Session 2017-19
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8

 
 

(ii)    

the material will be used only so far as necessary and

 

proportionate for a purpose mentioned in sub-paragraph

 

(2)(a).

 

      (6)  

An authorisation under this paragraph—

 

(a)    

must be recorded in writing;

 

(b)    

may be granted subject to whatever conditions the senior officer

 

thinks appropriate.

 

      (7)  

Paragraphs 13B and 13C contain further provision about authorisations

 

granted under this paragraph.

 

      (8)  

In this paragraph—

 

“confidential material” has the meaning given by paragraph 12(10)

 

and (11);

 

“senior officer” means—

 

(a)    

where the examining officer is a constable, another

 

constable of at least the rank of superintendent,

 

(b)    

where the examining officer is an immigration officer, an

 

immigration officer of a higher grade than the examining

 

officer, and

 

(c)    

where the examining officer is a customs officer, a customs

 

officer of a higher grade than the examining officer.

 

13B(1)  

If a senior officer grants an authorisation under paragraph 13A, the

 

examining officer who applied for the authorisation must inform the

 

Investigatory Powers Commissioner and each affected party of its grant.

 

      (2)  

The information required under sub-paragraph (1) must be given as

 

soon as reasonably practicable and in any event within 24 hours after the

 

grant of the authorisation.

 

      (3)  

An affected party may make representations to the Commissioner about

 

how the Commissioner should proceed under paragraph 13C in respect

 

of an authorisation granted under paragraph 13A.

 

      (4)  

Representations under sub-paragraph (3) must be made in writing no

 

later than the end of two working days beginning with the first working

 

day after the day on which the authorisation is granted.

 

      (5)  

The information provided under sub-paragraph (1) must include an

 

explanation of the right to make representations in writing and the time

 

by which they must be made.

 

      (6)  

The Commissioner must have regard to any representations received

 

before the end of the time mentioned in sub-paragraph (4) in

 

determining how to proceed under paragraph 13C.

 

      (7)  

The requirement under this paragraph to provide information to the

 

person from whom an article was taken applies only so far as it is

 

reasonably practicable to do so.

 

      (8)  

In this paragraph and paragraph 13C—

 

“affected party” has the meaning given by paragraph 13(3);

 

“working day” means a day other than a Saturday, a Sunday,

 

Christmas Day, Good Friday or a day which is a bank holiday

 

under the Banking and Financial Dealings Act 1971 in the part of

 

the United Kingdom in which the authorisation is granted.

 
 

 


 
 

9

 
 

13C(1)  

This paragraph applies after the Investigatory Powers Commissioner

 

has considered any representations made about an authorisation in

 

accordance with paragraph 13B.

 

      (2)  

The Commissioner must—

 

(a)    

approve the grant of the authorisation, or

 

(b)    

cancel the authorisation.

 

      (3)  

A decision under sub-paragraph (2) must be made—

 

(a)    

after the end of the time for making representations referred to in

 

paragraph 13B(4), and

 

(b)    

before the end of three working days beginning with the first

 

working day after the day on which the authorisation is granted.

 

      (4)  

If the decision under sub-paragraph (2) is to approve the grant of the

 

authorisation, the retention and use of the article may continue in

 

accordance with the conditions on which the authorisation was granted

 

(subject to any further conditions or variation of the existing conditions

 

that the Commissioner specifies).

 

      (5)  

If the decision under sub-paragraph (2) is to cancel the authorisation,

 

any further use of the article must stop as soon as possible.

 

      (6)  

If the Commissioner cancels the authorisation the Commissioner may

 

direct that the article—

 

(a)    

is destroyed, or

 

(b)    

is returned to the person from whom it was taken,

 

            

and the Commissioner may further direct that all reasonable steps are

 

taken to secure that any information derived from the article is

 

destroyed.

 

      (7)  

Sub-paragraphs (5) and (6) do not apply if the article is further retained

 

under a power conferred by paragraph 11(2)(b) or (c).

 

      (8)  

The Commissioner must inform each affected party of the

 

Commissioner’s decision under sub-paragraph (2).

