Investigatory Powers Bill (HC Bill 2)

Investigatory Powers BillPage 150

Investigatory Powers Commissioner or any other Judicial
Commissioner.

195 Terms and conditions of appointment

(1) Subject as follows, each Judicial Commissioner holds and vacates office in
5accordance with the Commissioner’s terms and conditions of appointment.

(2) Each Judicial Commissioner is to be appointed for a term of three years.

(3) A person who ceases to be a Judicial Commissioner (otherwise than under
subsection (5)) may be re-appointed under section 194(1).

(4) A Judicial Commissioner may not, subject to subsection (5), be removed from
10office before the end of the term for which the Commissioner is appointed
unless a resolution approving the removal has been passed by each House of
Parliament.

(5) A Judicial Commissioner may be removed from office by the Prime Minister if,
after the appointment of the Commissioner—

(a) 15a bankruptcy order is made against the Commissioner or the
Commissioner’s estate is sequestrated or the Commissioner makes a
composition or arrangement with, or grants a trust deed for, the
Commissioner’s creditors,

(b) any of the following orders is made against the Commissioner—

(i) 20a disqualification order under the Company Directors
Disqualification Act 1986 or the Company Directors
Disqualification (Northern Ireland) Order 2002,

(ii) an order under section 429(2)(b) of the Insolvency Act 1986
(failure to pay under county court administration order),

(iii) 25an order under section 429(2) of the Insolvency Act 1986
(disabilities on revocation of county court administration
order),

(c) the Commissioner’s disqualification undertaking is accepted under
section 7 or 8 of the Company Directors Disqualification Act 1986 or
30under the Company Directors Disqualification (Northern Ireland)
Order 2002, or

(d) the Commissioner is convicted in the United Kingdom, the Channel
Islands or the Isle of Man of an offence and receives a sentence of
imprisonment (whether suspended or not).

35Main functions of Commissioners

196 Main oversight functions

(1) The Investigatory Powers Commissioner must keep under review (including
by way of audit, inspection and investigation) the exercise by public
authorities of statutory functions relating to—

(a) 40the interception of communications,

(b) the acquisition or retention of communications data,

(c) the acquisition of secondary data or related systems data under
Chapter 1 of Part 2 or Chapter 1 of Part 6, or

(d) equipment interference.

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(2) Such statutory functions include, in particular, functions relating to the
disclosure, retention or other use of—

(a) any content of communications intercepted by an interception
authorised or required by a warrant under Chapter 1 of Part 2 or
5Chapter 1 of Part 6,

(b) acquired or retained communications data,

(c) data acquired as mentioned in subsection (1)(c), or

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

(3) 10The Investigatory Powers Commissioner must keep under review (including
by way of audit, inspection and investigation)—

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

(b) the giving and operation of notices under section 216 (national security
15notices),

(c) the exercise of functions by virtue of section 80 of the Serious Crime Act
2015 (prevention or restriction of use of communication devices by
prisoners etc.),

(d) the exercise of functions by virtue of Part 2 or 3 of the Regulation of
20Investigatory Powers Act 2000 (surveillance, covert human intelligence
sources and investigation of electronic data protected by encryption
etc.),

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

(f) 25the exercise of functions by virtue of the Regulation of Investigatory
Powers (Scotland) Act 2000 (2000 asp 112000 asp 11) (surveillance and covert
human intelligence sources),

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

(h) 30the exercise by the Secretary of State of functions under sections 5 to 7
of the Intelligence Services Act 1994 (warrants for interference with
wireless telegraphy, entry and interference with property etc.), and

(i) the exercise by the Scottish Ministers (by virtue of provision made
under section 63 of the Scotland Act 1998) of functions under sections 5
35and 6(3) and (4) of the Act of 1994.

