Investigatory Powers Bill (HC Bill 143)

Investigatory Powers BillPage 200

(i) the Parole Commissioners for Northern Ireland, or

(ii) any Sentence Review Commissioners appointed under
section 1 of the Northern Ireland (Sentences) Act 1998, or

(b) any proceedings arising out of such proceedings.

(2) 5But sub-paragraph (1) does not permit the disclosure of anything to—

(a) any person, other than the Secretary of State, who is or was a party
to the proceedings, or

(b) any person who—

(i) represents such a person for the purposes of the proceedings,
10and

(ii) does so otherwise than by virtue of appointment as a special
advocate.

Employment or industrial tribunal proceedings

14 (1) Section 48(1) does not apply in relation to any proceedings before an
15employment tribunal where the applicant, or the applicant’s
representatives, are excluded for all or part of the proceedings pursuant to—

(a) a direction to the tribunal by virtue of section 10(5)(b) or (c) of the
Employment Tribunals Act 1996 (exclusion from Crown
employment proceedings by direction of Minister in interests of
20national security), or

(b) a determination of the tribunal by virtue of section 10(6) of that Act
(determination by tribunal in interests of national security).

(2) Section 48(1) does not apply in relation to any proceedings before an
industrial tribunal in Northern Ireland where the applicant, or the
25applicant’s representatives, are excluded for all or part of the proceedings
pursuant to—

(a) a direction to the tribunal by virtue of Article 12(5)(b) or (c) of the
Industrial Tribunals (Northern Ireland) Order 1996 (S.I. 1996/1921S.I. 1996/1921
(N.I. 18)) (exclusion from Crown employment proceedings by
30direction of Minister in interests of national security), or

(b) a determination of the tribunal by virtue of Article 12(6) of that Order
(determination by tribunal in interests of national security).

(3) Section 48(1) does not apply in relation to any proceedings arising out of
proceedings within sub-paragraph (1) or (2).

15 35But paragraph 14 does not permit the disclosure of anything to—

(a) the person who is or was the applicant in the proceedings before the
employment or industrial tribunal, or

(b) any person who—

(i) represents that person for the purposes of any proceedings
40within paragraph 14, and

(ii) does so otherwise than by virtue of appointment as a special
advocate.

Proceedings relating to dismissal for certain offences

16 Section 48(1) does not prohibit anything done in, for the purposes of, or in
45connection with, so much of any legal proceedings as relates to the fairness
or unfairness of a dismissal on the following grounds—

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(a) any conduct constituting an offence under section 2(1), 36(7) or 51;

(b) any conduct taking place before the coming into force of this
paragraph and constituting—

(i) an offence under section 1(1) or (2), 11(7) or 19 of the
5Regulation of Investigatory Powers Act 2000, or

(ii) an offence under section 1 of the Interception of
Communications Act 1985.

Proceedings on appeals relating to claims of discrimination in Northern Ireland

17 (1) Section 48(1) does not apply in relation to any proceedings on an appeal
10under Article 80(2) of the Fair Employment and Treatment (Northern
Ireland) Order 1998 (S.I. 1998/3162 (N.I. 21)S.I. 1998/3162 (N.I. 21)) where—

(a) the appeal relates to a claim of discrimination in contravention of
Part 3 of that Order (employment cases) and to a certificate of the
Secretary of State that the act concerned was justified for the purpose
15of safeguarding national security, and

(b) a party to the appeal, or the party’s representatives, are excluded for
all or part of the proceedings by virtue of section 91(4)(b) of the
Northern Ireland Act 1998.

(2) Section 48(1) does not apply in relation to any proceedings arising out of
20proceedings within sub-paragraph (1).

18 But paragraph 17 does not permit the disclosure of anything to—

(a) any person who is or was excluded from all or part of the
proceedings mentioned in paragraph 17(1), or

(b) any person who—

(i) 25represents such a person for the purposes of any proceedings
within paragraph 17, and

(ii) does so otherwise than by virtue of appointment as a special
advocate.

Civil proceedings for enforcement of duty to assist with implementation of warrants

19 30Section 48(1) does not apply in relation to any civil proceedings under
section 36(8) of this Act or section 11(8) of the Regulation of Investigatory
Powers Act 2000 (enforcement of duty of operators to assist with
implementation of warrants).

