Investigatory Powers Bill (HC Bill 143)

Investigatory Powers BillPage 150

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
5Disqualification 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
10(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)
15Order 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).

Main functions of Commissioners

196 20Main oversight functions

(1) 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) 25the 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.

(2) Such statutory functions include, in particular, functions relating to the
30disclosure, 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) 35data acquired as mentioned in subsection (1)(c), or

(d) communications, equipment data or other information acquired by
means of equipment interference.

(3) The Investigatory Powers Commissioner must keep under review (including
by way of audit, inspection and investigation)—

(a) 40the acquisition, retention, use or disclosure of bulk personal datasets by
an intelligence service,

(b) the giving and operation of notices under section 216 (national security
notices),

(c) the exercise of functions by virtue of section 80 of the Serious Crime Act
452015 (prevention or restriction of use of communication devices by
prisoners etc.),

Investigatory Powers BillPage 151

(d) 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.),

(e) 5the adequacy of the arrangements by virtue of which the duties
imposed by section 55 of that Act are sought to be discharged,

(f) the exercise of functions by virtue of the Regulation of Investigatory
Powers (Scotland) Act 2000 (2000 asp 112000 asp 11) (surveillance and covert
human intelligence sources),

(g) 10the exercise of functions under Part 3 of the Police Act 1997
(authorisation of action in respect of property),

(h) 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

(i) 15the 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.

(4) But the Investigatory Powers Commissioner is not to keep under review—

(a) the exercise of any function of a relevant Minister to make subordinate
20legislation,

(b) the exercise of any function by a judicial authority,

(c) 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,

(d) 25the 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
30authority 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), (g),
(h) or (i) above,

(e) 35the exercise of any function where the conduct concerned is—

(i) conduct authorised by section 38, 40 or 43, or

(ii) conduct authorised by section 39 which is not conduct by or on
behalf of an intercepting authority (within the meaning given
by section 16(1)), or

(f) 40the exercise of any function which is subject to review by the
Information Commissioner.

(5) 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) 45national security,

(b) the prevention or detection of serious crime, or

(c) the economic well-being of the United Kingdom.

(6) A Judicial Commissioner must, in particular, ensure that the Commissioner
does not—

Investigatory Powers BillPage 152

(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,
5a police force, a government department or Her Majesty’s forces.

(7) Subsections (5) and (6) do not apply in relation to the functions of a Judicial
Commissioner of—

(a) deciding whether to approve the issue, modification or renewal of a
warrant or authorisation,

(b) 10deciding what may be done with material when a warrant issued for
what was considered to be an urgent need is cancelled, or

(c) reviewing any decision of the kind mentioned in paragraph (a) or (b).

(8) In this section—

  • “bulk personal dataset” is to be read in accordance with section 174,

  • 15“equipment data” has the same meaning as in Part 5 (see section 89),

  • “judicial authority” means a judge, court or tribunal or any person
    exercising the functions of a judge, court or tribunal,

  • “police force” has the same meaning as in Part 2 (see section 52(1)),

  • “related systems data” has the meaning given by section 13(6),

  • 20“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 14),

  • “statutory function” means any function conferred by virtue of this Act or
    25any other enactment.

197 Additional directed oversight functions

(1) 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) 30an 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.

(2) Subsection (1) does not apply in relation to anything which is required to be
35kept under review by the Investigatory Powers Commissioner under section
196.

(3) The Prime Minister may give a direction under this section at the request of the
Investigatory Powers Commissioner or otherwise.

(4) The Prime Minister must publish, in a manner which the Prime Minister
40considers 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) 45the economic well-being of the United Kingdom, or

Investigatory Powers BillPage 153

(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.

198 Error reporting

(1) 5The 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.

(2) 10In 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.

(3) Accordingly, the fact that there has been a breach of a person’s Convention
15rights (within the meaning of the Human Rights Act 1998) is not sufficient by
itself for an error to be a serious error.

(4) 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) 20the 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

(iv) 25the continued discharge of the functions of any of the
intelligence services.

(5) 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.

(6) 30When 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
35necessary 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).

(7) The Investigatory Powers Commissioner may not inform the person to whom
40it relates of a relevant error except as provided by this section.