 

      (9)  

The requirement under this paragraph to provide information to the

 

person from whom the article was taken applies only so far as it is

 

reasonably practicable to do so.

 

    (10)  

Where a Judicial Commissioner, other than the Investigatory Powers

 

Commissioner, exercises a function under this paragraph in relation to

 

an article, an affected party may ask the Investigatory Powers

 

Commissioner to decide whether to approve the way in which the

 

function was exercised.

 

    (11)  

Nothing in this paragraph affects the lawfulness of—

 

(a)    

anything done under an authorisation before it is cancelled;

 

(b)    

if anything is in the process of being done under an authorisation

 

when it is cancelled—

 

(i)    

anything done before that thing could be stopped, or

 

(ii)    

anything done which it is not reasonably practicable to

 

stop.”

 

 
 

 


 
 

10

26

Page 46, line 9, after “Kingdom” insert “so far as those interests are also relevant to

 

the interests of national security”

 

27

Page 46, line 15, at end insert “, other than a copy in respect of which an

 

authorisation is granted under paragraph 15B”

 

28

Page 46, line 23, at end insert “so far as those interests are also relevant to the

 

interests of national security”

 

29

Page 46, line 42, at end insert “so far as those interests are also relevant to the

 

interests of national security”

 

30

Page 46, line 45, leave out sub-paragraph (10)

 

31

Page 47, leave out line 4

 

32

Page 47, line 6, at end insert—

 

“15A (1)  

Before proceeding under paragraph 15 in relation to a copy, the

 

Commissioner—

 

(a)    

must invite each affected party to make representations, before

 

the end of whatever period the Commissioner may specify, about

 

how the Commissioner should proceed under that paragraph,

 

and

 

(b)    

must have regard to any representations made by an affected

 

party before the end of that period.

 

      (2)  

Where a Judicial Commissioner, other than the Investigatory Powers

 

Commissioner, exercises a function under paragraph 15 in relation to a

 

copy, an affected party may ask the Investigatory Powers Commissioner

 

to decide whether to approve the way in which the function was

 

exercised.

 

      (3)  

Each of the following is an “affected party” for the purposes of this

 

paragraph—

 

(a)    

where the examining officer is a constable, the responsible chief

 

officer,

 

(b)    

the Secretary of State, and

 

(c)    

the person from whom the article was taken from which the copy

 

was made.

 

      (4)  

In sub-paragraph (3) “responsible chief officer” means—

 

(a)    

in a case where the copy was made in connection with an

 

investigation being conducted by a police force in England and

 

Wales, the chief officer of police of that police force;

 

(b)    

in a case where the copy was made in connection with an

 

investigation being conducted by the Police Service of Scotland,

 

the chief constable of the Police Service of Scotland;

 
 

 


 
 

11

 
 

(c)    

in a case where the copy was made in connection with an

 

investigation being conducted by the Police Service of Northern

 

Ireland, the Chief Constable of the Police Service of Northern

 

Ireland;

 

(d)    

in any other case—

 

(i)    

where the examining officer is a constable of a police force

 

in England and Wales, the chief officer of police of that

 

police force,

 

(ii)    

where the examining officer is a constable of the Police

 

Service of Scotland, the chief constable of the Police

 

Service of Scotland, or

 

(iii)    

where the examining officer is a constable of the Police

 

Service of Northern Ireland, the Chief Constable of the

 

Police Service of Northern Ireland.

 

      (5)  

Sub-paragraph (6) applies where—

 

(a)    

a direction for the destruction of a copy is given under paragraph

 

15, or

 

(b)    

authorisation for the retention and use of a copy is granted under

 

that paragraph.

 

      (6)  

The Commissioner must inform the person from whom the article was

 

taken from which the copy was made that—

 

(a)    

a direction to destroy the copy has been given, or

 

(b)    

(as the case may be) authorisation to retain and use the copy has

 

been granted (and in this case the Commissioner must provide

 

details of any conditions subject to which that authorisation was

 

granted).

