 14(3)(a) and (b) for “Surveillance
Commissioner” substitute “Judicial Commissioner”,
(d) in section 15(7)(b) for “Chief Surveillance Commissioner” substitute
“Investigatory Powers Commissioner (if the Commissioner is not that
Commissioner)”,
(4)
(5)
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(e)
(f)
(g)
(6)
in section 16(1)(a) for “an ordinary Surveillance Commissioner”
substitute “a Judicial Commissioner (other than the Investigatory
Powers Commissioner)”,
in sections 16(5)(b) and 17(1)(b) for “ordinary Surveillance
Commissioner” substitute “Judicial Commissioner”, and
in section 16(5) for “ordinary Surveillance Commissioner’s” substitute
“Judicial Commissioner’s”.
In Part 2 of the Regulation of Investigatory Powers (Covert Human Intelligence
Sources: Relevant Sources) Order 2013 (S.I. 2013/2788) (notification of certain
authorisations to, and approval of certain authorisations by, ordinary
Surveillance Commissioner)—
(a) in article 4(1), for “an ordinary Surveillance Commissioner” substitute
“a Judicial Commissioner”,
(b) in article 5(8) and the heading of Part 2, for “ordinary Surveillance
Commissioner” substitute “Judicial Commissioner”,
(c) in article 6(1) and (3) for “Chief Surveillance Commissioner” substitute
“Investigatory Powers Commissioner”,
(d) in article 6(1) for “an ordinary Surveillance Commissioner” substitute
“a Judicial Commissioner (other than the Investigatory Powers
Commissioner)”, and
(e) in the heading of article 6 for “Surveillance Commissioners” substitute
“Judicial Commissioners”.
Reports and investigation and information powers
234
(1)
Annual and other reports
The Investigatory Powers Commissioner must, as soon as reasonably
practicable after the end of each calendar year, make a report to the Prime
Minister about the carrying out of the functions of the Judicial Commissioners.
A report under subsection (1) must, in particular, include—
(a) statistics on the use of the investigatory powers which are subject to
review by the Investigatory Powers Commissioner (including the
number of warrants or authorisations issued, given, considered or
approved during the year),
(b) information about the results of such use (including its impact),
(c) information about the operation of the safeguards conferred by this Act
in relation to items subject to legal privilege, confidential journalistic
material and sources of journalistic information,
(d) information about the following kinds of warrants issued, considered
or approved during the year—
(i) targeted interception warrants or targeted examination
warrants of the kind referred to in section 17(2),
(ii) targeted equipment interference warrants relating to matters
within paragraph (b), (c), (e), (f), (g) or (h) of section 101(1), and
(iii) targeted examination warrants under Part 5 relating to matters
within any of paragraphs (b) to (e) of section 101(2),
(e) information about the operational purposes specified during the year
in warrants issued under Part 6 or 7,
(f) the information on errors required by virtue of section 231(8),
(2)
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(g)
(h)
(i)
(3)
(4)
information about the work of the Technology Advisory Panel,
information about the funding, staffing and other resources of the
Judicial Commissioners, and
details of public engagements undertaken by the Judicial
Commissioners or their staff.
The Investigatory Powers Commissioner must, at any time, make any report to
the Prime Minister which has been requested by the Prime Minister.
The Investigatory Powers Commissioner may, at any time, make any such
report to the Prime Minister, on any matter relating to the functions of the
Judicial Commissioners, as the Investigatory Powers Commissioner considers
appropriate.
A report under subsection (1) or (4) may, in particular, include such
recommendations as the Investigatory Powers Commissioner considers
appropriate about any matter relating to the functions of the Judicial
Commissioners.
On receiving a report from the Investigatory Powers Commissioner under
subsection (1), the Prime Minister must—
(a) publish the report, and
(b) lay a copy of the published report before Parliament together with a
statement as to whether any part of the report has been excluded from
publication under subsection (7).
The Prime Minister may, after consultation with the Investigatory Powers
Commissioner and (so far as the report relates to functions under Part 3 of the
Police Act 1997) the Scottish Ministers, exclude from publication any part of a
report under subsection (1) if, in the opinion of the Prime Minister, the
publication of that part would be contrary to the public interest or prejudicial
to—
(a) national security,
(b) the prevention or detection of serious crime,
(c) the economic well-being of the United Kingdom, or
(d) the continued discharge of the functions of any public authority whose
activities include activities that are subject to review by the
Investigatory Powers Commissioner.
The Prime Minister must send a copy of every report and statement as laid
before Parliament under subsection (6)(b) to the Scottish Ministers and the
Scottish Ministers must lay the copy report and statement before the Scottish
Parliament.
The Investigatory Powers Commissioner may publish any report under
subsection (3) or (4), or any part of such a report, if requested to do so by the
Prime Minister.
Subsection (11) applies if the Prime Minister receives a report from the
Investigatory Powers Commissioner under subsection (1) or (4) which relates
to an investigation, inspection or audit carried out by the Commissioner
following a decision to do so of which the Intelligence and Security Committee
of Parliament was informed under section 236(2).
The Prime Minister must send to the Intelligence and Security Committee of
Parliament a copy of the report so far as it relates to—
(a) the investigation, inspection or audit concerned, and
(5)
(6)
(7)
(8)
(9)
(10)
(11)
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193
(b)
the functions of the Committee falling within section 2 of the Justice
and Security Act 2013.
235
(1)
Investigation and information powers
A Judicial Commissioner may carry out such investigations, inspections and
audits as the Commissioner considers appropriate for the purposes of the
Commissioner’s functions.
Every relevant person must disclose or provide to a Judicial Commissioner all
such documents and information as the Commissioner may require for the
purposes of the Commissioner’s functions.
Every relevant person must provide a Judicial Commissioner with such
assistance as the Commissioner may require in carrying out any investigation,
inspection or audit for the purposes of the Commissioner’s functions.
Assistance under subsection (3) may, in particular, include such access to
apparatus, systems or other facilities or services as the Judicial Commissioner
concerned may require in carrying out any investigation, inspection or audit
for the purposes of the Commissioner’s functions.
A public authority may report to the Investigatory Powers Commissioner any
refusal by a telecommunications operator or postal operator to comply with
any requirements imposed by virtue of this Act.
A public authority, telecommunications operator or postal operator must
report to the Investigatory Powers Commissioner any relevant error (within
the meaning given by section 231(9)) of which it is aware.
In this section “relevant person” means—
(a) any person who holds, or has held, an office, rank or position with a
public authority,
(b) any telecommunications operator or postal operator who is, has been or
may become subject to a requirement imposed by virtue of this Act,
(c) any person who is, has been or may become subject to a requirement to
provide assistance by virtue of section 41, 43, 126, 128, 149, 168, 170 or
190, or
(d) any person to whom a notice is given under section 49 of the Regulation
of Investigatory Powers Act 2000.
Referrals by the Intelligence and Security Committee of Parliament
Subsection (2) applies if the Intelligence and Security Committee of Parliament
refers a matter to the Investigatory Powers Commissioner with a view to the
Commissioner carrying out an investigation, inspection or audit into it.
The Investigatory Powers Commissioner must inform the Intelligence and
Security Committee of Parliament of the Commissioner’s decision as to
whether to carry out the investigation, inspection or audit.
Information gateway
A disclosure of information to the Investigatory Powers Commissioner or
another Judicial Commissioner for the purposes of any function of the
Commissioner does not breach—
(2)
(3)
(4)
(5)
(6)
(7)
236
(1)
(2)
237
(1)
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(a)
(b)
(2)
an obligation of confidence owed by the person making the disclosure,
or
any other restriction on the disclosure of information (whether
imposed by virtue of this Act or otherwise).
But subsection (1) does not apply to a disclosure, in contravention of any
provisions of the Data Protection Act 1998, of personal data which is not
exempt from those provisions.
Supplementary provision
238
(1)
(2)
Funding, staff and facilities etc.
There is to be paid to the Judicial Commissioners out of money provided by
Parliament such remuneration and allowances as the Treasury may determine.
The Secretary of State must, after consultation with the Investigatory Powers
Commissioner and subject to the approval of the Treasury as to numbers of
staff, provide the Judicial Commissioners with—
(a) such staff, and
(b) such accommodation, equipment and other facilities and services,
as the Secretary of State considers necessary for the carrying out of the
Commissioners’ functions.
The Scottish Ministers may pay to the Judicial Commissioners such allowances
as the Scottish Ministers consider appropriate in respect of the exercise by the
Commissioners of functions which relate to the exercise by Scottish public
authorities of devolved functions.
In subsection (3)—
“devolved function” means a function that does not relate to reserved
matters (within the meaning of the Scotland Act 1998), and
“Scottish public authority” has the same meaning as in the Scotland Act
1998.
The Investigatory Powers Commissioner or any other Judicial Commissioner
may, to such extent as the Commissioner concerned may decide, delegate the
exercise of functions of that Commissioner to any member of staff of the
Judicial Commissioners or any other person acting on behalf of the
Commissioners.
Subsection (5) does not apply to—
(a) the function of the Investigatory Powers Commissioner of making a
recommendation under section 227(4)(e) or making an appointment
under section 247(1),
(b) any function which falls within section 229(8), or
(c) any function under section 58(4) or 133(3) of authorising a disclosure,
but, subject to this and the terms of the delegation, does include functions
which have been delegated to a Judicial Commissioner by the Investigatory
Powers Commissioner.
The delegation under subsection (5) to any extent of functions by the
Investigatory Powers Commissioner or any other Judicial Commissioner does
not prevent the exercise of the functions to that extent by the Commissioner
concerned.
(3)
(4)
(5)
(6)
(7)
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195
239
(1)
(2)
Power to modify functions
The Secretary of State may by regulations modify the functions of the
Investigatory Powers Commissioner or any other Judicial Commissioner.
But such regulations may not modify any function conferred by virtue of this
Act on a Judicial Commissioner to approve, quash or cancel—
(a) an authorisation or warrant, or
(b) the variation or renewal of an authorisation or warrant.
The power to make regulations under this section (including that power as
extended by section 267(1)(c)) may, in particular, be exercised by modifying
any provision made by or under an enactment (including this Act).
Abolition of existing oversight bodies
The offices of the following are abolished—
(a) the Interception of Communications Commissioner,
(b) the Intelligence Services Commissioner,
(c) the Chief Surveillance Commissioner,
(d) the other Surveillance Commissioners,
(e) the Scottish Chief Surveillance Commissioner, and
(f) the other Scottish Surveillance Commissioners.
Accordingly, the following enactments are repealed—
(a) sections 57 and 58 of the Regulation of Investigatory Powers Act 2000
(the Interception of Communications Commissioner),
(b) sections 59, 59A and 60 of that Act (the Intelligence Services
Commissioner),
(c) sections 62 and 63 of that Act and sections 91 and 107 of the Police Act
1997 (the Surveillance Commissioners), and
(d) sections 2(1) to (9), 3 and 4 of the Regulation of Investigatory Powers
(Scotland) Act 2000 (2000 asp 11) (the Scottish Surveillance
Commissioners).
The Secretary of State may by regulations, with the consent of the Northern
Ireland Assembly, provide for the abolition of the office of the Investigatory
Powers Commissioner for Northern Ireland.
The power to make regulations under subsection (3) (including that power as
extended by section 267(1)(c)) may, in particular, be exercised by modifying
any provision made by or under an enactment (including this Act).
Regulations made by virtue of subsection (4) may, in particular, repeal—
(a) section 61 of the Regulation of Investigatory Powers Act 2000 (the
Investigatory Powers Commissioner for Northern Ireland), and
(b) the words “or the Investigatory Powers Commissioner for Northern
Ireland” in section 229(4)(f) of this Act.
In this section—
“the Chief Surveillance Commissioner” means the Chief Commissioner
appointed under section 91(1)(a) of the Police Act 1997,
“the other Scottish Surveillance Commissioners” means—
(3)
240
(1)
(2)
(3)
(4)
(5)
(6)
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the Surveillance Commissioners appointed under section
2(1)(b) of the Regulation of Investigatory Powers (Scotland) Act
2000, and
(b) the Assistant Surveillance Commissioners appointed under
section 3 of that Act,
“the other Surveillance Commissioners” means—
(a) the Commissioners appointed under section 91(1)(b) of the
Police Act 1997, and
(b) the Assistant Surveillance Commissioners appointed under
section 63(1) of the Regulation of Investigatory Powers Act
2000,
“the Scottish Chief Surveillance Commissioner” means the Chief
Surveillance Commissioner appointed under section 2(1)(a) of the
Regulation of Investigatory Powers (Scotland) Act 2000.
C
HAPTER
2
O
THER ARRANGEMENTS
Codes of practice
241
Codes of practice
Schedule 7 (codes of practice) has effect.
Investigatory Powers Tribunal
242
(1)
Right of appeal from Tribunal
After section 67 of the Regulation of Investigatory Powers Act 2000 insert—
“67A Appeals from the Tribunal
(1)
A relevant person may appeal on a point of law against any
determination of the Tribunal of a kind mentioned in section 68(4) or
any decision of the Tribunal of a kind mentioned in section 68(4C).
Before making a determination or decision which might be the subject
of an appeal under this section, the Tribunal must specify the court
which is to have jurisdiction to hear the appeal (the “relevant appellate
court”).
This court is whichever of the following courts appears to the Tribunal
to be the most appropriate—
(a) the Court of Appeal in England and Wales,
(b) the Court of Session.
The Secretary of State may by regulations, with the consent of the
Northern Ireland Assembly, amend subsection (3) so as to add the
Court of Appeal in Northern Ireland to the list of courts mentioned
there.
(a)
(2)
(3)
(4)
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(5)
The Secretary of State may by regulations specify criteria to be applied
by the Tribunal in making decisions under subsection (2) as to the
identity of the relevant appellate court.
An appeal under this section—
(a) is to be heard by the relevant appellate court, but
(b) may not be made without the leave of the Tribunal or, if that is
refused, of the relevant appellate court.
The Tribunal or relevant appellate court must not grant leave to appeal
unless it considers that—
(a) the appeal would raise an important point of principle or
practice, or
(b) there is another compelling reason for granting leave.
In this section—
“relevant appellate court” has the meaning given by subsection
(2),
“relevant person”, in relation to any proceedings, complaint or
reference, means the complainant or—
(a) in the case of proceedings, the respondent,
(b) in the case of a complaint, the person complained
against, and
(c) in the case of a reference, any public authority to whom
the reference relates.”
(6)
(7)
(8)
(2)
In section 67 of that Act (no appeal from the Investigatory Powers Tribunal
except as provided by order of the Secretary of State)—
(a) in subsection (8) for “Except to such extent as the Secretary of State may
by order otherwise provide,” substitute “Except as provided by virtue
of section 67A,”, and
(b) omit subsections (9) to (12).
After section 68(4) of that Act (requirement to give notice of determinations to
complainant) insert—
“(4A)
Where the Tribunal make any determination of a kind mentioned in
subsection (4), they must also give notice to—
(a) in the case of proceedings, the respondent,
(b) in the case of a complaint, the person complained against, and
(c) in the case of a reference, any public authority to whom the
reference relates.
A notice under subsection (4A) is (subject to any rules made by virtue
of section 69(2)(j)) to be confined, as the case may be, to either—
(a) a statement that they have made a determination in the
complainant’s favour, or
(b) a statement that no determination has been made in the
complainant’s favour.
Where the Tribunal make any decision which—
(a) is a final decision of a preliminary issue in relation to any
proceedings, complaint or reference brought before or made to
them, and
(3)
(4B)
(4C)
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is neither a determination of a kind mentioned in subsection (4)
nor a decision relating to a procedural matter,
they must give notice of that decision to every person who would be
entitled to receive notice of the determination under subsection (4) or
(4A).
(4D)
A notice under subsection (4C) is (subject to any rules made by virtue
of section 69(2)(i) or (j)) to be confined to a statement as to what the
decision is.
Subsections (4C) and (4D) do not apply so far as—
(a) the Tribunal are prevented from giving notice of a decision to a
person by rules made by virtue of section 69(4) or decide under
such rules not to give such a notice, or
(b) the giving of such a notice is inconsistent with such rules.”
(b)
(4E)
(4)
In section 69(2) of that Act (Tribunal rules)—
(a) in paragraph (i), after “section 68(4)” insert “or notice under section
68(4C)”, and
(b) after paragraph (i), insert “;
(j) require information about any determination, award,
order or other decision made by the Tribunal in relation
to any proceedings, complaint or reference to be
provided (in addition to any statement under section
68(4A) or notice under section 68(4C)) to—
(i) in the case of proceedings, the respondent,
(ii) in the case of a complaint, the person
complained against, and
(iii) in the case of a reference, any public authority to
whom the reference relates,
or to the person representing their interests;
(k) make provision about the making and determination of
applications to the Tribunal for permission to appeal”.
In section 78 of that Act (orders, regulations and rules)—
(a) in subsection (4), after “applies” insert “(other than regulations under
section 67A(5))”, and
(b) after subsection (4) insert—
“(4A)
A statutory instrument containing regulations under section
67A(5) may not be made unless a draft of the instrument has
been laid before, and approved by a resolution of, each House
of Parliament.”
(5)
243
(1)
Functions of Tribunal in relation to this Act etc.
In section 65 of the Regulation of Investigatory Powers Act 2000 (the
Investigatory Powers Tribunal)—
(a) in subsection (2)(c) (jurisdiction of the Investigatory Powers Tribunal
where possible detriment due to evidential bar) for “section 17”
substitute “section 56 of the Investigatory Powers Act 2016”,
(b) in subsection (5) (conduct in relation to which the Tribunal has
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(c)
jurisdiction) after paragraph (b) insert—
“(ba) conduct for or in connection with the obtaining of
secondary data from communications transmitted by
means of such a service or system;
(bb) the issue, modification, renewal or service of a warrant
under Part 2 or Chapter 1 of Part 6 of the Investigatory
Powers Act 2016 (interception of communications);”,
in subsection (5) for paragraph (c) substitute—
“(c) conduct of a kind which may be permitted or required
by an authorisation or notice under Part 3 of that Act or
a warrant under Chapter 2 of Part 6 of that Act
(acquisition of communications data);
(cza) the giving of an authorisation or notice under Part 3 of
that Act or the issue, modification, renewal or service of
a warrant under Chapter 2 of Part 6 of that Act;
(czb) conduct of a kind which may be required or permitted
by a retention notice under Part 4 of that Act (retention
of communications data) but excluding any conduct
which is subject to review by the Information
Commissioner;
(czc) the giving or varying of a retention notice under that
Part of that Act;
(czd) conduct of a kind which may be required or permitted
by a warrant under Part 5 or Chapter 3 of Part 6 of that
Act (equipment interference);
(cze) the issue, modification, renewal or service of a warrant
under Part 5 or Chapter 3 of Part 6 of that Act;
(czf) the issue, modification, renewal or service of a warrant
under Part 7 of that Act (bulk personal dataset
warrants);
(czg) the giving of an authorisation under section 219(3)(b)
(authorisation for the retention, or retention and
examination, of material following expiry of bulk
personal dataset warrant);
(czh) the giving or varying of a direction under section 225 of
that Act (directions where no bulk personal dataset
warrant required);
(czi) conduct of a kind which may be required by a notice
under section 252 or 253 of that Act (national security or
technical capability notices);
(czj) the giving or varying of such a notice;
(czk) the giving of an authorisation under section 152(5)(c) or
193(5)(c) of that Act (certain authorisations to examine
intercepted content or protected material);
(czl) any failure to—
(i) cancel a warrant under Part 2, 5, 6 or 7 of that Act
or an authorisation under Part 3 of that Act;
(ii) cancel a notice under Part 3 of that Act;
(iii) revoke a notice under Part 4, or section 252 or
253, of that Act; or
(iv) revoke a direction under section 225 of that Act;
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Part 8 — Oversight arrangements
Chapter 2 — Other arrangements
(d)
(e)
any conduct in connection with any conduct falling
within paragraph (c), (czb), (czd) or (czi);”,
in subsection (6) (limitation for certain purposes of what is conduct
falling within subsection (5))—
(i) after “on behalf of” insert “an immigration officer or”, and
(ii) after paragraph (d) insert—
“(dza) the Competition and Markets Authority;”,
after subsection (6) insert—
“(6A)
Subsection (6) does not apply to anything mentioned in
paragraph (d) or (f) of subsection (5) which also falls within
paragraph (czd) of that subsection.”,
in subsection (7) after “if” insert “it is conduct of a public authority
and”,
in subsection (7ZA) (role for Tribunal where judicial authority
involved) for “under section 23A or 32A” substitute “by a Judicial
Commissioner or under section 32A of this Act or section 75 of the
Investigatory Powers Act 2016”,
after subsection (7ZA) insert—
For the purposes of this section conduct also takes place in
challengeable circumstances if it is, or purports to be, conduct
falling within subsection (5)(bb), (cza), (czc), (cze), (czf), (czg),
(czh), (czj), (czk) or (czl) or (so far as the conduct is, or purports
to be, the giving of a notice under section 49) subsection (5)(e).”,
in subsection (8) (matters that may be challenged before the Tribunal)
for paragraphs (a) and (b) substitute—
“(a) a warrant under Part 2, 5, 6 or 7 of the Investigatory
Powers Act 2016;
(b) an authorisation or notice under Part 3 of that Act;
(ba) a retention notice under Part 4 of that Act;
(bb) a direction under section 225 of that Act;
(bc) a notice under section 252 or 253 of that Act;”, and
after subsection (9) insert—
In subsection (5)(ba) the reference to obtaining secondary data
from communications transmitted by means of a postal service
or telecommunication system is to be read in accordance with
section 16 of the Investigatory Powers Act 2016.”
(czm)
(f)
(g)
(h)
“(7ZB)
(i)
(j)
“(9A)
(2)
In section 67(7) of the Act of 2000 (powers of the Tribunal)—
(a) after paragraph (a) insert—
“(aza) an order quashing or cancelling a notice under Part 3 of
the Investigatory Powers Act 2016 or a retention notice
under Part 4 of that Act;
(azb) an order quashing or revoking a direction under section
225 of that Act;
(azc) an order quashing or revoking a notice under section
252 or 253 of that Act;”,
(b) in paragraph (aa) for “section 23A or 32A” substitute “section 75 of the
Investigatory Powers Act 2016 or section 32A of this Act”, and
(c) in paragraph (b)(i) after “authorisation” insert “or by a notice under
Part 3 of the Investigatory Powers Act 2016”.
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Part 8 — Oversight arrangements
Chapter 2 — Other arrangements
201
(3)
In section 68(5)(b) of the Act of 2000 (report of certain findings to the Prime
Minister) after “permission” insert “, or notice under Part 4 of the Investigatory
Powers Act 2016 or under section 252 or 253 of that Act or direction under
section 225 of that Act,”.
In section 68(6)(b) of the Act of 2000 (disclosures etc. to the Tribunal to enable
the exercise of functions conferred by or under that Act) after “this Act” insert
“or the Investigatory Powers Act 2016”.
In section 68(7) of the Act of 2000 (persons subject to duty to co-operate with
the Tribunal)—
(a) in paragraph (e)—
(i) for “section 11” substitute “section 41, 126, 149, 168 or 190 of the
Investigatory Powers Act 2016”, and
(ii) for “an interception warrant” substitute “a warrant”,
(b) in paragraph (f) for “section 12” substitute “section 252 or 253 of that
Act”,
(c) for paragraphs (g) and (h) substitute—
“(g) every person by or to whom an authorisation under Part
3 of that Act has been granted;
(h) every person to whom a notice under Part 3 of that Act
has been given;
(ha) every person to whom a retention notice under Part 4 of
that Act or a notice under section 252 or 253 of that Act
has been given;”,
(d) in paragraph (k), for the words from “an authorisation” to the end
substitute “—
(i) an authorisation under Part 3 of the
Investigatory Powers Act 2016, Part 2 of this Act
or Part 3 of the Police Act 1997, or
(ii) a warrant under Chapter 2 of Part 6 of the
Investigatory Powers Act 2016;”,
(e) in paragraph (l) after “authorisation” insert “or warrant”, and
(f) in paragraph (n) after “(h)” insert “, (ha)”.
In section 68(8) of the Act of 2000 (meaning of “relevant Commissioner”) for the
words from “Interception” to the end substitute “Investigatory Powers
Commissioner or any other Judicial Commissioner or the Investigatory Powers
Commissioner for Northern Ireland”.
Information Commissioner
(4)
(5)
(6)
244
Oversight by Information Commissioner in relation to Part 4
The Information Commissioner must audit compliance with requirements or
restrictions imposed by virtue of Part 4 in relation to the integrity, security or
destruction of data retained by virtue of that Part.
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Part 8 — Oversight arrangements
Chapter 2 — Other arrangements
Advisory bodies
245
(1)
Technical Advisory Board
There is to continue to be a Technical Advisory Board consisting of such
number of persons appointed by the Secretary of State as the Secretary of State
may by regulations provide.
The regulations providing for the membership of the Technical Advisory
Board must also make provision which is calculated to ensure—
(a) that the membership of the Board includes persons likely effectively to
represent the interests of persons on whom obligations may be
imposed by virtue of retention notices under Part 4, national security
notices under section 252 or technical capability notices under section
253,
(b) that the membership of the Board includes persons likely effectively to
represent the interests of persons entitled to apply for warrants under
Part 2, 5, 6 or 7 or authorisations under Part 3,
(c) that such other persons (if any) as the Secretary of State considers
appropriate may be appointed to be members of the Board, and
(d) that the Board is so constituted as to produce a balance between the
representation of the interests mentioned in paragraph (a) and the
representation of those mentioned in paragraph (b).
Regulations under this section may also make provision about quorum and the
filling of vacancies.