(8) A report under section 201(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) 45the number of relevant errors which the Commissioner has decided
during that year were serious errors, and

Investigatory Powers BillPage 154

(c) the number of persons informed under subsection (1) during that year.

(9) 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
5are 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”.

199 10Additional functions under this Part

(1) 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) 15in 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.

(2) A Judicial Commissioner may provide advice or information to any public
authority or other person in relation to matters for which a Judicial
20Commissioner is responsible.

(3) 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—

(a) 25national 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
30Investigatory Powers Commissioner.

(4) Subsection (3) does not apply to any advice or information provided under
subsection (2) to the Investigatory Powers Tribunal.

200 Functions under other Parts and other enactments

(1) The Investigatory Powers Commissioner and the other Judicial
35Commissioners have the functions that are exercisable by them by virtue of any
other Part of this Act or by virtue of any other enactment.

(2) 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
40“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”,

Investigatory Powers BillPage 155

(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) 5in 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) 10in 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”.

(3) In Part 2 of the Regulation of Investigatory Powers Act 2000 (surveillance and
15covert 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)
20and (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) 25in 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) 30in 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”.

(4) In Part 3 of the Act of 2000 (investigation of electronic data protected by
35encryption 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
40Commissioner”,

(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
45Commissioner in certain circumstances relating to a disclosed key) for
“relevant Commissioner” substitute “Judicial Commissioner”, and

(d) omit sections 54(11) and 55(8) (definitions of “relevant Commissioner”).

(5) In the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 112000 asp 11)
(surveillance and covert human intelligence sources: approval by
50Commissioners and review by the Chief Commissioner)—

Investigatory Powers BillPage 156

(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
5heading 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
10“Investigatory Powers Commissioner (if the Commissioner is not that
Commissioner)”,

(e) in section 16(1)(a) for “an ordinary Surveillance Commissioner”
substitute “a Judicial Commissioner (other than the Investigatory
Powers Commissioner)”,

(f) 15in sections 16(5)(b) and 17(1)(b) for “ordinary Surveillance
Commissioner” substitute “Judicial Commissioner”, and

(g) in section 16(5) for “ordinary Surveillance Commissioner’s” substitute
“Judicial Commissioner’s”.

(6) In Part 2 of the Regulation of Investigatory Powers (Covert Human Intelligence
20Sources: Relevant Sources) Order 2013 (S.I. 2013/2788S.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) 25in 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
30“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

201 35Annual and other reports

(1) 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.

(2) A report under subsection (1) must, in particular, include—

(a) 40statistics 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) 45the information on errors required by virtue of section 198(8),

(d) information about the funding, staffing and other resources of the
Judicial Commissioners, and

Investigatory Powers BillPage 157

(e) details of public engagements undertaken by the Judicial
Commissioners or their staff.

(3) The Investigatory Powers Commissioner must, at any time, make any report to
the Prime Minister which has been requested by the Prime Minister.

(4) 5The 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.

(5) A report under subsection (1) or (4) may, in particular, include such
10recommendations as the Investigatory Powers Commissioner considers
appropriate about any matter relating to the functions of the Judicial
Commissioners.

(6) On receiving a report from the Investigatory Powers Commissioner under
subsection (1), the Prime Minister must—

(a) 15publish 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).

(7) The Prime Minister may, after consultation with the Investigatory Powers
20Commissioner 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) 25national 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
30Investigatory Powers Commissioner.

(8) The Prime Minister must send a copy of every report and statement as laid
before Parliament under subsection (6)(b) to—

(a) the Scottish Ministers, and

(b) the First Minister and the deputy First Minister in Northern Ireland.

(9) 35They must lay that copy report and statement before—

(a) in the case of the Scottish Ministers, the Scottish Parliament, and

(b) in the case of the First Minister and the deputy First Minister in
Northern Ireland, the Northern Ireland Assembly.

(10) The Investigatory Powers Commissioner may publish any report under
40subsection (3) or (4), or any part of such a report, if requested to do so by the
Prime Minister.

202 Investigation and information powers

(1) A Judicial Commissioner may carry out such investigations, inspections and
audits as the Commissioner considers appropriate for the purposes of the
45Commissioner’s functions.

Investigatory Powers BillPage 158

(2) 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.

