Investigatory Powers Bill (HC Bill 172)

(c) section 61 of that Act (the Investigatory Powers Commissioner for
Northern Ireland),

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

(e) 5section 64 of the Regulation of Investigatory Powers Act 2000
(delegation of Commissioners’ functions), and

(f) sections 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) 10In this section—

• “the other Scottish Surveillance Commissioners” means—

  (a)

  the Surveillance Commissioners appointed under section
  2(1)(b) of the Regulation of Investigatory Powers (Scotland) Act
  2000, and

  (b)

  15the Assistant Surveillance Commissioners appointed under
  section 3 of that Act,

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

CHAPTER 2 Other arrangements

20Codes of practice

207 Codes of practice

Schedule 7 (codes of practice) has effect.

Investigatory Powers Tribunal

208 Right of appeal from Tribunal

(1) 25After section 67 of the Regulation of Investigatory Powers Act 2000 insert—

“67A Appeals from the Tribunal

(1) A relevant person may appeal on a point of law against any
determination of the Tribunal of a kind mentioned in section 68(4) or
any decision of the Tribunal of a kind mentioned in section 68(4C).

(2) 30Before making a determination or decision which might be the subject
of an appeal under this section, the Tribunal must specify the court
which is to have jurisdiction to hear the appeal (the “relevant appellate
court”).

(3) This court is whichever of the following courts appears to the Tribunal
35to be the most appropriate—

(a) the 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
identity of the relevant appellate court.

(5) An appeal under this section—

(a) 5is 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) The Tribunal or relevant appellate court must not grant leave to appeal
unless it considers that—

(a) 10the appeal would raise an important point of principle or
practice, or

(b) there is another compelling reason for granting leave.

(7) In this section—

• “relevant appellate court” has the meaning given by subsection
  15(2),

• “relevant person”, in relation to any proceedings, complaint or
  reference, means the complainant or—

  (a)

  in the case of proceedings, the respondent,

  (b)

  in the case of a complaint, the person complained
  20against, 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) 25in 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
30complainant) 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) 35in 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
40complainant’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
45proceedings, 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
entitled to receive notice of the determination under subsection (4) or
5(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) Subsections (4C) and (4D) do not apply so far as—

(a) 10the 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) In section 69(2) of that Act (Tribunal rules)—

(a) 15in paragraph (i), after “section 68(4)” insert “or notice under section
68(4C)”, and

(b) after paragraph (i), insert “;

(j) require information about any determination, award,
order or other decision made by the Tribunal in relation
20to any proceedings, complaint or reference to be
provided (in addition to any statement under section
68(4A) or notice under section 68(4C)) to—

(i) in the case of proceedings, the respondent,

(ii) in the case of a complaint, the person
25complained against, and

(iii) in the case of a reference, any public authority to
whom the reference relates,

or to the person representing their interests;

(k) make provision about the making and determination of
30applications to the Tribunal for permission to appeal”.

(5) In 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) 35A statutory instrument containing regulations under section
67A(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) 40In section 65 of the Regulation of Investigatory Powers Act 2000 (the
Investigatory Powers Tribunal)—

(a) in subsection (2)(c) (jurisdiction of the Investigatory Powers Tribunal
where possible detriment due to evidential bar) for “section 17”
substitute “section 48 of the Investigatory Powers Act 2016”,

(b) 45in subsection (5) (conduct in relation to which the Tribunal has

jurisdiction) after paragraph (b) insert—

“(ba) conduct for or in connection with the obtaining of
secondary data from communications transmitted by
means of such a service or system;”,”

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

“(c) conduct of a kind which may be permitted or required
by an authorisation or notice under Part 3 of the
Investigatory Powers Act 2016 or a warrant under
Chapter 2 of Part 6 of that Act (acquisition of
10communications data);

(cza) the 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
15by a retention notice under Part 4 of that Act (retention
of communications data) but excluding any conduct
which is subject to review by the Information
Commissioner;

(czc) the giving or varying of a retention notice under that
20Part of that Act;”,”

(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) 25after 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)
30for 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) 35after 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) 40In 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) 45in 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
Minister) 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
5the exercise of functions conferred by or under that Act) after “this Act” insert
“or the Investigatory Powers Act 2016”.

(5) In section 68(7) of the Act of 2000 (persons subject to duty to co-operate with
the Tribunal)—

(a) in paragraph (e)—

(i) 10for “section 11” substitute “section 34, 109, 131, 147 or 167 of the
Investigatory Powers Act 2016”, and

(ii) for “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) 15every person by or to whom an authorisation under Part
3 of that Act has been granted;

(h) every person to whom a notice under Part 3 of that Act
has been given;

(ha) every person to whom a retention notice under Part 4 of
20that Act has been given;”,”

(d) in paragraph (k), for the words from “an authorisation” to the end
substitute “—

(i) an authorisation under Part 3 of the
Investigatory Powers Act 2016, Part 2 of this Act
25or 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) 30In 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

35The 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) 40There 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) that the membership of the Board includes persons likely effectively to
represent the interests of persons on whom obligations may be
5imposed 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
represent the interests of persons entitled to apply for warrants under
Part 2, 5, 6 or 7 or authorisations under Part 3,

(c) 10that such other persons (if any) as the Secretary of State considers
appropriate may be appointed to be members of the Board, and

(d) that the Board is so constituted as to produce a balance between the
representation of the interests mentioned in paragraph (a) and the
representation of those mentioned in paragraph (b).