Technology Advisory Panel
The Investigatory Powers Commissioner must ensure that there is a
Technology Advisory Panel to provide advice to the Investigatory Powers
Commissioner, the Secretary of State and the Scottish Ministers about—
(a) the impact of changing technology on the exercise of investigatory
powers whose exercise is subject to review by the Commissioner, and
(b) the availability and development of techniques to use such powers
while minimising interference with privacy.
The Technology Advisory Panel must provide advice to the Investigatory
Powers Commissioner about such matters falling within subsection (1)(a) or
(b) as the Commissioner may direct.
Subject to this, the Panel may provide advice to the Investigatory Powers
Commissioner about such matters falling within subsection (1)(a) or (b) as it
considers appropriate (whether or not requested to do so).
The Panel may provide advice to the Secretary of State or the Scottish Ministers
about such matters falling within subsection (1)(a) or (b) as it considers
appropriate (whether or not requested to do so) but such advice to the Scottish
Ministers may only relate to matters for which the Scottish Ministers are
responsible.
The Panel must, as soon as reasonably practicable after the end of each
calendar year, make a report to the Investigatory Powers Commissioner about
the carrying out of the functions of the Panel.
(2)
(3)
246
(1)
(2)
(3)
(4)
(5)
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Chapter 2 — Other arrangements
203
(6)
The Panel must, at the same time, send a copy of the report to the Secretary of
State and (so far as relating to matters for which the Scottish Ministers are
responsible) the Scottish Ministers.
Members of the Panel
The Investigatory Powers Commissioner must appoint such number of
persons as members of the Technology Advisory Panel as the Commissioner
considers necessary for the carrying out of the functions of the Panel.
Subject as follows, each member of the Panel holds and vacates office in
accordance with the member’s terms and conditions of appointment.
A member of the Panel must not act in a way which the member considers to
be contrary to the public interest or prejudicial to—
(a) national security,
(b) the prevention or detection of serious crime, or
(c) the economic well-being of the United Kingdom.
A member of the Panel must, in particular, ensure that the member does not—
(a) jeopardise the success of an intelligence or security operation or a law
enforcement operation,
(b) compromise the safety or security of those involved, or
(c) unduly impede the operational effectiveness of an intelligence service,
a police force, a government department or Her Majesty’s forces.
Section 235(2) and (7) (information powers) apply to a member of the Panel as
they apply to a Judicial Commissioner.
P
ART
9
M
ISCELLANEOUS AND GENERAL PROVISIONS
C
HAPTER
1
M
ISCELLANEOUS
Combined warrants and authorisations
247
(1)
(2)
(3)
(4)
(5)
248
Combination of warrants and authorisations
Schedule 8 (which makes provision for the combination of certain warrants
and authorisations in a single instrument) has effect.
Compliance with Act
249
(1)
Payments towards certain compliance costs
The Secretary of State must ensure that arrangements are in force for securing
that telecommunications operators and postal operators receive an
appropriate contribution in respect of such of their relevant costs as the
Secretary of State considers appropriate.
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Part 9 — Miscellaneous and general provisions
Chapter 1 — Miscellaneous
(2)
In subsection (1) “relevant costs” means costs incurred, or likely to be incurred,
by telecommunications operators and postal operators in complying with this
Act.
The arrangements may provide for payment of a contribution to be subject to
terms and conditions determined by the Secretary of State.
Such terms and conditions may, in particular, include a condition on the
operator concerned to comply with any audit that may reasonably be required
to monitor the claim for costs.
The arrangements may provide for the Secretary of State to determine—
(a) the scope and extent of the arrangements, and
(b) the appropriate level of contribution which should be made in each
case.
Different levels of contribution may apply for different cases or descriptions of
case but the appropriate contribution must never be nil.
A retention notice under Part 4 given to a telecommunications operator or a
postal operator, or a national security notice under section 252 given to a
telecommunications operator, must specify the level or levels of contribution
which the Secretary of State has determined should be made in respect of the
costs incurred, or likely to be incurred, by the operator as a result of the notice
in complying with that Part or (as the case may be) with the national security
notice.
For the purpose of complying with this section the Secretary of State may
make, or arrange for the making of, payments out of money provided by
Parliament.
Power to develop compliance systems etc.
The Secretary of State may—
(a) develop, provide, maintain or improve, or
(b) enter into financial or other arrangements with any person for the
development, provision, maintenance or improvement of,
such apparatus, systems or other facilities or services as the Secretary of State
considers appropriate for enabling or otherwise facilitating compliance by the
Secretary of State, another public authority or any other person with this Act.
Arrangements falling within subsection (1)(b) may, in particular, include
arrangements consisting of the giving of financial assistance by the Secretary
of State.
Such financial assistance—
(a) may, in particular, be given by way of—
(i) grant,
(ii) loan,
(iii) guarantee or indemnity,
(iv) investment, or
(v) incurring expenditure for the benefit of the person assisted, and
(b) may be given subject to terms and conditions determined by the
Secretary of State.
(3)
(4)
(5)
(6)
(7)
(8)
250
(1)
(2)
(3)
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Part 9 — Miscellaneous and general provisions
Chapter 1 — Miscellaneous
205
(4)
Terms and conditions imposed by virtue of subsection (3)(b) may include
terms and conditions as to repayment with or without interest.
Additional powers
251
(1)
(2)
Amendments of the Intelligence Services Act 1994
The Intelligence Services Act 1994 is amended as follows.
In section 3 (the Government Communications Headquarters)—
(a) in subsection (1)(a), after “monitor” insert “, make use of”, and
(b) in the words following subsection (1)(b)(ii), for the words from “or to
any other organisation” to the end substitute “or, in such cases as it
considers appropriate, to other organisations or persons, or to the
general public, in the United Kingdom or elsewhere.”
In section 5 (warrants: general)—
(a) in subsection (2), omit “, subject to subsection (3) below,”,
(b) omit subsection (3), and
(c) in subsection (3A), after “1989” insert “, or on the application of the
Intelligence Service or GCHQ for the purposes of the exercise of their
functions by virtue of section 1(2)(c) or 3(2)(c),”.
National security notices
The Secretary of State may give any telecommunications operator in the United
Kingdom a national security notice under this section if—
(a) the Secretary of State considers that the notice is necessary in the
interests of national security,
(b) the Secretary of State considers that the conduct required by the notice
is proportionate to what is sought to be achieved by that conduct, and
(c) the decision to give the notice has been approved by a Judicial
Commissioner.
A “national security notice” is a notice requiring the operator to take such
specified steps as the Secretary of State considers necessary in the interests of
national security.
A national security notice may, in particular, require the operator to whom it
is given—
(a) to carry out any conduct, including the provision of services or
facilities, for the purpose of—
(i) facilitating anything done by an intelligence service under any
enactment other than this Act, or
(ii) dealing with an emergency (within the meaning of Part 1 of the
Civil Contingencies Act 2004);
(b) to provide services or facilities for the purpose of assisting an
intelligence service to carry out its functions more securely or more
effectively.
In a case where—
(a) a national security notice would require the taking of any steps, and
(3)
252
(1)
(2)
(3)
(4)
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Part 9 — Miscellaneous and general provisions
Chapter 1 — Miscellaneous
in the absence of such a notice requiring the taking of those steps, the
taking of those steps would be lawful only if a warrant or authorisation
under a relevant enactment had been obtained,
the notice may require the taking of those steps only if such a warrant or
authorisation has been obtained.
(5)
But the Secretary of State may not give any telecommunications operator a
national security notice the main purpose of which is to require the operator to
do something for which a warrant or authorisation under a relevant enactment
is required.
In this section “relevant enactment” means—
(a) this Act;
(b) the Intelligence Services Act 1994;
(c) the Regulation of Investigatory Powers Act 2000;
(d) the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp
11).
A national security notice must specify such period as appears to the Secretary
of State to be reasonable as the period within which the steps specified in the
notice are to be taken.
Conduct required by a national security notice is to be treated as lawful for all
purposes (to the extent that it would not otherwise be so treated).
Sections 254 to 258 contain further provision about national security notices.
Technical capability notices
The Secretary of State may give a relevant operator a technical capability notice
under this section if—
(a) the Secretary of State considers that the notice is necessary for securing
that the operator has the capability to provide any assistance which the
operator may be required to provide in relation to any relevant
authorisation,
(b) the Secretary of State considers that the conduct required by the notice
is proportionate to what is sought to be achieved by that conduct, and
(c) the decision to give the notice has been approved by a Judicial
Commissioner.
A “technical capability notice” is a notice—
(a) imposing on the relevant operator any applicable obligations specified
in the notice, and
(b) requiring the person to take all the steps specified in the notice for the
purpose of complying with those obligations.
In this section—
“applicable obligation”, in relation to a relevant operator of a particular
description, means an obligation specified by the Secretary of State in
regulations as an obligation that may be imposed on relevant operators,
or on relevant operators of that description;
“relevant authorisation” means—
(a) any warrant issued under Part 2, 5 or 6, or
(b) any authorisation or notice given under Part 3;
“relevant operator” means—
(b)
(6)
(7)
(8)
(9)
253
(1)
(2)
(3)
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Chapter 1 — Miscellaneous
207
(a)
(b)
(c)
(4)
a postal operator,
a telecommunications operator, or
a person who is proposing to become a postal operator or a
telecommunications operator.
Regulations under this section may specify an obligation that may be imposed
on any relevant operators only if the Secretary of State considers it is
reasonable to do so for the purpose of securing—
(a) that it is (and remains) practicable to impose requirements on those
relevant operators to provide assistance in relation to relevant
authorisations, and
(b) that it is (and remains) practicable for those relevant operators to
comply with those requirements.
The obligations that may be specified in regulations under this section include,
among other things—
(a) obligations to provide facilities or services of a specified description;
(b) obligations relating to apparatus owned or operated by a relevant
operator;
(c) obligations relating to the removal by a relevant operator of electronic
protection applied by or on behalf of that operator to any
communications or data;
(d) obligations relating to the security of any postal or telecommunications
services provided by a relevant operator;
(e) obligations relating to the handling or disclosure of any information.
Before making any regulations under this section, the Secretary of State must
consult the following persons—
(a) the Technical Advisory Board,
(b) persons appearing to the Secretary of State to be likely to be subject to
any obligations specified in the regulations,
(c) persons representing persons falling within paragraph (b), and
(d) persons with statutory functions in relation to persons falling within
that paragraph.
A technical capability notice—
(a) must specify such period as appears to the Secretary of State to be
reasonable as the period within which the steps specified in the notice
are to be taken, and
(b) may specify different periods in relation to different steps.
A technical capability notice may be given to persons outside the United
Kingdom (and may require things to be done, or not to be done, outside the
United Kingdom).
Sections 254 to 258 contain further provision about technical capability notices.
Approval of notices by Judicial Commissioners
In this section “relevant notice” means—
(a) a national security notice under section 252, or
(b) a technical capability notice under section 253.
(5)
(6)
(7)
(8)
(9)
254
(1)
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Investigatory Powers Act 2016 (c.
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Part 9 — Miscellaneous and general provisions
Chapter 1 — Miscellaneous
(2)
In deciding whether to approve a decision to give a relevant notice, a Judicial
Commissioner must review the Secretary of State’s conclusions as to the
following matters—
(a) whether the notice is necessary as mentioned in section 252(1)(a) or (as
the case may be) section 253(1)(a), and
(b) whether the conduct that would be required by the notice is
proportionate to what is sought to be achieved by that conduct.
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (2) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).
Where a Judicial Commissioner refuses to approve a decision to give a relevant
notice, the Judicial Commissioner must give the Secretary of State written
reasons for the refusal.
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to give a relevant notice, the
Secretary of State may ask the Investigatory Powers Commissioner to decide
whether to approve the decision to give the notice.
Further provision about notices under section 252 or 253
In this section “relevant notice” means—
(a) a national security notice under section 252, or
(b) a technical capability notice under section 253.
Before giving a relevant notice to a person, the Secretary of State must consult
that person.
Before giving a relevant notice, the Secretary of State must, among other
matters, take into account—
(a) the likely benefits of the notice,
(b) the likely number of users (if known) of any postal or
telecommunications service to which the notice relates,
(c) the technical feasibility of complying with the notice,
(d) the likely cost of complying with the notice, and
(e) any other effect of the notice on the person (or description of person) to
whom it relates.
In the case of a technical capability notice that would impose any obligations
relating to the removal by a person of electronic protection applied by or on
behalf of that person to any communications or data, in complying with
subsection (3) the Secretary of State must in particular take into account the
technical feasibility, and likely cost, of complying with those obligations.
A relevant notice must be in writing.
A technical capability notice may be given to a person outside the United
Kingdom in any of the following ways (as well as by electronic or other means
of giving a notice)—
(3)
(4)
(5)
255
(1)
(2)
(3)
(4)
(5)
(6)
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Chapter 1 — Miscellaneous
209
(a)
(b)
by delivering it to the person’s principal office within the United
Kingdom or, if the person has no such office in the United Kingdom, to
any place in the United Kingdom where the person carries on business
or conducts activities;
if the person has specified an address in the United Kingdom as one at
which the person, or someone on the person’s behalf, will accept
documents of the same description as a notice, by delivering it to that
address.
(7)
(8)
The Secretary of State may by regulations make further provision about the
giving of relevant notices.
A person to whom a relevant notice is given, or any person employed or
engaged for the purposes of that person’s business, must not disclose the
existence or contents of the notice to any other person without the permission
of the Secretary of State.
A person to whom a relevant notice is given must comply with the notice.
The duty imposed by subsection (9) is enforceable—
(a) in relation to a person in the United Kingdom, and
(b) so far as relating to a technical capability notice within subsection (11),
in relation to a person outside the United Kingdom,
by civil proceedings by the Secretary of State for an injunction, or for specific
performance of a statutory duty under section 45 of the Court of Session Act
1988, or for any other appropriate relief.
A technical capability notice is within this subsection if it relates to any of the
following—
(a) a targeted interception warrant or mutual assistance warrant under
Chapter 1 of Part 2;
(b) a bulk interception warrant;
(c) an authorisation or notice given under Part 3.
Subsection (9) applies to a person to whom a national security notice is given
despite any other duty imposed on the person by or under Part 1, or Chapter 1
of Part 2, of the Communications Act 2003.
Variation and revocation of notices
In this section “relevant notice” means—
(a) a national security notice under section 252, or
(b) a technical capability notice under section 253.
The Secretary of State must keep each relevant notice under review.
The Secretary of State may—
(a) vary a relevant notice;
(b) revoke a relevant notice (whether wholly or in part).
The Secretary of State may vary a national security notice given to a person
only if—
(a) the Secretary of State considers that the variation is necessary in the
interests of national security,
(9)
(10)
(11)
(12)
256
(1)
(2)
(3)
(4)
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Chapter 1 — Miscellaneous
(b)
(c)
the Secretary of State considers that the conduct required by the notice
as varied is proportionate to what is sought to be achieved by that
conduct, and
if the variation would impose further requirements on the person, the
decision to vary the notice has been approved by a Judicial
Commissioner (but see subsection (6)).
(5)
The Secretary of State may vary a technical capability notice given to a person
only if—
(a) the Secretary of State considers that the variation is necessary for
securing that the person has the capability to provide any assistance
which the person may be required to provide in relation to any relevant
authorisation (within the meaning of section 253),
(b) the Secretary of State considers that the conduct required by the notice
as varied is proportionate to what is sought to be achieved by that
conduct, and
(c) if the variation would impose further requirements on the person, the
decision to vary the notice has been approved by a Judicial
Commissioner (but see subsection (6)).
The condition in subsection (4)(c) or (as the case may be) subsection (5)(c) does
not apply in the case of a variation to which section 257(10) applies.
If the Secretary of State varies or revokes a relevant notice given to any person,
the Secretary of State must give that person notice of the variation or
revocation.
Section 254 (approval of notices by Judicial Commissioners) applies in relation
to a decision to vary a relevant notice (other than a decision to which section
257(10) applies) as it applies in relation to a decision to give a relevant notice,
but as if—
(a) the reference in section 254(2)(a) to the notice were to the variation, and
(b) the reference in section 254(2)(b) to the notice were to the notice as
varied.
Subsections (2) to (4) and (7) of section 255 apply in relation to varying or
revoking a relevant notice as they apply in relation to giving a relevant notice
(and in the application of section 255(3) and (4) in relation to varying a relevant
notice, references to the notice are to be read as references to the notice as
varied).
Subsections (5) and (6) of section 255 apply to any notice of the variation or
revocation of a relevant notice as they apply to a relevant notice.
The fact that a relevant notice has been revoked in relation to a particular
person (or description of persons) does not prevent the giving of another
relevant notice of the same kind in relation to the same person (or description
of persons).
Any reference in this section or section 255(8) to (12) to a notice given under
section 252 or 253 includes a reference to such a notice as varied under this
section.
(6)
(7)
(8)
(9)
(10)
(11)
(12)
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Chapter 1 — Miscellaneous
211
257
(1)
Review of notices by the Secretary of State
A person who is given a notice under section 252 or 253 may, within such
period or circumstances as may be provided for by regulations made by the
Secretary of State, refer the notice back to the Secretary of State.
Such a reference may be in relation to the whole of a notice or any aspect of it.
There is no requirement for a person who has referred a notice under
subsection (1) to comply with the notice, so far as referred, until the Secretary
of State has reviewed the notice in accordance with subsection (4).
The Secretary of State must review any notice so far as referred to the Secretary
of State under subsection (1).
Before deciding the review, the Secretary of State must consult—
(a) the Technical Advisory Board, and
(b) a Judicial Commissioner.
The Board must consider the technical requirements and the financial
consequences, for the person who has made the reference, of the notice so far
as referred.
The Commissioner must consider whether the notice so far as referred is
proportionate.
The Board and the Commissioner must—
(a) give the person concerned and the Secretary of State the opportunity to
provide evidence, or make representations, to them before reaching
their conclusions, and
(b) report their conclusions to—
(i) the person, and
(ii) the Secretary of State.
The Secretary of State may, after considering the conclusions of the Board and
the Commissioner—
(a) vary or revoke the notice under section 256, or
(b) give a notice under this section to the person confirming its effect.
But the Secretary of State may vary the notice, or give a notice under subsection
(9)(b) confirming its effect, only if the Secretary of State’s decision to do so has
been approved by the Investigatory Powers Commissioner.
Subsections (5) to (8) of section 255 apply in relation to a notice under
subsection (9)(b) above as they apply in relation to a notice under section 252
or 253.
Any reference in this section or section 258 to a notice under section 252 or 253
includes such a notice as varied under section 256, but only so far as the
variation is concerned.
But it does not include a notice varied as mentioned in subsection (9)(a) above.
Approval of notices following review under section 257
In this section “relevant notice” means—
(a) a national security notice under section 252, or
(b) a technical capability notice under section 253.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
258
(1)
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(2)
In deciding whether to approve a decision to vary a relevant notice as
mentioned in section 257(9)(a), or to give a notice under section 257(9)(b)
confirming the effect of a relevant notice, the Investigatory Powers
Commissioner must review the Secretary of State’s conclusions as to the
following matters—
(a) whether the relevant notice as varied or confirmed is necessary as
mentioned in section 252(1)(a) or (as the case may be) section 253(1)(a),
and
(b) whether the conduct required by the relevant notice, as varied or
confirmed, is proportionate to what is sought to be achieved by that
conduct.
In doing so, the Investigatory Powers Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (2) with a sufficient
degree of care as to ensure that the Investigatory Powers Commissioner
complies with the duties imposed by section 2 (general duties in
relation to privacy).
Where the Investigatory Powers Commissioner refuses to approve a decision
to vary a relevant notice as mentioned in section 257(9)(a), or to give a notice
under section 257(9)(b) confirming the effect of a relevant notice, the
Investigatory Powers Commissioner must give the Secretary of State written
reasons for the refusal.
Wireless telegraphy
(3)
(4)
259
(1)
(2)
(3)
(4)
Amendments of the Wireless Telegraphy Act 2006
The Wireless Telegraphy Act 2006 is amended as follows.
Section 48 (interception and disclosure of messages) is amended as follows.
In subsection (1), for “otherwise than under the authority of a designated
person” substitute “without lawful authority”.
After subsection (3) insert—
“(3A)
A person does not commit an offence under this section consisting in
any conduct if the conduct—
(a) constitutes an offence under section 3(1) of the Investigatory
Powers Act 2016 (offence of unlawful interception), or
(b) would do so in the absence of any lawful authority (within the
meaning of section 6 of that Act).”
(5)
(6)
(7)
Omit subsection (5).
Omit section 49 (interception authorities).
In consequence of the repeal made by subsection (6)—
(a) in sections 50(5) and 119(2)(a), for “49” substitute “48”;
(b) in section 121(2), omit paragraph (b).
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213
C
HAPTER
2
G
ENERAL
Review of operation of Act
260
(1)
(2)
(3)
Review of operation of Act
The Secretary of State must, within the period of 6 months beginning with the
end of the initial period, prepare a report on the operation of this Act.
In subsection (1) “the initial period” is the period of 5 years and 6 months
beginning with the day on which this Act is passed.
In preparing the report under subsection (1), the Secretary of State must, in
particular, take account of any report on the operation of this Act made by a
Select Committee of either House of Parliament (whether acting alone or
jointly).
The Secretary of State must—
(a) publish the report prepared under subsection (1), and
(b) lay a copy of it before Parliament.
Interpretation
261
(1)
Telecommunications definitions
The definitions in this section have effect for the purposes of this Act.
Communication
(2)
“Communication”, in relation to a telecommunications operator,
telecommunications service or telecommunication system, includes—
(a) anything comprising speech, music, sounds, visual images or data of
any description, and
(b) signals serving either for the impartation of anything between persons,
between a person and a thing or between things or for the actuation or
control of any apparatus.
Entity data
(3)
“Entity data” means any data which—
(a) is about—
(i) an entity,
(ii) an association between a telecommunications service and an
entity, or
(iii) an association between any part of a telecommunication system
and an entity,
(b) consists of, or includes, data which identifies or describes the entity
(whether or not by reference to the entity’s location), and
(c) is not events data.
(4)
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Events data
(4)
“Events data” means any data which identifies or describes an event (whether
or not by reference to its location) on, in or by means of a telecommunication
system where the event consists of one or more entities engaging in a specific
activity at a specific time.
Communications data
(5)
“Communications data”, in relation to a telecommunications operator,
telecommunications service or telecommunication system, means entity data
or events data—
(a) which is (or is to be or is capable of being) held or obtained by, or on
behalf of, a telecommunications operator and—
(i) is about an entity to which a telecommunications service is
provided and relates to the provision of the service,
(ii) is comprised in, included as part of, attached to or logically
associated with a communication (whether by the sender or
otherwise) for the purposes of a telecommunication system by
means of which the communication is being or may be
transmitted, or
(iii) does not fall within sub-paragraph (i) or (ii) but does relate to
the use of a telecommunications service or a telecommunication
system,
(b) which is available directly from a telecommunication system and falls
within sub-paragraph (ii) of paragraph (a), or
(c) which—
(i) is (or is to be or is capable of being) held or obtained by, or on
behalf of, a telecommunications operator,
(ii) is about the architecture of a telecommunication system, and
(iii) is not about a specific person,
but does not include any content of a communication or anything which, in the
absence of subsection (6)(b), would be content of a communication.
Content of a communication
(6)
“Content”, in relation to a communication and a telecommunications operator,
telecommunications service or telecommunication system, means any element
of the communication, or any data attached to or logically associated with the
communication, which reveals anything of what might reasonably be
considered to be the meaning (if any) of the communication, but—
(a) any meaning arising from the fact of the communication or from any
data relating to the transmission of the communication is to be
disregarded, and
(b) anything which is systems data is not content.
Other definitions
(7)
(8)
“Entity” means a person or thing.
“Public telecommunications service” means any telecommunications service
which is offered or provided to the public, or a substantial section of the public,
in any one or more parts of the United Kingdom.
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(9)
“Public telecommunication system” means a telecommunication system
located in the United Kingdom—
(a) by means of which any public telecommunications service is provided,
or
(b) which consists of parts of any other telecommunication system by
means of which any such service is provided.
“Telecommunications operator” means a person who—
(a) offers or provides a telecommunications service to persons in the
United Kingdom, or
(b) controls or provides a telecommunication system which is (wholly or
partly)—
(i) in the United Kingdom, or
(ii) controlled from the United Kingdom.
“Telecommunications service” means any service that consists in the provision
of access to, and of facilities for making use of, any telecommunication system
(whether or not one provided by the person providing the service).
For the purposes of subsection (11), the cases in which a service is to be taken
to consist in the provision of access to, and of facilities for making use of, a
telecommunication system include any case where a service consists in or
includes facilitating the creation, management or storage of communications
transmitted, or that may be transmitted, by means of such a system.
“Telecommunication system” means a system (including the apparatus
comprised in it) that exists (whether wholly or partly in the United Kingdom
or elsewhere) for the purpose of facilitating the transmission of
communications by any means involving the use of electrical or
electromagnetic energy.
“Private telecommunication system” means any telecommunication system
which—
(a) is not a public telecommunication system,
(b) is attached, directly or indirectly, to a public telecommunication system
(whether or not for the purposes of the communication in question),
and
(c) includes apparatus which is both located in the United Kingdom and
used (with or without other apparatus) for making the attachment to
that public telecommunication system.
Postal definitions
The definitions in this section have effect for the purposes of this Act.
Communication
(10)
(11)
(12)
(13)
(14)
262
(1)
(2)
“Communication”, in relation to a postal operator or postal service (but not in
the definition of “postal service” in this section), includes anything transmitted
by a postal service.