(3) Every relevant person must provide a Judicial Commissioner with such
5assistance as the Commissioner may require in carrying out any investigation,
inspection or audit for the purposes of the Commissioner’s functions.

(4) 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
10for the purposes of the Commissioner’s functions.

(5) 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.

(6) A public authority, telecommunications operator or postal operator must
15report to the Investigatory Powers Commissioner any relevant error (within
the meaning given by section 198(9)) of which it is aware.

(7) In this section “relevant person” means—

(a) any member of a public authority,

(b) any telecommunications operator or postal operator who is, has been or
20may 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 34, 36, 109, 111, 131, 147, 149 or
167, or

(d) any person to whom a notice is given under section 49 of the Regulation
25of Investigatory Powers Act 2000.

203 Information gateway

(1) 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—

(a) 30an obligation of confidence owed by the person making the disclosure,
or

(b) any other restriction on the disclosure of information (whether
imposed by virtue of this Act or otherwise).

(2) But subsection (1) does not apply to a disclosure, in contravention of any
35provisions of the Data Protection Act 1998, of personal data which is not
exempt from those provisions.

Supplementary provision

204 Funding, staff and facilities

(1) There is to be paid to the Judicial Commissioners out of money provided by Parliament
40such remuneration and allowances as the Treasury may determine.

(2) 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—

Investigatory Powers BillPage 159

(a) such staff, and

(b) such accommodation, equipment and other facilities,

as the Secretary of State considers necessary for the carrying out of the Commissioners’
functions.

205 5Power to modify functions

(1) The Secretary of State may by regulations modify the functions of the
Investigatory Powers Commissioner or any other Judicial Commissioner.

(2) But such regulations may not modify any function conferred by virtue of this
Act on a Judicial Commissioner to approve, quash or cancel—

(a) 10an authorisation or warrant, or

(b) the variation or renewal of an authorisation or warrant.

(3) The power to make regulations under this section (including that power as
extended by section 228(1)(c)) may, in particular, be exercised by modifying
any provision made by or under an enactment (including this Act).

206 15Abolition of existing oversight bodies

(1) The offices of the following are abolished—

(a) the Interception of Communications Commissioner,

(b) the Intelligence Services Commissioner,

(c) the Investigatory Powers Commissioner for Northern Ireland,

(d) 20the Chief Surveillance Commissioner,

(e) the other Surveillance Commissioners,

(f) the Scottish Chief Surveillance Commissioner, and

(g) the other Scottish Surveillance Commissioners.

(2) Accordingly, the following enactments are repealed—

(a) 25sections 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) section 61 of that Act (the Investigatory Powers Commissioner for
30Northern Ireland),

(d) sections 62 and 63 of that Act and sections 91 and 107 of the Police Act
1997 (the Surveillance Commissioners),

(e) section 64 of the Regulation of Investigatory Powers Act 2000
(delegation of Commissioners’ functions), and

(f) 35sections 2(1) to (9), 3 and 4 of the Regulation of Investigatory Powers
(Scotland) Act 2000 (2000 asp 112000 asp 11) (the Scottish Surveillance
Commissioners).

(3) In this section—

  • “the other Scottish Surveillance Commissioners” means—

    (a)

    40the 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,

  • Investigatory Powers BillPage 160

  • “the Scottish Chief Surveillance Commissioner” means the Chief
    Surveillance Commissioner appointed under section 2(1)(a) of that Act.

CHAPTER 2 Other arrangements

Codes of practice

207 5Codes of practice

Schedule 7 (codes of practice) has effect.

Investigatory Powers Tribunal

208 Right of appeal from Tribunal

(1) After section 67 of the Regulation of Investigatory Powers Act 2000 insert—

67A 10Appeals 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).

(2) Before making a determination or decision which might be the subject
15of an appeal under this section, the Tribunal must specify the court
which is to have jurisdiction to hear the appeal (“the relevant appellate
court”).

(3) This court is whichever of the following courts appears to the Tribunal
to be the most appropriate—

(a) 20the Court of Appeal in England and Wales,

(b) the Court of Session,

(c) the Court of Appeal in Northern Ireland.

(4) The Secretary of State may by regulations specify criteria to be applied
by the Tribunal in making decisions under subsection (2) as to the
25identity of the relevant appellate court.

