Investigatory Powers Bill (HC Bill 2)

Investigatory Powers BillPage 140

182 Decisions to issue warrants to be taken personally by Secretary of State

(1) The decision to issue a class BPD warrant or a specific BPD warrant must be
taken personally by the Secretary of State.

(2) Before a class BPD warrant is issued, it must be signed by the Secretary of State.

(3) 5Before a specific BPD warrant is issued, it must be signed by the Secretary of
State (subject to subsection (4)).

(4) If it is not reasonably practicable for a specific BPD warrant to be signed by the
Secretary of State, it may be signed by a senior official designated by the
Secretary of State for that purpose.

(5) 10In such a case, the warrant must contain a statement that—

(a) it is not reasonably practicable for the warrant to be signed by the
Secretary of State, and

(b) the Secretary of State has personally and expressly authorised the issue
of the warrant.

183 15Requirements that must be met by warrants

(1) A class BPD warrant or a specific BPD warrant must contain a provision stating
whether it is a class BPD warrant or (as the case may be) a specific BPD
warrant.

(2) A class BPD warrant or a specific BPD warrant must be addressed to the head
20of the intelligence service by whom, or on whose behalf, the application for the
warrant was made.

(3) A class BPD warrant must—

(a) include a description of the class of bulk personal datasets to which the
warrant relates, and

(b) 25where the warrant authorises examination of bulk personal datasets of
that class, specify the operational purposes for which data contained in
bulk personal datasets of that class may be selected for examination.

(4) A specific BPD warrant must—

(a) describe the bulk personal dataset to which the warrant relates,

(b) 30where the warrant authorises the retention or examination of
replacement datasets, include a description that will enable those
datasets to be identified, and

(c) where the warrant authorises the examination of the bulk personal
dataset or replacement datasets, specify the operational purposes for
35which data contained in the bulk personal dataset and any replacement
datasets may be selected for examination.

(5) In specifying any operational purposes, it is not sufficient simply to use the
descriptions contained in section 177(3)(a) or (as the case may be) section
178(5)(a), but the purposes may still be general ones.

(6) 40A class BPD warrant or a specific BPD warrant may, in particular, specify all of
the operational purposes which, at the time the warrant is issued, the person to
whom it is addressed considers are operational purposes for which data
contained in bulk personal datasets of the class described in the warrant, or (as
the case may be) data contained in the bulk personal dataset and any

Investigatory Powers BillPage 141

replacement datasets described in the warrant, may be selected for
examination.

Duration, modification and cancellation

184 Duration of warrants

(1) 5A class BPD warrant or a specific BPD warrant ceases to have effect at the end
of the relevant period (see subsection (2)) unless—

(a) it is renewed before the end of that period (see section 185), or

(b) it is cancelled or (in the case of a specific BPD warrant) otherwise ceases
to have effect before the end of that period (see sections 180 and 188).

(2) 10In this section, “the relevant period”—

(a) in the case of an urgent specific BPD warrant (see subsection (3)), means
the period ending with the fifth working day after the day on which the
warrant was issued;

(b) in any other case, means the period of 6 months beginning with—

(i) 15the day on which the warrant was issued, or

(ii) in the case of a warrant that has been renewed, the day after the
day at the end of which the warrant would have ceased to have
effect if it had not been renewed.

(3) For the purposes of subsection (2)(a), a specific BPD warrant is an “urgent
20specific BPD warrant” if—

(a) the warrant was issued without the approval of a Judicial
Commissioner, and

(b) the Secretary of State considered that there was an urgent need to issue
it.

(4) 25For provision about the renewal of warrants, see section 185.

185 Renewal of warrants

(1) If the renewal conditions are met, a class BPD warrant or a specific BPD
warrant may be renewed, at any time before the end of the relevant period, by
an instrument issued by the Secretary of State.

(2) 30The renewal conditions are—

(a) that the Secretary of State considers that the warrant continues to be
necessary on grounds falling within section 177(3)(a) or (as the case
may be) section 178(5)(a),

(b) that the Secretary of State considers that the conduct that would be
35authorised by the renewed warrant continues to be proportionate to
what is sought to be achieved by the conduct,

(c) where the warrant authorises examination of bulk personal datasets of
a class described in the warrant or (as the case may be) of a bulk
personal dataset described in the warrant, that the Secretary of State
40considers that—

(i) each of the specified operational purposes (see section 183) is a
purpose for which the examination of bulk personal datasets of
that class or (as the case may be) the bulk personal dataset
continues to be, or may be, necessary, and

Investigatory Powers BillPage 142

(ii) the examination of bulk personal datasets of that class or (as the
case may be) the bulk personal dataset continues to be
necessary on any of the grounds on which the Secretary of State
considers that the warrant continues to be necessary, and

(d) 5that the decision to renew the warrant has been approved by a Judicial
Commissioner.