Proceedings for certain offences

20 (1) 35Section 48(1) does not apply in relation to any proceedings for a relevant
offence.

(2) “Relevant offence” means—

(a) an offence under any provision of this Act;

(b) an offence under section 1 of the Interception of Communications
40Act 1985;

(c) an offence under any provision of the Regulation of Investigatory
Powers Act 2000;

(d) an offence under section 47 or 48 of the Wireless Telegraphy Act
2006;

(e) 45an offence under section 83 or 84 of the Postal Services Act 2000;

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(f) an offence under section 4 of the Official Secrets Act 1989 relating to
any such information, document or article as is mentioned in
subsection (3)(a) or (c) of that section;

(g) an offence under section 1 or 2 of the Official Secrets Act 1911 relating
5to any sketch, plan, model, article, note, document or information
which—

(i) incorporates, or relates to, the content of any intercepted
communication or any secondary data obtained from a
communication, or

(ii) 10tends to suggest that any interception-related conduct has or
may have occurred or may be going to occur;

(h) an offence of perjury committed in the course of any relevant
proceedings;

(i) an offence of attempting or conspiring to commit an offence falling
15within any of paragraphs (a) to (h);

(j) an offence under Part 2 of the Serious Crime Act 2007 in relation to
an offence falling within any of those paragraphs;

(k) an offence of aiding, abetting, counselling or procuring the
commission of an offence falling within any of those paragraphs;

(l) 20contempt of court committed in the course of, or in relation to, any
relevant proceedings.

(3) In this paragraph—

  • “intercepted communication” and “interception-related conduct” have
    the same meaning as in section 48;

  • 25“relevant proceedings” means any proceedings mentioned in
    paragraphs 4 to 19.

Disclosures to prosecutors and judges

21 (1) Nothing in section 48(1) prohibits—

(a) a disclosure to a person (“P”) conducting a criminal prosecution that
30is made for the purpose only of enabling P to determine what is
required of P by P’s duty to secure the fairness of the prosecution, or

(b) a disclosure to a relevant judge in a case in which the judge has
ordered the disclosure to be made to the judge alone.

(2) A relevant judge may order a disclosure under sub-paragraph (1)(b) only if
35the judge considers that the exceptional circumstances of the case make the
disclosure essential in the interests of justice.

(3) Where in any criminal proceedings—

(a) a relevant judge orders a disclosure under sub-paragraph (1)(b), and

(b) in consequence of that disclosure, the judge considers that there are
40exceptional circumstances requiring the judge to make a direction
under this sub-paragraph,

the judge may direct the person conducting the prosecution to make for the
purposes of the proceedings any admission of fact which the judge considers
essential in the interests of justice.

(4) 45But nothing in any direction under sub-paragraph (3) may authorise or
require anything to be done in contravention of section 48(1).

(5) In this paragraph “relevant judge” means—

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(a) any judge of the High Court or of the Crown Court or any Circuit
judge,

(b) any judge of the High Court of Justiciary or any sheriff,

(c) in relation to proceedings before the Court Martial, the judge
5advocate for those proceedings, or

(d) any person holding a judicial office that entitles the person to
exercise the jurisdiction of a judge falling within paragraph (a) or (b).

Disclosures to inquiries and inquests

22 (1) Nothing in section 48(1) prohibits—

(a) 10a disclosure to the panel of an inquiry held under the Inquiries Act
2005, or

(b) a disclosure to a person appointed as legal adviser to such an inquiry,

where, in the course of the inquiry, the panel has ordered the disclosure to
be made to the panel alone or (as the case may be) to the panel and any
15person appointed as legal adviser to the inquiry.

(2) The panel of an inquiry may order a disclosure under sub-paragraph (1)
only if it considers that the exceptional circumstances of the case make the
disclosure essential to enable the inquiry to fulfil its terms of reference.

(3) Any reference in this paragraph to a person appointed as legal adviser to an
20inquiry is a reference to a person appointed as solicitor or counsel to the
inquiry.

23 (1) Section 48(1) does not apply in relation to any restricted proceedings of an
inquiry held under the Inquiries Act 2005.

