Investigatory Powers Bill (HC Bill 143)

Investigatory Powers BillPage 170

(4) The Secretary of State may vary a national security notice only if 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.

(5) If the Secretary of State varies or revokes a relevant notice given to any person,
5the Secretary of State must give that person notice of the variation or
revocation.

(6) Subsections (2) to (4) and (7) of section 218 apply in relation to varying or
revoking a relevant notice as they apply in relation to giving a relevant notice.

(7) Subsections (5) and (6) of section 218 apply to any notice of the variation or
10revocation of a relevant notice as they apply to a relevant notice.

(8) The fact that a relevant notice has been revoked in relation to a particular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).

(9) 15Any reference in this section or section 218(8) to (11) to a notice given under
section 216 or 217 includes a reference to such a notice as varied under this
section.

220 Review by the Secretary of State

(1) A person who is given a notice under section 216 or 217 may, within such
20period or circumstances as may be provided for by regulations made by the
Secretary of State, refer the notice back to the Secretary of State.

(2) Such a reference may be in relation to the whole of a notice or any aspect of it.

(3) 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
25of State has reviewed the notice in accordance with subsection (4).

(4) The Secretary of State must review any notice so far as referred to the Secretary
of State under subsection (1).

(5) Before deciding the review, the Secretary of State must consult—

(a) the Technical Advisory Board, and

(b) 30the Investigatory Powers Commissioner.

(6) 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.

(7) The Commissioner must consider whether the notice so far as referred is
35proportionate.

(8) 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) 40report their conclusions to—

(i) the person, and

(ii) the Secretary of State.

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(9) The Secretary of State may, after considering the conclusions of the Board and
the Commissioner—

(a) vary or revoke the notice under section 219, or

(b) give a notice under this section to the person confirming its effect.

(10) 5Subsections (5) to (8) of section 218 apply in relation to a notice under
subsection (9)(b) above as they apply in relation to a notice under section 216
or 217.

(11) Any reference in this section to a notice under section 216 or 217 includes such
a notice as varied under section 219, but only so far as the variation is
10concerned.

But it does not include a notice varied as mentioned in subsection (9)(a) above.

Wireless telegraphy

221 Amendments of the Wireless Telegraphy Act 2006

(1) The Wireless Telegraphy Act 2006 is amended as follows.

(2) 15Section 48 (interception and disclosure of messages) is amended as follows.

(3) In subsection (1), for “otherwise than under the authority of a designated
person” substitute “without lawful authority”.

(4) After subsection (3) insert—

(3A) A person does not commit an offence under this section consisting in
20any conduct if the conduct—

(a) constitutes an offence under section 2 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 5 of that Act).”

(5) 25Omit subsection (5).

(6) Omit section 49 (interception authorities).

(7) 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).

CHAPTER 2 30General

Review of operation of Act

222 Review of operation of Act

(1) 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.

(2) 35In subsection (1) “the initial period” is the period of 5 years and 6 months
beginning with the day on which this Act is passed.

Investigatory Powers BillPage 172

(3) 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).

(4) 5The Secretary of State must—

(a) publish the report prepared under subsection (1), and

(b) lay a copy of it before Parliament.

Interpretation

223 Telecommunications definitions

(1) 10The 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
15any 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) 20“Entity data” means any data which—

(a) is about—

(i) an entity,

(ii) an association between a telecommunications service and an
entity, or

(iii) 25an 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.

30Events 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.

35Communications 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
40behalf 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,

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(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
5transmitted, 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
10within 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) 15is 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,
20telecommunications 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
25data relating to the transmission of the communication is to be
disregarded, and

(b) anything which is systems data is not content.

Other definitions

(7) “Entity” means a person or thing.

(8) 30“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.

(9) “Public telecommunication system” means a telecommunication system
located in the United Kingdom—

(a) 35by 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.

(10) “Telecommunications operator” means a person who—

(a) 40offers 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) 45controlled from the United Kingdom.

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(11) “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).

(12) For the purposes of subsection (11), the cases in which a service is to be taken
5to 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.