(3) The decision to renew a class BPD warrant or a specific BPD warrant must be
taken personally by the Secretary of State, and the instrument renewing the
warrant must be signed by the Secretary of State.

(4) 10Section 179 (approval of warrants by Judicial Commissioner) applies in
relation to a decision to renew a warrant as it applies in relation to a decision
to issue a warrant.

186 Modification of warrants

(1) The provisions of a class BPD warrant or a specific BPD warrant may be
15modified at any time by an instrument issued by the person making the
modification.

(2) The only modifications which may be made under this section are—

(a) in the case of a class BPD warrant, adding, varying or removing any
operational purpose specified in the warrant as a purpose for which
20bulk personal datasets of a class described in the warrant may be
examined;

(b) in the case of a specific BPD warrant, adding, varying or removing any
operational purpose specified in the warrant as a purpose for which the
bulk personal dataset described in the warrant may be examined.

(3) 25In this section—

(a) a modification adding or varying any operational purpose is referred to
as a “major modification”, and

(b) a modification removing any operational purpose is referred to as a
“minor modification”.

(4) 30A major modification—

(a) must be made by the Secretary of State, and

(b) may be made only if the Secretary of State considers that it is necessary
on any of the grounds on which the Secretary of State considers the
warrant to be necessary (see section 177(3)(a) or (as the case may be)
35section 178(5)(a)).

(5) Except where the Secretary of State considers that there is an urgent need to
make the modification, a major modification has effect only if the decision to
make the modification is approved by a Judicial Commissioner.

(6) Section 179 (approval of warrants by Judicial Commissioners) applies in
40relation to a decision to make a major modification of a class BPD warrant or a
specific BPD warrant as it applies in relation to the decision to issue such a
warrant.

Section 187 contains provision about the approval of major modifications made
in urgent cases.

(7) 45A minor modification may be made by—

(a) the Secretary of State, or

Investigatory Powers BillPage 143

(b) a senior official acting on behalf of the Secretary of State.

(8) Where a minor modification is made by a senior official, the Secretary of State
must be notified personally of the modification and the reasons for making it.

(9) If at any time a person mentioned in subsection (7) considers that any
5operational purpose specified in a warrant is no longer a purpose for which the
examination of any bulk personal datasets to which the warrant relates is or
may be necessary, the person must modify the warrant by removing that
operational purpose.

(10) The decision to modify the provisions of a class BPD warrant or a specific BPD
10warrant must be taken personally by the person making the modification, and
the instrument making the modification must be signed by that person.

This is subject to subsection (11).

(11) If it is not reasonably practicable for an instrument making a major
modification to be signed by the Secretary of State, the instrument may be
15signed by a senior official designated by the Secretary of State for that purpose.

(12) In such a case, the instrument making the modification must contain a
statement that—

(a) it is not reasonably practicable for the instrument to be signed by the
Secretary of State, and

(b) 20the Secretary of State has personally and expressly authorised the
making of the modification.

187 Approval of major modifications made in urgent cases

(1) This section applies where—

(a) the Secretary of State makes a major modification of a class BPD
25warrant or a specific BPD warrant without the approval of a Judicial
Commissioner, and

(b) the Secretary of State considered that there was an urgent need to make
the modification.

(2) The Secretary of State must inform a Judicial Commissioner that the
30modification has been made.

(3) The Judicial Commissioner must, before the end of the relevant period—

(a) decide whether to approve the decision to make the modification, and

(b) notify the Secretary of State of the Judicial Commissioner’s decision.

“The relevant period” means the period ending with the fifth working day after
35the day on which the modification was made.

(4) If the Judicial Commissioner refuses to approve the decision to make the
modification—

(a) the warrant (unless it no longer has effect) has effect as if the
modification had not been made, and

(b) 40the person to whom the warrant is addressed must, so far as is
reasonably practicable, secure that anything in the process of being
done in reliance on the warrant by virtue of that modification stops as
soon as possible.

