Protection of Freedoms Bill (HC Bill 146)

(f) standards applicable to persons using or maintaining systems or

apparatus,

(g) standards applicable to persons using or processing information

obtained by virtue of systems,

(h) 5access to, or disclosure of, information so obtained,

(i) procedures for complaints or consultation.

(4) Such a code—

(a) need not contain provision about every type of surveillance camera

system,

(b) 10may make different provision for different purposes.

(5) In the course of preparing such a code, the Secretary of State must consult—

(a) such persons appearing to the Secretary of State to be representative of

the views of persons who are, or are likely to be, subject to the duty

under section 33(1) (duty to have regard to the code) as the Secretary of

15State considers appropriate,

(b) the Association of Chief Police Officers,

(c) the Information Commissioner,

(d) the Chief Surveillance Commissioner,

(e) the Surveillance Camera Commissioner,

(f) 20the Welsh Ministers, and

(g) such other persons as the Secretary of State considers appropriate.

(6) In this Chapter “surveillance camera systems” means—

(a) closed circuit television or automatic number plate recognition

systems,

(b) 25any other systems for recording or viewing visual images of objects or

events for surveillance purposes,

(c) any systems for storing, receiving, transmitting, processing or checking

images or information obtained by systems falling within paragraph (a)

or (b), or

(d) 30any other systems associated with, or otherwise connected with,

systems falling within paragraph (a), (b) or (c).

(7) In this section—

• “the Chief Surveillance Commissioner” means the Chief Commissioner
  
  appointed under section 91(1) of the Police Act 1997,

• 35“processing” has the meaning given by section 1(1) of the Data Protection
  
  Act 1998.

Procedural requirements

30 Issuing of code

(1) The Secretary of State must lay before Parliament—

(a) 40a code of practice prepared under section 29, and

(b) a draft of an order providing for the code to come into force.

(2) The Secretary of State must make the order and issue the code if the draft of the

order is approved by a resolution of each House of Parliament.

(3) The Secretary of State must not make the order or issue the code unless the

draft of the order is so approved.

(4) The Secretary of State must prepare another code of practice under section 29

if—

(a) 5the draft of the order is not so approved, and

(b) the Secretary of State considers that there is no realistic prospect that it

will be so approved.

(5) A code comes into force in accordance with an order under this section.

(6) Such an order—

(a) 10is to be a statutory instrument, and

(b) may contain transitional, transitory or saving provision.

(7) If a draft of an instrument containing an order under this section would, apart

from this subsection, be treated as a hybrid instrument for the purposes of the

standing orders of either House of Parliament, it is to proceed in that House as

15if it were not a hybrid instrument.

31 Alteration or replacement of code

(1) The Secretary of State—

(a) must keep the surveillance camera code under review, and

(b) may prepare an alteration to the code or a replacement code.

(2) 20Before preparing an alteration or a replacement code, the Secretary of State

must consult the persons mentioned in section 29(5).

(3) The Secretary of State must lay before Parliament an alteration or a

replacement code prepared under this section.

(4) If, within the 40-day period, either House of Parliament resolves not to

25approve the alteration or the replacement code, the Secretary of State must not

issue the alteration or code.

(5) If no such resolution is made within that period, the Secretary of State must

issue the alteration or replacement code.

(6) The alteration or replacement code—

(a) 30comes into force when issued, and

(b) may include transitional, transitory or saving provision.

(7) Subsection (4) does not prevent the Secretary of State from laying a new

alteration or replacement code before Parliament.

(8) In this section “the 40-day period” means the period of 40 days beginning with

35the day on which the replacement code is laid before Parliament (or, if it is not

laid before each House of Parliament on the same day, the later of the two days

on which it is laid).

(9) In calculating the 40-day period, no account is to be taken of any period during

which Parliament is dissolved or prorogued or during which both Houses are

40adjourned for more than four days.