(2) Proceedings of an inquiry held under that Act are “restricted proceedings”
25for the purposes of this paragraph if any restrictions imposed under section
19 of that Act on attendance at the inquiry are in force in relation to the
proceedings.

(3) But sub-paragraph (1) does not permit any disclosure which has not been
made in accordance with paragraph 22(1) above.

24 (1) 30Nothing in section 48(1) prohibits—

(a) a disclosure to a person (the “nominated person”) nominated under
paragraph 3(1) of Schedule 10 to the Coroners and Justice Act 2009
(investigation by judge or former judge) to conduct an investigation
into a person’s death, or

(b) 35a disclosure to a person appointed as legal adviser to an inquest
forming part of an investigation conducted by the nominated person,

where, in the course of the investigation, the nominated person has ordered
the disclosure to be made to the nominated person alone or (as the case may
be) to the nominated person and any person appointed as legal adviser to
40the inquest.

(2) The nominated person may order a disclosure under sub-paragraph (1) only
if the person considers that the exceptional circumstances of the case make
the disclosure essential in the interests of justice.

(3) Nothing in section 48(1) prohibits a disclosure to any other person
45conducting an investigation under Part 1 of the Coroners and Justice Act

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2009 into a person’s death that there is intercepted material in existence
which is, or may be, relevant to the investigation.

(4) Any reference in this paragraph to a person appointed as legal adviser to an
inquest is a reference to a person appointed as solicitor or counsel to the
5inquest.

Section 61(1)

SCHEDULE 4 Relevant public authorities and designated senior officers

Part 1 Table of authorities and officers

Table
10
(1)
Relevant public authority
(2)
DSO: minimum office, rank or
position
(3)
Type of communications
data that may be obtained
by DSO
(4)
Paragraphs of
section 53(7)
specified for DSO
Police force maintained under
section 2 of the Police Act
1996
Inspector Entity data 15(a), (b), (c), (d),
(e), (g) and (i)
Superintendent All (a), (b), (c), (d),
(e), (g) and (i)
Metropolitan police force Inspector Entity data 20(a), (b), (c), (d),
(e), (g) and (i)
Superintendent All (a), (b), (c), (d),
(e), (g) and (i)
City of London police force Inspector Entity data (a), (b), (c), (d),
25(e), (g) and (i)
Superintendent All (a), (b), (c), (d),
(e), (g) and (i)
Police Service of Scotland Inspector Entity data (a), (b), (c), (d),
(e), (g) and (i)
Superintendent All 30(a), (b), (c), (d),
(e), (g) and (i)
Police Service of Northern
Ireland
Inspector Entity data (a), (b), (c), (d),
(e), (g) and (i)
Superintendent All (a), (b), (c), (d),
35(e), (g) and (i)
British Transport Police Force Inspector Entity data (a), (b), (c), (d),
(e), (g) and (i)
Superintendent All (a), (b), (c), (d),
(e), (g) and (i)
Ministry of Defence Police Inspector Entity data 40(a), (b), (c) and
(g)
Superintendent All (a), (b), (c) and
(g)

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(1)
Relevant public authority
(2)
DSO: minimum office, rank or
position
(3)
Type of communications
data that may be obtained
by DSO
(4)
Paragraphs of
section 53(7)
specified for DSO
Royal Navy Police Lieutenant Commander Entity data 5(a), (b), (c) and
(g)
Commander All (a), (b), (c) and
(g)
Royal Military Police Major Entity data (a), (b), (c) and
10(g)
Lieutenant Colonel All (a), (b), (c) and
(g)
Royal Air Force Police Squadron Leader Entity data (a), (b), (c) and
(g)
Wing Commander All 15(a), (b), (c) and
(g)
Security Service General Duties 4 or any other
level 4 officer
Entity data (a), (b) and (c)
General Duties 3 or any other
level 3 officer
All (a), (b) and (c)
20
Secret Intelligence Service Grade 6 All (a), (b) and (c)
GCHQ GC8 All (a), (b) and (c)
Ministry of Defence Member of the Senior Civil
Service or equivalent
All (a)
Grade 7 in the Fraud Defence
Unit
All 25(b)
Department of Health Grade 7 in the Medicines and
Healthcare Products
Regulatory Agency
All (b), (d) and (e)