(5) Nothing in this section affects the lawfulness of—

Investigatory Powers BillPage 144

(a) anything done in reliance on the warrant by virtue of the modification
before the modification ceases to have effect;

(b) if anything is in the process of being done in reliance on the warrant by
virtue of the modification when the modification ceases to have effect—

(i) 5anything done before that thing could be stopped, or

(ii) anything done which it is not reasonably practicable to stop.

188 Cancellation of warrants

(1) The Secretary of State, or a senior official acting on behalf of the Secretary of
State, may cancel a class BPD warrant or a specific BPD warrant at any time.

(2) 10If the Secretary of State, or a senior official acting on behalf of the Secretary of
State, considers that any of the cancellation conditions are met in relation to a
class BPD warrant or a specific BPD warrant, the person must cancel the
warrant.

(3) The cancellation conditions are—

(a) 15that the warrant is no longer necessary on any grounds falling within
section 177(3)(a) or (as the case may be) section 178(5)(a);

(b) that the conduct authorised by the warrant is no longer proportionate
to what is sought to be achieved by that conduct;

(c) where the warrant authorises examination of bulk personal datasets of
20a class described in the warrant or (as the case may be) of a bulk
personal dataset described in the warrant, that the examination of bulk
personal datasets of that class or (as the case may be) of the bulk
personal dataset is no longer necessary for any of the specified
operational purposes (see section 183).

189 25Non-renewal or cancellation of BPD warrants

(1) This section applies where a class BPD warrant or a specific BPD warrant
ceases to have effect because it expires without having been renewed or
because it is cancelled.

(2) The head of the intelligence service to whom the warrant was addressed may,
30before the end of the period of 5 working days beginning with the day on
which the warrant ceases to have effect—

(a) apply for—

(i) a specific BPD warrant authorising the retention, or the
retention and examination, of the whole or any part of the
35material retained by the intelligence service in reliance on the
warrant which has ceased to have effect;

(ii) a class BPD warrant authorising the retention or (as the case
may be) the retention and examination of bulk personal
datasets of a class that is described in a way that would
40authorise the retention or (as the case may be) the retention and
examination of the whole or any part of such material, or

(b) where the head of the intelligence service wishes to give further
consideration to whether to apply for a warrant of a kind mentioned in
paragraph (a)(i) or (ii), apply to the Secretary of State for authorisation
45to retain, or to retain and examine, the whole or any part of the material
retained by the intelligence service in reliance on the warrant.

Investigatory Powers BillPage 145

(3) On an application under subsection (2)(b), the Secretary of State may—

(a) direct that any of the material to which the application relates be
destroyed;

(b) with the approval of a Judicial Commissioner, authorise the retention
5or (as the case may be) the retention and examination of any of that
material, subject to such conditions as the Secretary of State considers
appropriate, for a period specified by the Secretary of State which may
not exceed 3 months.

(4) Where a Judicial Commissioner refuses to approve a decision by the Secretary
10of State to authorise the retention or (as the case may be) the retention and
examination of any material under subsection (3)(b), the Judicial
Commissioner must give the Secretary of State written reasons for the decision.

(5) Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve such a decision, the Secretary of State may
15ask the Investigatory Powers Commissioner to decide whether to approve the
decision.

(6) If, during the period specified by the Secretary of State under subsection (3)(b),
the head of the intelligence service decides to apply for a warrant of a kind
mentioned in subsection (2)(a)(i) or (ii), the head of the intelligence service
20must make the application as soon as reasonably practicable and before the end
of the period specified by the Secretary of State.

(7) Where a class BPD warrant or a specific BPD warrant ceases to have effect
because it expires without having been renewed or it is cancelled, an
intelligence service is not to be regarded as in breach of section 175(1) or (2) by
25virtue of its retention or examination of any material to which the warrant
related during any of the following periods.

First period

The period of 5 working days beginning with the day on which the warrant
ceases to have effect.

30Second period

The period beginning with the day on which the head of the intelligence
service makes an application under subsection (2)(a) or (b) in relation to the
material and ending with the determination of the application.

Third period

35The period during which the retention or examination of the material is
authorised under subsection (3)(b).

Fourth period

Where authorisation under subsection (3)(b) is given and the head of the
intelligence service subsequently makes, in accordance with subsection (6), an
40application for a specific BPD warrant or a class BPD warrant in relation to the
material, the period (if any) beginning with the expiry of the authorisation
under subsection (3)(b) and ending with the determination of the application
for the warrant.