(10) In this Chapter “the surveillance camera code” means the code of practice

issued under section 30(2) (as altered or replaced from time to time).

32 Publication of code

(1) The Secretary of State must publish the code issued under section 30(2).

(2) The Secretary of State must publish any replacement code issued under section

31(5).

(3) 5The Secretary of State must publish—

(a) any alteration issued under section 31(5), or

(b) the code or replacement code as altered by it.

Enforcement and Commissioner

33 Effect of code

(1) 10A relevant authority must have regard to the surveillance camera code when

exercising any functions to which the code relates.

(2) A failure on the part of any person to act in accordance with any provision of

the surveillance camera code does not of itself make that person liable to

criminal or civil proceedings.

(3) 15The surveillance camera code is admissible in evidence in any such

proceedings.

(4) A court or tribunal may, in particular, take into account a failure by a relevant

authority to have regard to the surveillance camera code in determining a

question in any such proceedings.

(5) 20In this section “relevant authority” means—

(a) a local authority within the meaning of the Local Government Act 1972,

(b) the Greater London Authority,

(c) the Common Council of the City of London in its capacity as a local

authority,

(d) 25the Sub-Treasurer of the Inner Temple or the Under-Treasurer of the

Middle Temple, in their capacity as a local authority,

(e) the Council of the Isles of Scilly,

(f) a parish meeting constituted under section 13 of the Local Government

Act 1972,

(g) 30a police and crime commissioner,

(h) the Mayor’s Office for Policing and Crime,

(i) the Common Council of the City of London in its capacity as a police

authority,

(j) any chief officer of a police force in England and Wales,

(k) 35any person specified or described by the Secretary of State in an order

made by statutory instrument.

(6) An order under subsection (5) may, in particular—

(a) restrict the specification or description of a person to that of the person

when acting in a specified capacity or exercising specified or described

40functions,

(b) contain transitional, transitory or saving provision.

(7) So far as an order under subsection (5) contains a restriction of the kind

mentioned in subsection (6)(a) in relation to a person, the duty in subsection (1)

applies only to the person in that capacity or (as the case may be) only in

relation to those functions.

(8) Before making an order under subsection (5) in relation to any person or

description of persons, the Secretary of State must consult—

(a) 5such persons appearing to the Secretary of State to be representative of

the views of the person or persons in relation to whom the order may

be made as the Secretary of State considers appropriate,

(b) the Association of Chief Police Officers,

(c) the Information Commissioner,

(d) 10the Chief Surveillance Commissioner,

(e) the Surveillance Camera Commissioner,

(f) the Welsh Ministers, and

(g) such other persons as the Secretary of State considers appropriate.

(9) No instrument containing an order under subsection (5) is to be made unless a

15draft of it has been laid before, and approved by a resolution of, each House of

Parliament.

(10) If a draft of an instrument containing an order under subsection (5) would,

apart from this subsection, be treated as a hybrid instrument for the purposes

of the standing orders of either House of Parliament, it is to proceed in that

20House as if it were not a hybrid instrument.

34 Commissioner in relation to code

(1) The Secretary of State must appoint a person as the Surveillance Camera

Commissioner (in this Chapter “the Commissioner”).

(2) The Commissioner is to have the following functions—

(a) 25encouraging compliance with the surveillance camera code,

(b) reviewing the operation of the code, and

(c) providing advice about the code (including changes to it or breaches of

it).

(3) The Commissioner is to hold office in accordance with the terms of the Commissioner’s

30appointment; and the Secretary of State may pay in respect of the Commissioner any

expenses, remuneration or allowances that the Secretary of State may determine.

(4) The Secretary of State may, after consultation with the Commissioner, provide the

Commissioner with—

(a) such staff, and

(b) 35such accommodation, equipment and other facilities,

as the Secretary of State considers necessary for the carrying out of the Commissioner’s

functions.