 

      (7)  

A requirement under this paragraph to invite representations from, or to

 

provide information to, the person from whom an article was taken from

 

which a copy was made applies only so far as it is reasonably practicable

 

to do so.

 

      (8)  

Representations under sub-paragraph (1) must be made in writing.

 

15B(1)  

This paragraph applies where—

 

(a)    

a copy consisting of or including confidential material is retained

 

by virtue of paragraph 14(3)(d) or (e), and

 

(b)    

the examining officer who retained the copy considers that the

 

urgency condition is met in relation to the copy.

 

      (2)  

The urgency condition is met in relation to a copy if—

 

(a)    

there is an urgent need for the copy to be examined or otherwise

 

used for the purpose of preventing—

 

(i)    

the carrying out of a hostile act, or

 

(ii)    

death or significant injury,

 

    

or for the purpose of mitigating the risk of any such act, death or

 

injury occurring, and

 

(b)    

the time it would take for the requirements of paragraphs 15 and

 

15A to be complied with in relation to the copy would not enable

 

such use to take place with sufficient urgency.

 

      (3)  

The examining officer may apply to a senior officer for authorisation to

 

continue to retain and use the copy.

 
 

 


 
 

12

 
 

      (4)  

An application under sub-paragraph (3) in relation to a copy may be

 

made only to a senior officer who has not been directly involved in the

 

exercise of any power under this Part of this Schedule to make the copy

 

or to question a person from whom the article was taken from which the

 

copy was made.

 

      (5)  

A senior officer may grant an authorisation under this paragraph for the

 

retention and use of a copy if satisfied that—

 

(a)    

there are reasonable grounds for considering that the urgency

 

condition is met in relation to the copy,

 

(b)    

arrangements are in place that are sufficient for ensuring that

 

confidential material contained in the copy is retained securely,

 

and

 

(c)    

the material will be used only so far as necessary and

 

proportionate for a purpose mentioned in sub-paragraph (2)(a).

 

      (6)  

An authorisation under this paragraph—

 

(a)    

must be recorded in writing;

 

(b)    

may be granted subject to whatever conditions the senior officer

 

thinks appropriate.

 

      (7)  

Paragraphs 15C and 15D contain further provision about authorisations

 

granted under this paragraph.

 

      (8)  

In this paragraph—

 

“confidential material” has the meaning given by paragraph 12(10)

 

and (11);

 

“senior officer” means—

 

(a)    

where the examining officer is a constable, another

 

constable of at least the rank of superintendent,

 

(b)    

where the examining officer is an immigration officer, an

 

immigration officer of a higher grade than the examining

 

officer, and

 

(c)    

where the examining officer is a customs officer, a customs

 

officer of a higher grade than the examining officer.

 

15C(1)  

If a senior officer grants an authorisation under paragraph 15B, the

 

examining officer who applied for the authorisation must inform the

 

Investigatory Powers Commissioner and each affected party of its grant.

 

      (2)  

The information required under sub-paragraph (1) must be given as

 

soon as reasonably practicable and in any event within 24 hours after the

 

grant of the authorisation.

 

      (3)  

An affected party may make representations to the Commissioner about

 

how the Commissioner should proceed under paragraph 15D in respect

 

of an authorisation granted under paragraph 15B.

 

      (4)  

Representations under sub-paragraph (3) must be made in writing no

 

later than the end of two working days beginning with the first working

 

day after the day on which the authorisation is granted.

 

      (5)  

The information provided under sub-paragraph (1) must include an

 

explanation of the right to make representations in writing and the time

 

by which they must be made.

 
 

 


 
 

13

 
 

      (6)  

The Commissioner must have regard to any representations made

 

before the end of the time mentioned in sub-paragraph (4) in

 

determining how to proceed under paragraph 15D.

 

      (7)  

The requirement under this paragraph to provide information to the

 

person from whom an article was taken from which the copy was made

 

applies only so far as it is reasonably practicable to do so.