Communications data
(3)
“Communications data”, in relation to a postal operator or postal service,
means—
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(a)
(b)
(c)
postal data comprised in, included as part of, attached to or logically
associated with a communication (whether by the sender or otherwise)
for the purposes of a postal service by means of which it is being or may
be transmitted,
information about the use made by any person of a postal service (but
excluding any content of a communication (apart from information
within paragraph (a)), or
information not within paragraph (a) or (b) that is (or is to be or is
capable of being) held or obtained by or on behalf of a person providing
a postal service, is about those to whom the service is provided by that
person and relates to the service so provided.
Postal data
(4)
“Postal data” means data which—
(a) identifies, or purports to identify, any person, apparatus or location to
or from which a communication is or may be transmitted,
(b) identifies or selects, or purports to identify or select, apparatus through
which, or by means of which, a communication is or may be
transmitted,
(c) identifies, or purports to identify, the time at which an event relating to
a communication occurs, or
(d) identifies the data or other data as data comprised in, included as part
of, attached to or logically associated with a particular communication.
For the purposes of this definition “data”, in relation to a postal item, includes
anything written on the outside of the item.
Other definitions
(5)
“Postal item” means—
(a) any letter, postcard or other such thing in writing as may be used by the
sender for imparting information to the recipient, or
(b) any packet or parcel.
“Postal operator” means a person providing a postal service to persons in the
United Kingdom.
“Postal service” means a service that—
(a) consists in the following, or in any one or more of them, namely, the
collection, sorting, conveyance, distribution and delivery (whether in
the United Kingdom or elsewhere) of postal items, and
(b) has as its main purpose, or one of its main purposes, to make available,
or to facilitate, a means of transmission from place to place of postal
items containing communications.
“Public postal service” means a postal service that is offered or provided to the
public, or a substantial section of the public, in any one or more parts of the
United Kingdom.
General definitions
In this Act—
“apparatus” includes any equipment, machinery or device (whether
physical or logical) and any wire or cable,
(6)
(7)
(8)
263
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“civil proceedings” means any proceedings in or before any court or
tribunal that are not criminal proceedings,
“crime” means conduct which—
(a) constitutes one or more criminal offences, or
(b) is, or corresponds to, any conduct which, if it all took place in
any one part of the United Kingdom, would constitute one or
more criminal offences,
“criminal proceedings” includes proceedings before a court in respect of
a service offence within the meaning of the Armed Forces Act 2006 (and
references to criminal prosecutions are to be read accordingly),
“data” includes data which is not electronic data and any information
(whether or not electronic),
“destroy”, in relation to electronic data, means delete the data in such a
way as to make access to the data impossible (and related expressions
are to be read accordingly),
“enactment” means an enactment whenever passed or made; and
includes—
(a) an enactment contained in subordinate legislation within the
meaning of the Interpretation Act 1978,
(b) an enactment contained in, or in an instrument made under, an
Act of the Scottish Parliament,
(c) an enactment contained in, or in an instrument made under, a
Measure or Act of the National Assembly for Wales, and
(d) an enactment contained in, or in an instrument made under,
Northern Ireland legislation,
“enhanced affirmative procedure” is to be read in accordance with section
268,
“functions” includes powers and duties,
“GCHQ” has the same meaning as in the Intelligence Services Act 1994,
“head”, in relation to an intelligence service, means—
(a) in relation to the Security Service, the Director-General,
(b) in relation to the Secret Intelligence Service, the Chief, and
(c) in relation to GCHQ, the Director,
“Her Majesty’s forces” has the same meaning as in the Armed Forces Act
2006,
“identifying data” has the meaning given by subsection (2),
“intelligence service” means the Security Service, the Secret Intelligence
Service or GCHQ,
“the Investigatory Powers Commissioner” means the person appointed
under section 227(1)(a) (and the expression is also to be read in
accordance with section 227(13)(b)),
“the Investigatory Powers Tribunal” means the tribunal established under
section 65 of the Regulation of Investigatory Powers Act 2000,
“items subject to legal privilege”—
(a) in relation to England and Wales, has the same meaning as in
the Police and Criminal Evidence Act 1984 (see section 10 of that
Act),
(b) in relation to Scotland, means—
(i) communications between a professional legal adviser
and the adviser’s client, or
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communications made in connection with, or in
contemplation of, legal proceedings and for the
purposes of those proceedings,
which would, by virtue of any rule of law relating to the
confidentiality of communications, be protected in legal
proceedings from disclosure, and
(c) in relation to Northern Ireland, has the same meaning as in the
Police and Criminal Evidence (Northern Ireland) Order 1989
(S.I. 1989/1341 (N.I. 12)) (see Article 12 of that Order),
“Judicial Commissioner” means a person appointed under section
227(1)(a) or (b) (and the expression is therefore to be read in accordance
with section 227(13)(a)),
“legal proceedings” means—
(a) civil or criminal proceedings in or before a court or tribunal, or
(b) proceedings before an officer in respect of a service offence
within the meaning of the Armed Forces Act 2006,
“modify” includes amend, repeal or revoke (and related expressions are
to be read accordingly),
“person holding office under the Crown” includes any servant of the
Crown and any member of Her Majesty’s forces,
“premises” includes any land, movable structure, vehicle, vessel, aircraft
or hovercraft (and “set of premises” is to be read accordingly),
“primary legislation” means—
(a) an Act of Parliament,
(b) an Act of the Scottish Parliament,
(c) a Measure or Act of the National Assembly for Wales, or
(d) Northern Ireland legislation,
“public authority” means a public authority within the meaning of section
6 of the Human Rights Act 1998, other than a court or tribunal,
“serious crime” means crime where—
(a) the offence, or one of the offences, which is or would be
constituted by the conduct concerned is an offence for which a
person who has reached the age of 18 (or, in relation to Scotland
or Northern Ireland, 21) and has no previous convictions could
reasonably be expected to be sentenced to imprisonment for a
term of 3 years or more, or
(b) the conduct involves the use of violence, results in substantial
financial gain or is conduct by a large number of persons in
pursuit of a common purpose,
“source of journalistic information” means an individual who provides
material intending the recipient to use it for the purposes of journalism
or knowing that it is likely to be so used,
“specified”, in relation to an authorisation, warrant, notice or regulations,
means specified or described in the authorisation, warrant, notice or (as
the case may be) regulations (and “specify” is to be read accordingly),
“statutory”, in relation to any function, means conferred by virtue of this
Act or any other enactment,
“subordinate legislation” means—
(a) subordinate legislation within the meaning of the Interpretation
Act 1978, or
(ii)
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an instrument made under an Act of the Scottish Parliament,
Northern Ireland legislation or a Measure or Act of the National
Assembly for Wales,
“systems data” has the meaning given by subsection (4),
“the Technical Advisory Board” means the Board provided for by section
245,
“the Technology Advisory Panel” means the panel established in
accordance with section 246(1),
“working day” means a day other than a Saturday, a Sunday, Christmas
Day, Good Friday or a bank holiday under the Banking and Financial
Dealings Act 1971 in any part of the United Kingdom.
(2)
In this Act “identifying data” means—
(a) data which may be used to identify, or assist in identifying, any person,
apparatus, system or service,
(b) data which may be used to identify, or assist in identifying, any event,
or
(c) data which may be used to identify, or assist in identifying, the location
of any person, event or thing.
For the purposes of subsection (2), the reference to data which may be used to
identify, or assist in identifying, any event includes—
(a) data relating to the fact of the event;
(b) data relating to the type, method or pattern of event;
(c) data relating to the time or duration of the event.
In this Act “systems data” means any data that enables or facilitates, or
identifies or describes anything connected with enabling or facilitating, the
functioning of any of the following—
(a) a postal service;
(b) a telecommunication system (including any apparatus forming part of
the system);
(c) any telecommunications service provided by means of a
telecommunication system;
(d) a relevant system (including any apparatus forming part of the system);
(e) any service provided by means of a relevant system.
For the purposes of subsection (4), a system is a “relevant system” if any
communications or other information are held on or by means of the system.
For the purposes of this Act detecting crime or serious crime is to be taken to
include—
(a) establishing by whom, for what purpose, by what means and generally
in what circumstances any crime or (as the case may be) serious crime
was committed, and
(b) the apprehension of the person by whom any crime or (as the case may
be) serious crime was committed.
References in this Act to the examination of material obtained under a warrant
are references to the material being read, looked at or listened to by the persons
to whom it becomes available as a result of the warrant.
(b)
(3)
(4)
(5)
(6)
(7)
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264
(1)
(2)
(3)
General definitions: “journalistic material” etc.
The definitions in this section have effect for the purposes of this Act.
Journalistic material
“Journalistic material” means material created or acquired for the purposes of
journalism.
For the purposes of this section, where—
(a) a person (“R”) receives material from another person (“S”), and
(b) S intends R to use the material for the purposes of journalism,
R is to be taken to have acquired it for those purposes.
Accordingly, a communication sent by S to R containing such material is to be
regarded as a communication containing journalistic material.
For the purposes of determining whether a communication contains material
acquired for the purposes of journalism, it does not matter whether the
material has been acquired for those purposes by the sender or recipient of the
communication or by some other person.
For the purposes of this section—
(a) material is not to be regarded as created or acquired for the purposes of
journalism if it is created or acquired with the intention of furthering a
criminal purpose, and
(b) material which a person intends to be used to further such a purpose is
not to be regarded as intended to be used for the purposes of
journalism.
Confidential journalistic material
“Confidential journalistic material” means—
(a) in the case of material contained in a communication, journalistic
material which the sender of the communication—
(i) holds in confidence, or
(ii) intends the recipient, or intended recipient, of the
communication to hold in confidence;
(b) in any other case, journalistic material which a person holds in
confidence.
A person holds material in confidence for the purposes of this section if—
(a) the person holds it subject to an express or implied undertaking to hold
it in confidence, or
(b) the person holds it subject to a restriction on disclosure or an obligation
of secrecy contained in an enactment.
Index of defined expressions
In this Act, the expressions listed in the left-hand column have the meaning
given by, or are to be interpreted in accordance with, the provisions listed in
the right-hand column.
(4)
(5)
(6)
(7)
265
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Expression
Apparatus
Bulk equipment interference warrant
Bulk interception warrant
Civil proceedings
Communication
Communications data
Confidential journalistic material
Content of a communication (in relation to a
telecommunications operator, telecommunications service
or telecommunication system)
Crime
Criminal proceedings
Criminal prosecution
Data
Destroy (in relation to electronic data) and related
expressions
Detecting crime or serious crime
Enactment
Enhanced affirmative procedure
Entity
Entity data
Events data
Examination (in relation to material obtained under a
warrant)
Functions
GCHQ
Head (in relation to an intelligence service)
Her Majesty’s forces
Identifying data
Intelligence service
Interception of communication (postal service)
Interception of communication (telecommunication system)
Interception of communication in the United Kingdom
Internet connection record
Provision
Section 263(1)
Section 176(1)
Section 136(1)
Section 263(1)
Sections 261(2) and 262(2)
Sections 261(5) and 262(3)
Section 264(6) and (7)
Section 261(6)
Section 263(1)
Section 263(1)
Section 263(1)
Section 263(1)
Section 263(1)
Section 263(6)
Section 263(1)
Section 263(1)
Section 261(7)
Section 261(3)
Section 261(4)
Section 263(7)
Section 263(1)
Section 263(1)
Section 263(1)
Section 263(1)
Section 263(2) and (3)
Section 263(1)
Sections 4(7) and 5
Sections 4(1) to (6) and 5(1)
Section 4(8)
Section 62(7)
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Chapter 2 — General
Expression
Investigatory Powers Commissioner
Investigatory Powers Tribunal
Items subject to legal privilege
Journalistic material
Judicial Commissioner
Judicial Commissioners
Lawful authority
communication)
Legal proceedings
Modify (and related expressions)
Person holding office under the Crown
Postal data
Postal item
Postal item in course of transmission by postal service
Postal operator
Postal service
Premises
Primary legislation
Private telecommunication system
Public authority
Public postal service
Public telecommunications service
Public telecommunication system
Serious crime
Source of journalistic information
Specified and specify (in relation to an authorisation,
warrant, notice or regulations)
Statutory (in relation to any function)
Subordinate legislation
Systems data
Technical Advisory Board
Technology Advisory Panel
Telecommunications operator
(in
relation
to
interception
of
Provision
Section 263(1)
Section 263(1)
Section 263(1)
Section 264(2) to (5)
Section 263(1)
Section 227(7)
Section 6
Section 263(1)
Section 263(1)
Section 263(1)
Section 262(4)
Section 262(5)
Section 4(7)
Section 262(6)
Section 262(7)
Section 263(1)
Section 263(1)
Section 261(14)
Section 263(1)
Section 262(8)
Section 261(8)
Section 261(9)
Section
263(1)
(and
paragraph 6 of Schedule 9)
Section 263(1)
Section 263(1)
Section 263(1)
Section 263(1)
Section 263(4) and (5)
Section 263(1)
Section 263(1)
Section 261(10)
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Expression
Telecommunications service
Telecommunication system
Working day
Provision
Section 261(11) and (12)
Section 261(13)
Section 263(1)
Supplementary provision
266
(1)
(2)
Offences by bodies corporate etc.
This section applies if an offence under this Act is committed by a body
corporate or a Scottish partnership.
If the offence is proved to have been committed with the consent or connivance
of, or to be attributable to any neglect on the part of—
(a) a senior officer of the body corporate or Scottish partnership, or
(b) a person purporting to act in such a capacity,
the senior officer or person (as well as the body corporate or partnership) is
guilty of the offence and liable to be proceeded against and punished
accordingly.
In this section—
“director”, in relation to a body corporate whose affairs are managed by
its members, means a member of the body corporate,
“senior officer” means—
(a) in relation to a body corporate, a director, manager, secretary or
other similar officer of the body corporate, and
(b) in relation to a Scottish partnership, a partner in the
partnership.
Regulations
Any power of the Secretary of State or the Treasury to make regulations under
this Act—
(a) is exercisable by statutory instrument,
(b) may be exercised so as to make different provision for different
purposes or different areas, and
(c) includes power to make supplementary, incidental, consequential,
transitional, transitory or saving provision.
See sections 72(3) and 73(6) for the procedure for a statutory instrument
containing regulations under section 71 to which section 72 applies or (as the
case may be) regulations under section 73(4) to which section 73(5) applies
(enhanced affirmative procedure).
A statutory instrument containing regulations under—
(a) section 12(4) or 271(2) which amend or repeal any provision of primary
legislation,
(b) section 46(2),
(c) section 52(5),
(3)
267
(1)
(2)
(3)
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(d) section 83,
(e) section 90(1),
(f) section 239,
(g) section 240(3),
(h) section 245,
(i) section 253,
(j) section 257(1), or
(k) paragraph 33 of Schedule 8,
may not be made unless a draft of the instrument has been laid before, and
approved by a resolution of, each House of Parliament.
(4)
A statutory instrument containing—
(a) regulations under section 12(4) or 271(2) to which subsection (3) does
not apply,
(b) regulations under section 65(5), or
(c) regulations under paragraph 2(1)(b) of Schedule 5,
is (if a draft of the instrument has not been laid before, and approved by a
resolution of, each House of Parliament) subject to annulment in pursuance of
a resolution of either House of Parliament.
A statutory instrument containing—
(a) regulations under section 10(3),
(b) regulations under section 52(3),
(c) regulations under section 58(8)(a),
(d) regulations under section 71 to which section 72 does not apply,
(e) regulations under section 73(4) to which section 73(5) does not apply,
(f) regulations under section 133(6)(a), or
(g) regulations under section 255(7),
is subject to annulment in pursuance of a resolution of either House of
Parliament.
A statutory instrument containing regulations under paragraph 4 of Schedule
5 is subject to annulment in pursuance of a resolution of the House of
Commons.
See paragraphs 4(4) and 5(5) of Schedule 7 for the procedure for a statutory
instrument containing regulations about the coming into force of a code of
practice under that Schedule or of any revisions to such a code of practice
(affirmative procedure or, in the case of the coming into force of revisions, a
choice between that procedure and laying before Parliament after being made).
A statutory instrument containing regulations which are subject to a particular
parliamentary procedure under this Act may also include regulations which
are subject to a different or no parliamentary procedure under this Act (but this
subsection does not apply to regulations mentioned in subsection (2), (4), (6) or
(7)).
A statutory instrument which, by virtue of subsection (8), contains regulations
which are subject to different parliamentary procedures, or one or more
parliamentary procedure and no parliamentary procedure, is subject to
whichever procedure is the higher procedure; and the order is as follows (the
highest first)—
(a) the procedure set out in subsection (3) (the affirmative procedure),
(5)
(6)
(7)
(8)
(9)
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(b)
(c)
(10)
the procedure set out in subsection (5) above (the negative procedure),
no procedure.
Provision is not prevented from being included in regulations made under this
Act merely because the provision could have been included in other
regulations made under this Act which would have been subject to a different
or no parliamentary procedure.
Enhanced affirmative procedure
For the purposes of regulations under section 71 to which section 72 applies
and regulations under section 73(4) to which section 73(5) applies, the
enhanced affirmative procedure is as follows.
Subsection (3) applies if—
(a) the Secretary of State has consulted under section 72(2) or (as the case
may be) 73(5) in relation to making such regulations,
(b) a period of at least 12 weeks, beginning with the day on which any such
consultation first began, has elapsed, and
(c) the Secretary of State considers it appropriate to proceed with making
such regulations.
The Secretary of State must lay before Parliament—
(a) draft regulations, and
(b) a document which explains the regulations.
The Secretary of State may make regulations in the terms of the draft
regulations laid under subsection (3) if, after the end of the 40-day period, the
draft regulations are approved by a resolution of each House of Parliament.
But subsections (6) to (9) apply instead of subsection (4) if—
(a) either House of Parliament so resolves within the 30-day period, or
(b) a committee of either House charged with reporting on the draft
regulations so recommends within the 30-day period and the House to
which the recommendation is made does not by resolution reject the
recommendation within that period.
The Secretary of State must have regard to—
(a) any representations,
(b) any resolution of either House of Parliament, and
(c) any recommendations of a committee of either House of Parliament
charged with reporting on the draft regulations,
made during the 60-day period with regard to the draft regulations.
If after the end of the 60-day period the draft regulations are approved by a
resolution of each House of Parliament, the Secretary of State may make
regulations in the terms of the draft regulations.
If after the end of the 60-day period the Secretary of State wishes to proceed
with the draft regulations but with material changes, the Secretary of State may
lay before Parliament—
(a) revised draft regulations, and
(b) a statement giving a summary of the changes proposed.
268
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
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(9)
If the revised draft regulations are approved by a resolution of each House of
Parliament, the Secretary of State may make regulations in the terms of the
revised draft regulations.
For the purposes of this section regulations are made in the terms of draft
regulations or revised draft regulations if they contain no material changes to
the provisions of the draft, or revised draft, regulations.
References in this section to the “30-day”, “40-day” and “60-day” periods in
relation to any draft regulations are to the periods of 30, 40 and 60 days
beginning with the day on which the draft regulations were laid before
Parliament; and, for this purpose, no account is to be taken of any time during
which Parliament is dissolved or prorogued or during which either House is
adjourned for more than four days.
Financial provisions
There is to be paid out of money provided by Parliament—
(a) any expenditure incurred by a Minister of the Crown or government
department by virtue of this Act, and
(b) any increase attributable to this Act in the sums payable by virtue of
any other Act out of money so provided.
(10)
(11)
269
270
(1)
(2)
Transitional, transitory or saving provision
Schedule 9 (which contains transitional, transitory and saving provision
including a general saving for lawful conduct) has effect.
The Secretary of State may by regulations make such transitional, transitory or
saving provision as the Secretary of State considers appropriate in connection
with the coming into force of any provision of this Act.
Minor and consequential provision
Schedule 10 (which contains minor and consequential provision) has effect.
The Secretary of State may by regulations make such provision as the Secretary
of State considers appropriate in consequence of this Act.
The power to make regulations under subsection (2) may, in particular, be
exercised by modifying any provision made by or under an enactment.
In subsection (3) “enactment” does not include any primary legislation passed
or made after the end of the Session in which this Act is passed.
Final provision
271
(1)
(2)
(3)
(4)
272
(1)
Commencement, extent and short title
Subject to subsections (2) and (3), this Act comes into force on such day as the
Secretary of State may by regulations appoint; and different days may be
appointed for different purposes.
Sections 260 to 269, 270(2), 271(2) to (4) and this section come into force on the
day on which this Act is passed.
(2)
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(3)
(4)
(5)
Sections 227 and 228 come into force at the end of the period of two months
beginning with the day on which this Act is passed.
Subject to subsections (5) to (7), this Act extends to England and Wales,
Scotland and Northern Ireland.
An amendment, repeal or revocation made by this Act of an enactment has the
same extent within the United Kingdom as the enactment amended, repealed
or revoked.
Her Majesty may by Order in Council provide for any of the provisions of this
Act to extend, with or without modifications, to the Isle of Man or any of the
British overseas territories.
Any power under an Act to extend any provision of that Act by Order in
Council to any of the Channel Islands may be exercised so as to extend there
(with or without modifications) any amendment or repeal of that provision
which is made by or under this Act.
This Act may be cited as the Investigatory Powers Act 2016.
(6)
(7)
(8)
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Schedule 1 — Monetary penalty notices
SCHEDULES
SCHEDULE 1
M
ONETARY PENALTY NOTICES
P
ART
1
M
ONETARY PENALTY NOTICES
Payment of monetary penalties
1
Section 7
(1) A monetary penalty imposed by a monetary penalty notice must be paid to
the Commissioner within the period specified in the notice.
(2) The period specified under sub-paragraph (1) must not be less than 28 days
beginning with the day after the day on which the notice is served.
(3) Any sum received by the Commissioner by virtue of a monetary penalty
notice must be paid into the Consolidated Fund.
Contents of monetary penalty notices
2
A monetary penalty notice must, in particular—
(a) state the name and address of the person on whom it is to be served,
(b) provide details of the notice of intent served on that person (see
paragraph 4),
(c) state whether the Commissioner has received written
representations in accordance with that notice of intent,
(d) state the grounds on which the Commissioner serves the monetary
penalty notice,
(e) state the grounds on which the Commissioner decided the amount of
the monetary penalty imposed by the monetary penalty notice,
(f) state the details of how the monetary penalty is to be paid,
(g) provide details of the person’s rights of appeal under paragraph 8 in
respect of the monetary penalty notice,
(h) provide details of the Commissioner’s rights of enforcement under
paragraph 9 in respect of the monetary penalty notice.
Enforcement obligations
3
(1) The Commissioner may include an enforcement obligation, or enforcement
obligations, in a monetary penalty notice if the Commissioner considers that
the interception to which the notice relates is continuing.
(2) Each of the following is an enforcement obligation—
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(a)
(b)
a requirement on the person on whom the notice is served to cease
the interception on a specified day or within a specified period;
(where appropriate for achieving such a cessation) a requirement on
the person to take specified steps within a specified period, or to
refrain from taking specified steps after the end of a specified period.
(3) An enforcement obligation may not have effect before the end of the period
of 7 days beginning with the day after the day on which the notice is served.
(4) Where an enforcement obligation is included in a monetary penalty notice
under this paragraph, the notice must state what the obligation is and the
grounds for including it.
Consultation requirements before service of monetary penalty notices
4
(1) The Commissioner must proceed in accordance with sub-paragraphs (2) to
(7) before serving a monetary penalty notice on a person.
(2) The Commissioner must serve a notice of intent on the person.
(3) A notice of intent is a notice that the Commissioner proposes to serve a
monetary penalty notice on the person.
(4) A notice of intent served on a person must, in particular—
(a) state the name and address of the person,
(b) state the grounds on which the Commissioner proposes to serve the
monetary penalty notice,
(c) provide an indication of the amount of the monetary penalty that the
Commissioner proposes to impose and the Commissioner’s grounds
for deciding that amount,
(d) state whether the monetary penalty notice is to include any
enforcement obligation and, if so, what the obligation is and the
grounds for including it,
(e) state the date on which the Commissioner proposes to serve the
monetary penalty notice,
(f) inform the person that the person may make written representations
in relation to the Commissioner’s proposal within a period specified
in the notice, and
(g) inform the person that the person may, within a period specified in
the notice, request an oral hearing before the Commissioner in order
to make representations of the kind mentioned in sub-paragraph
(6)(b).
(5) No period specified as mentioned in sub-paragraph (4)(f) or (g) may be less
than 21 days beginning with the day after the day on which the notice is
served.
(6) Where the person has requested an oral hearing within the period specified
for the purpose in the notice—
(a) the Commissioner must arrange such a hearing, and
(b) the person may make representations at the hearing about—
(i) any matter falling within section 7(3)(c), or
(ii) any other matter relating to the Commissioner’s proposal
which, by virtue of section 56, the person would be unable to
raise on an appeal under paragraph 8.
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(7) The Commissioner must consider any representations which have been
made by the person in accordance with the notice or sub-paragraph (6).
(8) If the Commissioner decides not to serve a monetary penalty notice on a
person as a result of any representations which have been made by the
person in accordance with a notice of intent or sub-paragraph (6), the
Commissioner must inform the person of that fact.
5
(1) The Commissioner may not vary a notice of intent except as set out in sub-
paragraph (2).
(2) The Commissioner may vary a notice of intent by extending the period
mentioned in paragraph 4(4)(f) or (g).
(3) Sub-paragraph (1) does not prevent the Commissioner from serving a new
notice of intent instead of varying such a notice.
(4) The Commissioner may cancel a notice of intent.
(5) A variation or cancellation of a notice of intent is effected by serving on the
person on whom the notice was served a notice setting out the variation or
cancellation.
6
(1) The Commissioner must not serve a monetary penalty notice on a person in
respect of an interception if any notice of intent in respect of that interception
was served on the person more than 3 months earlier.