(5) 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.

(6) 30The 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.

(7) 35In this section—

  • “relevant appellate court” has the meaning given by subsection
    (2),

  • Investigatory Powers BillPage 161

  • “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
    5against, and

    (c)

    in the case of a reference, any public authority to whom
    the reference relates.”

(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) 10in 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).

(3) After section 68(4) of that Act (requirement to give notice of determinations to
15complainant) 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) 20in the case of a reference, any public authority to whom the
reference relates.

(4B) 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
25complainant’s favour, or

(b) a statement that no determination has been made in the
complainant’s favour.

(4C) Where the Tribunal make any decision which—

(a) is a final decision of a preliminary issue in relation to any
30proceedings, complaint or reference brought before or made to
them, and

(b) 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
35entitled 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.

(4E) 40Subsections (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.”

(4) 45In section 69(2) of that Act (Tribunal rules)—

(a) in paragraph (i), after “section 68(4)” insert “or notice under section
68(4C)”, and

Investigatory Powers BillPage 162

(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
5provided (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) 10in 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”.

(5) 15In section 78 of that Act (orders, regulations and rules)—

(a) in subsection (4), after “applies” insert “(other than regulations under
section 67A(4))”, and

(b) after subsection (4) insert—

(4A) A statutory instrument containing regulations under section
2067A(4) may not be made unless a draft of the instrument has
been laid before, and approved by a resolution of, each House
of Parliament.”

209 Functions of Tribunal in relation to this Act

(1) In section 65 of the Regulation of Investigatory Powers Act 2000 (the
25Investigatory 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 48 of the Investigatory Powers Act 2016”,

(b) in subsection (5) (conduct in relation to which the Tribunal has
30jurisdiction) 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;”,

(c) in subsection (5) for paragraph (c) substitute—

(c) 35conduct of a kind which may be permitted or required
by an authorisation or notice under Part 3 of the
Investigatory Powers Act 2016 or a warrant under
Chapter 2 of Part 6 of that Act (acquisition of
communications data);

(cza) 40the giving or varying of an authorisation or notice under
Part 3 of that Act or 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
45of 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;”,

Investigatory Powers BillPage 163

(d) 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 66 of the
Investigatory Powers Act 2016”,

(e) 5after subsection (7ZA) insert—

(7ZB) 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)(cza) or (czc).”,

(f) in subsection (8) (matters that may be challenged before the Tribunal)
10for 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;”, and

(g) 15after subsection (9) insert—

(9A) 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 14 of the Investigatory Powers Act 2016”.

(2) 20In 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;”,

(b) 25in paragraph (aa) for “section 23A or 32A” substitute “section 66 of the
Investigatory Powers Act 2016 or section 32A of this Act”, and

(c) in paragraph (b) after “authorisation” insert “or by a notice under Part
3 of the Investigatory Powers Act 2016”.

(3) In section 68(5)(b) of the Act of 2000 (report of certain findings to the Prime
30Minister) after “permission” insert “, or notice under Part 4 of the Investigatory
Powers Act 2016,”.

(4) 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”.

(5) 35In 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 34, 109, 131, 147 or 167 of the
Investigatory Powers Act 2016”, and

(ii) 40for “an interception warrant” substitute “a warrant”,

(b) in paragraph (f) for “section 12” substitute “section 217 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) 45every 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 has been given;”,

Investigatory Powers BillPage 164

(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
5or 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)”.

(6) 10In 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”.

Information Commissioner

210 Oversight by Information Commissioner in relation to Part 4

15The 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.

Technical Advisory Board

211 Technical Advisory Board

(1) 20There 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.

(2) The regulations providing for the membership of the Technical Advisory
Board must also make provision which is calculated to ensure—

(a) 25that 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 or technical
capability notices under section 217,

(b) that the membership of the Board includes persons likely effectively to
30represent 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
35representation of the interests mentioned in paragraph (a) and the
representation of those mentioned in paragraph (b).

(3) Regulations under this section may also make provision about quorum and the
filling of vacancies.

Investigatory Powers BillPage 165

Part 9 Miscellaneous and general provisions

CHAPTER 1 Miscellaneous

Combined warrants and authorisations

212 5Combination of warrants and authorisations