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

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

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

(c) 40the exercise of any function by virtue of Part 3 of the Regulation of
Investigatory Powers Act 2000 which is exercisable with the permission
of a judicial authority,

(d) the exercise of any function which—

(i) is for the purpose of obtaining information or taking possession
45of any document or other property in connection with
communications stored in or by a telecommunication system, or

(ii) is carried out in accordance with an order made by a judicial
authority for that purpose,

and is not exercisable by virtue of this Act, the Regulation of
50Investigatory Powers Act 2000, the Regulation of Investigatory Powers

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(Scotland) Act 2000 or an enactment mentioned in subsection (3)(c), (g),
(h) or (i) above,

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

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

(ii) 5conduct authorised by section 39 which is not conduct by or on
behalf of an intercepting authority (within the meaning given
by section 16(1)), or

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

(5) 10In exercising functions under this Act, a Judicial Commissioner must not act in
a way which the Commissioner considers to be contrary to the public interest
or prejudicial to—

(a) national security,

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

(c) 15the economic well-being of the United Kingdom.

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

(a) jeopardise the success of an intelligence or security operation or a law
enforcement operation,

(b) 20compromise the safety or security of those involved, or

(c) unduly impede the operational effectiveness of an intelligence service,
a police force, a government department or Her Majesty’s forces.

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

(a) 25deciding whether to approve the issue, modification or renewal of a
warrant or authorisation,

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

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

(8) 30In this section—

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

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

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

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

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

  • “relevant Minister” means a Minister of the Crown or government
    department, the Scottish Ministers, the Welsh Ministers or a Northern
    Ireland department,

  • 40“secondary data” has the same meaning as in Part 2 (see section 14),

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

197 Additional directed oversight functions

(1) So far as directed to do so by the Prime Minister and subject to subsection (2),
45the Investigatory Powers Commissioner must keep under review the carrying
out of any aspect of the functions of—

(a) an intelligence service,

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(b) a head of an intelligence service, or

(c) any part of Her Majesty’s forces, or of the Ministry of Defence, so far as
engaging in intelligence activities.

(2) Subsection (1) does not apply in relation to anything which is required to be
5kept under review by the Investigatory Powers Commissioner under section
196.

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

(4) The Prime Minister must publish, in a manner which the Prime Minister
10considers appropriate, any direction under this section (and any revocation of
such a direction) except so far as it appears to the Prime Minister that such
publication would be contrary to the public interest or prejudicial to—

(a) national security,

(b) the prevention or detection of serious crime,

(c) 15the economic well-being of the United Kingdom, or

(d) the continued discharge of the functions of any public authority whose
activities include activities that are subject to review by the
Investigatory Powers Commissioner.

198 Error reporting

(1) 20The Investigatory Powers Commissioner must inform a person of any relevant
error relating to that person of which the Commissioner is aware if the
Commissioner considers that—

(a) the error is a serious error, and

(b) it is in the public interest for the person to be informed of the error.

(2) 25In making a decision under subsection (1)(a), the Investigatory Powers
Commissioner may not decide that an error is a serious error unless the
Commissioner considers that the error has caused significant prejudice or
harm to the person concerned.

(3) Accordingly, the fact that there has been a breach of a person’s Convention
30rights (within the meaning of the Human Rights Act 1998) is not sufficient by
itself for an error to be a serious error.

(4) In making a decision under subsection (1)(b), the Investigatory Powers
Commissioner must, in particular, consider—

(a) the seriousness of the error and its effect on the person concerned, and

(b) 35the extent to which disclosing the error would be contrary to the public
interest or prejudicial to—

(i) national security,

(ii) the prevention or detection of serious crime,

(iii) the economic well-being of the United Kingdom, or

(iv) 40the continued discharge of the functions of any of the
intelligence services.

(5) Before making a decision under subsection (1)(a) or (b), the Investigatory
Powers Commissioner must ask the public authority which has made the error
to make submissions to the Commissioner about the matters concerned.

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(6) When informing a person under subsection (1) of an error, the Investigatory
Powers Commissioner must—

(a) inform the person of any rights that the person may have to apply to the
Investigatory Powers Tribunal, and

(b) 5provide such details of the error as the Commissioner considers to be
necessary for the exercise of those rights, having regard in particular to
the extent to which disclosing the details would be contrary to the
public interest or prejudicial to anything falling within subsection
(4)(b)(i) to (iv).