(2) But the Commissioner may serve a monetary penalty notice on a person
where the service of the notice would otherwise be prevented by sub-
paragraph (1) if the Commissioner—
(a) considers it reasonable to do so, and
(b) includes the reasons for doing so in the monetary penalty notice.
Variation or cancellation of monetary penalty notices
7
(1) The Commissioner may vary or cancel a monetary penalty notice.
(2) But the Commissioner may not vary a monetary penalty notice in a way that
is detrimental to the person on whom it was served (whether by increasing
the amount of the monetary penalty, by reducing the period specified in the
notice as the period within which the penalty must be paid, by imposing a
new enforcement obligation or making an existing enforcement obligation
effective earlier or otherwise more onerous, or otherwise).
(3) The Commissioner must—
(a) in the case of a variation which reduces the amount of a monetary
penalty, repay any excess already paid in accordance with the notice,
and
(b) in the case of a cancellation, repay any amount already paid in
accordance with the notice.
(4) A variation or cancellation of a monetary penalty notice is effected by
serving on the person on whom the monetary penalty notice was served a
notice setting out the variation or cancellation.
(5) The Commissioner may not serve another monetary penalty notice on a
person in respect of an interception if the Commissioner has cancelled a
previous notice served on the person in respect of the same interception.
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(6) If the Commissioner refuses a request by a person to vary or cancel a
monetary penalty notice which has been served on the person, the
Commissioner must inform the person of that fact.
Appeals in relation to monetary penalty notices
8
(1) A person on whom a monetary penalty notice is served may appeal to the
First-tier Tribunal against—
(a) the monetary penalty notice or any provision of it, or
(b) any refusal of a request by the person to serve a notice of variation or
cancellation in relation to the monetary penalty notice.
(2) Where there is an appeal under sub-paragraph (1)(a) in relation to a
monetary penalty notice or any provision of it, any requirement in the notice
or (as the case may be) provision which does not relate to the imposition of
an enforcement obligation need not be complied with until the appeal is
withdrawn or finally determined.
(3) Sub-paragraphs (4) to (6) apply in relation to an appeal under sub-paragraph
(1)(a).
(4) The First-tier Tribunal must allow the appeal or substitute such other
monetary penalty notice as could have been served by the Commissioner if
the Tribunal considers—
(a) that the notice to which the appeal relates is not in accordance with
the law, or
(b) to the extent that the notice involved an exercise of discretion by the
Commissioner, that the Commissioner ought to have exercised the
discretion differently.
(5) In any other case, the First-tier Tribunal must dismiss the appeal.
(6) The First-tier Tribunal may review any determination of fact on which the
notice was based.
(7) Sub-paragraphs (8) to (10) apply in relation to an appeal under sub-
paragraph (1)(b).
(8) The First-tier Tribunal must direct the Commissioner to serve, on such terms
as the Tribunal considers appropriate, a notice of variation or cancellation in
relation to the monetary penalty notice if the Tribunal considers that the
monetary penalty notice ought to be varied or cancelled on those terms.
(9) In any other case, the First-tier Tribunal must dismiss the appeal.
(10) The First-tier Tribunal may review any determination of fact on which the
refusal to serve the notice of variation or cancellation was based.
Enforcement of monetary penalty notices
9
(1) This paragraph applies in relation to any penalty payable to the
Commissioner by virtue of a monetary penalty notice.
(2) In England and Wales or Northern Ireland, the penalty is recoverable—
(a) if the county court in England and Wales or a county court in
Northern Ireland so orders, as if it were payable under an order of
that court, and
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Schedule 1 — Monetary penalty notices
Part 1 — Monetary penalty notices
(b)
if the High Court so orders, as if it were payable under an order of
that court.
(3) In Scotland, the penalty is recoverable as if it were payable under an extract
registered decree arbitral bearing a warrant for execution issued by the
sheriff for any sheriffdom in Scotland.
10
(1) A person on whom a monetary penalty notice containing an enforcement
obligation is served must comply with the obligation.
(2) The duty imposed by sub-paragraph (1) is enforceable by civil proceedings
by the Commissioner for an injunction, or for specific performance of a
statutory duty under section 45 of the Court of Session Act 1988, or for any
other appropriate relief.
Guidance
11
(1) The Commissioner must prepare and issue guidance on how the
Commissioner proposes to exercise the Commissioner’s functions under
section 7 and this Schedule.
(2) The guidance must, in particular, deal with—
(a) the manner in which the Commissioner is to deal with claims of a
description specified in the guidance which may give rise to grounds
for serving a monetary penalty notice,
(b) the circumstances in which the Commissioner would consider it
appropriate to serve a monetary penalty notice,
(c) how the Commissioner will determine the amount of the penalty,
and
(d) the circumstances in which the Commissioner would consider it
appropriate to impose an enforcement obligation.
(3) The Commissioner may alter or replace the guidance.
(4) If the guidance is altered or replaced, the Commissioner must issue the
altered or replacement guidance.
(5) The Commissioner must arrange for the publication, in such form and
manner as the Commissioner considers appropriate, of any guidance issued
under this paragraph.
Interpretation of Part 1
12
In this Part of this Schedule—
“address” means—
(a) in the case of a registered company, the address of its
registered office,
(b) in the case of a person (other than a registered company)
carrying on a business, the address of the person’s principal
place of business in the United Kingdom, and
(c) in any other case, the person’s last known address;
“the Commissioner” means the Investigatory Powers Commissioner;
“enforcement obligation” has the meaning given by paragraph 3(2);
“monetary penalty notice” means a monetary penalty notice under
section 7;
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“notice” means notice in writing;
“notice of intent” has the meaning given by paragraph 4(3);
“registered company” means a company registered under the
enactments relating to companies for the time being in force in the
United Kingdom.
P
ART
2
I
NFORMATION PROVISIONS
Information notices
13
(1) The Commissioner may by notice (an “information notice”) request any
person on whom the Commissioner is considering whether to serve a Part 1
notice of intent or a Part 1 monetary penalty notice to provide such
information as the Commissioner reasonably requires for the purpose of
deciding whether to serve it.
(2) Where the Commissioner requests that documents be produced, the
Commissioner may take copies of, or extracts from, any document so
produced.
(3) An information notice must—
(a) specify or describe the information to be provided,
(b) specify the manner in which, and the period within which, the
information is to be provided,
(c) state that the Commissioner considers that the information is
information which the Commissioner reasonably requires for the
purpose of deciding whether to serve a Part 1 notice of intent or (as
the case may be) a Part 1 monetary penalty notice,
(d) state the Commissioner’s grounds for this view, and
(e) provide details of the rights of appeal under paragraph 15 in respect
of the information notice.
(4) For the purposes of sub-paragraph (3)(b)—
(a) specifying the manner in which the information is to be provided
may include specifying the form in which it is to be provided, and
(b) the specified period within which the information is to be provided
must not be less than 28 days beginning with the day after the day on
which the information notice is served.
14
(1) The Commissioner may not vary an information notice except as set out in
sub-paragraph (2).
(2) The Commissioner may vary an information notice by extending the period
within which the information is to be provided if the person on whom the
notice is served appeals under paragraph 15 in relation to the notice.
(3) Sub-paragraph (1) does not prevent the Commissioner from serving a new
information notice instead of varying such a notice.
(4) The Commissioner may cancel an information notice.
(5) A variation or cancellation of an information notice is effected by serving on
the person on whom the notice was served a notice setting out the variation
or cancellation.
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Investigatory Powers Act 2016 (c.
25)
Schedule 1 — Monetary penalty notices
Part 2 — Information provisions
Appeals in relation to information notices
15
(1) A person on whom an information notice is served may appeal to the First-
tier Tribunal against—
(a) the information notice or any provision of it, or
(b) any refusal of a request by the person to serve a notice of variation or
cancellation in relation to the information notice.
(2) Subject to paragraph 14(2), an appeal under this paragraph does not affect
the need to comply with the information notice while the appeal has not
been withdrawn or finally determined.
(3) Sub-paragraphs (4) to (6) apply in relation to an appeal under sub-paragraph
(1)(a).
(4) The First-tier Tribunal must allow the appeal or substitute such other
information notice as could have been served by the Commissioner if the
Tribunal considers—
(a) that the notice to which the appeal relates is not in accordance with
the law, or
(b) to the extent that the notice involved an exercise of discretion by the
Commissioner, that the Commissioner ought to have exercised the
discretion differently.
(5) In any other case, the First-tier Tribunal must dismiss the appeal.
(6) The First-tier Tribunal may review any determination of fact on which the
notice was based.
(7) Sub-paragraphs (8) to (10) apply in relation to an appeal under sub-
paragraph (1)(b).
(8) The First-tier Tribunal must direct the Commissioner to issue, on such terms
as the Tribunal considers appropriate, a notice of variation or cancellation in
relation to the information notice if the Tribunal considers that the
information notice ought to be varied or cancelled on those terms.
(9) In any other case, the First-tier Tribunal must dismiss the appeal.
(10) The First-tier Tribunal may review any determination of fact on which the
refusal to serve the notice of variation or cancellation was based.
Enforcement of information notices
16
(1) The Commissioner may serve a Part 2 monetary penalty notice on a person
if the person—
(a) without reasonable excuse fails to comply with an information
notice, or
(b) knowingly or recklessly gives any information which is false in a
material particular in response to an information notice.
(2) A Part 2 monetary penalty notice is a notice requiring the person on whom
it is served to pay to the Commissioner a monetary penalty of an amount
determined by the Commissioner and specified in the notice.
(3) The amount of a monetary penalty determined by the Commissioner under
this paragraph may be—
(a) a fixed amount,
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Part 2 — Information provisions
235
(b)
(c)
an amount calculated by reference to a daily rate, or
a fixed amount and an amount calculated by reference to a daily rate.
(4) But the total amount payable must not exceed £10,000.
(5) In the case of an amount calculated by reference to a daily rate—
(a) no account is to be taken of the day on which the Part 2 monetary
penalty notice is served or any day before that day, and
(b) the Part 2 monetary penalty notice must specify—
(i) the day on which the amount first starts to accumulate and
the circumstances in which it is to cease to accumulate, and
(ii) the period or periods within which the amount, or any part
or parts so far accumulated, must be paid to the
Commissioner.
Any period falling within paragraph (b)(ii) must not be less than 28 days
beginning with the day after the day on which the notice is served.
17
(1) Part 1 of this Schedule applies in relation to a Part 2 monetary penalty notice
and the penalty that relates to that notice as it applies in relation to a Part 1
monetary penalty notice and the penalty that relates to that notice.
This is subject to the following modifications.
(2) The provisions in Part 1 of this Schedule so far as relating to enforcement
obligations do not apply in relation to a Part 2 monetary penalty notice.
(3) Paragraph 4 has effect in relation to a Part 2 monetary penalty notice as if in
sub-paragraph (6)(b) the reference to making representations about matters
falling within sub-paragraph (6)(b)(i) or (ii) were a reference to making
representations about matters falling within sub-paragraph (6)(b)(ii) only.
(4) Paragraph 6 has effect in relation to a Part 2 monetary penalty notice as if the
references in sub-paragraph (1) to an interception were references to
conduct falling within paragraph 16(1)(a) or (b).
(5) Paragraph 7(5) has effect in relation to a Part 2 monetary penalty notice as if
the references to an interception were references to conduct falling within
paragraph 16(1)(a) or (b).
Technical assistance for the Commissioner
18
(1) OFCOM must comply with any reasonable request made by the
Commissioner, in connection with the Commissioner’s functions under
section 7 and this Schedule, for advice on technical and similar matters
relating to electronic communications.
(2) For this purpose, the Commissioner may disclose to OFCOM any
information obtained by the Commissioner under this Schedule.
(3) In this paragraph “OFCOM” means the Office of Communications
established by section 1 of the Office of Communications Act 2002.
Interpretation of Part 2
19
In this Part of this Schedule—
“the Commissioner” means the Investigatory Powers Commissioner;
“enforcement obligation” has the meaning given by paragraph 3(2);
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Part 2 — Information provisions
“information” includes documents; and any reference to providing or
giving information includes a reference to producing a document;
“information notice” has the meaning given by paragraph 13(1);
“notice” means notice in writing;
“Part 1 monetary penalty notice” means a monetary penalty notice
under section 7;
“Part 1 notice of intent” means a notice of intent (within the meaning of
paragraph 4(3)) relating to a Part 1 monetary penalty notice;
“Part 2 monetary penalty notice” means a monetary penalty notice
under paragraph 16.
SCHEDULE 2
A
BOLITION OF DISCLOSURE POWERS
Health and Safety at Work etc. Act 1974
1
Section 12(1)
In section 20 of the Health and Safety at Work etc. Act 1974 (powers of
inspectors), at end, insert—
“(9)
Nothing in this section is to be read as enabling an inspector to secure
the disclosure by a telecommunications operator or postal operator
of communications data without the consent of the operator.
In subsection (9) “communications data”, “postal operator” and
“telecommunications operator” have the same meanings as in the
Investigatory Powers Act 2016 (see sections 261 and 262 of that Act).”
(10)
Criminal Justice Act 1987
2
In section 2 of the Criminal Justice Act 1987 (investigation powers of
Director of Serious Fraud Office), after subsection (10), insert—
“(10A)
Nothing in this section is to be read as enabling a person to secure the
disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator.
In subsection (10A) “communications data”, “postal operator” and
“telecommunications operator” have the same meanings as in the
Investigatory Powers Act 2016 (see sections 261 and 262 of that Act).”
(10B)
Consumer Protection Act 1987
3
In section 29 of the Consumer Protection Act 1987 (powers of search etc.), at
end, insert—
“(8)
The officer may not exercise a power under this section to secure the
disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator.
In subsection (8) “communications data”, “postal operator” and
“telecommunications operator” have the same meanings as in the
Investigatory Powers Act 2016 (see sections 261 and 262 of that Act).”
(9)
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Environmental Protection Act 1990
4
In section 71 of the Environmental Protection Act 1990 (obtaining of
information from persons and authorities), at end, insert—
“(5)
Nothing in this section is to be read as enabling a person to secure the
disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator.
In subsection (5) “communications data”, “postal operator” and
“telecommunications operator” have the same meanings as in the
Investigatory Powers Act 2016 (see sections 261 and 262 of that Act).”
(6)
Social Security Administration Act 1992
5
In section 109B of the Social Security Administration Act 1992 (power to
require information)—
(a) in subsection (2A) omit paragraph (j),
(b) in subsection (2E) for the words from “for” to the end of the
subsection substitute “so as to secure the disclosure by a
telecommunications operator or postal operator of communications
data without the consent of the operator.”,
(c) omit subsection (2F), and
(d) in subsection (7)—
(i) after the definition of “bank” insert—
““communications data” has the same meaning as in the
Investigatory Powers Act 2016 (see sections 261 and
262 of that Act);”,
(ii) after the definition of “insurer” insert—
““postal operator” has the same meaning as in the
Investigatory Powers Act 2016 (see section 262 of that
Act);”, and
(iii) for the definition of “telecommunications service”
substitute—
““telecommunications operator” has the same meaning
as in the Investigatory Powers Act 2016 (see section
261 of that Act).”
In section 109C of the Social Security Administration Act 1992 (powers of
entry) for subsection (6) substitute—
“(6)
Subsections (2E) and (5) of section 109B apply for the purposes of this
section as they apply for the purposes of that section.”
6
Social Security Administration (Northern Ireland) Act 1992
7
In section 103B of the Social Security Administration (Northern Ireland) Act
1992 (power to require information)—
(a) in subsection (2A) omit paragraph (i),
(b) in subsection (2E) for the words from “for” to the end of the
subsection substitute “so as to secure the disclosure by a
telecommunications operator or postal operator of communications
data without the consent of the operator.”,
(c) omit subsection (2F), and
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(d)
Investigatory Powers Act 2016 (c.
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Schedule 2 — Abolition of disclosure powers
in subsection (7)—
(i) after the definition of “bank” insert—
““communications data” has the same meaning as in the
Investigatory Powers Act 2016 (see sections 261 and
262 of that Act);”,
(ii) after the definition of “insurer” insert—
““postal operator” has the same meaning as in the
Investigatory Powers Act 2016 (see section 262 of that
Act);”, and
(iii) for the definition of “telecommunications service”
substitute—
““telecommunications operator” has the same meaning
as in the Investigatory Powers Act 2016 (see section
261 of that Act).”
8
In section 103C of the Social Security Administration (Northern Ireland) Act
1992 (powers of entry) for subsection (6) substitute—
“(6)
Subsections (2E) and (5) of section 103B apply for the purposes of this
section as they apply for the purposes of that section.”
Financial Services and Markets Act 2000
9
In section 175 of the Financial Services and Markets Act 2000 (information
gathering and investigations: supplemental provision), after subsection (5),
insert—
“(5A)
Nothing in this Part is to be read as enabling a person to secure the
disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator.
In subsection (5A) “communications data”, “postal operator” and
“telecommunications operator” have the same meanings as in the
Investigatory Powers Act 2016 (see sections 261 and 262 of that Act).”
(5B)
Finance Act 2008
10
In Schedule 36 to the Finance Act 2008 (information and inspection powers),
in paragraph 19 (restrictions on powers: types of information), at end,
insert—
“(4) An information notice does not require a telecommunications
operator or postal operator to provide or produce
communications data.
(5) In sub-paragraph (4) “communications data”, “postal operator”
and “telecommunications operator” have the same meanings as in
the Investigatory Powers Act 2016 (see sections 261 and 262 of that
Act).”
Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations
2014 (S.I. 2014/899)
11
In regulation 4 of the Prevention of Social Housing Fraud (Power to Require
Information) (England) Regulations 2014 (power to require information
from persons who provide telecommunications services etc.)—
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239
(a)
(b)
(c)
(d)
omit sub-paragraph (f) of paragraph (3),
in sub-paragraph (g) of that paragraph for “(f)” substitute “(e)”,
omit paragraphs (6) and (7),
after paragraph (10) insert—
“(10A)
Nothing in this regulation is to be read as enabling a person
to secure the disclosure by a telecommunications operator or
postal operator of communications data without the consent
of the operator.”, and
in paragraph (11)—
(i) after the definition of “bank” insert—
““communications data” has the same meaning as in the
Investigatory Powers Act 2016 (see sections 261 and 262
of that Act);”,
(ii) after the definition of “family” insert—
““postal operator” has the same meaning as in the
Investigatory Powers Act 2016 (see section 262 of that
Act);”, and
(iii) for the definition of “telecommunications service”
substitute—
““telecommunications operator” has the same meaning as
in the Investigatory Powers Act 2016 (see section 261 of
that Act).”
(e)
SCHEDULE 3
E
XCEPTIONS TO SECTION
56
Introductory
1
Section 56
This Schedule contains—
(a) exceptions to the exclusion by section 56(1) of certain matters from
legal proceedings, and
(b) limitations on those exceptions where that exclusion will still apply.
Disclosures of lawfully intercepted communications
2
(1) Section 56(1)(a) does not prohibit the disclosure of any content of a
communication, or any secondary data obtained from a communication, if
the interception of that communication was lawful by virtue of any of the
following provisions—
(a) sections 6(1)(c) and 44 to 52;
(b) sections 1(5)(c), 3 and 4 of the Regulation of Investigatory Powers Act
2000;
(c) section 1(2)(b) and (3) of the Interception of Communications Act
1985.
(2) Where any disclosure is proposed to be, or has been, made on the grounds
that it is authorised by sub-paragraph (1), section 56(1) does not prohibit the
doing of anything in, or for the purposes of, so much of any proceedings as
relates to the question whether that disclosure is or was so authorised.
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Disclosures of convictions for certain offences
3
Investigatory Powers Act 2016 (c.
25)
Schedule 3 — Exceptions to section 56
Section 56(1)(b) does not prohibit the doing of anything that discloses any
conduct of a person for which that person has been convicted of—
(a) an offence under section 3(1), 43(7), 59 or 155,
(b) an offence under section 1(1) or (2), 11(7) or 19 of the Regulation of
Investigatory Powers Act 2000, or
(c) an offence under section 1 of the Interception of Communications
Act 1985.
Proceedings before the Investigatory Powers Tribunal etc.
4
Section 56(1) does not apply in relation to—
(a) any proceedings before the Investigatory Powers Tribunal,
(b) any proceedings on an appeal under section 67A of the Regulation of
Investigatory Powers Act 2000 (appeal against decisions of the
Tribunal etc.), or
(c) any proceedings arising out of such an appeal.
Proceedings before Special Immigration Appeals Commission
5
(1) Section 56(1) does not apply in relation to—
(a) any proceedings before the Special Immigration Appeals
Commission, or
(b) any proceedings arising out of proceedings before that Commission.
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) the appellant or (as the case may be) applicant to the Special
Immigration Appeals Commission, or
(b) any person who—
(i) represents that appellant or applicant for the purposes of the
proceedings, and
(ii) does so otherwise than by virtue of appointment under
section 6 of the Special Immigration Appeals Commission
Act 1997.
Proceedings before Proscribed Organisations Appeal Commission
6
(1) Section 56(1) does not apply in relation to—
(a) any proceedings before the Proscribed Organisations Appeal
Commission, or
(b) any proceedings arising out of proceedings before that Commission.
(2) But sub-paragraph (1) does not permit the disclosure of anything to any of
the following—
(a) the applicant to the Commission;
(b) the organisation concerned (if different);
(c) any person designated under paragraph 6 of Schedule 3 to the
Terrorism Act 2000 to conduct the proceedings on behalf of that
organisation;
(d) any person who—
(i) represents that appellant or that organisation for the
purposes of the proceedings, and
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Schedule 3 — Exceptions to section 56
241
(ii)
does so otherwise than by virtue of an appointment under
paragraph 7 of that Schedule.
Closed material proceedings
7
(1) Section 56(1) does not apply in relation to any section 6 proceedings within
the meaning given by section 14(1) of the Justice and Security Act 2013
(certain civil proceedings in which closed material applications may be
made).
(2) But sub-paragraph (1) does not permit a prohibited section 6 disclosure.
(3) In the case of section 6 proceedings where the only relevant person is the
Secretary of State, a “prohibited section 6 disclosure” means a disclosure of
anything to—
(a) any person, other than the Secretary of State, who is or was a party
to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings,
and
(ii) does so otherwise than by virtue of appointment as a special
advocate.
(4) In the case of section 6 proceedings where the Secretary of State is not the
only relevant person, or is not a relevant person but is a party to the
proceedings, a “prohibited section 6 disclosure” means a disclosure of
anything to—
(a) any person, other than the relevant person concerned or the
Secretary of State, who is or was a party to the proceedings, or
(b) any person who—
(i) represents a person within paragraph (a) for the purposes of
the proceedings, and
(ii) does so otherwise than by virtue of appointment as a special
advocate.
(5) In this paragraph “relevant person”, in relation to section 6 proceedings, has
the meaning given by section 14(1) of the Justice and Security Act 2013.
TPIM proceedings
8
(1) Section 56(1) does not apply in relation to—
(a) any TPIM proceedings, or
(b) any proceedings arising out of any TPIM proceedings.
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) any person, other than the Secretary of State, who is or was a party
to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings,
and
(ii) does so otherwise than by virtue of appointment as a special
advocate under Schedule 4 to the Terrorism Prevention and
Investigation Measures Act 2011.
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Schedule 3 — Exceptions to section 56
(3) In this paragraph “TPIM proceedings” has the same meaning as in the
Terrorism Prevention and Investigation Measures Act 2011.
TEO proceedings
9
(1) Section 56(1) does not apply in relation to—
(a) any TEO proceedings, or
(b) any proceedings arising out of any TEO proceedings.
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) any person, other than the Secretary of State, who is or was a party
to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings,
and
(ii) does so otherwise than by virtue of appointment as a special
advocate under Schedule 3 to the Counter-Terrorism and
Security Act 2015.
(3) In this paragraph “TEO proceedings” has the meaning given by paragraph
1 of Schedule 3 to the Counter-Terrorism and Security Act 2015 (temporary
exclusion orders: proceedings).
Proceedings relating to freezing of terrorist assets etc.
10
(1) Section 56(1) does not apply in relation to—
(a) any financial restrictions proceedings, or
(b) any proceedings arising out of such proceedings.
(2) In this paragraph “financial restrictions proceedings” has the meaning given
by section 65 of the Counter-Terrorism Act 2008.
11
Section 56(1) does not apply in relation to any proceedings—
(a) on an appeal under section 26, or an application under section 27, of
the Terrorist Asset-Freezing etc. Act 2010 (appeals and reviews by
the court), or
(b) on a claim arising from any matter to which such an appeal or
application relates,
or any proceedings arising out of such proceedings.
But neither paragraph 10 nor paragraph 11 permits the disclosure of
anything to—
(a) any person, other than the Treasury, who is or was a party to the
proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings,
and
(ii) does so otherwise than by virtue of appointment as a special
advocate.
12
Proceedings relating to release of prisoners etc. in Northern Ireland
13
(1) Section 56(1) does not apply in relation to—
(a) any proceedings before—
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243
(b)
the Parole Commissioners for Northern Ireland, or
any Sentence Review Commissioners appointed under
section 1 of the Northern Ireland (Sentences) Act 1998, or
any proceedings arising out of such proceedings.
(i)
(ii)
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) any person, other than the Secretary of State, who is or was a party
to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings,
and
(ii) does so otherwise than by virtue of appointment as a special
advocate.
Employment or industrial tribunal proceedings
14
(1) Section 56(1) does not apply in relation to any proceedings before an
employment tribunal where the applicant, or the applicant’s
representatives, are excluded for all or part of the proceedings pursuant to—
(a) a direction to the tribunal by virtue of section 10(5)(b) or (c) of the
Employment Tribunals Act 1996 (exclusion from Crown
employment proceedings by direction of Minister in interests of
national security), or
(b) a determination of the tribunal by virtue of section 10(6) of that Act
(determination by tribunal in interests of national security).