Investigatory Powers BillPage 146

Further and supplementary provision

190 Initial examinations: time limits

(1) This section applies where—

(a) an intelligence service obtains a set of information otherwise than in the
5exercise of a power conferred by a warrant or other authorisation
issued or given under this Act, and

(b) the head of the intelligence service believes that—

(i) the set includes, or may include, personal data relating to a
number of individuals, and

(ii) 10the nature of the set is, or may be, such that the majority of the
individuals are not, and are unlikely to become, of interest to
the intelligence service in the exercise of its functions.

(2) The head of the intelligence service must take the following steps before the
end of the permitted period.

15Step 1

Carry out an initial examination of the set for the purpose of deciding whether,
if the intelligence service were to retain it after that initial examination and
hold it electronically for analysis for the purposes of the exercise of its
functions, the intelligence service would be retaining a bulk personal dataset
20(see section 174).

Step 2

If the intelligence service would be retaining a bulk personal dataset as
mentioned in step 1, decide whether to retain the set and hold it electronically
for analysis for the purposes of the exercise of the functions of the intelligence
25service.

Step 3

If the head of the intelligence service decides to retain the set and hold it
electronically for analysis as mentioned in step 2, apply for a specific BPD
warrant as soon as reasonably practicable after making that decision (unless
30the retention of the dataset is authorised by a class BPD warrant).

(3) The permitted period begins when the head of the intelligence service first
forms the beliefs mentioned in subsection (1)(b).

(4) The permitted period ends—

(a) where the set of information was created in the United Kingdom, 3
35months after the day on which it begins;

(b) where the set of information was created outside the United Kingdom,
6 months after the day on which it begins.

(5) If the head of the intelligence service applies for a specific BPD warrant in
accordance with step 3 (set out in subsection (2))—

(a) 40the intelligence service is not to be regarded as in breach of section
175(1) by virtue of retaining the bulk personal dataset during the period
between the taking of the decision mentioned in step 2 and the
determination of the application for the specific BPD warrant, and

Investigatory Powers BillPage 147

(b) the intelligence service is not to be regarded as in breach of section
175(2) by virtue of examining the bulk personal dataset during that
period if the examination is necessary for the purposes of the making of
the application for the warrant.

191 5Safeguards relating to examination of bulk personal datasets

(1) The Secretary of State must ensure, in relation to every class BPD warrant or
specific BPD warrant which authorises examination of bulk personal datasets
of a class described in the warrant or (as the case may be) of a bulk personal
dataset described in the warrant, that—

(a) 10any selection of data contained in the datasets (or dataset) for
examination is carried out only for the specified purposes (see
subsection (2)), and

(b) the selection of any such data for examination is necessary and
proportionate in all the circumstances.

(2) 15The selection of data contained in bulk personal datasets for examination is
carried out only for the specified purposes if the data is selected for
examination only so far as is necessary for the operational purposes specified
in the warrant in accordance with section 183.

(3) In subsection (2) “specified in the warrant” means specified in the warrant at
20the time of the selection of the data for examination.

192 Application of Part to bulk personal datasets obtained under this Act

(1) Subject to subsection (2), this section applies where a bulk personal dataset has
been obtained by an intelligence service under a warrant or other authorisation
issued or given under this Act (and, accordingly, section 175(1) and (2) do not
25apply by virtue of section 176(1)).

(2) This section does not apply where the bulk personal dataset was obtained by
the intelligence service under a bulk acquisition warrant issued under Chapter
2 of Part 6.

(3) Where this section applies, the Secretary of State may, on the application of the
30head of the intelligence service, give a direction that—

(a) the intelligence service may retain, or retain and examine, the bulk
personal dataset by virtue of the direction,

(b) any other power of the intelligence service to retain or examine the bulk
personal dataset, and any associated regulatory provision, ceases to
35apply in relation to the bulk personal dataset (subject to subsection (5)),
and

(c) section 176(1) also ceases to apply in relation to the bulk personal
dataset.

(4) Accordingly, where a direction is given under subsection (3), the intelligence
40service may exercise its power by virtue of the direction to retain, or to retain
and examine, the bulk personal dataset only if authorised to do so by a class
BPD warrant or a specific BPD warrant under this Part.