(7) 10The Investigatory Powers Commissioner may not inform the person to whom
it relates of a relevant error except as provided by this section.

(8) A report under section 201(1) must include information about—

(a) the number of relevant errors of which the Investigatory Powers
Commissioner has become aware during the year to which the report
15relates,

(b) the number of relevant errors which the Commissioner has decided
during that year were serious errors, and

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

(9) In this section “relevant error” means an error—

(a) 20by a public authority in complying with any requirements which are
imposed on it by virtue of this Act or any other enactment and which
are subject to review by a Judicial Commissioner, and

(b) of a description identified for this purpose in a code of practice under
Schedule 7,

25and the Investigatory Powers Commissioner must keep under review the
definition of “relevant error”.

199 Additional functions under this Part

(1) A Judicial Commissioner must give the Investigatory Powers Tribunal all such
documents, information and other assistance (including the Commissioner’s
30opinion as to any issue falling to be determined by the Tribunal) as the Tribunal
may require—

(a) in connection with the investigation of any matter by the Tribunal, or

(b) otherwise for the purposes of the Tribunal’s consideration or
determination of any matter.

(2) 35A Judicial Commissioner may provide advice or information to any public
authority or other person in relation to matters for which a Judicial
Commissioner is responsible.

(3) But a Judicial Commissioner must consult the Secretary of State before
providing any advice or information under subsection (2) if it appears to the
40Commissioner that providing the advice or information might be contrary to
the public interest or prejudicial to—

(a) national security,

(b) the prevention or detection of serious crime,

(c) the economic well-being of the United Kingdom, or

(d) 45the continued discharge of the functions of any public authority whose
activities include activities that are subject to review by the
Investigatory Powers Commissioner.

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

200 Functions under other Parts and other enactments

(1) The Investigatory Powers Commissioner and the other Judicial
5Commissioners have the functions that are exercisable by them by virtue of any
other Part of this Act or by virtue of any other enactment.

(2) In Part 3 of the Police Act 1997 (authorisations of action in respect of property:
approval by Commissioners)—

(a) in sections 96(1), 103(7)(b) and (8), 104(3) to (8) and 105(1) and (2) for
10“Chief Commissioner” substitute “Investigatory Powers
Commissioner”,

(b) in sections 96(1), 97(1)(a) and 103(1), (2), (4) and (5)(b) for “a
Commissioner appointed under section 91(1)(b)” substitute “a Judicial
Commissioner”,

(c) 15in sections 96(4), 97(4) and (6) and 103(3) and (6) for “a Commissioner”
substitute “a Judicial Commissioner”,

(d) in section 103(7) for “a Commissioner” substitute “a Judicial
Commissioner (other than the Investigatory Powers Commissioner)”,

(e) in section 104(1) for “Chief Commissioner” substitute “Investigatory
20Powers Commissioner (except where the original decision was made
by that Commissioner)”,

(f) in section 104(3) and (8)(a) for “the Commissioner” substitute “the
Judicial Commissioner concerned”,

(g) in section 105(1)(a)(ii) and (b)(ii) for “the Commissioner” substitute “the
25Judicial Commissioner”, and

(h) in sections 97(5) and 103(9) for “A Commissioner” substitute “A Judicial
Commissioner”.

(3) In Part 2 of the Regulation of Investigatory Powers Act 2000 (surveillance and
covert human intelligence sources: approval by Commissioners)—

(a) 30in sections 35(1) and (4), 36(2)(a) and (5) and 37(2) to (6) and (8) for “an
ordinary Surveillance Commissioner”, wherever it appears, substitute
“a Judicial Commissioner”,

(b) in sections 35(2)(b), 36(6)(g), 37(9)(b), 38(1) and (4) to (6) and 39(1), (2)
and (4) and in the heading of section 39 for “Chief Surveillance
35Commissioner”, wherever it appears, substitute “Investigatory Powers
Commissioner”,

(c) in sections 35(3)(a) and 36(4)(a) and (b) for “Surveillance
Commissioner” substitute “Judicial Commissioner”,

(d) in section 37(8)(b) for “Chief Surveillance Commissioner” substitute
40“Investigatory Powers Commissioner (if he is not that Commissioner)”,

(e) in section 38(1)(a) for “an ordinary Surveillance Commissioner”
substitute “a Judicial Commissioner (other than the Investigatory
Powers Commissioner)”,

(f) in sections 38(5)(b) and 39(1)(b) for “ordinary Surveillance
45Commissioner” substitute “Judicial Commissioner”, and

(g) in the heading of section 38 for “Surveillance Commissioners”
substitute “Judicial Commissioners”.