(2) Section 56(1) does not apply in relation to any proceedings before an
industrial tribunal in Northern Ireland where the applicant, or the
applicant’s representatives, are excluded for all or part of the proceedings
pursuant to—
(a) a direction to the tribunal by virtue of Article 12(5)(b) or (c) of the
Industrial Tribunals (Northern Ireland) Order 1996 (S.I. 1996/1921
(N.I. 18)) (exclusion from Crown employment proceedings by
direction of Minister in interests of national security), or
(b) a determination of the tribunal by virtue of Article 12(6) of that Order
(determination by tribunal in interests of national security).
(3) Section 56(1) does not apply in relation to any proceedings arising out of
proceedings within sub-paragraph (1) or (2).
15
But paragraph 14 does not permit the disclosure of anything to—
(a) the person who is or was the applicant in the proceedings before the
employment or industrial tribunal, or
(b) any person who—
(i) represents that person for the purposes of any proceedings
within paragraph 14, and
(ii) does so otherwise than by virtue of appointment as a special
advocate.
Proceedings relating to dismissal for certain offences
16
Section 56(1) does not prohibit anything done in, for the purposes of, or in
connection with, so much of any legal proceedings as relates to the fairness
or unfairness of a dismissal on the following grounds—
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(a)
(b)
Investigatory Powers Act 2016 (c.
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Schedule 3 — Exceptions to section 56
any conduct constituting an offence under section 3(1), 43(7), 59 or
155;
any conduct taking place before the coming into force of this
paragraph and constituting—
(i) an offence under section 1(1) or (2), 11(7) or 19 of the
Regulation of Investigatory Powers Act 2000, or
(ii) an offence under section 1 of the Interception of
Communications Act 1985.
Proceedings on appeals relating to claims of discrimination in Northern Ireland
17
(1) Section 56(1) does not apply in relation to any proceedings on an appeal
under Article 80(2) of the Fair Employment and Treatment (Northern
Ireland) Order 1998 (S.I. 1998/3162 (N.I. 21)) where—
(a) the appeal relates to a claim of discrimination in contravention of
Part 3 of that Order (employment cases) and to a certificate of the
Secretary of State that the act concerned was justified for the purpose
of safeguarding national security, and
(b) a party to the appeal, or the party’s representatives, are excluded for
all or part of the proceedings by virtue of section 91(4)(b) of the
Northern Ireland Act 1998.
(2) Section 56(1) does not apply in relation to any proceedings arising out of
proceedings within sub-paragraph (1).
18
But paragraph 17 does not permit the disclosure of anything to—
(a) any person who is or was excluded from all or part of the
proceedings mentioned in paragraph 17(1), or
(b) any person who—
(i) represents such a person for the purposes of any proceedings
within paragraph 17, and
(ii) does so otherwise than by virtue of appointment as a special
advocate.
Civil proceedings for enforcement of duty to assist with implementation of warrants
19
Section 56(1) does not apply in relation to any civil proceedings under
section 43(8) of this Act or section 11(8) of the Regulation of Investigatory
Powers Act 2000 (enforcement of duty of operators to assist with
implementation of warrants).
Proceedings for certain offences
20
(1) Section 56(1) does not apply in relation to any proceedings for a relevant
offence.
(2) “Relevant offence” means—
(a) an offence under any provision of this Act;
(b) an offence under section 1 of the Interception of Communications
Act 1985;
(c) an offence under any provision of the Regulation of Investigatory
Powers Act 2000;
(d) an offence under section 47 or 48 of the Wireless Telegraphy Act
2006;
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(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
an offence under section 83 or 84 of the Postal Services Act 2000;
an offence under section 4 of the Official Secrets Act 1989 relating to
any such information, document or article as is mentioned in
subsection (3)(a) or (c) of that section;
an offence under section 1 or 2 of the Official Secrets Act 1911 relating
to any sketch, plan, model, article, note, document or information
which—
(i) incorporates, or relates to, the content of any intercepted
communication or any secondary data obtained from a
communication, or
(ii) tends to suggest that any interception-related conduct has or
may have occurred or may be going to occur;
an offence of perjury committed in the course of any relevant
proceedings;
an offence of attempting or conspiring to commit an offence falling
within any of paragraphs (a) to (h);
an offence under Part 2 of the Serious Crime Act 2007 in relation to
an offence falling within any of those paragraphs;
an offence of aiding, abetting, counselling or procuring the
commission of an offence falling within any of those paragraphs;
contempt of court committed in the course of, or in relation to, any
relevant proceedings.
(3) In this paragraph—
“intercepted communication” and “interception-related conduct” have
the same meaning as in section 56;
“relevant proceedings” means any proceedings mentioned in
paragraphs 4 to 19.
Disclosures to prosecutors and judges
21
(1) Nothing in section 56(1) prohibits—
(a) a disclosure to a person (“P”) conducting a criminal prosecution that
is made for the purpose only of enabling P to determine what is
required of P by P’s duty to secure the fairness of the prosecution, or
(b) a disclosure to a relevant judge in a case in which the judge has
ordered the disclosure to be made to the judge alone.
(2) A relevant judge may order a disclosure under sub-paragraph (1)(b) only if
the judge considers that the exceptional circumstances of the case make the
disclosure essential in the interests of justice.
(3) Where in any criminal proceedings—
(a) a relevant judge orders a disclosure under sub-paragraph (1)(b), and
(b) in consequence of that disclosure, the judge considers that there are
exceptional circumstances requiring the judge to make a direction
under this sub-paragraph,
the judge may direct the person conducting the prosecution to make for the
purposes of the proceedings any admission of fact which the judge considers
essential in the interests of justice.
(4) But nothing in any direction under sub-paragraph (3) may authorise or
require anything to be done in contravention of section 56(1).
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Investigatory Powers Act 2016 (c.
25)
Schedule 3 — Exceptions to section 56
(5) In this paragraph “relevant judge” means—
(a) any judge of the High Court or of the Crown Court or any Circuit
judge,
(b) any judge of the High Court of Justiciary or any sheriff,
(c) in relation to proceedings before the Court Martial, the judge
advocate for those proceedings, or
(d) any person holding a judicial office that entitles the person to
exercise the jurisdiction of a judge falling within paragraph (a) or (b).
Disclosures to inquiries and inquests
22
(1) Nothing in section 56(1) prohibits—
(a) a disclosure to the panel of an inquiry held under the Inquiries Act
2005, or
(b) a disclosure to a person appointed as legal adviser to such an inquiry,
where, in the course of the inquiry, the panel has ordered the disclosure to
be made to the panel alone or (as the case may be) to the panel and any
person appointed as legal adviser to the inquiry.
(2) The panel of an inquiry may order a disclosure under sub-paragraph (1)
only if it considers that the exceptional circumstances of the case make the
disclosure essential to enable the inquiry to fulfil its terms of reference.
(3) Any reference in this paragraph to a person appointed as legal adviser to an
inquiry is a reference to a person appointed as solicitor or counsel to the
inquiry.
23
(1) Section 56(1) does not apply in relation to any restricted proceedings of an
inquiry held under the Inquiries Act 2005.
(2) Proceedings of an inquiry held under that Act are “restricted proceedings”
for the purposes of this paragraph if restrictions imposed under section 19
of that Act are in force prohibiting attendance at the proceedings by any
person who is not—
(a) a member of the panel of the inquiry,
(b) a person appointed as legal adviser to the inquiry,
(c) a person who is a relevant party to the proceedings,
(d) a person representing such a person for the purposes of the
proceedings, or
(e) a person performing functions necessary for the proper functioning
of the proceedings.
(3) But sub-paragraph (1) does not permit any disclosure which has not been
made in accordance with paragraph 22(1).
(4) In this paragraph “relevant party”, in relation to any proceedings of an
inquiry, means—
(a) any person making a disclosure to the panel of the inquiry, or to a
person appointed as legal adviser to the inquiry, in accordance with
paragraph 22(1);
(b) any person giving evidence to the inquiry in circumstances where, in
the absence of sub-paragraph (1), the prohibition imposed by section
56(1) would be breached;
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Investigatory Powers Act 2016 (c.
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Schedule 3 — Exceptions to section 56
247
(c)
(d)
any person whose conduct is the interception-related conduct
(within the meaning of section 56) to which the disclosure or
evidence relates (whether or not that conduct has in fact occurred);
any other person to whom the subject-matter of the disclosure or
evidence has been lawfully disclosed in accordance with section 58.
(5) Any reference in this paragraph to a person appointed as legal adviser to an
inquiry is to be read in accordance with paragraph 22(3).
24
(1) Nothing in section 56(1) prohibits—
(a) a disclosure to a person (the “nominated person”) nominated under
paragraph 3(1) of Schedule 10 to the Coroners and Justice Act 2009
(investigation by judge or former judge) to conduct an investigation
into a person’s death, or
(b) a disclosure to a person appointed as legal adviser to an inquest
forming part of an investigation conducted by the nominated person,
where, in the course of the investigation, the nominated person has ordered
the disclosure to be made to the nominated person alone or (as the case may
be) to the nominated person and any person appointed as legal adviser to
the inquest.
(2) The nominated person may order a disclosure under sub-paragraph (1) only
if the person considers that the exceptional circumstances of the case make
the disclosure essential in the interests of justice.
(3) In a case where a person who is not a nominated person is or has been
conducting an investigation under Part 1 of the Coroners and Justice Act
2009 into a person’s death, nothing in section 56(1) prohibits—
(a) a disclosure to the person that there is intercepted material in
existence which is, or may be, relevant to the investigation;
(b) a disclosure to a person appointed as legal adviser to an inquest
forming part of the investigation which is made for the purposes of
determining—
(i) whether any intercepted material is, or may be, relevant to
the investigation, and
(ii) if so, whether it is necessary for the material to be disclosed
to the person conducting the investigation.
(4) In sub-paragraph (3) “intercepted material” means—
(a) any content of an intercepted communication (within the meaning of
section 56), or
(b) any secondary data obtained from a communication.
(5) Any reference in this paragraph to a person appointed as legal adviser to an
inquest is a reference to a person appointed as solicitor or counsel to the
inquest.
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248
Investigatory Powers Act 2016 (c.
25)
Schedule 4 — Relevant public authorities and designated senior officers etc.
Part 1 — Table of authorities and officers etc.
SCHEDULE 4
Section 70(1)
R
ELEVANT PUBLIC AUTHORITIES AND DESIGNATED SENIOR OFFICERS ETC
.
P
ART
1
T
ABLE OF AUTHORITIES AND OFFICERS ETC
.
Table
(1)
Relevant public authority
(2)
DSO: minimum office, rank or
position
Inspector
(3)
Type of communications
data that may be obtained
by DSO
Entity data
(4)
Paragraphs of
section 61(7)
specified for DSO
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c), (d),
(e), (g) and (i)
(a), (b), (c) and
(g)
(a), (b), (c) and
(g)
(a), (b), (c) and
(g)
(a), (b), (c) and
(g)
(a), (b), (c) and
(g)
(a), (b), (c) and
(g)
Police force maintained under
section 2 of the Police Act
1996
Superintendent
Metropolitan police force
Inspector
Superintendent
City of London police force
Inspector
Superintendent
Police Service of Scotland
Inspector
Superintendent
Police Service of Northern
Ireland
Inspector
Superintendent
British Transport Police Force
Inspector
Superintendent
Ministry of Defence Police
Inspector
Superintendent
Royal Navy Police
Lieutenant Commander
Commander
Royal Military Police
Major
Lieutenant Colonel
All
Entity data
All
Entity data
All
Entity data
All
Entity data
All
Entity data
All
Entity data
All
Entity data
All
Entity data
All
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Investigatory Powers Act 2016 (c.
25)
Schedule 4 — Relevant public authorities and designated senior officers etc.
Part 1 — Table of authorities and officers etc.
(1)
Relevant public authority
(2)
DSO: minimum office, rank or
position
Squadron Leader
Wing Commander
Security Service
General Duties 4 or any other
level 4 officer
General Duties 3 or any other
level 3 officer
Secret Intelligence Service
GCHQ
Ministry of Defence
Grade 6
GC8
Member of the Senior Civil
Service or equivalent
Grade 7 in the Fraud Defence
Unit
Department of Health
Grade 7 in the Medicines and
Healthcare
Products
Regulatory Agency
Grade 7 in the Anti-Fraud
Unit
Home Office
Immigration inspector or
equivalent with responsibility
for investigations or other
functions
relating
to
immigration
and
border
security
Immigration inspector or
equivalent with responsibility
for anti-corruption in relation
to investigations or other
functions
relating
to
immigration
and
border
security
Immigration inspector or
equivalent with responsibility
for
asylum
fraud
investigations
Immigration inspector or
equivalent with responsibility
for security and intelligence
in the immigration detention
estate
Ministry of Justice
Manager in the security
group of the National
Offender
Management
Service
responsible
for
intelligence
Senior manager in the
security group of the National
Offender
Management
Service
responsible
for
intelligence
National Crime Agency
Grade 3
Grade 2
(3)
Type of communications
data that may be obtained
by DSO
Entity data
All
Entity data
All
All
All
All
All
All
249
(4)
Paragraphs of
section 61(7)
specified for DSO
(a), (b), (c) and
(g)
(a), (b), (c) and
(g)
(a), (b) and (c)
(a), (b) and (c)
(a), (b) and (c)
(a), (b) and (c)
(a)
(b)
(b), (d) and (e)
Royal Air Force Police
All
All
(b)
(b)
All
(b)
All
(b)
All
(b), (d) and (i)
Entity data
(b) and (d)
All
(b) and (d)
Entity data
All
(b), (g) and (i)
(b), (g) and (i)
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250
Investigatory Powers Act 2016 (c.
25)
Schedule 4 — Relevant public authorities and designated senior officers etc.
Part 1 — Table of authorities and officers etc.
(1)
Relevant public authority
(2)
DSO: minimum office, rank or
position
Higher officer
Senior officer
(3)
Type of communications
data that may be obtained
by DSO
Entity data
All
Entity data
(4)
Paragraphs of
section 61(7)
specified for DSO
(b) and (f)
(b) and (f)
(b) and (d)
Her Majesty’s Revenue and
Customs
Department for Transport
Enforcement
Officer
in
Maritime and Coastguard
Agency
Head of Enforcement in
Maritime and Coastguard
Agency
Maritime
Operations
Commander (grade 7) in the
Maritime and Coastguard
Agency
Principal Inspector in the Air
Accident
Investigation
Branch, the Marine Accident
Investigation Branch or the
Rail Accident Investigation
Branch
All
(b) and (d)
All
(g)
All
(d)
Department for Work and
Pensions
Senior Executive Officer in
Fraud and Error Services
Senior Executive Officer in
the Child Maintenance Group
Central Legal Services
All
All
(b)
(b)
An ambulance
England
trust
in
Duty Manager of Ambulance
Trust Control Rooms
Head of
Services
Counter
Fraud
All
All
All
(g)
(b)
(b)
Common Services Agency for
the Scottish Health Service
Competition
Authority
and
Markets
Member of the Senior Civil
Service with responsibility for
cartels
or
criminal
enforcement
Investigations Adviser
Deputy Principal
Deputy chief inspector in
trading standards services
Governor 4 in the Northern
Ireland Prison Service
Head of department in the
Enforcement and Market
Oversight Division
Watch Manager (Control)
Criminal
Cases
Commission
Review
All
All
All
All
All
(h)
(b)
(b)
(b), (d) and (i)
(b) and (j)
Department for Communities
in Northern Ireland
Department for the Economy
in Northern Ireland
Department of Justice
Northern Ireland
in
Financial Conduct Authority
A fire and rescue authority
under the Fire and Rescue
Services Act 2004
Food Standards Agency
Food Standards Scotland
Gambling Commission
All
(g)
Grade 6
Head of the Scottish Food
Crime and Incidents Unit
Senior manager
All
All
All
(b)
(b)
(b)
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Investigatory Powers Act 2016 (c.
25)
Schedule 4 — Relevant public authorities and designated senior officers etc.
Part 1 — Table of authorities and officers etc.
(1)
Relevant public authority
(2)
DSO: minimum office, rank or
position
Head of operations
Band 1 inspector
Deputy Chair or Director
Group Manager
Head of enforcement or an
equivalent grade
National
Health
Service
Business Services Authority
Senior manager (of pay band
8b) in the Counter Fraud and
Security
Management
Services Division
Watch Manager (Control)
(3)
Type of communications
data that may be obtained
by DSO
All
All
All
Entity data
All
All
251
(4)
Paragraphs of
section 61(7)
specified for DSO
(b)
(b), (d) and (e)
(b) and (i)
(b)
(b)
(b)
Gangmasters and
Abuse Authority
Labour
Health and Safety Executive
Independent
Police
Complaints Commission
Information Commissioner
Northern Ireland Ambulance
Service Health and Social
Care Trust
Northern Ireland Fire and
Rescue Service Board
Northern Ireland Health and
Social Care Regional Business
Services Organisation
Office of Communications
Office
of
Ombudsman
Ireland
the
Police
for Northern
and
All
(g)
Watch Manager (Control)
Assistant Director Counter
Fraud and Probity Services
Senior associate
Senior investigating officer
All
All
(g)
(b)
All
All
(b)
(b)
Police Investigations
Review Commissioner
Commissioner or Director of
Operations
Watch Manager (Control)
Investigations Adviser
Grade 6
Watch Manager (Control)
All
All
All
All
All
(b) and (i)
(g)
(h)
(b)
(g)
Scottish Ambulance Service
Board
Scottish
Criminal
Review Commission
Serious Fraud Office
Welsh Ambulance Services
National Health Service Trust
Cases
P
ART
2
I
NTERPRETATION OF TABLE
1
In the table in Part 1 of this Schedule—
“ambulance trust in England” means—
(a) an NHS trust all or most of whose hospitals, establishments
and facilities are in England and which provides ambulance
services, or
(b) an NHS foundation trust which provides such services,
“entity data” means any communications data which is entity data.
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252
Investigatory Powers Act 2016 (c.
25)
Schedule 5 — Transfer and agency arrangements with public authorities: further provisions
SCHEDULE 5
PROVISIONS
Section 83(5)
T
RANSFER AND AGENCY ARRANGEMENTS WITH PUBLIC AUTHORITIES
:
FURTHER
Particular safeguards in connection with operation of section 69
1
(1) The following provisions apply where the functions of the Secretary of State
under section 67 are exercisable by a public authority by virtue of
regulations under section 83(1).
(2) The measures adopted or arrangements made by the public authority for the
purpose of complying with the requirements of section 69 must be such as
are approved by the Secretary of State.
(3) Any report required by section 69(6)(b) or (8) must be made to the Secretary
of State as well as to the Investigatory Powers Commissioner.
Requirement for public authority to provide reports to Secretary of State
2
(1) A public authority, when exercising functions by virtue of regulations under
section 83(1), must at least once in each calendar year make a report to the
Secretary of State on—
(a) the discharge of the functions, and
(b) such other matters as the Secretary of State may by regulations
require.
(2) Regulations under section 83(1) may, in particular, modify sub-paragraph
(1) as it has effect in relation to the calendar year in which the regulations
come into force or are revoked.
(3) The Secretary of State may agree to a report under this paragraph being
combined with any other report which the public authority concerned is
required to, or may, make to the Secretary of State.
Transfer schemes in connection with transfer of functions
3
(1) The Secretary of State may, in connection with regulations under section
83(1), make a scheme for the transfer of property, rights or liabilities.
(2) The things that may be transferred under a transfer scheme include—
(a) property, rights and liabilities which could not otherwise be
transferred,
(b) property acquired, and rights and liabilities arising, after the making
of the scheme.
(3) A transfer scheme may make consequential, supplementary, incidental,
transitional, transitory or saving provision and may, in particular—
(a) create rights, or impose liabilities, in relation to property or rights
transferred,
(b) make provision about the continuing effect of things done by, on
behalf of or in relation to the transferor in respect of anything
transferred,
(c) make provision about the continuation of things (including legal
proceedings) in the process of being done by, on behalf of or in
relation to the transferor in respect of anything transferred,
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Schedule 5 — Transfer and agency arrangements with public authorities: further provisions
253
(d)
(e)
(f)
make provision for references to the transferor in an instrument or
other document in respect of anything transferred to be treated as
references to the transferee,
make provision for the shared ownership or use of property,
if the TUPE regulations do not apply in relation to the transfer, make
provision which is the same or similar.
(4) A transfer scheme may provide—
(a) for modification by agreement,
(b) for modifications to have effect from the date when the original
scheme came into effect.
(5) A transfer scheme may confer a discretion on the Secretary of State to pay
compensation to any person whose interests are adversely affected by the
scheme.
(6) A transfer scheme may be included in regulations under section 83(1) but, if
not so included, must be laid before Parliament after being made.
(7) For the purposes of this paragraph references to rights and liabilities include
references to—
(a) rights and liabilities relating to a contract of employment, and
(b) rights and liabilities of the Crown relating to the terms of
employment of individuals in the civil service.
(8) Accordingly, a transfer scheme may, in particular, provide—
(a) for—
(i) an individual employed in the civil service to become an
employee of the transferee, or
(ii) an employee of the transferor to become an employee of the
transferee or an individual employed in the civil service,
(b) for—
(i) the individual’s terms of employment in the civil service to
have effect (subject to any necessary modifications) as the
terms of the individual’s contract of employment with the
transferee, or
(ii) (as the case may be) the individual’s contract of employment
to have effect (subject to any necessary modifications) as the
terms of the individual’s contract of employment with the
transferee or, where the transferee is the Secretary of State,
the individual’s terms of employment with the civil service,
(c) for the transfer of rights and liabilities of the Crown or another public
authority under or in connection with the individual’s terms of
employment.
(9) In this paragraph—
“civil service” means the civil service of the State,
“TUPE regulations” means the Transfer of Undertakings (Protection of
Employment) Regulations 2006 (S.I. 2006/246),
and references to the transfer of property include the grant of a lease.
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254
Investigatory Powers Act 2016 (c.
25)
Schedule 5 — Transfer and agency arrangements with public authorities: further provisions
Tax in connection with transfer schemes
4
(1) The Treasury may by regulations make provision varying the way in which
a relevant tax has effect in relation to—
(a) anything transferred under a transfer scheme, or
(b) anything done for the purposes of, or in relation to, a transfer under
a transfer scheme.
(2) The provision which may be made under sub-paragraph (1)(a) includes, in
particular, provision for—
(a) a tax provision not to apply, or to apply with modifications, in
relation to anything transferred,
(b) anything transferred to be treated in a specified way for the purposes
of a tax provision,
(c) the Secretary of State to be required or permitted to determine, or
specify the method for determining, anything which needs to be
determined for the purposes of any tax provision so far as relating to
anything transferred.
(3) The provision which may be made under sub-paragraph (1)(b) includes, in
particular, provision for—
(a) a tax provision not to apply, or to apply with modifications, in
relation to anything done for the purposes of, or in relation to, the
transfer,
(b) anything done for the purposes of, or in relation to, the transfer to
have or not have a specified consequence or be treated in a specified
way,
(c) the Secretary of State to be required or permitted to determine, or
specify the method for determining, anything which needs to be
determined for the purposes of any tax provision so far as relating to
anything done for the purposes of, or in relation to, the transfer.
(4) In this paragraph—
“relevant tax” means income tax, corporation tax, capital gains tax,
stamp duty, stamp duty reserve tax or stamp duty land tax,
“tax provision” means any provision—
(a) about a relevant tax, and
(b) made by an enactment,
“transfer scheme” means a transfer scheme under paragraph 3,
and references to the transfer of property include the grant of a lease.
Supplementary and other general provision
5
The power to make regulations under section 83(1) includes, in particular,
power to—
(a) modify any enactment about a public authority for the purpose of
enabling or otherwise facilitating any function under sections 67 to
69 to be exercisable by the public authority,
(b) impose requirements or confer other functions on a public authority
in connection with functions transferred by the regulations.
The power to make regulations under—
(a) section 83, or
6
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Investigatory Powers Act 2016 (c.
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Schedule 5 — Transfer and agency arrangements with public authorities: further provisions
255
(b) paragraph 4 above,
including that power as extended (whether by section 267(1) or otherwise)
may, in particular, be exercised by modifying any enactment (including this
Act).
SCHEDULE 6
I
SSUE OF WARRANTS UNDER SECTION
106
ETC
:
TABLE
P
ART
1
T
ABLE
: P
ART
1
Section 106
Law enforcement chiefs
The Chief Constable of a
police force maintained
under section 2 of the
Police Act 1996.
Appropriate delegates
The person who is the
appropriate deputy chief
constable for the purposes
of section 12A(1) of the
Police Act 1996.
The person holding the
rank of assistant chief
constable designated to
act under section 12A(2)
of that Act.
If it is not reasonably
practicable for either of
those persons to act, any
other person holding the
rank of assistant chief
constable in the force.
Appropriate law
enforcement officers
A member of the police
force, a member of a
collaborative force or a
National Crime Agency
officer who is included in
a collaboration agreement
with the police force.
The Commissioner, or an
Assistant Commissioner,
of the metropolitan police
force.
A person holding the rank
of commander in the
metropolitan police force.
A
member
of
the
metropolitan police force,
a
member
of
a
collaborative force or a
National Crime Agency
officer who is included in
a collaboration agreement
with the metropolitan
police force.
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256
Investigatory Powers Act 2016 (c.
25)
Schedule 6 — Issue of warrants under section 106 etc: table
Part 1 — Table: Part 1
Law enforcement chiefs
The Commissioner of
Police for the City of
London.
Appropriate delegates
The person authorised to
act under section 25 of the
City of London Police Act
1839 or, if it is not
reasonably practicable for
that person to act, a
person holding the rank
of commander in the City
of London police force.