35 Reports by Commissioner

(1) As soon as reasonably practicable after the end of each reporting period—

(a) 40the Commissioner must—

(i) prepare a report about the exercise by the Commissioner during

that period of the functions of the Commissioner, and

(ii) give a copy of the report to the Secretary of State,

(b) the Secretary of State must lay a copy of the report before Parliament,

and

(c) the Commissioner must publish the report.

(2) The reporting periods are—

(a) 5the period—

(i) beginning with the surveillance camera code first coming into

force or the making of the first appointment as Commissioner

(whichever is the later), and

(ii) ending with the next 31 March or, if the period ending with that

10date is 6 months or less, ending with the next 31 March after that

date, and

(b) each succeeding period of 12 months.

Interpretation

36 Interpretation: Chapter 1

15In this Chapter—

• “the Commissioner” has the meaning given by section 34(1),

• “surveillance camera code” has the meaning given by section 31(10),

• “surveillance camera systems” has the meaning given by section 29(6).

CHAPTER 2 Safeguards for certain surveillance under RIPA

37 20Judicial approval for obtaining or disclosing communications data

After section 23 of the Regulation of Investigatory Powers Act 2000 (form and

duration of authorisations and notices for obtaining and disclosing

communications data) insert—

“"23A Authorisations requiring judicial approval

(1) 25This section applies where a relevant person has—

(a) granted or renewed an authorisation under section 22(3), (3B) or

(3F), or

(b) given or renewed a notice under section 22(4).

(2) The authorisation or notice is not to take effect until such time (if any)

30as the relevant judicial authority has made an order approving the

grant or renewal of the authorisation or (as the case may be) the giving

or renewal of the notice.

(3) The relevant judicial authority may give approval under this section to

the granting or renewal of an authorisation under section 22(3), (3B) or

35(3F) if, and only if, the relevant judicial authority is satisfied that—

(a) at the time of the grant or renewal—

(i) there were reasonable grounds for believing that the

requirements of section 22(1) and (5) were satisfied in

relation to the authorisation, and

(ii) the relevant conditions were satisfied in relation to the

authorisation, and

(b) at the time when the relevant judicial authority is considering

the matter, there remain reasonable grounds for believing that

5the requirements of section 22(1) and (5) are satisfied in relation

to the authorisation.

(4) The relevant judicial authority may give approval under this section to

the giving or renewal of a notice under section 22(4) if, and only if, the

relevant judicial authority is satisfied that—

(a) 10at the time of the giving or renewal of the notice—

(i) there were reasonable grounds for believing that the

requirements of section 22(1) and (5) were satisfied in

relation to the notice, and

(ii) the relevant conditions were satisfied in relation to the

15notice, and

(b) at the time when the relevant judicial authority is considering

the matter, there remain reasonable grounds for believing that

the requirements of section 22(1) and (5) are satisfied in relation

to the notice.

(5) 20For the purposes of subsections (3) and (4) the relevant conditions are—

(a) in relation to any grant, giving or renewal by an individual

holding an office, rank or position in a local authority in

England, Wales or Scotland, that—

(i) the individual was a designated person for the purposes

25of this Chapter,

(ii) the grant, giving or renewal was not in breach of any

restrictions imposed by virtue of section 25(3), and

(iii) any other conditions that may be provided for by an

order made by the Secretary of State were satisfied,

(b) 30in relation to a grant, giving or renewal, for any purpose

relating to a Northern Ireland excepted or reserved matter, by

an individual holding an office, rank or position in a district

council in Northern Ireland, that—

(i) the individual was a designated person for the purposes

35of this Chapter,

(ii) the grant, giving or renewal was not in breach of any

restrictions imposed by virtue of section 25(3), and

(iii) any other conditions that may be provided for by an

order made by the Secretary of State were satisfied, and

(c) 40in relation to any other grant, giving or renewal by a relevant

person, that any conditions that may be provided for by an

order made by the Secretary of State were satisfied.