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(4) In Part 3 of the Act of 2000 (investigation of electronic data protected by
encryption etc.)—

(a) in section 51(6) (notification to Intelligence Services Commissioner or
Chief Surveillance Commissioner of certain directions relating to the
5disclosure of a key to protected information) for the words from “done
so” to the end substitute “done so to the Investigatory Powers
Commissioner”,

(b) in section 54(9) (tipping-off: protected disclosures to a relevant
Commissioner) for “relevant Commissioner” substitute “Judicial
10Commissioner”,

(c) in section 55(7) (court to have regard to opinion of a relevant
Commissioner in certain circumstances relating to a disclosed key) for
“relevant Commissioner” substitute “Judicial Commissioner”, and

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

(5) 15In the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 112000 asp 11)
(surveillance and covert human intelligence sources: approval by
Commissioners and review by the Chief Commissioner)—

(a) in sections 13(1) and (4), 14(1)(a) and (4) and 15(1) to (5) and (7) for “an
ordinary Surveillance Commissioner”, wherever it appears, substitute
20“a Judicial Commissioner”,

(b) in sections 13(2)(b), 15(8)(b), 16(1) and (4) to (6) and 17 and in the
heading of section 17 for “Chief Surveillance Commissioner”, wherever
it appears, substitute “Investigatory Powers Commissioner”,

(c) in sections 13(3)(a) and 14(3)(a) and (b) for “Surveillance
25Commissioner” substitute “Judicial Commissioner”,

(d) in section 15(7)(b) for “Chief Surveillance Commissioner” substitute
“Investigatory Powers Commissioner (if the Commissioner is not that
Commissioner)”,

(e) in section 16(1)(a) for “an ordinary Surveillance Commissioner”
30substitute “a Judicial Commissioner (other than the Investigatory
Powers Commissioner)”,

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

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

(6) In Part 2 of the Regulation of Investigatory Powers (Covert Human Intelligence
Sources: Relevant Sources) Order 2013 (S.I. 2013/2788S.I. 2013/2788) (notification of certain
authorisations to, and approval of certain authorisations by, ordinary
Surveillance Commissioner)—

(a) 40in article 4(1), for “an ordinary Surveillance Commissioner” substitute
“a Judicial Commissioner”,

(b) in article 5(8) and the heading of Part 2, for “ordinary Surveillance
Commissioner” substitute “Judicial Commissioner”,

(c) in article 6(1) and (3) for “Chief Surveillance Commissioner” substitute
45“Investigatory Powers Commissioner”,

(d) in article 6(1) for “an ordinary Surveillance Commissioner” substitute
“a Judicial Commissioner (other than the Investigatory Powers
Commissioner)”, and

(e) in the heading of article 6 for “Surveillance Commissioners” substitute
50“Judicial Commissioners”.

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Reports and investigation and information powers

201 Annual and other reports

(1) The Investigatory Powers Commissioner must, as soon as reasonably
practicable after the end of each calendar year, make a report to the Prime
5Minister about the carrying out of the functions of the Judicial Commissioners.

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

(a) statistics on the use of the investigatory powers which are subject to
review by the Investigatory Powers Commissioner (including the
number of warrants or authorisations issued, given, considered or
10approved during the year),

(b) information about the results of such use (including its impact),

(c) the information on errors required by virtue of section 198(8),

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

(e) 15details of public engagements undertaken by the Judicial
Commissioners or their staff.

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

(4) The Investigatory Powers Commissioner may, at any time, make any such
20report to the Prime Minister, on any matter relating to the functions of the
Judicial Commissioners, as the Investigatory Powers Commissioner considers
appropriate.