Any
deputy
chief
constable or assistant
chief constable of the
Police Service of Scotland
who is designated for the
purpose by the chief
constable.
A person holding the rank
of
assistant
chief
constable in the Police
Service
of
Northern
Ireland.
A senior National Crime
Agency
Officer
designated
for
the
purpose by the Director
General of the National
Crime Agency.
A person holding the rank
of deputy or assistant
chief constable in the
British Transport Police
Force.
A person holding the rank
of deputy chief constable
or
assistant
chief
constable in the Ministry
of Defence Police.
A person holding the
position
of
deputy
Provost Marshal in the
Royal Navy Police.
A person holding the
position
of
deputy
Provost Marshal in the
Royal Military Police.
Appropriate law
enforcement officers
A member of the City of
London police force, a
member of a collaborative
force or a National Crime
Agency officer who is
included
in
a
collaboration agreement
with the City of London
police force.
A constable of the Police
Service of Scotland.
The chief constable of the
Police Service of Scotland.
The Chief Constable or a
Deputy Chief Constable
of the Police Service of
Northern Ireland.
The Director General of
the
National
Crime
Agency.
A member of the Police
Service
of
Northern
Ireland.
A National Crime Agency
officer or a member of a
collaborative police force.
The Chief Constable of
the British Transport
Police Force.
A member of the British
Transport Police Force.
The Chief Constable of
the Ministry of Defence
Police.
A member of the Ministry
of Defence Police.
The Provost Marshal of
the Royal Navy Police.
A member of the Royal
Navy Police.
The Provost Marshal of
the Royal Military Police.
A member of the Royal
Military Police.
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Investigatory Powers Act 2016 (c.
25)
Schedule 6 — Issue of warrants under section 106 etc: table
Part 1 — Table: Part 1
257
Law enforcement chiefs
The Provost Marshal of
the Royal Air Force
Police.
Appropriate delegates
A person holding the
position
of
deputy
Provost Marshal in the
Royal Air Force Police.
P
ART
2
T
ABLE
: P
ART
2
Appropriate law
enforcement officers
A member of the Royal
Air Force Police.
Law enforcement chiefs
An immigration officer
who is a senior official
and who is designated for
the purpose by the
Secretary of State.
Appropriate delegates
A senior official in the
department
of
the
Secretary of State by
whom functions relating
to
immigration
are
exercisable
who
is
designated
for
the
purpose by the Secretary
of State.
An officer of Revenue and
Customs who is a senior
official and who is
designated
for
the
purpose
by
the
Commissioners for Her
Majesty’s Revenue and
Customs.
A designated customs
official who is a senior
official and who is
designated
for
the
purpose by the Secretary
of State.
An
officer
of
the
Competition and Markets
Authority designated by
it for the purpose.
Appropriate law
enforcement officers
An immigration officer.
An officer of Revenue and
Customs who is a senior
official and who is
designated
for
the
purpose
by
the
Commissioners for Her
Majesty’s Revenue and
Customs.
A designated customs
official who is a senior
official and who is
designated
for
the
purpose by the Secretary
of State.
The
Chair
of
the
Competition and Markets
Authority.
An officer of Revenue and
Customs.
A designated
official.
customs
An
officer
of
the
Competition and Markets
Authority.
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Investigatory Powers Act 2016 (c.
25)
Schedule 6 — Issue of warrants under section 106 etc: table
Part 2 — Table: Part 2
Law enforcement chiefs
The chairman, or a
deputy chairman, of the
Independent
Police
Complaints Commission.
Appropriate delegates
A member (other than the
chair
or
a
deputy
chairman)
of
the
Independent
Police
Complaints Commission
who is designated by the
chairman for the purpose.
Appropriate law
enforcement officers
A person designated
under paragraph 19(2) of
Schedule 3 to the Police
Reform Act 2002 to take
charge of, or to assist
with, the investigation to
which the warrant under
section 106(1) relates (or
would relate if issued).
A staff officer of the Police
Investigations
and
Review Commissioner.
The Police Investigations
and
Review
Commissioner.
A staff officer of the Police
Investigations
and
Review
Commissioner
who is designated by the
Commissioner for the
purpose.
P
ART
3
I
NTERPRETATION OF THE TABLE
1
(1) This paragraph applies for the purposes of the first three entries in Part 1 of
the table.
(2) A police force (police force 1) is a collaborative force in relation to another
police force (police force 2) if—
(a) the chief officers of both police forces are parties to the same
agreement under section 22A of the Police Act 1996, and
(b) the members of police force 1 are permitted by the terms of the
agreement to make applications under section 106 to the chief officer
of police force 2.
(3) A National Crime Agency officer is included in a collaboration agreement
with a police force if—
(a) the Director General of the National Crime Agency and the chief
officer of the police force are parties to the same agreement under
section 22A of the Police Act 1996, and
(b) the National Crime Agency officer is permitted by the terms of the
agreement to make applications under section 106 to the chief officer
of the police force.
2
(1) This paragraph applies for the purposes of the sixth entry in Part 1 of the
table (which relates to the National Crime Agency).
(2) A police force is a collaborative police force in relation to the National Crime
Agency if—
(a) the chief officer of the police force and the Director General of the
National Crime Agency are parties to the same agreement under
section 22A of the Police Act 1996, and
(b) the members of the police force are permitted by the terms of the
agreement to make applications under section 106 to the Director
General of the National Crime Agency.
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Investigatory Powers Act 2016 (c.
25)
Schedule 6 — Issue of warrants under section 106 etc: table
Part 3 — Interpretation of the table
259
3
For the purpose of the sixth entry in Part 2 of the table, the reference to a staff
officer of the Police Investigations and Review Commissioner is a reference
to any person who—
(a) is a member of the Commissioner’s staff appointed under paragraph
7A of schedule 4 to the Police, Public Order and Criminal Justice
(Scotland) Act 2006 (asp 10), or
(b) is a member of the Commissioner’s staff appointed under paragraph
7 of that schedule to whom paragraph 7B(2) of that schedule applies.
In this Schedule, “police force” means—
(a) any police force maintained under section 2 of the Police Act 1996;
(b) the metropolitan police force;
(c) the City of London police force.
4
SCHEDULE 7
C
ODES OF PRACTICE
Scope of codes
1
Section 241
(1) The Secretary of State must issue one or more codes of practice about the
exercise of functions conferred by virtue of this Act.
(2) Sub-paragraph (1) does not apply in relation to—
(a) any functions conferred by virtue of this Act on—
(i) the Investigatory Powers Commissioner or any other Judicial
Commissioner,
(ii) the Information Commissioner,
(iii) the Investigatory Powers Tribunal,
(iv) any other court or tribunal,
(v) the Technical Advisory Board, or
(vi) the Technology Advisory Panel,
(b) any function to make subordinate legislation which is conferred by
virtue of this Act on the Secretary of State or the Treasury.
(3) A code may, in particular, contain provision about the training of people
who may exercise functions in relation to which sub-paragraph (1) applies.
2
(1) Each code must include—
(a) provision designed to protect the public interest in the
confidentiality of sources of journalistic information, and
(b) provision about particular considerations applicable to any data
which relates to a member of a profession which routinely holds
items subject to legal privilege or relevant confidential information.
(2) A code about the exercise of functions conferred by virtue of Part 2, Part 5 or
Chapter 1 or 3 of Part 6 must also contain provision about when
circumstances are to be regarded as “exceptional and compelling
circumstances” for the purposes of any provision of that Part or Chapter that
restricts the exercise of functions in relation to items subject to legal privilege
by reference to the existence of such circumstances.
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Investigatory Powers Act 2016 (c.
25)
Schedule 7 — Codes of practice
(3) The Investigatory Powers Commissioner must keep under review any
provision included in a code by virtue of sub-paragraph (2).
(4) In this paragraph—
“relevant confidential information” means information which is held in
confidence by a member of a profession and consists of—
(a) personal records or journalistic material which are (or would
be if held in England and Wales) excluded material as
defined by section 11 of the Police and Criminal Evidence Act
1984, or
(b) communications between Members of Parliament and their
constituents,
and the references in this paragraph to a member of a profession include
references to any person acting in the course of any trade, business,
profession or other occupation or for the purposes of any paid or unpaid
office.
3
(1) A code about the exercise of functions conferred by virtue of Part 3 must
contain provision about communications data held by public authorities by
virtue of that Part.
(2) Such provision must, in particular, include provision about—
(a) why, how and where the data is held,
(b) who may access the data on behalf of the authority,
(c) to whom, and under what conditions, the data may be disclosed,
(d) the processing of the data for purposes otherwise than in connection
with the purposes for which it was obtained or retained,
(e) the processing of the data together with other data,
(f) the processes for determining how long the data should be held and
for the destruction of the data.
Procedural requirements
4
(1) Before issuing a code the Secretary of State must—
(a) prepare and publish a draft of the code, and
(b) consider any representations made about it,
and may modify the draft.
(2) The Secretary of State must, in particular, consult the Investigatory Powers
Commissioner and, in the case of a code relating to the exercise of functions
conferred by virtue of Part 4, the Information Commissioner.
(3) A code comes into force in accordance with regulations made by the
Secretary of State.
(4) A statutory instrument containing such regulations may not be made unless
a draft of the instrument has been laid before, and approved by a resolution
of, each House of Parliament.
(5) When a draft instrument is laid, the code to which it relates must also be laid.
(6) No draft instrument may be laid until the consultation required by sub-
paragraphs (1) and (2) has taken place.
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Investigatory Powers Act 2016 (c.
25)
Schedule 7 — Codes of practice
261
Revision of codes
5
(1) The Secretary of State may from time to time revise the whole or part of a
code.
(2) Before issuing any revision of a code the Secretary of State must—
(a) prepare and publish a draft, and
(b) consider any representations made about it,
and may modify the draft.
(3) The Secretary of State must, in particular, consult the Investigatory Powers
Commissioner and, in the case of a code relating to the exercise of functions
conferred by virtue of Part 4, the Information Commissioner.
(4) A revision of a code comes into force in accordance with regulations made
by the Secretary of State.
(5) A statutory instrument containing such regulations must be laid before
Parliament if the regulations have been made without a draft having been
laid before, and approved by a resolution of, each House of Parliament.
(6) When an instrument or draft instrument is laid, the revision of a code to
which it relates must also be laid.
(7) No instrument or draft instrument may be laid until the consultation
required by sub-paragraphs (2) and (3) has taken place.
Effect of codes
6
(1) A person must have regard to a code when exercising any functions to which
the code relates.
(2) A failure on the part of a person to comply with any provision of a code does
not of itself make that person liable to criminal or civil proceedings.
(3) A code is admissible in evidence in any such proceedings.
(4) A court or tribunal may, in particular, take into account a failure by a person
to have regard to a code in determining a question in any such proceedings.
(5) A supervisory authority exercising functions by virtue of this Act may take
into account a failure by a person to have regard to a code in determining a
question which arises in connection with the exercise of those functions.
(6) In this paragraph “supervisory authority” means—
(a) the Investigatory Powers Commissioner or any other Judicial
Commissioner,
(b) the Information Commissioner, or
(c) the Investigatory Powers Tribunal.
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262
Investigatory Powers Act 2016 (c.
25)
Schedule 8 — Combination of warrants and authorisations
Part 1 — Combinations with targeted interception warrants
SCHEDULE 8
C
OMBINATION OF WARRANTS AND AUTHORISATIONS
P
ART
1
C
OMBINATIONS WITH TARGETED INTERCEPTION WARRANTS
Warrants that may be issued by Secretary of State
1
Section 248
The Secretary of State may, on an application made by or on behalf of the
head of an intelligence service, issue a warrant that combines a targeted
interception warrant which the Secretary of State has power to issue under
section 19(1) with one or more of the following—
(a) a targeted examination warrant which the Secretary of State has
power to issue under section 19(2);
(b) a targeted equipment interference warrant which the Secretary of
State has power to issue under section 102(1);
(c) a targeted examination warrant which the Secretary of State has
power to issue under section 102(3);
(d) a warrant which the Secretary of State has power to issue under
section 5 of the Intelligence Services Act 1994 (warrants for entry or
interference with property or wireless telegraphy);
(e) an authorisation under section 28 of the Regulation of Investigatory
Powers Act 2000 (authorisation of directed surveillance);
(f) an authorisation under section 32 of that Act (authorisation of
intrusive surveillance).
The Secretary of State may, on an application made by or on behalf of the
Chief of Defence Intelligence, issue a warrant that combines a targeted
interception warrant which the Secretary of State has power to issue under
section 19(1) with one or more of the following—
(a) a targeted equipment interference warrant which the Secretary of
State has power to issue under section 104;
(b) an authorisation under section 28 of the Regulation of Investigatory
Powers Act 2000 (authorisation of directed surveillance);
(c) an authorisation under section 32 of that Act (authorisation of
intrusive surveillance).
(1) The Secretary of State may, on an application made by or on behalf of a
relevant intercepting authority, issue a warrant that combines a targeted
interception warrant which the Secretary of State has power to issue under
section 19(1) with one or more of the following—
(a) a targeted equipment interference warrant which a law enforcement
chief has power to issue under section 106;
(b) an authorisation under section 93 of the Police Act 1997
(authorisations to interfere with property);
(c) an authorisation under section 28 of the Regulation of Investigatory
Powers Act 2000 (authorisation of directed surveillance);
(d) an authorisation under section 32 of that Act (authorisation of
intrusive surveillance).
(2) For the purposes of sub-paragraph (1), each of the following is a “relevant
intercepting authority”—
2
3
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Investigatory Powers Act 2016 (c.
25)
Schedule 8 — Combination of warrants and authorisations
Part 1 — Combinations with targeted interception warrants
263
(a)
(b)
(c)
(d)
(e)
the Director General of the National Crime Agency;
the Commissioner of Police of the Metropolis;
the Chief Constable of the Police Service of Northern Ireland;
the chief constable of the Police Service of Scotland;
the Commissioners for Her Majesty’s Revenue and Customs.
Warrants that may be issued by Scottish Ministers
4
The Scottish Ministers may, on an application made by or on behalf of the
head of an intelligence service, issue a warrant that combines a targeted
interception warrant which the Scottish Ministers have power to issue under
section 21(1) with one or more of the following—
(a) a targeted examination warrant which the Scottish Ministers have
power to issue under section 21(2);
(b) a targeted equipment interference warrant which the Scottish
Ministers have power to issue under section 103(1);
(c) a targeted examination warrant which the Scottish Ministers have
power to issue under section 103(2);
(d) a warrant which the Scottish Ministers have power to issue under
section 5 of the Intelligence Services Act 1994 (warrants for entry or
interference with property or wireless telegraphy).
The Scottish Ministers may, on an application made by or on behalf of the
chief constable of the Police Service of Scotland, issue a warrant that
combines a targeted interception warrant which the Scottish Ministers have
power to issue under section 21(1) with one or more of the following—
(a) a targeted equipment interference warrant which a law enforcement
chief has power to issue under section 106;
(b) an authorisation under section 93 of the Police Act 1997
(authorisations to interfere with property);
(c) an authorisation under section 28 of the Regulation of Investigatory
Powers Act 2000 (authorisation of directed surveillance);
(d) an authorisation under section 32 of that Act (authorisation of
intrusive surveillance).
The Scottish Ministers may, on an application made by or on behalf of the
chief constable of the Police Service of Scotland, issue a warrant that
combines a targeted interception warrant which the Scottish Ministers have
power to issue under section 21(1) with one or more of the following—
(a) a targeted equipment interference warrant which a law enforcement
chief has power to issue under section 106;
(b) an authorisation under section 93 of the Police Act 1997
(authorisations to interfere with property);
(c) an authorisation under section 6 of the Regulation of Investigatory
Powers (Scotland) Act 2000 (2000 asp 11) (authorisation of directed
surveillance);
(d) an authorisation under section 10 of that Act (authorisation of
intrusive surveillance).
(1) The Scottish Ministers may, on an application made by or on behalf of a
relevant intercepting authority, issue a warrant that combines a targeted
interception warrant which the Scottish Ministers have power to issue under
section 21(1) with one or more of the following—
5
6
7
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264
Investigatory Powers Act 2016 (c.
25)
Schedule 8 — Combination of warrants and authorisations
Part 1 — Combinations with targeted interception warrants
(a)
(b)
a targeted equipment interference warrant which a law enforcement
chief has power to issue under section 106;
an authorisation under section 93 of the Police Act 1997
(authorisations to interfere with property).
(2) For the purposes of sub-paragraph (1), each of the following is a “relevant
intercepting authority”—
(a) the Director General of the National Crime Agency;
(b) the Commissioner of Police of the Metropolis;
(c) the Chief Constable of the Police Service of Northern Ireland;
(d) the Commissioners for Her Majesty’s Revenue and Customs.
P
ART
2
O
THER COMBINATIONS INVOLVING TARGETED EQUIPMENT INTERFERENCE WARRANTS
Warrants that may be issued by Secretary of State
8
The Secretary of State may, on an application made by or on behalf of the
head of an intelligence service, issue a warrant that combines a targeted
equipment interference warrant which the Secretary of State has power to
issue under section 102(1) with one or more of the following—
(a) a targeted examination warrant which the Secretary of State has
power to issue under section 102(3);
(b) a targeted examination warrant which the Secretary of State has
power to issue under section 19(2);
(c) a warrant which the Secretary of State has power to issue under
section 5 of the Intelligence Services Act 1994 (warrants for entry or
interference with property or wireless telegraphy);
(d) an authorisation under section 28 of the Regulation of Investigatory
Powers Act 2000 (authorisation of directed surveillance);
(e) an authorisation under section 32 of that Act (authorisation of
intrusive surveillance).
The Secretary of State may, on an application made by or on behalf of the
Chief of Defence Intelligence, issue a warrant that combines a targeted
equipment interference warrant which the Secretary of State has power to
issue under section 104 with one or more of the following—
(a) an authorisation under section 28 of the Regulation of Investigatory
Powers Act 2000 (authorisation of directed surveillance);
(b) an authorisation under section 32 of that Act (authorisation of
intrusive surveillance).
9
Warrants that may be issued by Scottish Ministers
10
The Scottish Ministers may, on an application made by or on behalf of the
head of an intelligence service, issue a warrant that combines a targeted
equipment interference warrant which the Scottish Ministers have power to
issue under section 103(1) with one or more of the following—
(a) a targeted examination warrant which the Scottish Ministers have
power to issue under section 103(2);
(b) a targeted examination warrant which the Scottish Ministers have
power to issue under section 21(2);
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Investigatory Powers Act 2016 (c.
25)
Schedule 8 — Combination of warrants and authorisations
Part 2 — Other combinations involving targeted equipment interference warrants
265
(c)
a warrant which the Scottish Ministers have power to issue under
section 5 of the Intelligence Services Act 1994 (warrants for entry or
interference with property or wireless telegraphy).
Warrants that may be issued by other persons
11
(1) A law enforcement chief may, on an application made by a person who is an
appropriate law enforcement officer in relation to the chief, issue a warrant
that combines a targeted equipment interference warrant which the law
enforcement chief has power to issue under section 106 with one or more of
the following—
(a) an authorisation under section 93 of the Police Act 1997
(authorisations to interfere with property);
(b) an authorisation under section 28 of the Regulation of Investigatory
Powers Act 2000 (authorisation of directed surveillance);
(c) an authorisation under section 32 of that Act (authorisation of
intrusive surveillance).
(2) For the purposes of this paragraph, references to a “law enforcement chief”
and an “appropriate law enforcement officer” are to be read in accordance
with section 106(5).
12
(1) A law enforcement chief within sub-paragraph (2) may, on an application
made by a person who is an appropriate law enforcement officer in relation
to the chief, issue a warrant that combines a targeted equipment interference
warrant which the law enforcement chief has power to issue under section
106 with one or more of the following—
(a) an authorisation under section 93 of the Police Act 1997
(authorisations to interfere with property);
(b) an authorisation under section 6 of the Regulation of Investigatory
Powers (Scotland) Act 2000 (2000 asp 11) (authorisation of directed
surveillance);
(c) an authorisation under section 10 of that Act (authorisation of
intrusive surveillance).
(2) The law enforcement chiefs mentioned in sub-paragraph (1) are—
(a) the chief constable of the Police Service of Scotland, and
(b) the Police Investigations and Review Commissioner.
(3) For the purposes of this paragraph, references to a “law enforcement chief”
and an “appropriate law enforcement officer” are to be read in accordance
with section 106(5).
P
ART
3
C
OMBINATIONS INVOLVING TARGETED EXAMINATION WARRANTS ONLY
13
The Secretary of State may, on an application made by or on behalf of the
head of an intelligence service, issue a warrant that combines—
(a) a targeted examination warrant which the Secretary of State has
power to issue under section 19(2), with
(b) a targeted examination warrant which the Secretary of State has
power to issue under section 102(3).
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266
Investigatory Powers Act 2016 (c.
25)
Schedule 8 — Combination of warrants and authorisations
Part 3 — Combinations involving targeted examination warrants only
14
The Scottish Ministers may, on an application made by or on behalf of the
head of an intelligence service, issue a warrant that combines—
(a) a targeted examination warrant which the Scottish Ministers have
power to issue under section 21(2), with
(b) a targeted examination warrant which the Scottish Ministers have
power to issue under section 103(2).
P
ART
4
C
OMBINED WARRANTS
:
SUPPLEMENTARY PROVISION
Introductory
15
General
16
(1) Where Part 1, 2 or 3 of this Schedule provides for a person to have power, on
an application made by or on behalf of any person (“the applicant”), to issue
a combined warrant that includes any warrant or other authorisation, the
person may issue a combined warrant containing that warrant or
authorisation, whether or not that person would have power, on an
application made by or on behalf of the applicant, to issue that warrant, or
to give that authorisation, as a single instrument.
(2) Where Part 1, 2 or 3 of this Schedule provides for a person to have power to
apply for a combined warrant, the person may apply for a combined
warrant containing any warrant or other authorisation that may be included
in it, provided that—
(a) the person could apply for that warrant or authorisation as a single
instrument, or
(b) the organisation on whose behalf the person is acting, or another
person who is a member of staff or an officer of the organisation or
who is otherwise acting on its behalf, could apply for that warrant or
authorisation as a single instrument.
17
(1) A combined warrant must be addressed to the person by whom, or on
whose behalf, the application for the combined warrant was made.
(2) Any reference in this Act to the person to whom a warrant is or was
addressed is to be read, in the case of a combined warrant containing such a
warrant, as a reference to the person to whom the combined warrant is or
was addressed.
18
19
A combined warrant must contain a provision stating which warrants or
other authorisations are included in the combined warrant.
Any reference in any enactment to a warrant or other authorisation of a
particular description issued or given under any enactment includes, in the
case of a combined warrant containing a warrant or authorisation of that
description, a reference to so much of the combined warrant as consists of
such a warrant or authorisation.
This is subject to any provision made by or under the following provisions
of this Schedule.
In this Part of this Schedule “combined warrant” means a warrant issued
under any of Parts 1 to 3 of this Schedule.
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Investigatory Powers Act 2016 (c.
25)
Schedule 8 — Combination of warrants and authorisations
Part 4 — Combined warrants: supplementary provision
267
Rules about issue etc. applying separately in relation to each part of a combined warrant
20
(1) The law about the following matters, so far as relating to a warrant or other
authorisation that may be included in a combined warrant, applies in
relation to so much of a combined warrant as consists of such a warrant or
authorisation—
(a) the duties imposed by section 2 (general duties in relation to
privacy);
(b) any conditions that must be met before such a warrant or
authorisation may be issued or given;
(c) the grounds on which such a warrant or authorisation may be issued
or given;
(d) the conduct that may be authorised by such a warrant or
authorisation;
(e) any requirements as to what must be included in such a warrant or
authorisation;
(f) any conditions that must be met before such a warrant or
authorisation may be renewed and the grounds on which it may be
renewed;
(g) any conditions that must be met before such a warrant or
authorisation may be modified;
(h) the grounds on which such a warrant or authorisation may be
modified and the procedural rules that apply to such a modification;
(i) the circumstances in which such a warrant or authorisation may or
must be cancelled.
(2) In sub-paragraph (1)(h) “procedural rules”, in relation to the modification of
a warrant or other authorisation, means the law about any of the following
matters—
(a) the involvement of Judicial Commissioners in decisions;
(b) the delegation of decisions;
(c) the signing of instruments making a modification;
(d) urgent cases.
(3) Sub-paragraph (1) is subject to paragraphs 21 to 26.
Rules about issue etc. applying in relation to combined warrants
21
(1) A combined warrant under Part 1 of this Schedule addressed to any person
may only be issued, renewed or cancelled in accordance with the procedural
rules that would apply to the issue, renewal or cancellation of a targeted
interception warrant addressed to that person (see Chapter 1 of Part 2 of this
Act).
(2) In sub-paragraph (1) “procedural rules”, in relation to a warrant, means the
law about any of the following matters—
(a) the involvement of Judicial Commissioners in decisions;
(b) the delegation of decisions;
(c) the signing of warrants;
(d) urgent cases.
(3) But if a combined warrant under paragraph 1 or 4 includes a warrant which
the person issuing the combined warrant has power to issue under section 5
of the Intelligence Services Act 1994 (a “section 5 warrant”), any requirement
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Schedule 8 — Combination of warrants and authorisations
Part 4 — Combined warrants: supplementary provision
(arising from sub-paragraph (1) above) for the involvement of Judicial
Commissioners in the decision whether to issue or renew the combined
warrant does not apply in relation to the part of the combined warrant
consisting of the section 5 warrant.
22
(1) A combined warrant under Part 2 of this Schedule addressed to any person
may only be issued, renewed or cancelled in accordance with the procedural
rules that would apply to the issue, renewal or cancellation of a targeted
equipment interference warrant addressed to that person (see Part 5 of this
Act).