(13) “Telecommunication system” means a system (including the apparatus
10comprised 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.

(14) “Private telecommunication system” means any telecommunication system
15which—

(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) 20includes 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.

224 Postal definitions

(1) The definitions in this section have effect for the purposes of this Act.

25Communication

(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) 30“Communications data”, in relation to a postal operator or postal service,
means—

(a) 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
35be transmitted,

(b) 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

(c) information not within paragraph (a) or (b) that is (or is to be) held or
40obtained 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—

Investigatory Powers BillPage 175

(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
5transmitted,

(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.

10For 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
15sender for imparting information to the recipient, or

(b) any packet or parcel.

(6) “Postal operator” means a person providing a postal service to persons in the
United Kingdom.

(7) “Postal service” means a service that—

(a) 20consists 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
25items containing communications.

(8) “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.

225 General definitions

(1) 30In this Act—

  • “apparatus” includes any equipment, machinery or device (whether
    physical or logical) and any wire or cable,

  • “civil proceedings” means any proceedings in or before any court or
    tribunal that are not criminal proceedings,

  • 35“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,

  • 40“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),

  • 45“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),

  • Investigatory Powers BillPage 176

  • “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)

    5an 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,
    10Northern Ireland legislation,

  • “enhanced affirmative procedure” is to be read in accordance with section
    229,

  • “functions” includes powers and duties,

  • GCHQ” has the same meaning as in the Intelligence Services Act 1994,

  • 15“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
    202006,

  • “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
    25under section 194(1)(a) (and the expression is also to be read in
    accordance with section 194(8)(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)

    30in 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
    35and the adviser’s client, or

    (ii)

    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
    40confidentiality 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)S.I. 1989/1341 (N.I. 12)) (see Article 12 of that Order),

  • 45“Judicial Commissioner” means a person appointed under section
    194(1)(a) or (b) (and the expression is therefore to be read in accordance
    with section 194(8)(a)),

  • “legal proceedings” means—

    (a)

    civil or criminal proceedings in or before a court or tribunal, or

    (b)

    50proceedings before an officer in respect of a service offence
    within the meaning of the Armed Forces Act 2006,

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  • “modify” includes amend, repeal or revoke (and related expressions are
    to be read accordingly),

  • “person” (other than in Parts 2 and 5) includes an organisation and any
    association or combination of persons,

  • 5“person holding office under the Crown” includes any servant of the
    Crown and any member of Her Majesty’s forces,

  • “primary legislation” means—

    (a)

    an Act of Parliament,

    (b)

    an Act of the Scottish Parliament,

    (c)

    10a 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)

    15the 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
    20term 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,

  • “specified”, in relation to an authorisation, warrant, notice or regulations,
    25means specified or described in the authorisation, warrant, notice or (as
    the case may be) regulations (and “specify” is to be read accordingly),

  • “subordinate legislation” means—

    (a)

    subordinate legislation within the meaning of the Interpretation
    Act 1978, or

    (b)

    30an 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
    35211,

  • “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) 40data which may be used to identify, or assist in identifying, any person,
apparatus, system or service,

(b) data which may be used to identify any event, or

(c) data which may be used to identify the location of any person, event or
thing.

(3) 45For the purposes of subsection (2), the reference to data which may be used to
identify 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.

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(4) 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) 5a 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) 10any service provided by means of a relevant system.

(5) 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.

(6) For the purposes of this Act detecting crime or serious crime is to be taken to
include—

(a) 15establishing 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.

(7) 20References 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.

226 Index of defined expressions

In this Act, the expressions listed in the left-hand column have the meaning
25given by, or are to be interpreted in accordance with, the provisions listed in
the right-hand column.