(5) A report under subsection (1) or (4) may, in particular, include such
recommendations as the Investigatory Powers Commissioner considers
25appropriate about any matter relating to the functions of the Judicial
Commissioners.

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

(a) publish the report, and

(b) 30lay a copy of the published report before Parliament together with a
statement as to whether any part of the report has been excluded from
publication under subsection (7).

(7) The Prime Minister may, after consultation with the Investigatory Powers
Commissioner and (so far as the report relates to functions under Part 3 of the
35Police Act 1997) the Scottish Ministers, exclude from publication any part of a
report under subsection (1) if, in the opinion of the Prime Minister, the
publication of that part would be contrary to the public interest or prejudicial
to—

(a) national security,

(b) 40the prevention or detection of serious crime,

(c) the economic well-being of the United Kingdom, or

(d) the continued discharge of the functions of any public authority whose
activities include activities that are subject to review by the
Investigatory Powers Commissioner.

(8) 45The Prime Minister must send a copy of every report and statement as laid
before Parliament under subsection (6)(b) to—

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(a) the Scottish Ministers, and

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

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

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

(b) 5in the case of the First Minister and the deputy First Minister in
Northern Ireland, the Northern Ireland Assembly.

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

202 10Investigation and information powers

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

(2) Every relevant person must disclose or provide to a Judicial Commissioner all
15such documents and information as the Commissioner may require for the
purposes of the Commissioner’s functions.

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

(4) 20Assistance under subsection (3) may, in particular, include such access to
apparatus, systems or other facilities or services as the Judicial Commissioner
concerned may require in carrying out any investigation, inspection or audit
for the purposes of the Commissioner’s functions.

(5) A public authority may report to the Investigatory Powers Commissioner any
25refusal by a telecommunications operator or postal operator to comply with
any requirements imposed by virtue of this Act.

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

(7) 30In this section “relevant person” means—

(a) any member of a public authority,

(b) any telecommunications operator or postal operator who is, has been or
may become subject to a requirement imposed by virtue of this Act,

(c) any person who is, has been or may become subject to a requirement to
35provide assistance by virtue of section 34, 36, 109, 111, 131, 147, 149 or
167, or

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

203 Information gateway

(1) 40A disclosure of information to the Investigatory Powers Commissioner or
another Judicial Commissioner for the purposes of any function of the
Commissioner does not breach—

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

Investigatory Powers BillPage 159

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

(2) But subsection (1) does not apply to a disclosure, in contravention of any
provisions of the Data Protection Act 1998, of personal data which is not
5exempt from those provisions.

Supplementary provision

204 Funding, staff and facilities

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

(2) 10The Secretary of State must, after consultation with the Investigatory Powers
Commissioner and subject to the approval of the Treasury as to numbers of
staff, provide the Judicial Commissioners with—

(a) such staff, and

(b) such accommodation, equipment and other facilities,

15as the Secretary of State considers necessary for the carrying out of the
Commissioners’ functions.

205 Power to modify functions

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

(2) 20But such regulations may not modify any function conferred by virtue of this
Act on a Judicial Commissioner to approve, quash or cancel—

(a) an authorisation or warrant, or

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

(3) The power to make regulations under this section (including that power as
25extended by section 228(1)(c)) may, in particular, be exercised by modifying
any provision made by or under an enactment (including this Act).

206 Abolition of existing oversight bodies

(1) The offices of the following are abolished—

(a) the Interception of Communications Commissioner,

(b) 30the Intelligence Services Commissioner,

(c) the Investigatory Powers Commissioner for Northern Ireland,

(d) the Chief Surveillance Commissioner,

(e) the other Surveillance Commissioners,

(f) the Scottish Chief Surveillance Commissioner, and

(g) 35the other Scottish Surveillance Commissioners.

(2) Accordingly, the following enactments are repealed—

(a) sections 57 and 58 of the Regulation of Investigatory Powers Act 2000
(the Interception of Communications Commissioner),

(b) sections 59, 59A and 60 of that Act (the Intelligence Services
40Commissioner),