(2) In sub-paragraph (1) “procedural rules” has the same meaning as in
paragraph 21(1).
(3) But if a combined warrant under paragraph 8 or 10 includes a warrant which
the person issuing the combined warrant has power to issue under section 5
of the Intelligence Services Act 1994 (a “section 5 warrant”), any requirement
(arising from sub-paragraph (1) above) for the involvement of Judicial
Commissioners in the decision whether to issue or renew the combined
warrant does not apply in relation to the part of the combined warrant
consisting of the section 5 warrant.
23
(1) A combined warrant under Part 3 of this Schedule addressed to any person
may only be issued, renewed or cancelled in accordance with the procedural
rules that would apply to the issue, renewal or cancellation of a targeted
examination warrant under section 19(2) addressed to that person (see
Chapter 1 of Part 2 of this Act).
(2) In sub-paragraph (1) “procedural rules” has the same meaning as in
paragraph 21(1).
24
(1) In consequence of paragraphs 21 and 22, the following provisions of the
Police Act 1997 do not apply in relation to an authorisation under section 93
of that Act which is included in a combined warrant—
(a) section 96 (notification of authorisations to Judicial Commissioner);
(b) section 97 (authorisations requiring approval);
(c) section 103(1), (2) and (4) (power to quash or cancel authorisations);
(d) section 104 (appeals to Investigatory Powers Commissioner).
(2) Section 103(6) of that Act applies where a combined warrant containing an
authorisation under section 93 of that Act is cancelled as it applies where
such an authorisation is cancelled under section 103(4) of that Act.
25
In consequence of paragraphs 21 and 22, the following provisions of the
Regulation of Investigatory Powers Act 2000 do not apply in relation to an
authorisation under section 32 of that Act which is included in a combined
warrant—
(a) section 35 (notification of authorisations to Judicial Commissioner);
(b) section 36 (approval required for authorisations to take effect);
(c) section 37(2) to (4) (power to quash or cancel authorisations);
(d) section 38 (appeals to Investigatory Powers Commissioner).
In consequence of paragraphs 21 and 22, the following provisions of the
Regulation of Investigatory Powers (Scotland) Act 2000 do not apply in
relation to an authorisation under section 10 of that Act which is included in
a combined warrant—
(a) section 13 (notification of authorisations to Judicial Commissioner);
26
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Schedule 8 — Combination of warrants and authorisations
Part 4 — Combined warrants: supplementary provision
269
(b)
(c)
(d)
section 14 (approval required for authorisations to take effect);
section 15(1) to (3) (power to quash or cancel authorisations);
section 16 (appeals to Investigatory Powers Commissioner).
Modification of rules as to duration
27
(1) Where a combined warrant includes warrants or authorisations which (as
single instruments) would cease to have effect at the end of different periods,
the combined warrant is to cease to have effect at the end of the shortest of
the periods (unless renewed).
(2) But sub-paragraph (1) does not apply to a combined warrant which—
(a) includes an authorisation under section 28 of the Regulation of
Investigatory Powers Act 2000 (authorisation of directed
surveillance),
(b) is addressed to the head of an intelligence service, and
(c) is issued with the approval of a Judicial Commissioner.
(3) In such a case, the combined warrant (unless it is renewed) is to cease to have
effect at the end of the period of 6 months beginning with the day on which
it is issued.
Special rules about the application of this Act to combined warrants
28
(1) This paragraph applies where under section 24(3) a Judicial Commissioner
refuses to approve a decision to issue a combined warrant under Part 1 or 3
of this Schedule.
(2) Section 25 has effect in relation to the combined warrant as if—
(a) any reference in subsection (3) of that section to a targeted
interception warrant or targeted examination warrant were a
reference to so much of the combined warrant as consisted of such a
warrant, and
(b) any other reference in that section to a warrant were a reference to
the combined warrant.
(3) Where the combined warrant included a targeted equipment interference
warrant or targeted examination warrant which the person who issued the
combined warrant has power to issue under Part 5 of this Act, section 110
has effect in relation to the combined warrant as if—
(a) any reference in subsection (3)(b) or (c) of that section to a targeted
equipment interference warrant were a reference to so much of the
combined warrant as consisted of such a warrant,
(b) any reference in subsection (4) of that section to a targeted
examination warrant were a reference to so much of the combined
warrant as consisted of such a warrant, and
(c) any other reference in that section to a warrant were a reference to
the combined warrant.
29
Where under section 109(3) a Judicial Commissioner refuses to approve the
decision to issue a combined warrant under Part 2 of this Schedule, section
110 has effect in relation to the combined warrant as if—
(a) any reference in subsection (3)(b) or (c) of that section to a targeted
equipment interference warrant were a reference to so much of the
combined warrant as consisted of such a warrant,
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Schedule 8 — Combination of warrants and authorisations
Part 4 — Combined warrants: supplementary provision
(b)
(c)
30
any reference in subsection (4) of that section to a targeted
examination warrant were a reference to so much of the combined
warrant as consisted of such a warrant, and
any other reference in that section to a warrant were a reference to
the combined warrant.
(1) This paragraph applies to any provision in Part 2 or 5 of this Act that enables
a person to whom a warrant is addressed to require the provision of
assistance in giving effect to the warrant.
(2) In the case of a combined warrant containing such a warrant, the provision
is to be read as enabling the person to whom the combined warrant is
addressed to require the provision of assistance in giving effect to so much
of the combined warrant as consists of such a warrant.
(3) Accordingly, any power to serve a copy of a warrant for that purpose
includes power, in the case of such a combined warrant, to serve the part of
the combined warrant consisting of such a warrant.
31
Any reference in section 56 (exclusion of matters from legal proceedings etc.)
to the making of an application for a warrant, or the issue of a warrant, under
Chapter 1 of Part 2 of this Act includes a reference to—
(a) the making of an application for a combined warrant that includes a
warrant under that Chapter, so far as relating to disclosing or
suggesting the inclusion of such a warrant, or
(b) the inclusion of a warrant under that Chapter in a combined warrant.
(1) The reference in section 58(7) to the provisions of Part 2 of this Act is to be
read, in the case of a combined warrant containing a targeted interception
warrant or targeted examination warrant which the person who issued the
combined warrant has power to issue under that Part, as including a
reference to this Schedule.
(2) The reference in section 133(4) to the provisions of Part 5 of this Act is to be
read, in the case of a combined warrant containing a targeted equipment
interference warrant or targeted examination warrant which the person who
issued the combined warrant has power to issue under that Part, as
including a reference to this Schedule.
32
Power to make consequential amendments
33
(1) The Secretary of State may by regulations make such provision modifying
any provision made by or under an enactment (including this Schedule) as
the Secretary of State considers appropriate in consequence of any provision
made by this Schedule.
(2) In sub-paragraph (1) “enactment” does not include any primary legislation
passed or made after the end of the Session in which this Act is passed.
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Schedule 9 — Transitional, transitory and saving provision
271
Section 270(1)
SCHEDULE 9
T
RANSITIONAL
,
TRANSITORY AND SAVING PROVISION
Lawful interception of communications
1
Any agreement which, immediately before the day on which section 10
comes into force, is designated for the purposes of section 1(4) of the
Regulation of Investigatory Powers Act 2000 is to be treated, on and after
that day, as designated as an international mutual assistance agreement by
regulations under section 10(3) of this Act.
Authorisations for obtaining communications data
2
The reference to the Gangmasters and Labour Abuse Authority in the table
in Part 1 of Schedule 4 is to be read, in relation to any time before the day on
which section 10(1) of the Immigration Act 2016 (renaming of Gangmasters
Licensing Authority) comes into force, as a reference to the Gangmasters
Licensing Authority.
Retention of communications data
3
(1) A retention notice under section 1 of the Data Retention and Investigatory
Powers Act 2014 which is in force immediately before the commencement
day is to be treated, on or after that day, as a retention notice under section
87 of this Act; and Part 4 of this Act is to be read accordingly but as if sections
87(1)(b), (4) and (8)(e), 89, 90(1) to (12), 91, 94(4)(b), (6), (10) and (12) and
96(2)(e) were omitted.
(2) In particular—
(a) anything which, immediately before the commencement day, is in
the process of being done by virtue of, or in relation to, a retention
notice under section 1 of the Act of 2014 may be continued as if being
done by virtue of, or in relation to, a retention notice under section 87
of this Act, and
(b) anything done by virtue of, or in relation to, a retention notice under
section 1 of the Act of 2014 is, if in force or effective immediately
before the commencement day, to have effect as if done by virtue of,
or in relation to, a retention notice under section 87 of this Act so far
as that is required for continuing its effect on or after the
commencement day.
(3) Sub-paragraphs (1) and (2) cease to apply, in relation to any retention notice
under section 1 of the Act of 2014—
(a) at the end of the period of six months beginning with the
commencement day, or
(b) if earlier, on the revocation in full of the notice;
but this is without prejudice to the continued operation of section 95(2) to (5)
in relation to the notice.
(4) Section 249 applies in relation to costs incurred in complying with a
retention notice under section 1 of the Act of 2014 which has continued in
force on or after the commencement day as it applies in relation to costs
incurred in complying with retention notices under section 87 of this Act but
as if section 249(7) were omitted.
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Schedule 9 — Transitional, transitory and saving provision
(5) The Secretary of State may revoke (whether wholly or in part) a retention
notice under section 1 of the Act of 2014.
(6) The fact that a retention notice under section 1 of the Act of 2014 has, in
relation to a particular description of data and a particular operator (or
description of operators), ceased to have effect or been revoked does not
prevent the giving of a retention notice under section 87 of this Act in
relation to the same description of data and the same operator (or
description of operators).
(7) In this paragraph “the commencement day” is the day on which section 1(1)
of the Act of 2014 is repealed.
4
(1) Sub-paragraph (2) applies if any power to give, vary or confirm a retention
notice under section 87 of this Act (excluding any power to vary a notice
which has effect as such a notice by virtue of paragraph 3(1)) is brought into
force without any requirement for approval by a Judicial Commissioner of
the decision to give, vary or (as the case may be) confirm the notice.
(2) The notice as given, varied or confirmed ceases to have effect (so far as not
previously revoked) at the end of the period of three months beginning with
the day on which the requirement for approval comes into force.
5
(1) The repeal of section 1(7) of the Data Retention and Investigatory Powers
Act 2014 does not affect the continued operation, during the transitional
period mentioned in sub-paragraph (2), of regulations made under section
1(7) of that Act.
(2) The transitional period mentioned in this sub-paragraph is the period of six
months beginning with the day on which section 1(7) of the Act of 2014 is
repealed.
(3) In their continued operation by virtue of sub-paragraph (1), the regulations
made under section 1(7) of the Act of 2014 have effect subject to such
modifications (if any) as may be specified in regulations under section
270(2).
Definitions of “other relevant crime” and “serious crime”
6
(1) The definitions of—
(a) “other relevant crime” in section 62(6), and
(b) “serious crime” in section 263(1),
are to be read, until the appointed day, as if for the words “the age of 18 (or,
in relation to Scotland or Northern Ireland, 21)” there were substituted “the
age of 21”.
(2) In sub-paragraph (1), “the appointed day” means the day on which the
amendment made to section 81(3)(a) of the Regulation of Investigatory
Powers Act 2000 by paragraph 211 of Schedule 7 to the Criminal Justice and
Court Services Act 2000 comes into force.
Savings for particular purposes
7
Nothing in this Act affects any power conferred on a postal operator (within
the meaning given by section 27(3) of the Postal Services Act 2011) by or
under any enactment to open, detain or delay any postal packet (within the
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Schedule 9 — Transitional, transitory and saving provision
273
meaning given by section 125(1) of the Postal Services Act 2000) or to deliver
any such packet to a person other than the person to whom it is addressed.
8
Nothing in Part 4 of this Act prevents the retention of data for the purposes
of, or in connection with, legal proceedings (including proceedings which
might arise in the future).
The amendments made to the Regulation of Investigatory Powers Act 2000
by sections 3 to 6 of the Data Retention and Investigatory Powers Act 2014
(and those sections) continue to have effect despite section 8(3) of the Act of
2014 (sunset provision for that Act) until the provisions they amend (and
those sections) are repealed by this Act in connection with the coming into
force of provisions of this Act.
9
General saving for lawful conduct
10
Nothing in any of the provisions of this Act by virtue of which conduct of
any description is or may be authorised by any warrant, authorisation or
notice, or by virtue of which information may be obtained in any manner, is
to be read—
(a) as making it unlawful to engage in any conduct of that description
which is not otherwise unlawful under this Act and would not be
unlawful apart from this Act,
(b) as otherwise requiring—
(i) the issue, grant or giving of such a warrant, authorisation or
notice, or
(ii) the taking of any step for or towards obtaining the authority
of such a warrant, authorisation or notice,
before any such conduct of that description is engaged in, or
(c) as prejudicing any power to obtain information by any means not
involving conduct that may be authorised under this Act.
SCHEDULE 10
M
INOR AND CONSEQUENTIAL PROVISION
P
ART
1
G
ENERAL AMENDMENTS
Police Act 1997
1
Section 271(1)
In section 93(1A) of the Police Act 1997 (authorisations to interfere with
property etc.) after “this Part” insert “or the Investigatory Powers Act 2016”.
Northern Ireland Act 1998
2
In paragraph 9(1) of Schedule 3 to the Northern Ireland Act 1998 (reserved
matters) for paragraph (a) substitute—
“(a) the subject-matter of Parts 2 and 3 of the Regulation of
Investigatory Powers Act 2000, so far as relating to the
prevention or detection of crime (within the meaning of
that Act) or the prevention of disorder;
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Schedule 10 — Minor and consequential provision
Part 1 — General amendments
(aa)
(ab)
(ac)
the subject-matter of the following provisions of the
Investigatory Powers Act 2016, so far as relating to the
prevention or detection of serious crime (within the
meaning of that Act)—
(i) sections 3 to 10 and Schedule 1,
(ii) Part 2, and
(iii) Chapter 1 of Part 6;
the subject-matter of section 11, Parts 3 and 4 and Chapter
2 of Part 6 of the Investigatory Powers Act 2016, so far as
relating to the prevention or detection of crime (within the
meaning of that Act) or the prevention of disorder;
the subject-matter of section 12 of, and Schedule 2 to, the
Investigatory Powers Act 2016, so far as relating to the
prevention or detection of crime (within the meaning of
that Act);”.
Regulation of Investigatory Powers Act 2000
3
4
5
The Regulation of Investigatory Powers Act 2000 is amended as follows.
In section 27(4)(a) (lawful surveillance etc: conduct to be dealt with under
other enactments) after “Act” insert “or the Investigatory Powers Act 2016”.
(1) Section 71 (issue and revision of codes of practice) is amended as follows.
(2) In subsection (2)(a), for “Parts I to III” substitute “Parts 2 and 3”.
(3) Omit subsection (2A).
(4) In subsection (8) for “(2A)” substitute “(3)”.
6
(1) Section 81(1) (general definitions) is amended as follows.
(2) For the definition of “apparatus” substitute—
““apparatus” has the same meaning as in the Investigatory
Powers Act 2016 (see section 263(1) of that Act);”.
(3) In paragraph (a) of the definition of “communication” omit “(except in the
definition of “postal service” in section 2(1))”.
(4) In the definition of “interception” and cognate expressions, for “section 2”
substitute “sections 4 and 5 of the Investigatory Powers Act 2016”.
(5) For the definitions of “postal service” and “public postal service”
substitute—
““postal service” has the same meaning as in the Investigatory
Powers Act 2016 (see section 262(7) of that Act);”.
(6) Omit the definitions of “private telecommunication system”, “public
telecommunications service” and “public telecommunication system”.
(7) In the definitions of “telecommunication system” and “telecommunications
service”, for “the meanings given by section 2(1)” substitute “the same
meanings as in the Investigatory Powers Act 2016 (see section 261(11) to (13)
of that Act)”.
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Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 1 — General amendments
275
Political Parties, Elections and Referendums Act 2000
7
In paragraph 28(4) of Schedule 19C to the Political Parties, Elections and
Referendums Act 2000 (civil sanctions: disclosure of information) for
paragraph (b) substitute—
“(b) any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory
Powers Act 2016.”
Public Finance and Accountability (Scotland) Act 2000 (2000 asp 1)
8
(1) The Public Finance and Accountability (Scotland) Act 2000 is amended as
follows.
(2) In section 26B(3) (voluntary disclosure of data to Audit Scotland) for
paragraph (b) substitute—
“(b) which is prohibited by any of Parts 1 to 7 or Chapter 1 of Part
9 of the Investigatory Powers Act 2016,”.
(3) In section 26C(3) (power to require disclosure of data) for paragraph (b)
substitute—
“(b) the disclosure is prohibited by any of Parts 1 to 7 or Chapter
1 of Part 9 of the Investigatory Powers Act 2016.”
Social Security Fraud Act 2001
9
In section 4(1)(b) of the Social Security Fraud Act 2001 (arrangements for
payments in relation to persons providing a telecommunications service
etc.) for “the Regulation of Investigatory Powers Act 2000 (c. 23)” substitute
“the Investigatory Powers Act 2016”.
Social Security Fraud Act (Northern Ireland) 2001
10
In section 4(1)(b) of the Social Security Fraud Act (Northern Ireland) 2001
(arrangements for payments in relation to persons providing a
telecommunications service etc.) for “the Regulation of Investigatory
Powers Act 2000 (c. 23)” substitute “the Investigatory Powers Act 2016”.
Justice (Northern Ireland) Act 2002
11
In section 5A(3)(b) of the Justice (Northern Ireland) Act 2002 (disclosure of
information to the Northern Ireland Judicial Appointments Commission)
for “Part 1 of the Regulation of Investigatory Powers Act 2000” substitute
“any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act
2016”.
Proceeds of Crime Act 2002
12
(1) The Proceeds of Crime Act 2002 is amended as follows.
(2) In section 436(3)(b) (disclosure of information to certain Directors) for “Part
1 of the Regulation of Investigatory Powers Act 2000 (c. 23)” substitute “any
of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.
(3) In section 438(8)(b) (disclosure of information by certain Directors) for “Part
1 of the Regulation of Investigatory Powers Act 2000 (c. 23)” substitute “any
of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.
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Schedule 10 — Minor and consequential provision
Part 1 — General amendments
(4) In section 439(3)(b) (disclosure of information to Lord Advocate and to
Scottish Ministers) for “Part 1 of the Regulation of Investigatory Powers Act
2000” substitute “any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory
Powers Act 2016”.
(5) In section 441(7)(b) (disclosure of information by Lord Advocate and by
Scottish Ministers) for “Part 1 of the Regulation of Investigatory Powers Act
2000 (c. 23)” substitute “any of Parts 1 to 7 or Chapter 1 of Part 9 of the
Investigatory Powers Act 2016”.
Police Reform Act 2002
13
In paragraph 19ZA(2)(c) of Schedule 3 to the Police Reform Act 2002
(handling of complaints and conduct matters etc: power to serve
information notice) for “Part 1 of the Regulation of Investigatory Powers Act
2000” substitute “any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory
Powers Act 2016”.
Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426)
14
After regulation 5A(8) of the Privacy and Electronic Communications (EC
Directive) Regulations 2003 (personal data breach) insert—
“(9)
This regulation does not apply in relation to any personal data
breach which is to be notified to the Investigatory Powers
Commissioner in accordance with a code of practice made under the
Investigatory Powers Act 2016.”
Audit and Accountability (Northern Ireland) Order 2003 (S.I. 2003/418 (N.I. 5))
15
In Article 4C(3)(b) of the Audit and Accountability (Northern Ireland) Order
2003 (voluntary provision of data) for “Part 1 of the Regulation of
Investigatory Powers Act 2000 (c. 23)” substitute “any of Parts 1 to 7 or
Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.
Public Audit (Wales) Act 2004
16
In section 64C(3)(b) of the Public Audit (Wales) Act 2004 (voluntary
provision of data) for “Part 1 of the Regulation of Investigatory Powers Act
2000 (c. 23)” substitute “any of Parts 1 to 7 or Chapter 1 of Part 9 of the
Investigatory Powers Act 2016”.
Constitutional Reform Act 2005
17
In section 107(3)(b) of the Constitutional Reform Act 2005 (disclosure of
information to the Judicial Appointments Commission) for “Part 1 of the
Regulation of Investigatory Powers Act 2000 (c. 23)” substitute “any of Parts
1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.
Commissioners for Revenue and Customs Act 2005
18
In section 22(b) of the Commissioners for Revenue and Customs Act 2005
(data protection, etc) for “Part 1 of the Regulation of Investigatory Powers
Act 2000 (c. 23)” substitute “any of Parts 1 to 7 or Chapter 1 of Part 9 of the
Investigatory Powers Act 2016”.
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Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 1 — General amendments
277
Serious Crime Act 2007
19
(1) The Serious Crime Act 2007 is amended as follows.
(2) In section 68(4)(b) (disclosure of information to prevent fraud) for “Part 1 of
the Regulation of Investigatory Powers Act 2000 (c. 23)” substitute “any of
Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.
(3) In section 85(8)(b) (disclosure of information by Revenue and Customs) for
“Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23)” substitute
“any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act
2016”.
Legal Services Act 2007
20
In section 169(3)(b) of the Legal Services Act 2007 (disclosure of information
to the Legal Services Board) for “Part 1 of the Regulation of Investigatory
Powers Act 2000 (c. 23)” substitute “any of Parts 1 to 7 or Chapter 1 of Part 9
of the Investigatory Powers Act 2016”.
Regulatory Enforcement and Sanctions Act 2008
21
In section 70(4) of the Regulatory Enforcement and Sanctions Act 2008
(disclosure of information) for paragraph (b) substitute—
“(b) any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory
Powers Act 2016.”
Counter-Terrorism Act 2008
22
In section 20(2)(b) of the Counter-Terrorism Act 2008 (disclosure and the
intelligence services: supplementary provisions) for “Part 1 of the
Regulation of Investigatory Powers Act 2000 (c. 23)” substitute “any of Parts
1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.
Borders, Citizenship and Immigration Act 2009
23
In section 19(1)(b) of the Borders, Citizenship and Immigration Act 2009
(application of statutory provisions) for “Part 1 of the Regulation of
Investigatory Powers Act 2000 (c. 23)” substitute “any of Parts 1 to 7 or
Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.
Marine and Coastal Access Act 2009
24
(1) The Marine and Coastal Access Act 2009 is amended as follows.
(2) In paragraph 13(5) of Schedule 7 (further provision about civil sanctions
under Part 4: disclosure of information) for paragraph (b) substitute—
“(b) any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory
Powers Act 2016.”
(3) In paragraph 9(5) of Schedule 10 (further provision about fixed monetary
penalties under section 142: disclosure of information) for paragraph (b)
substitute—
“(b) any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory
Powers Act 2016.”
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278
Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 1 — General amendments
Terrorist Asset-Freezing etc. Act 2010
25
In section 25(2)(b) of the Terrorist Asset-Freezing etc. Act 2010 (application
of provisions) for “Part 1 of the Regulation of Investigatory Powers Act 2000”
substitute “any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory
Powers Act 2016”.
Marine (Scotland) Act 2010 (2010 asp 5)
26
In paragraph 12(5) of Schedule 2 to the Marine (Scotland) Act 2010 (further
provision about civil sanctions under Part 4: disclosure of information) for
paragraph (b) substitute—
“(b) any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory
Powers Act 2016.”
Charities Act 2011
27
In section 59(b) of the Charities Act 2011 (disclosure: supplementary) for
“Part 1 of the Regulation of Investigatory Powers Act 2000” substitute “any
of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.
Prisons (Interference with Wireless Telegraphy) Act 2012
28
In section 4(6) of the Prisons (Interference with Wireless Telegraphy) Act
2012 (meaning of “telecommunication system”) for “Regulation of
Investigatory Powers Act 2000” substitute “Investigatory Powers Act 2016
(see section 261(13) of that Act)”.
Crime and Courts Act 2013
29
In paragraph 1(b) of Schedule 7 to the Crime and Courts Act 2013
(information: restrictions on disclosure) for “Part 1 of the Regulation of
Investigatory Powers Act 2000” substitute “any of Parts 1 to 7 or Chapter 1
of Part 9 of the Investigatory Powers Act 2016”.
Marine Act (Northern Ireland) 2013 (c. 10 (N.I.))
30
In paragraph 8(5) of Schedule 2 to the Marine Act (Northern Ireland) 2013
(further provision about fixed monetary penalties under section 35:
disclosure of information) for paragraph (b) substitute—
“(b) any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory
Powers Act 2016.”
Local Audit and Accountability Act 2014
31
In paragraph 3(3)(b) of Schedule 9 to the Local Audit and Accountability Act
2014 (data matching: voluntary provision of data) for “Part 1 of the
Regulation of Investigatory Powers Act 2000” substitute “any of Parts 1 to 7
or Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.
Anti-social Behaviour, Crime and Policing Act 2014
32
In paragraph 7(4)(b) of Schedule 4 to the Anti-social Behaviour, Crime and
Policing Act 2014 (ASB case reviews: information) for “Part 1 of the
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Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 1 — General amendments
279
Regulation of Investigatory Powers Act 2000” substitute “any of Parts 1 to 7
or Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.
Immigration Act 2014
33
In paragraph 6(b) of Schedule 6 to the Immigration Act 2014 (information)
for “Part 1 of the Regulation of Investigatory Powers Act 2000” substitute
“any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act
2016”.
Data Retention and Investigatory Powers Act 2014
34
Omit sections 4(1), 7 and 8 of the Data Retention and Investigatory Powers
Act 2014 (introductory, review and final provisions).
Immigration Act 2016
35
In section 7(2)(b) of the Immigration Act 2016 (information gateways:
supplementary) for “Part 1 of the Regulation of Investigatory Powers Act
2000” substitute “any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory
Powers Act 2016”.