 

      (8)  

In this paragraph and paragraph 15D—

 

“affected party” has the meaning given by paragraph 15A(3);

 

“working day” means a day other than a Saturday, a Sunday,

 

Christmas Day, Good Friday or a day which is a bank holiday

 

under the Banking and Financial Dealings Act 1971 in the part of

 

the United Kingdom in which the authorisation is granted.

 

15D(1)  

This paragraph applies after the Investigatory Powers Commissioner

 

has considered any representations made about an authorisation in

 

accordance with paragraph 15C.

 

      (2)  

The Commissioner must—

 

(a)    

approve the grant of the authorisation, or

 

(b)    

cancel the authorisation.

 

      (3)  

A decision under sub-paragraph (2) must be made—

 

(a)    

after the end of the period for making representations referred to

 

in paragraph 15C(4), and

 

(b)    

before the end of three working days beginning with the first

 

working day after the day on which the authorisation is granted.

 

      (4)  

If the decision under sub-paragraph (2) is to approve the grant of the

 

authorisation, the retention and use of the copy may continue in

 

accordance with the conditions on which the authorisation was granted

 

(subject to any further conditions or variation of the existing conditions

 

that the Commissioner specifies).

 

      (5)  

If the decision under sub-paragraph (2) is to cancel the authorisation,

 

any further use of the copy must stop as soon as possible.

 

      (6)  

If the Commissioner cancels the authorisation the Commissioner may

 

direct that—

 

(a)    

the copy is destroyed, and

 

(b)    

all reasonable steps are taken to secure that any information

 

derived from the copy is also destroyed.

 

      (7)  

Sub-paragraphs (5) and (6) do not apply if the copy is further retained

 

under a power conferred by paragraph 14(3)(b) or (c).

 

      (8)  

The Commissioner must inform each affected party of the

 

Commissioner’s decision under sub-paragraph (2).

 

      (9)  

The requirement under this paragraph to provide information to the

 

person from whom the article was taken from which the copy was made

 

applies only so far as it is reasonably practicable to do so.

 

    (10)  

Where a Judicial Commissioner, other than the Investigatory Powers

 

Commissioner, exercises a function under this paragraph in relation to a

 

copy, an affected party may ask the Investigatory Powers Commissioner

 

to decide whether to approve the way in which the function was

 

exercised.

 
 

 


 
 

14

 
 

    (11)  

Nothing in this paragraph affects the lawfulness of—

 

(a)    

anything done under an authorisation before it cancelled;

 

(b)    

if anything is in the process of being done under an authorisation

 

when it is cancelled—

 

(i)    

anything done before that thing could be stopped, or

 

(ii)    

anything done which it is not reasonably practicable to

 

stop.”

 

33

Page 49, line 16, at end insert—

 

    “( )  

A detainee must be informed of the right under this paragraph on first

 

being detained.”

 

34

Page 49, line 21, at end insert—

 

    “( )  

A detainee must be informed of the right under this paragraph on first

 

being detained.”

 

35

Page 50, line 29, leave out sub-paragraphs (1) and (2) and insert—

 

    “(1)  

This paragraph applies where a detainee exercises the right under

 

paragraph 23 to consult a solicitor.

 

      (2)  

A police officer of at least the rank of superintendent may direct that the

 

right—

 

(a)    

may not be exercised (or further exercised) by consulting the

 

solicitor who attends for the purpose of the consultation or who

 

would so attend but for the giving of the direction, but

 

(b)    

may instead be exercised by consulting a different solicitor of the

 

detainee’s choosing.

 

    (2A)  

A direction under this paragraph may be given before or after a

 

detainee’s consultation with a solicitor has started (and if given after it

 

has started the right to further consult that solicitor ceases on the giving

 

of the direction).”

 

36

Page 51, line 4, leave out sub-paragraphs (5) and (6)

 

37

Page 53, line 36, leave out “Subject to paragraph 32,”

 

38

Page 53, line 36, at end insert—

 

    “( )  

A detainee must be informed of the rights under sub-paragraphs (1) and

 

(6) on first being detained.”

 

 
 

 


 
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Revised 15 January 2019