(3) 15Regulations under this section may also make provision about quorum and the
filling of vacancies.

Part 9 Miscellaneous and general provisions

CHAPTER 1 Miscellaneous

20Combined warrants and authorisations

212 Combination of warrants and authorisations

Schedule 8 (which makes provision for the combination of certain warrants
and authorisations in a single instrument) has effect.

Compliance with Act

213 25Payments towards certain compliance costs

(1) The Secretary of State must ensure that arrangements are in force for securing
that telecommunications operators and postal operators receive an
appropriate contribution in respect of such of their relevant costs as the
Secretary of State considers appropriate.

(2) 30In subsection (1) “relevant costs” means costs incurred, or likely to be incurred,
by telecommunications operators and postal operators in complying with this
Act.

(3) The arrangements may provide for payment of a contribution to be subject to
terms and conditions determined by the Secretary of State.

(4) 35Such terms and conditions may, in particular, include a condition on the
operator concerned to comply with any audit that may reasonably be required
to monitor the claim for costs.

(5) The arrangements may provide for the Secretary of State to determine—

(a) the scope and extent of the arrangements, and

(b) the appropriate level of contribution which should be made in each
case.

(6) Different levels of contribution may apply for different cases or descriptions of
case but the appropriate contribution must never be nil.

(7) 5A retention notice under Part 4 given to a telecommunications operator or a
postal operator, or a national security notice under section 216 given to a
telecommunications operator, must specify the level or levels of contribution
which the Secretary of State has determined should be made in respect of the
costs incurred, or likely to be incurred, by the operator as a result of the notice
10in complying with that Part or (as the case may be) with the national security
notice.

(8) For the purpose of complying with this section the Secretary of State may
make, or arrange for the making of, payments out of money provided by
Parliament.

214 15Power to develop compliance systems etc.

(1) The Secretary of State may—

(a) develop, provide, maintain or improve, or

(b) enter into financial or other arrangements with any person for the
development, provision, maintenance or improvement of,

20such apparatus, systems or other facilities or services as the Secretary of State
considers appropriate for enabling or otherwise facilitating compliance by the
Secretary of State, another public authority or any other person with this Act.

(2) Arrangements falling within subsection (1)(b) may, in particular, include
arrangements consisting of the giving of financial assistance by the Secretary
25of State.

(3) Such financial assistance—

(a) may, in particular, be given by way of—

(i) grant,

(ii) loan,

(iii) 30guarantee or indemnity,

(iv) investment, or

(v) incurring expenditure for the benefit of the person assisted, and

(b) may be given subject to terms and conditions determined by the
Secretary of State.

(4) 35Terms and conditions imposed by virtue of subsection (3)(b) may include
terms and conditions as to repayment with or without interest.

Additional powers

215 Amendments of the Intelligence Services Act 1994

(1) The Intelligence Services Act 1994 is amended as follows.

(2) 40In section 3 (the Government Communications Headquarters)—

(a) in subsection (1)(a), after “monitor” insert “, make use of”, and

(b) in the words following subsection (1)(b)(ii), for the words from “or to
any other organisation” to the end substitute “or, in such cases as it

considers appropriate, to other organisations or persons, or to the
general public, in the United Kingdom or elsewhere.”

(3) In section 5 (warrants: general)—

(a) in subsection (2), omit “, subject to subsection (3) below,”

(b) 5omit subsection (3),

(c) in subsection (3A), after “1989” insert “, or on the application of the
Intelligence Service or GCHQ for the purposes of the exercise of their
functions by virtue of section 1(2)(c) or 3(2)(c),”.

216 National security notices

(1) 10The Secretary of State may give any telecommunications operator in the United
Kingdom a notice (a “national security notice”) requiring the operator to take
such specified steps as the Secretary of State considers necessary in the
interests of national security.

(2) The Secretary of State may give a national security notice only if the Secretary
15of State considers that the conduct required by the notice is proportionate to
what is sought to be achieved by that conduct.

(3) A national security notice may, in particular, require the operator to whom it
is given—

(a) to carry out any conduct, including the provision of services or
20facilities, for the purpose of—

(i) facilitating anything done by an intelligence service under any
enactment other than this Act, or

(ii) dealing with an emergency (within the meaning of Part 1 of the
Civil Contingencies Act 2004);

(b) 25to provide services or facilities for the purpose of assisting an
intelligence service to carry out its functions more securely or more
effectively.