(6) In this section—

• “local authority in England” means—

  (a)

  45a 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, or

  (d)

  the Council of the Isles of Scilly,

Protection of Freedoms BillPage 26

• “local authority in Scotland” means a council constituted under
  
  section 2 of the Local Government etc. (Scotland) Act 1994,

• “local authority in Wales” means any county council or county
  
  borough council in Wales,

• 5“Northern Ireland excepted or reserved matter” means an
  
  excepted or reserved matter (within the meaning of section 4(1)
  
  of the Northern Ireland Act 1998),

• “Northern Ireland transferred matter” means a transferred matter
  
  (within the meaning of section 4(1) of the Act of 1998),

• 10“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,

• 15“relevant person” means—

  (a)

  an individual holding—

  (i)

  an office, rank or position in a local authority in
  
  England or Wales, or

  (ii)

  an office, rank or position in a local authority in
  
  20Scotland (other than an office, rank or position in
  
  a fire and rescue authority),

  (b)

  also, in relation to a grant, giving or renewal for any
  
  purpose relating to a Northern Ireland excepted or
  
  reserved matter, an individual holding an office, rank or
  
  25position in a district council in Northern Ireland, and

  (c)

  also, in relation to any grant, giving or renewal of a
  
  description that may be prescribed for the purposes of
  
  this subsection by an order made by the Secretary of
  
  State or every grant, giving or renewal if so prescribed,
  
  30a person of a description so prescribed.

(7) No order of the Secretary of State—

(a) may be made under subsection (6) unless a draft of the order

has been laid before Parliament and approved by a resolution of

each House;

(b) 35may be made under this section so far as it makes provision

which, if it were contained in an Act of the Northern Ireland

Assembly, would be within the legislative competence of the

Northern Ireland Assembly because it deals with a Northern

Ireland transferred matter.

23B 40Procedure for judicial approval

(1) The public authority with which the relevant person holds an office,

rank or position may apply to the relevant judicial authority for an

order under section 23A approving the grant or renewal of an

authorisation or (as the case may be) the giving or renewal of a notice.

(2) 45The applicant is not required to give notice of the application to—

(a) any person to whom the authorisation or notice which is the

subject of the application relates, or

(b) such a person’s legal representatives.

(3) Where, on an application under section 23A, the relevant judicial

authority refuses to approve the grant or renewal of the authorisation

concerned or (as the case may be) the giving or renewal of the notice

concerned, the relevant judicial authority may make an order quashing

5the authorisation or notice.

(4) In this section “relevant judicial authority” and “relevant person” have

the same meaning as in section 23A.”

38 Judicial approval for directed surveillance and covert human intelligence

sources

(1) 10After section 32 of the Regulation of Investigatory Powers Act 2000

(authorisation of surveillance and human intelligence sources: intrusive

surveillance) insert—

“Authorisations requiring judicial approval

32A Authorisations requiring judicial approval

(1) 15This section applies where a relevant person has granted an

authorisation under section 28 or 29.

(2) The authorisation is not to take effect until such time (if any) as the

relevant judicial authority has made an order approving the grant of

the authorisation.

(3) 20The relevant judicial authority may give approval under this section to

the granting of an authorisation under section 28 if, and only if, the

relevant judicial authority is satisfied that—

(a) at the time of the grant—

(i) there were reasonable grounds for believing that the

25requirements of section 28(2) were satisfied in relation to

the authorisation, and

(ii) the relevant conditions were satisfied in relation to the

authorisation, and

(b) at the time when the relevant judicial authority is considering

30the matter, there remain reasonable grounds for believing that

the requirements of section 28(2) are satisfied in relation to the

authorisation.