Expression Provision
Apparatus Section 225(1)
Bulk equipment interference warrant Section 154(1)
Bulk interception warrant 30Section 119(1)
Civil proceedings Section 225(1)
Communication Sections 223(2) and 224(2)
Communications data Sections 223(5) and 224(3)
Content of a communication (in relation to a
telecommunications operator, telecommunications service
or telecommunication system)
Section 223(6)
35
Crime Section 225(1)
Criminal proceedings Section 225(1)
Criminal prosecution Section 225(1)
Data 40Section 225(1)

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Expression Provision
Destroy (in relation to electronic data) and related
expressions
Section 225(1)
Detecting crime or serious crime Section 225(6)
Enactment 5Section 225(1)
Enhanced affirmative procedure Section 225(1)
Entity Section 223(7)
Entity data Section 223(3)
Events data Section 223(4)
Examination (in relation to material obtained under a
warrant)
10Section 225(7)
Functions Section 225(1)
GCHQ Section 225(1)
Head (in relation to an intelligence service) Section 225(1)
Her Majesty’s forces 15Section 225(1)
Identifying data Section 225(2) and (3)
Intelligence service Section 225(1)
Interception of communication (postal service) Sections 3(7) and 4
Interception of communication (telecommunication system) Sections 3(1) to (6) and 4(1)
Interception of communication in the United Kingdom 20Section 3(8)
Internet connection record Section 54(6)
Investigatory Powers Commissioner Section 225(1)
Investigatory Powers Tribunal Section 225(1)
Items subject to legal privilege Section 225(1)
Judicial Commissioner 25Section 225(1)
Judicial Commissioners Section 194(6)
Lawful authority (in relation to interception of
communication)
Section 5
Legal proceedings Section 225(1)
Modify (and related expressions) 30Section 225(1)
Person (other than in Parts 2 and 5) Section 225(1)
Person holding office under the Crown Section 225(1)
Postal data Section 224(4)
Postal item Section 224(5)
Postal item in course of transmission by postal service 35Section 3(7)

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Expression Provision
Postal operator Section 224(6)
Postal service Section 224(7)
Primary legislation Section 225(1)
Private telecommunication system 5Section 223(14)
Public authority Section 225(1)
Public postal service Section 224(8)
Public telecommunications service Section 223(8)
Public telecommunication system Section 223(9)
Serious crime 10Section 225(1)
Source of journalistic information Section 68(7)
Specified and specify (in relation to an authorisation,
warrant, notice or regulations)
Section 225(1)
Subordinate legislation Section 225(1)
Systems data 15Section 225(4) and (5)
Technical Advisory Board Section 225(1)
Telecommunications operator Section 223(10)
Telecommunications service Section 223(11) and (12)
Telecommunication system Section 223(13)
Working day 20Section 225(1)

Supplementary provision

227 Offences by bodies corporate etc.

(1) This section applies if an offence under this Act is committed by a body
corporate or a Scottish partnership.

(2) 25If 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
30guilty of the offence and liable to be proceeded against and punished
accordingly.

(3) In this section—

  • “director”, in relation to a body corporate whose affairs are managed by
    its members, means a member of the body corporate,

  • 35“senior officer” means—

    Investigatory Powers BillPage 181

    (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.

228 5Regulations

(1) 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
10purposes or different areas, and

(c) includes power to make supplementary, incidental, consequential,
transitional, transitory or saving provision.

(2) See sections 63(3) and 64(6) for the procedure for a statutory instrument
containing regulations under section 62 to which section 63 applies or (as the
15case may be) regulations under section 64(4) to which section 64(5) applies
(enhanced affirmative procedure).

(3) A statutory instrument containing regulations under—

(a) section 10(4) or 232(2) which amend or repeal any provision of primary
legislation,

(b) 20section 39(2),

(c) section 45(4),

(d) section 74,

(e) section 80(1),

(f) section 205,

(g) 25section 211,

(h) section 217,

(i) section 220(1), or

(j) paragraph 33 of Schedule 8,

may not be made unless a draft of the instrument has been laid before, and
30approved by a resolution of, each House of Parliament.

(4) A statutory instrument containing—

(a) regulations under section 10(4) or 232(2) to which subsection (3) does
not apply,

(b) regulations under section 56(5), or

(c) 35regulations 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.

(5) A statutory instrument containing—

(a) 40regulations under section 8(3),

(b) regulations under section 50(7)(a),

(c) regulations under section 62 to which section 63 does not apply,

(d) regulations under section 64(4) to which section 64(5) does not apply,

(e) regulations under section 115(6)(a), or

(f) 45regulations under section 218(7),

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is subject to annulment in pursuance of a resolution of either House of
Parliament.