P
ART
2
L
AWFUL INTERCEPTION OF COMMUNICATIONS
Security Service Act 1989
36
In section 1(5) of the Security Service Act 1989 (meaning of “prevention” and
“detection”) for the words from “the provisions” to the end substitute “that
Act”.
Official Secrets Act 1989
37
In section 4(3) of the Official Secrets Act 1989 (crime and special
investigation powers) omit the “and” after paragraph (a) and after
paragraph (b) insert “and
(c) any information obtained under a warrant under Chapter 1
of Part 2 or Chapter 1 of Part 6 of the Investigatory Powers
Act 2016, any information relating to the obtaining of
information under such a warrant and any document or
other article which is or has been used or held for use in, or
has been obtained by reason of, the obtaining of information
under such a warrant.”
Intelligence Services Act 1994
38
In section 11(1A) of the Intelligence Services Act 1994 (meaning of
“prevention” and “detection”) for the words from “apply” to the end
substitute “apply for the purposes of this Act as it applies for the purposes
of that Act, except that for the purposes of section 3 above it shall not include
a reference to gathering evidence for use in any legal proceedings (within
the meaning of that Act).”
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280
Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 2 — Lawful interception of communications
Criminal Procedure and Investigations Act 1996
39
(1) The Criminal Procedure and Investigations Act 1996 is amended as follows.
(2) In section 3(7) (initial duty of prosecutor to disclose) for “section 17 of the
Regulation of Investigatory Powers Act 2000” substitute “section 56 of the
Investigatory Powers Act 2016”.
(3) In section 7A(9) (continuing duty of prosecutor to disclose) for “section 17 of
the Regulation of Investigatory Powers Act 2000 (c. 23)” substitute “section
56 of the Investigatory Powers Act 2016”.
(4) In section 8(6) (application by accused for disclosure) for “section 17 of the
Regulation of Investigatory Powers Act 2000” substitute “section 56 of the
Investigatory Powers Act 2016”.
(5) In section 23 (code of practice) for subsection (6) substitute—
“(6)
The code must be so framed that it does not apply to any of the
following—
(a) material intercepted in obedience to a warrant issued under
section 2 of the Interception of Communications Act 1985;
(b) material intercepted under the authority of an interception
warrant under section 5 of the Regulation of Investigatory
Powers Act 2000;
(c) material obtained under the authority of a warrant issued
under Chapter 1 of Part 2 of the Investigatory Powers Act
2016;
(d) material obtained under the authority of a warrant issued
under Chapter 1 of Part 6 of that Act.”
Police Act 1997
40
In section 133A of the Police Act 1997 (meaning of “prevention” and
“detection”) for the words from “the provisions” to the end substitute “that
Act”.
Scotland Act 1998
41
In Section B8 of Part 2 of Schedule 5 to the Scotland Act 1998 (reserved
matters: national security, interception of communications etc.), in the
definition of “private telecommunication system”, for “section 2(1) of the
Regulation of Investigatory Powers Act 2000” substitute “section 261(14) of
the Investigatory Powers Act 2016”.
Northern Ireland Act 1998
42
In paragraph 17 of Schedule 2 to the Northern Ireland Act 1998 (excepted
matters) for paragraph (b) substitute—
“(b) the subject-matter of sections 3 to 10, Schedule 1, Part 2 and
Chapter 1 of Part 6 of the Investigatory Powers Act 2016,
except so far as relating to the prevention or detection of
serious crime (within the meaning of that Act);”.
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Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 2 — Lawful interception of communications
281
Financial Services and Markets Act 2000
43
In section 394(7)(a) of the Financial Services and Markets Act 2000 (access to
FCA or PRA material) for “section 17 of the Regulation of Investigatory
Powers Act 2000” substitute “section 56 of the Investigatory Powers Act
2016”.
Regulation of Investigatory Powers Act 2000
44
45
46
The Regulation of Investigatory Powers Act 2000 is amended as follows.
Omit Chapter 1 of Part 1 (interception of communications).
(1) Section 49 (investigation of electronic data protected by encryption etc:
powers under which data obtained) is amended as follows.
(2) In subsection (1)(b) after “communications” insert “or obtain secondary data
from communications”.
(3) After subsection (9) insert—
“(9A)
In subsection (1)(b) the reference to obtaining secondary data from
communications is to be read in accordance with section 16 of the
Investigatory Powers Act 2016.”
47
48
49
In section 71 (issue and revision of codes of practice) omit subsection (10).
In section 78(3)(a) (affirmative orders) omit “12(10), 13(3),”.
(1) Section 81 (general interpretation) is amended as follows.
(2) In subsection (1)—
(a) in the definition of “criminal”, omit “or prosecution”, and
(b) in the definition of “interception warrant”, for “a warrant under
section 5” substitute “—
(a) a targeted interception warrant or mutual assistance
warrant under Chapter 1 of Part 2 of the Investigatory
Powers Act 2016, or
(b) a bulk interception warrant under Chapter 1 of Part 6
of that Act”.
(3) In subsection (4) omit the words from “; and references” to the end.
(4) In subsection (5) omit the words from “, except that” to the end.
50
In section 82 (amendments, repeals and savings etc.) omit subsections (4) to
(6).
Criminal Justice and Licensing (Scotland) Act 2010 (2010 asp 13)
51
In section 159 of the Criminal Justice and Licensing (Scotland) Act 2010, for
“section 17 of the Regulation of Investigatory Powers Act 2000 (c. 23)”
substitute “section 56 of the Investigatory Powers Act 2016”.
Justice and Security Act 2013
52
In section 6(4)(b) of the Justice and Security Act 2013 (declaration permitting
closed material applications in proceedings) for sub-paragraph (iii)
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282
Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 2 — Lawful interception of communications
substitute—
“(iii)
section 56(1) of the Investigatory Powers Act 2016
(exclusion for intercept material),”.
P
ART
3
A
CQUISITION OF COMMUNICATIONS DATA
Regulation of Investigatory Powers Act 2000
53
54
55
The Regulation of Investigatory Powers Act 2000 is amended as follows.
Omit Chapter 2 of Part 1 (acquisition and disclosure of communications
data).
In section 49(1)(c) (investigation of electronic data protected by encryption
etc: powers under which data obtained)—
(a) for the words from “section 22(3)” to “Part II” substitute “Part 3 of the
Investigatory Powers Act 2016 or Part 2 of this Act”, and
(b) for “under section 22(4)” substitute “in pursuance of an authorisation
under Part 3 of the Act of 2016 or as the result of the issue of a
warrant under Chapter 2 of Part 6 of the Act of 2016”.
In section 71(2) (issue and revision of codes of practice) omit “23A or”.
(1) Section 77A (procedure for order of sheriff under section 23A or 32A:
Scotland) is amended as follows.
(2) In the heading and in subsection (1)—
(a) for “23A” substitute “75 of the Investigatory Powers Act 2016”, and
(b) for “or 32A” substitute “or section 32A of this Act”.
(3) In subsection (3) for “sections 23B and 32B and this section” substitute “this
section, section 32B of this Act and section 75 of the Investigatory Powers Act
2016”.
58
(1) Section 77B (procedure for order of district judge under section 23A or 32A:
Northern Ireland) is amended as follows.
(2) In the heading and in subsections (1) and (4) for “section 23A or 32A”
substitute “section 32A of this Act or section 75 of the Investigatory Powers
Act 2016”.
(3) In subsection (4) for “sections 23B and 32B” substitute “section 32B of this
Act and section 75 of that Act”.
59
60
In section 78(3)(a) (affirmative orders) omit “22(9), 23A(6), 25(5),”.
In section 81(9) (general interpretation: certain references relating to
Northern Ireland) omit “23A(7)(b),”.
56
57
Police Reform Act 2002
61
(1) Paragraph 19ZA of Schedule 3 to the Police Reform Act 2002 (investigations
by the IPCC: information notices) is amended as follows.
(2) In sub-paragraph (3) omit—
(a) the words from “(within the meaning of Chapter 2” to “2000)”, and
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Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 3 — Acquisition of communications data
283
(b)
the words “(within the meaning of that Chapter)”.
(3) After sub-paragraph (3) insert—
“(3A) In sub-paragraph (3) “communications data”, “postal operator”
and “telecommunications operator” have the same meanings as in
the Investigatory Powers Act 2016 (see sections 261 and 262 of that
Act).”
P
ART
4
R
ETENTION OF COMMUNICATIONS DATA
Anti-terrorism, Crime and Security Act 2001
62
Omit Part 11 of the Anti-terrorism, Crime and Security Act 2001 (retention
of communications data).
Data Retention and Investigatory Powers Act 2014
63
Omit sections 1 and 2 of the Data Retention and Investigatory Powers Act
2014 (retention of relevant communications data).
P
ART
5
E
QUIPMENT INTERFERENCE
Regulation of Investigatory Powers Act 2000
64
65
The Regulation of Investigatory Powers Act 2000 is amended as follows.
In section 48 (interpretation of Part 2), in subsection (3)(c)—
(a) omit the “or” at the end of sub-paragraph (i);
(b) after sub-paragraph (ii) insert “; or
(iii) Part 5, or Chapter 3 of Part 6, of the
Investigatory Powers Act 2016 (equipment
interference).”
(1) Paragraph 2 of Schedule 2 (persons having the appropriate permission
where data obtained under warrant etc) is amended as follows.
(2) In sub-paragraph (1)—
(a) omit the “or” at the end of paragraph (a);
(b) after paragraph (b) insert “; or
(c) a targeted equipment interference warrant
issued under section 106 of the Investigatory
Powers Act 2016 (powers of law enforcement
chiefs to issue warrants to law enforcement
officers).”
(3) In sub-paragraph (5), at the end insert “or under a targeted equipment
interference warrant issued under section 106 of the Investigatory Powers
Act 2016.”
(4) In sub-paragraph (6)—
(a) omit the “and” at the end of paragraph (b);
66
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284
Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 5 — Equipment interference
(b)
after paragraph (c) insert “; and
(d) in relation to protected information obtained
under a warrant issued under section 106 of
the Investigatory Powers Act 2016, means the
person who issued the warrant or, if that
person was an appropriate delegate in
relation to a law enforcement chief, either that
person or the law enforcement chief.”
(5) After sub-paragraph (6) insert—
“(6A) In sub-paragraph (6)(d), the references to a law enforcement chief
and to an appropriate delegate in relation to a law enforcement
chief are to be read in accordance with section 106(5) of the
Investigatory Powers Act 2016.”
Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11)
67
68
The Regulation of Investigatory Powers (Scotland) Act 2000 is amended as
follows.
In section 5(3) (lawful surveillance etc.), after paragraph (a) (and before the
“or” at the end of the paragraph), insert—
“(aa) an enactment contained in Part 5 of the Investigatory Powers
Act 2016 (equipment interference) so far as relating to the
Police Service;”.
In section 24(2) (issue and revision of codes of practice), after paragraph (a)
(and before the “and” at the end of the paragraph), insert—
“(aa) Part 5 of the Investigatory Powers Act 2016 (equipment
interference) so far as relating to the Police Service or the
Police Investigations and Review Commissioner;”.
69
Crime and Courts Act 2013
70
(1) In Schedule 1 to the Crime and Courts Act 2013 (the NCA and NCA officers),
paragraph 6A (investigatory activity in Northern Ireland) is amended as
follows.
(2) In sub-paragraph (3)—
(a) in the opening words, omit “an authorisation granted under any of
the following provisions”;
(b) before paragraph (a) insert—
“(za) a targeted equipment interference warrant under
Part 5 of the Investigatory Powers Act 2016;”;
(c) in paragraph (a), for “in the” substitute “an authorisation granted
under any of the following provisions of the”;
(d) in paragraph (b), at the beginning insert “an authorisation granted
under”.
(3) After sub-paragraph (3) insert—
“(4) For the purpose of sub-paragraph (1), a relevant investigatory
activity falling within sub-paragraph (3)(za) is to be regarded as
carried out in Northern Ireland if (and to the extent that)—
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Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 5 — Equipment interference
285
(a)
(b)
the equipment that is being interfered with under the
warrant is in Northern Ireland, and
at the time of the carrying out of the activity, the NCA
officer knows that the equipment is in Northern Ireland.
(5) Sub-paragraph (6) applies where—
(a) in the carrying out by an NCA officer of a relevant
investigatory activity falling within sub-paragraph (3)(za),
equipment in Northern Ireland is interfered with under
the warrant,
(b) at the time the interference begins, the NCA officer does
not know that the equipment is in Northern Ireland, and
(c) at any time while the interference is continuing, the NCA
officer becomes aware that the equipment is in Northern
Ireland.
(6) The NCA officer is not to be regarded as in breach of sub-
paragraph (1) if the interference continues after the NCA officer
becomes aware that the equipment is in Northern Ireland,
provided that the officer informs the Chief Constable of the Police
Service of Northern Ireland about the interference as soon as
reasonably practicable.”
P
ART
6
J
UDICIAL
C
OMMISSIONERS
Police Act 1997
71
72
73
74
The Police Act 1997 is amended as follows.
In section 103(8) (appeals) for “the period” substitute “any period”.
In section 105(1)(b)(iii) (reports of appeals dismissed) omit “under section
107(2),”.
In section 108(1) (interpretation of Part 3) after the definition of “designated
deputy” insert—
““the Investigatory Powers Commissioner” and “Judicial
Commissioner” have the same meanings as in the
Investigatory Powers Act 2016 (see section 263(1) of that
Act);”.
Regulation of Investigatory Powers Act 2000
75
76
77
The Regulation of Investigatory Powers Act 2000 is amended as follows.
In section 37(9)(a) (appeals against decisions of ordinary Surveillance
Commissioners) for “the period” substitute “any period”.
In section 39(3) (appeals: reports of Chief Surveillance Commissioner)—
(a) for “Subsections (3) and (4) of section 107 of the Police Act 1997”
substitute “Subsections (6) to (8) of section 234 of the Investigatory
Powers Act 2016”, and
(b) for “subsection (2) of that section” substitute “subsection (1) of that
section”.
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286
Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 6 — Judicial Commissioners
78
79
Omit section 40
Commissioners).
(information
to
be
provided
to
Surveillance
In section 51(7)(b) (notification to Intelligence Services Commissioner or
Chief Surveillance Commissioner of certain directions relating to the
disclosure of a key to protected information) for “the Commissioner in
question” substitute “the Investigatory Powers Commissioner”.
(1) Section 64 (delegation of Commissioners’ functions) is amended as follows.
(2) In the heading for “Commissioners’ functions” substitute “functions of the
Investigatory Powers Commissioner for Northern Ireland”.
(3) In subsection (1)—
(a) omit “or any provision of an Act of the Scottish Parliament”, and
(b) for “a relevant Commissioner” substitute “the Investigatory Powers
Commissioner for Northern Ireland”.
(4) Omit subsection (2).
80
81
82
In section 71(2) (issue and revision of codes of practice) for “the Surveillance
Commissioners” substitute “a Judicial Commissioner”.
(1) Section 72 (effect of codes of practice) is amended as follows.
(2) In subsection (4) for paragraphs (c) to (e) (and the word “or” between
paragraphs (d) and (e)) substitute—
“(ba) the Investigatory Powers Commissioner for Northern Ireland
carrying out functions under this Act, or
(bb) the Investigatory Powers Commissioner or any other Judicial
Commissioner carrying out functions under this Act, the
Investigatory Powers Act 2016 or the Police Act 1997,”.
(3) Omit subsection (5).
83
(1) Section 81(1) (general definitions) is amended as follows.
(2) Omit the definitions of “Assistant Surveillance Commissioner”, “ordinary
Surveillance Commissioner”, “Surveillance Commissioner” and “Chief
Surveillance Commissioner”.
(3) After the definition of “interception warrant” insert—
““the Investigatory Powers Commissioner” and “Judicial
Commissioner” have the same meanings as in the
Investigatory Powers Act 2016 (see section 263(1) of that
Act);”.
Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11)
84
85
86
The Regulation of Investigatory Powers (Scotland) Act 2000 is amended as
follows.
In the cross-heading before section 2 (Surveillance Commissioners) for
“Surveillance” substitute “Judicial”.
In section 2(10) (restrictions on appeals against Commissioners)—
(a) for “Chief Surveillance Commissioner” substitute “Investigatory
Powers Commissioner”, and
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Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 6 — Judicial Commissioners
287
(b)
87
88
89
90
91
for “other Surveillance Commissioner” substitute “other Judicial
Commissioner”.
In the heading of section 16 for “Surveillance Commissioners” substitute
“Judicial Commissioners”.
Omit section 18
Commissioners).
(information
to
be
provided
to
Surveillance
In the cross-heading before section 21 (Chief Surveillance Commissioner) for
“Chief Surveillance” substitute “Investigatory Powers”.
Omit section 21 (functions of Chief Surveillance Commissioner).
(1) Section 22 (co-operation with, and reports by, Chief Surveillance
Commissioner) is amended as follows.
(2) Omit subsection (1).
(3) In subsection (2) for “Chief Surveillance Commissioner” substitute
“Investigatory Powers Commissioner”.
(4) In subsection (3)—
(a) for “Chief Surveillance Commissioner” substitute “Investigatory
Powers Commissioner”, and
(b) after “under” insert “, and in relation to,”.
92
In section 24(2) (issue and revision of codes of practice) for “the Surveillance
Commissioners appointed under this Act or the Commissioners holding
office under section 91 of that Act” substitute “the Judicial Commissioners”.
In section 26(4) (effect of codes of practice)—
(a) in paragraph (b) for “Chief Surveillance Commissioner” substitute
“Investigatory Powers Commissioner”, and
(b) in paragraph (c) for “a Surveillance Commissioner” substitute “a
Judicial Commissioner (other than the Investigatory Powers
Commissioner)”.
(1) Section 31(1) (interpretation) is amended as follows.
(2) After the definitions of “directed” and “intrusive” insert—
““the Investigatory Powers Commissioner” and “Judicial
Commissioner” have the same meanings as in the
Investigatory Powers Act 2016 (see section 263(1) of that
Act);”.
(3) Omit the definitions of “ordinary Surveillance Commissioner”,
“Surveillance Commissioner” and “Chief Surveillance Commissioner”.
93
94
Terrorism Prevention and Investigation Measures Act 2011
95
In section 21(3)(b) of the Terrorism Prevention and Investigation Measures
Act 2011 (duty to consult certain persons before making an order for the
continuation, repeal etc. of TPIM powers) for “the Intelligence Services
Commissioner” substitute “the Investigatory Powers Commissioner”.
Protection of Freedoms Act 2012
96
The Protection of Freedoms Act 2012 is amended as follows.
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288
Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 6 — Judicial Commissioners
97
(1) Section 29 (code of practice for surveillance camera systems) is amended as
follows.
(2) In subsection (5)(d) (duty to consult certain persons in preparing code) for
“the Chief Surveillance Commissioner” substitute “the Investigatory Powers
Commissioner”.
(3) In subsection (7) omit the definition of “the Chief Surveillance
Commissioner”.
98
In section 33(8)(d) (duty to consult before making an order identifying who
must have regard to the code) for “the Chief Surveillance Commissioner”
substitute “the Investigatory Powers Commissioner”.
P
ART
7
O
THER MINOR AND CONSEQUENTIAL PROVISION
Telecommunications Act 1984
99
Omit section 94 of the Telecommunications Act 1984 (directions in the
interests of national security etc.).
Northern Ireland Act 1998
100
In paragraph 17 of Schedule 2 to the Northern Ireland Act 1998 (excepted
matters) after “subversion;” insert “the Technical Advisory Board provided
for by section 245 of the Investigatory Powers Act 2016;”.
Communications Act 2003
101 (1) The Communications Act 2003 is amended as follows.
(2) In section 401(5)(g), for “sections 47 to 49” substitute “section 47 or 48”.
(3) In Schedule 18 (transitional provisions), omit paragraph 24 (which relates to
section 94 of the Telecommunications Act 1984).
P
ART
8
R
EPEALS AND REVOCATIONS CONSEQUENTIAL ON OTHER REPEALS OR AMENDMENTS IN
THIS
A
CT
General amendments
Title
Serious Crime Act 2015
Extent of repeal or revocation
Section 83.
Section 86(12).
In Schedule 4, paragraph 18.
Lawful interception of communications
Title
Regulation of Investigatory
Powers Act 2000
Extent of repeal or revocation
In Schedule 4, paragraphs 7(2) and 9.
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Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 8 — Repeals and revocations consequential on other repeals or amendments in this Act
289
Title
Anti-terrorism,
Crime
Security Act 2001
Inquiries Act 2005
Terrorism Act 2006
Wireless Telegraphy Act 2006
National
Health
Service
(Consequential Provisions)
Act 2006
Armed Forces Act 2006
Serious Crime Act 2007
Counter-Terrorism Act 2008
Policing and Crime Act 2009
Terrorist Asset-Freezing etc. Act
2010
Terrorism
Prevention
and
Investigation Measures Act
2011
Regulation of Investigatory
Powers (Monetary Penalty
Notices and Consents for
Interceptions)
Regulations
2011 (S.I. 2011/1340)
Health and Social Care Act 2012
Justice and Security Act 2013
Crime and Courts Act 2013
Data
Retention
Investigatory Powers
2014
and
Act
and
Extent of repeal or revocation
Section 116(3).
In Schedule 2, paragraphs 20 and 21.
Section 32.
In Schedule 7, paragraphs 22 and 23.
In Schedule 1, paragraph 208.
In Schedule 16, paragraph 169.
In Schedule 12, paragraph 6.
Sections 69 and 74.
Section 100.
Section 28(2) and (3).
In Schedule 7, paragraph 4.
The whole Regulations.
In Schedule 5, paragraph 98.
Section 16.
In Schedule 2, paragraph 11.
In Schedule 8, paragraph 78.
In Schedule 9, paragraph 125.
Section 3(1) and (2).
Section 4(2) to (7).
Section 5.
Section 15(3).
In Schedule 8, paragraph 2.
Counter-Terrorism and Security
Act 2015
Acquisition and retention of communications data
Title
Serious Organised Crime and
Police Act 2005
Serious Crime Act 2007
Police, Public Order and
Criminal Justice (Scotland)
Act 2006 (Consequential
Provisions
and
Modifications) Order 2007
(S.I. 2007/1098)
Extent of repeal or revocation
In Schedule 4, paragraph 135.
In Schedule 12, paragraphs 7 and 8.
In the Schedule, paragraph 4(5).
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290
Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 8 — Repeals and revocations consequential on other repeals or amendments in this Act
Title
Policing and Crime Act 2009
Protection of Freedoms Act
2012
Extent of repeal or revocation
Section 7.
In Schedule 7, paragraphs 13 and 14.
Section 37.
In Schedule 9, paragraphs 7 and 8 and, in
paragraph 16(b), sub-paragraph (i) (and the
word “and” at the end of sub-paragraph (i)).
Crime and Courts Act 2013
Police
and
Fire
Reform
(Scotland)
Act
2012
(Consequential
Provisions
and Modifications) Order
2013 (S.I. 2013/602)
Data
Retention
Investigatory Powers
2014
and
Act
In Schedule 8, paragraph 81.
In Schedule 2, paragraph 33(5) to (8) and (15)(a).
Section 3(3) and (4).
Section 4(8) to (10).
Section 21.
Section 52(3)(a).
Counter-Terrorism and Security
Act 2015
Judicial Commissioners
Title
Scotland Act 1998 (Cross-
Border Public Authorities)
(Adaptation of Functions
etc.) Order 1999 (S.I. 1999/
1747)
Regulation of Investigatory
Powers Act 2000
Insolvency Act 2000
Scotland Act 1998 (Transfer of
Functions to the Scottish
Ministers etc.) (No. 2) Order
2000 (S.I. 2000/3253)
Insolvency Act 2000 (Company
Directors
Disqualification
Undertakings) Order 2004
(S.I. 2004/1941)
Constitutional Reform Act 2005
Tribunals,
Courts
Enforcement Act 2007
Serious Crime Act 2007
and
Extent of repeal or revocation
In Schedule 6, paragraph 2(2) and (5).
In Schedule 4, paragraph 8(1), (10) and (11).
In Schedule 4, paragraph 22(2).
In Schedule 3, paragraphs 9 to 12.
In the Schedule, paragraph 10.
In Schedule 17, paragraphs 27 and 30(2)(a) and
(b).
In Schedule 16, paragraph 11(2).
In Schedule 12, paragraph 3.
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Investigatory Powers Act 2016 (c.
25)
Schedule 10 — Minor and consequential provision
Part 8 — Repeals and revocations consequential on other repeals or amendments in this Act
291
Title
Companies
Act
2006
(Consequential
Amendments, Transitional
Provisions and Savings)
Order 2009 (S.I. 2009/1941)
Police Reform and Social
Responsibility Act 2011
Protection of Freedoms Act
2012
Justice and Security Act 2013
Crime and Courts Act 2013
Police
and
Fire
Reform
(Scotland)
Act
2012
(Consequential
Provisions
and Modifications) Order
2013 (S.I. 2013/602)
Anti-social Behaviour, Crime
and Policing Act 2014
Data
Retention
Investigatory Powers
2014
and
Act
Extent of repeal or revocation
In Schedule 1, paragraph 169.
In Schedule 16, paragraph 222.
In Schedule 9, paragraphs 10 and 11.
Section 5.
In Schedule 2, paragraph 4.
In Schedule 8, paragraph 59.
In Schedule 21, paragraph 4.
In Schedule 1, paragraph 6(6).
In Schedule 2, paragraph 33(20) and (22)(c).
Section 150.
Section 6.
Other minor and consequential provision
Title
Communications Act 2003
?
Crown copyright 2016
Extent of repeal or revocation
In Schedule 17, paragraph 70.
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