(5) A direction under subsection (3) may provide for any associated regulatory
provision specified in the direction to continue to apply in relation to the bulk
45personal dataset, with or without modifications specified in the direction.

Investigatory Powers BillPage 148

(6) The power conferred by subsection (5) must be exercised to ensure that—

(a) where section 48 and Schedule 3 applied in relation to the bulk personal
dataset immediately before the giving of the direction, they continue to
apply in relation to it (without modification);

(b) 5where sections 49 to 51 applied in relation to the bulk personal dataset
immediately before the giving of the direction, they continue to apply
in relation to it with the modification that the reference in section
50(6)(a) to the provisions of Part 2 is to be read as including a reference
to the provisions of this Part.

(7) 10The Secretary of State may only give a direction under subsection (3) with the
approval of a Judicial Commissioner.

(8) Where a Judicial Commissioner refuses to approve a decision by the Secretary
of State to give a direction under subsection (3), the Judicial Commissioner
must give the Secretary of State written reasons for the decision.

(9) 15Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve such a decision, the Secretary of State may
ask the Investigatory Powers Commissioner to decide whether to approve the
decision.

(10) A direction under subsection (3)—

(a) 20may not be revoked;

(b) may be varied but only for the purpose of altering or removing any
provision included in the direction under subsection (5).

(11) Subsections (7) to (9) apply in relation to the variation of a direction under
subsection (3) as they apply in relation to the giving of a direction under that
25subsection.

(12) The head of an intelligence service may, at the same time as applying for a
direction under subsection (3), apply for a specific BPD warrant under section
178 (and the Secretary of State may issue such a warrant at the same time as
giving the direction).

(13) 30In this section, “associated regulatory provision”, in relation to a power of an
intelligence service to retain or examine a bulk personal dataset, means any
provision which—

(a) is made by or for the purposes of this Act (other than this Part), and

(b) applied in relation to the retention, examination, disclosure or other use
35of the bulk personal dataset immediately before the giving of a
direction under subsection (3).

193 Part 7: interpretation

(1) In this Part—

  • “class BPD warrant” has the meaning given by section 175(3)(a);

  • 40“specific BPD warrant” has the meaning given by section 175(3)(b);

  • “senior official” means a member of the Senior Civil Service or a member
    of the Senior Management Structure of Her Majesty’s Diplomatic
    Service.

(2) See also—

  • 45section 225 (general definitions),

  • Investigatory Powers BillPage 149

  • section 226 (index of defined expressions).

Part 8 Oversight arrangements

CHAPTER 1 Investigatory Powers Commissioner and other Judicial Commissioners

5The Commissioners

194 Investigatory Powers Commissioner and other Judicial Commissioners

(1) The Prime Minister must appoint—

(a) the Investigatory Powers Commissioner, and

(b) such number of other Judicial Commissioners as the Prime Minister
10considers necessary for the carrying out of the functions of the Judicial
Commissioners.

(2) A person is not to be appointed as the Investigatory Powers Commissioner or
another Judicial Commissioner unless the person holds or has held a high
judicial office (within the meaning of Part 3 of the Constitutional Reform Act
152005).

(3) Before appointing any person under subsection (1), the Prime Minister must
consult—

(a) the Lord Chief Justice of England and Wales,

(b) the Lord President of the Court of Session,

(c) 20the Lord Chief Justice of Northern Ireland,

(d) the Scottish Ministers, and

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

(4) Before appointing a Judicial Commissioner under subsection (1)(b), the Prime
Minister must also consult the Investigatory Powers Commissioner.

(5) 25The Prime Minister must have regard to a memorandum of understanding
agreed between the Prime Minister and the Scottish Ministers when exercising
functions under subsection (1) or (3)(d).

(6) The Investigatory Powers Commissioner is a Judicial Commissioner and the
Investigatory Powers Commissioner and the other Judicial Commissioners are
30to be known, collectively, as the Judicial Commissioners.

(7) The Investigatory Powers Commissioner may, to such extent as the
Investigatory Powers Commissioner may decide, delegate the exercise of
functions of the Investigatory Powers Commissioner to any other Judicial
Commissioner.

(8) 35References in any enactment—

(a) to a Judicial Commissioner are to be read as including the Investigatory
Powers Commissioner, and

(b) to the Investigatory Powers Commissioner are to be read, so far as
necessary for the purposes of subsection (7), as references to the