(4) For the purposes of subsection (3) the relevant conditions are—

(a) in relation to a grant by an individual holding an office, rank or

35position in a local authority in England or Wales, that—

(i) the individual was a designated person for the purposes

of section 28,

(ii) the grant of the authorisation was not in breach of any

restrictions imposed by virtue of section 30(3), and

(iii) 40any other conditions that may be provided for by an

order made by the Secretary of State were satisfied,

(b) in relation to a grant, for any purpose relating to a Northern

Ireland excepted or reserved matter, by an individual holding

an office, rank or position in a district council in Northern

45Ireland, that—

(i) the individual was a designated person for the purposes

of section 28,

(ii) the grant of the authorisation was not in breach of any

restrictions imposed by virtue of section 30(3), and

(iii) 5any other conditions that may be provided for by an

order made by the Secretary of State were satisfied, and

(c) in relation to any other grant by a relevant person, that any

conditions that may be provided for by an order made by the

Secretary of State were satisfied.

(5) 10The relevant judicial authority may give approval under this section to

the granting of an authorisation under section 29 if, and only if, the

relevant judicial authority is satisfied that—

(a) at the time of the grant—

(i) there were reasonable grounds for believing that the

15requirements of section 29(2), and any requirements

imposed by virtue of section 29(7)(b), were satisfied in

relation to the authorisation, and

(ii) the relevant conditions were satisfied in relation to the

authorisation, and

(b) 20at the time when the relevant judicial authority is considering

the matter, there remain reasonable grounds for believing that

the requirements of section 29(2), and any requirements

imposed by virtue of section 29(7)(b), are satisfied in relation to

the authorisation.

(6) 25For the purposes of subsection (5) the relevant conditions are—

(a) in relation to a grant by an individual holding an office, rank or

position in a local authority in England or Wales, that—

(i) the individual was a designated person for the purposes

of section 29,

(ii) 30the grant of the authorisation was not in breach of any

prohibition imposed by virtue of section 29(7)(a) or any

restriction imposed by virtue of section 30(3), and

(iii) any other conditions that may be provided for by an

order made by the Secretary of State were satisfied,

(b) 35in relation to a grant, for any purpose relating to a Northern

Ireland excepted or reserved matter, by an individual holding

an office, rank or position in a district council in Northern

Ireland, that—

(i) the individual was a designated person for the purposes

40of section 29,

(ii) the grant of the authorisation was not in breach of any

prohibition imposed by virtue of section 29(7)(a) or any

restriction imposed by virtue of section 30(3), and

(iii) any other conditions that may be provided for by an

45order made by the Secretary of State were satisfied, and

(c) in relation to any other grant by a relevant person, that any

conditions that may be provided for by an order made by the

Secretary of State were satisfied.

(7) In this section—

• 50“local authority in England” means—

  Protection of Freedoms BillPage 29

  (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, or

  (d)

  5the Council of the Isles of Scilly,

• “local authority in Wales” means any county council or county
  
  borough council in Wales,

• “Northern Ireland excepted or reserved matter” means an
  
  excepted or reserved matter (within the meaning of section 4(1)
  
  10of the Northern Ireland Act 1998),

• “Northern Ireland transferred matter” means a transferred matter
  
  (within the meaning of section 4(1) of the Act of 1998),

• “relevant judicial authority” means—

  (a)

  in relation to England and Wales, a justice of the peace,

  (b)

  15in relation to Scotland, a sheriff, and

  (c)

  in relation to Northern Ireland, a district judge
  
  (magistrates’ courts) in Northern Ireland,

• “relevant person” means—

  (a)

  an individual holding an office, rank or position in a
  
  20local authority in England or Wales,

  (b)

  also, in relation to a grant for any purpose relating to a
  
  Northern Ireland excepted or reserved matter, an
  
  individual holding an office, rank or position in a
  
  district council in Northern Ireland, and

  (c)

  25also, in relation to any grant of a description that may be
  
  prescribed for the purposes of this subsection by an
  
  order made by the Secretary of State or every grant if so
  
  prescribed, a person of a description so prescribed.

(8) No order of the Secretary of State—