Grade 7 in the Anti-Fraud
Unit
All 30(b)
Home Office Immigration inspector or
equivalent with responsibility
for investigations or other
functions relating to
immigration and border
security
All (b)


35

Immigration inspector or
equivalent with responsibility
for anti-corruption in relation
to investigations or other
functions relating to
immigration and border
security
All (b)

40



Immigration inspector or
equivalent with responsibility
for asylum fraud
investigations
All 45(b)


Immigration inspector or
equivalent with responsibility
for security and intelligence
in the immigration detention
estate
All (b), (d) and (i)
50


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(1)
Relevant public authority
(2)
DSO: minimum office, rank or
position
(3)
Type of communications
data that may be obtained
by DSO
(4)
Paragraphs of
section 53(7)
specified for DSO
Ministry of Justice Manager in the security
group of the National
Offender Management
Service responsible for
intelligence
Entity data 5(b) and (d)



Senior manager in the
security group of the National
Offender Management
Service responsible for
intelligence
All 10(b) and (d)



National Crime Agency Grade 3 Entity data 15(b), (g) and (i)
Grade 2 All (b), (g) and (i)
Her Majesty’s Revenue and
Customs
Higher officer Entity data (b) and (f)
Senior officer All (b) and (f)
Department for Transport Enforcement Officer in
Maritime and Coastguard
Agency
Entity data 20(b) and (d)

Head of Enforcement in
Maritime and Coastguard
Agency
All (b) and (d)

25
Maritime Operations
Commander (grade 7) in the
Maritime and Coastguard
Agency
All (g)


Principal Inspector in the Air
Accident Investigation
Branch, the Marine Accident
Investigation Branch or the
Rail Accident Investigation
Branch
All 30(d)




35
Department for Work and
Pensions
Senior Executive Officer in
Fraud and Error Services
All (b)
Senior Executive Officer in
the Child Maintenance Group
Central Legal Services
All (b)

40
Common Services Agency for
the Scottish Health Service
Head of Counter Fraud
Services
All (b)
Competition and Markets
Authority
Member of the Senior Civil
Service with responsibility for
cartels and criminal
enforcement
All (b)

45
Criminal Cases Review
Commission
Investigations Adviser All (h)
Department for the Economy
in Northern Ireland
Deputy chief inspector in
trading standards services
All (b)
50
Department of Justice in
Northern Ireland
Governor 4 in the Northern
Ireland Prison Service
All (b), (d) and (i)
Financial Conduct Authority Head of department in the
Enforcement and Market
Oversight Division
All (b) and (j)

55

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(1)
Relevant public authority
(2)
DSO: minimum office, rank or
position
(3)
Type of communications
data that may be obtained
by DSO
(4)
Paragraphs of
section 53(7)
specified for DSO
A fire and rescue authority
under the Fire and Rescue
Services Act 2004
Watch Manager (Control) All 5(g)

Food Standards Agency Grade 6 All (b)
Food Standards Scotland Head of the Scottish Food
Crime and Incidents Unit
All (b)
10
Gambling Commission Senior manager All (b)
Gangmasters and Labour
Abuse Authority
Head of operations All (b)
Health and Safety Executive Band 1 inspector All (b), (d) and (e)
Independent Police
Complaints Commission
Deputy Chair or Director All 15(b) and (i)
Information Commissioner Group Manager Entity data (b)
Head of enforcement or an
equivalent grade
All (b)
National Health Service
Business Services Authority
Senior manager (of pay band
8b) in the Counter Fraud and
Security Management
Services Division
All 20(b)


A National Health Service
Trust established under
section 5 of the National
Health Service and
Community Care Act 1990
whose functions, as specified
in its establishment order,
include the provision of
emergency ambulance
services
Director of Operations or
Control and Communications
Manager
All (b)
25




30


Duty Manager of Ambulance
Trust Control Rooms
All (g)
35
Northern Ireland Ambulance
Service Health and Social
Care Trust
Watch Manager (Control) All (g)

Northern Ireland Fire and
Rescue Service Board
Group Manager (Control) All (b) and (d)
40
Watch Manager (Control) All (g)
Northern Ireland Health and
Social Care Regional Business
Services Organisation
Assistant Director Counter
Fraud and Probity Services
All (b)