(6) A statutory instrument containing regulations under paragraph 4 of Schedule
5 is subject to annulment in pursuance of a resolution of the House of
5Commons.

(7) 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
10choice between that procedure and laying before Parliament after being made).

(8) 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
15(7)).

(9) 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
20highest first)—

(a) the procedure set out in subsection (3) (the affirmative procedure),

(b) the procedure set out in subsection (5) above (the negative procedure),

(c) no procedure.

(10) Provision is not prevented from being included in regulations made under this
25Act 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.

229 Enhanced affirmative procedure

(1) For the purposes of regulations under section 62 to which section 63 applies
30and regulations under section 64(4) to which section 64(5) applies, the
enhanced affirmative procedure is as follows.

(2) Subsection (3) applies if—

(a) the Secretary of State has consulted under section 63(2) or (as the case
may be) 64(5) in relation to making such regulations,

(b) 35a 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.

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

(a) 40draft regulations, and

(b) a document which explains the regulations.

(4) 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.

(5) 45But subsections (6) to (9) apply instead of subsection (4) if—

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(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
5recommendation within that period.

(6) 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
10charged with reporting on the draft regulations,

made during the 60-day period with regard to the draft regulations.

(7) 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.

(8) 15If 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.

(9) 20If 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.

(10) 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
25the provisions of the draft, or revised draft, regulations.

(11) 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
30which Parliament is dissolved or prorogued or during which either House is
adjourned for more than four days.

230 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
35department 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.

231 Transitional, transitory or saving provision

(1) Schedule 9 (which contains transitional, transitory and saving provision
40including a general saving for lawful conduct) has effect.

(2) 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.

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232 Minor and consequential provision

(1) Schedule 10 (which contains minor and consequential provision) has effect.

(2) The Secretary of State may by regulations make such provision as the Secretary
of State considers appropriate in consequence of this Act.

(3) 5The power to make regulations under subsection (2) may, in particular, be
exercised by modifying any provision made by or under an enactment.

Final provision

233 Commencement, extent and short title

(1) Subject to subsections (2) and (3), this Act comes into force on such day as the
10Secretary of State may by regulations appoint; and different days may be
appointed for different purposes.

(2) Sections 222 to 230, 231(2), 232(2) and (3) and this section come into force on the
day on which this Act is passed.

(3) Sections 194 and 195 come into force at the end of the period of two months
15beginning with the day on which this Act is passed.

(4) Subject to subsections (5) and (6), this Act extends to England and Wales,
Scotland and Northern Ireland.

(5) An amendment, repeal or revocation of an enactment has the same extent as
the enactment amended, repealed or revoked.

(6) 20Her Majesty may by Order in Council provide for any of the provisions of this
Act to extend, with or without modifications, to any of the British overseas
territories.

(7) This Act may be cited as the Investigatory Powers Act 2016.

Investigatory Powers BillPage 185

SCHEDULES

Section 6

SCHEDULE 1 Monetary penalty notices

Part 1 5Monetary penalty notices

Payment of monetary penalties

1 (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
10beginning 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) 15state 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) 20state 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) 25provide 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) 30The 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) a requirement on the person on whom the notice is served to cease
the interception on a specified day or within a specified period;

(b) (where appropriate for achieving such a cessation) a requirement on
the person to take specified steps within a specified period, or to
5refrain 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
10grounds 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) 15A 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
20monetary 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
25enforcement 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
30in 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
35(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
40for 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 6(3)(c), or

(ii) any other matter relating to the Commissioner’s proposal
45which, by virtue of section 48, 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
5person 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
10mentioned 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
15person 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) 20But 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.

25Variation 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
30notice 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
35penalty, 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
40serving 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) 5A 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) 10Where 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) 15Sub-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) 20that 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) 25In 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) 30The 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) 35The 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) 40In 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

Investigatory Powers BillPage 189

(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
5sheriff 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
10statutory 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
15section 6 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,