(4) But a national security notice may not require the taking of any steps the main
purpose of which is to do something for which a warrant or authorisation is
30required under this Act.

(5) A national security notice must specify such period as appears to the Secretary
of State to be reasonable as the period within which the steps specified in the
notice are to be taken.

(6) Sections 218 to 220 contain further provision about national security notices.

217 35Maintenance of technical capability

(1) The Secretary of State may give a relevant operator a notice (a “technical
capability notice”)—

(a) imposing on the relevant operator any applicable obligations specified
in the notice, and

(b) 40requiring the person to take all the steps specified in the notice for the
purpose of complying with those obligations.

(2) In this section—

• “applicable obligation”, in relation to a relevant operator of a particular
  description, means an obligation specified by the Secretary of State in

  Investigatory Powers BillPage 168

  regulations as an obligation that may be imposed on relevant operators,
  or on relevant operators of that description;

• “relevant operator” means—

  (a)

  a postal operator,

  (b)

  5a telecommunications operator, or

  (c)

  a person who is proposing to become a postal operator or a
  telecommunications operator.

(3) Regulations under this section may specify an obligation that may be imposed
on any relevant operators only if the Secretary of State considers it is
10reasonable to do so for the purpose of securing—

(a) that it is (and remains) practicable to impose requirements on those
relevant operators to provide assistance in relation to relevant
authorisations (see subsection (9)), and

(b) that it is (and remains) practicable for those relevant operators to
15comply with those requirements.

(4) The obligations that may be specified in regulations under this section include,
among other things—

(a) obligations to provide facilities or services of a specified description;

(b) obligations relating to apparatus owned or operated by a relevant
20operator;

(c) obligations relating to the removal by a relevant operator of electronic
protection applied by or on behalf of that operator to any
communications or data;

(d) obligations relating to the security of any postal or telecommunications
25services provided by a relevant operator;

(e) obligations relating to the handling or disclosure of any information.

(5) Before making any regulations under this section, the Secretary of State must
consult the following persons—

(a) the Technical Advisory Board,

(b) 30persons appearing to the Secretary of State to be likely to be subject to
any obligations specified in the regulations,

(c) persons representing persons falling within paragraph (b), and

(d) persons with statutory functions in relation to persons falling within
that paragraph.

(6) 35The only steps that may be specified in a technical capability notice given to a
person are steps which the Secretary of State considers to be necessary for
securing that the person has the capability to provide any assistance which the
person may be required to provide in relation to any relevant authorisation.

(7) A technical capability notice must specify such period as appears to the
40Secretary of State to be reasonable as the period within which the steps
specified in the notice are to be taken.

(8) A technical capability notice may be given to persons outside the United
Kingdom (and may require things to be done, or not to be done, outside the
United Kingdom).

(9) 45In this section “relevant authorisation” means—

(a) any warrant issued under Part 2, 5 or 6, or

(b) any authorisation or notice given under Part 3.

(10) Sections 218 to 220 contain further provision about technical capability notices.

218 Further provision about notices under section 216 or 217

(1) In this section “relevant notice” means—

(a) a national security notice under section 216, or

(b) 5a technical capability notice under section 217.

(2) Before giving a relevant notice to a person, the Secretary of State must consult
that person.

(3) Before giving a relevant notice, the Secretary of State must, among other
matters, take into account—

(a) 10the likely benefits of the notice,

(b) the likely number of users (if known) of any postal or
telecommunications service to which the notice relates,

(c) the technical feasibility of complying with the notice,

(d) the likely cost of complying with the notice, and

(e) 15any other effect of the notice on the person (or description of person) to
whom it relates.

(4) Where the relevant notice would impose any obligations relating to the
removal by a person of electronic protection applied by or on behalf of that
person to any communications or data, in complying with subsection (3) the
20Secretary of State must in particular take into account the technical feasibility,
and likely cost, of complying with those obligations.

(5) A relevant notice must be in writing.

(6) A technical capability notice may be given to a person outside the United
Kingdom in any of the following ways (as well as by electronic or other means
25of giving a notice)—

(a) by delivering it to the person’s principal office within the United
Kingdom or, if the person has no such office in the United Kingdom, to
any place in the United Kingdom where the person carries on business
or conducts activities;

(b) 30if the person has specified an address in the United Kingdom as one at
which the person, or someone on the person’s behalf, will accept
documents of the same description as a notice, by delivering it to that
address.

(7) The Secretary of State may by regulations make further provision about the
35giving of relevant notices.

(8) A person to whom a relevant notice is given, or any person employed or
engaged for the purposes of that person’s business, must not disclose the
existence or contents of the notice to any other person without the permission
of the Secretary of State.

(9) 40A person to whom a relevant notice is given must comply with the notice.

(10) The duty imposed by subsection (9) is enforceable—

(a) in relation to a person in the United Kingdom, and

(b) so far as relating to a technical capability notice within subsection (11),
in relation to a person outside the United Kingdom,