Office of Communications Senior associate All 45(b)
Office of the Police
Ombudsman for Northern
Ireland
Senior investigating officer All (b)

Police Investigations and
Review Commissioner
Commissioner or Director of
Investigations
All (b) and (i)
50
Scottish Ambulance Service
Board
Watch Manager (Control) All (g)
Scottish Criminal Cases
Review Commission
Investigations Adviser All (h)

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(1)
Relevant public authority
(2)
DSO: minimum office, rank or
position
(3)
Type of communications
data that may be obtained
by DSO
(4)
Paragraphs of
section 53(7)
specified for DSO
Serious Fraud Office Grade 6 All 5(b)
Welsh Ambulance Services
National Health Service Trust
Watch Manager (Control) All (g)

Part 2 Interpretation of table

1 10In the table in Part 1 of this Schedule “entity data” means any
communications data which is entity data.

Section 74(5)

SCHEDULE 5 Transfer and agency arrangements with public authorities: further
provisions

15Particular safeguards in connection with operation of section 60

1 (1) The following provisions apply where the functions of the Secretary of State
under section 58 are exercisable by a public authority by virtue of
regulations under section 74(1).

(2) The measures adopted or arrangements made by the public authority for the
20purpose of complying with the requirements of section 60 must be such as
are approved by the Secretary of State.

(3) Any report required by section 60(6)(b) or (8) must be made to the Secretary
of State as well as to the Investigatory Powers Commissioner.

Requirement for public authority to provide reports to Secretary of State

2 (1) 25A public authority, when exercising functions by virtue of regulations under
section 74(1), must at least once in each calendar year make a report to the
Secretary of State on—

(a) the discharge of the functions, and

(b) such other matters as the Secretary of State may by regulations
30require.

(2) Regulations under section 74(1) may, in particular, modify sub-paragraph
(1) as it has effect in relation to the calendar year in which the regulations
come into force or are revoked.

(3) The Secretary of State may agree to a report under this paragraph being
35combined with any other report which the public authority concerned is
required to, or may, make to the Secretary of State.

Transfer schemes in connection with transfer of functions

3 (1) The Secretary of State may, in connection with regulations under section
74(1), make a scheme for the transfer of property, rights or liabilities.

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(2) The things that may be transferred under a transfer scheme include—

(a) property, rights and liabilities which could not otherwise be
transferred,

(b) property acquired, and rights and liabilities arising, after the making
5of the scheme.

(3) A transfer scheme may make consequential, supplementary, incidental,
transitional, transitory or saving provision and may, in particular—

(a) create rights, or impose liabilities, in relation to property or rights
transferred,

(b) 10make provision about the continuing effect of things done by, on
behalf of or in relation to the transferor in respect of anything
transferred,

(c) make provision about the continuation of things (including legal
proceedings) in the process of being done by, on behalf of or in
15relation to the transferor in respect of anything transferred,

(d) make provision for references to the transferor in an instrument or
other document in respect of anything transferred to be treated as
references to the transferee,

(e) make provision for the shared ownership or use of property,

(f) 20if the TUPE regulations do not apply in relation to the transfer, make
provision which is the same or similar.

(4) A transfer scheme may provide—

(a) for modification by agreement,

(b) for modifications to have effect from the date when the original
25scheme came into effect.

(5) A transfer scheme may confer a discretion on the Secretary of State to pay
compensation to any person whose interests are adversely affected by the scheme.

(6) A transfer scheme may be included in regulations under section 74(1) but, if
not so included, must be laid before Parliament after being made.

(7) 30For the purposes of this paragraph references to rights and liabilities include
references to—

(a) rights and liabilities relating to a contract of employment, and

(b) rights and liabilities of the Crown relating to the terms of
employment of individuals in the civil service.

(8) 35Accordingly, a transfer scheme may, in particular, provide—

(a) for—

(i) an individual employed in the civil service to become an
employee of the transferee, or

(ii) an employee of the transferor to become an employee of the
40transferee or an individual employed in the civil service,

(b) for—

(i) the individual’s terms of employment in the civil service to
have effect (subject to any necessary modifications) as the
terms of the individual’s contract of employment with the
45transferee, or

(ii) (as the case may be) the individual’s contract of employment
to have effect (subject to any necessary modifications) as the
terms of the individual’s contract of employment with the