Investigatory Powers Bill (HL Bill 62)

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specific BPD warrant, the Secretary of State may ask the Investigatory Powers
Commissioner to decide whether to approve the decision to issue the warrant.

191 Approval of specific BPD warrants issued in urgent cases

(1) This section applies where—

(a) 5a specific BPD warrant is issued without the approval of a Judicial
Commissioner, and

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

(2) The Secretary of State must inform a Judicial Commissioner that it has been
10issued.

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

(a) decide whether to approve the decision to issue the warrant, and

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

“The relevant period” means the period ending with the third working day
15after the day on which the warrant was issued.

(4) If a Judicial Commissioner refuses to approve the decision to issue a specific
BPD warrant, the warrant—

(a) ceases to have effect (unless already cancelled), and

(b) may not be renewed.

(5) 20Section 192 contains further provision about what happens if a Judicial
Commissioner refuses to approve a decision to issue a warrant.

192 Failure to approve specific BPD warrant issued in urgent case

(1) This section applies where under section 191(3) a Judicial Commissioner
refuses to approve the decision to issue a warrant.

(2) 25The head of the intelligence service to whom the warrant was addressed must,
so far as is reasonably practicable, secure that anything in the process of being
done in reliance on the warrant stops as soon as possible.

(3) The Judicial Commissioner may—

(a) direct that the whole or part of a bulk personal dataset retained in
30reliance on the warrant is destroyed;

(b) impose conditions as to the use or retention of the whole or part of any
such bulk personal dataset.

(4) The Judicial Commissioner—

(a) may require an affected party to make representations about how the
35Judicial Commissioner should exercise any function under subsection
(3), and

(b) must have regard to any such representations made by an affected
party (whether or not as a result of a requirement imposed under
paragraph (a)).

(5) 40Each of the following is an “affected party” for the purposes of subsection (4)—

(a) the Secretary of State;

(b) the head of the intelligence service to whom the warrant was
addressed.

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(6) The Secretary of State may ask the Investigatory Powers Commissioner to
review a decision made by any other Judicial Commissioner under subsection
(3).

(7) On a review under subsection (6), the Investigatory Powers Commissioner
5may—

(a) confirm the Judicial Commissioner’s decision, or

(b) make a fresh determination.

(8) An intelligence service is not to be regarded as in breach of section 184(1) or (2)
where it retains or (as the case may be) examines a bulk personal dataset in
10accordance with conditions imposed under subsection (3)(b).

(9) Nothing in this section or section 191 affects the lawfulness of—

(a) anything done in reliance on the warrant before it ceases to have effect;

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

(i) 15anything done before that thing could be stopped, or

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

193 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) 20Before a class BPD warrant is issued, it must be signed by the Secretary of State.

(3) Before 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
25Secretary of State for that purpose.

(5) In 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
30of the warrant.

194 Requirements 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) 35A class BPD warrant or a specific BPD warrant must be addressed to the head
of 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
40warrant relates, and

(b) where 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.

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(4) A specific BPD warrant must—

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

(b) where the warrant authorises the retention or examination of
replacement datasets, include a description that will enable those
5datasets to be identified, and

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

(5) 10The operational purposes specified in a class BPD warrant or a specific BPD
warrant must be ones specified, in a list maintained by the heads of the
intelligence services (“the list of operational purposes”), as purposes which
they consider are operational purposes for which data contained in bulk
personal datasets retained in reliance on class BPD warrants or specific BPD
15warrants may be selected for examination.

(6) A 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, are specified
in the list of operational purposes.

(7) An operational purpose may be specified in the list of operational purposes
20only with the approval of the Secretary of State.

(8) The Secretary of State may give such approval only if satisfied that the
operational purpose is specified in a greater level of detail than the descriptions
contained in section 187(3)(a) or (as the case may be) section 188(6)(a).

(9) At the end of each relevant three-month period, the Secretary of State must
25give a copy of the list of operational purposes to the Intelligence and Security
Committee of Parliament.

(10) In subsection (9), “relevant three-month period” means—

(a) the period of three months beginning with the day on which this
section comes into force, and

(b) 30each successive period of three months.

(11) The Prime Minister must review the list of operational purposes at least once a
year.

(12) In this Part, “the specified operational purposes”, in relation to a class BPD
warrant or a specific BPD warrant, means the operational purposes specified
35in the warrant in accordance with this section.

Duration, modification and cancellation

195 Duration of warrants

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

(a) 40it is renewed before the end of that period (see section 196), 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 191 and 199).

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

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(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) 5the 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
10specific 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) 15For provision about the renewal of warrants, see section 196.

196 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 during the renewal period, by an
instrument issued by the Secretary of State.

(2) 20The renewal conditions are—

(a) that the Secretary of State considers that the warrant continues to be
necessary on grounds falling within section 187(3)(a) or (as the case
may be) section 188(6)(a),

(b) that the Secretary of State considers that the conduct that would be
25authorised 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
30considers that—

(i) each of the specified operational purposes (see section 194) 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

(ii) 35the 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) that the decision to renew the warrant has been approved by a Judicial
40Commissioner.

(3) “The renewal period” means—

(a) in the case of an urgent specific BPD warrant which has not been
renewed, the relevant period;

(b) in any other case, the period of 30 days ending with the day at the end
45of which the warrant would otherwise cease to have effect.

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(4) 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.

(5) Section 190 (approval of warrants by Judicial Commissioner) applies in
5relation to a decision to renew a warrant as it applies in relation to a decision
to issue a warrant.

(6) In this section—

  • “the relevant period” has the same meaning as in section 195;

  • “urgent specific BPD warrant” is to be read in accordance with subsection
    10(3) of that section.

197 Modification of warrants

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

(2) 15The 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
bulk personal datasets of a class described in the warrant may be
examined;

(b) 20in 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) In this section—

(a) a modification adding or varying any operational purpose is referred to
25as a “major modification”, and

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

(4) A major modification—

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

(b) 30may 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 187(3)(a) or (as the case may be)
section 188(6)(a)).

(5) Except where the Secretary of State considers that there is an urgent need to
35make the modification, a major modification has effect only if the decision to
make the modification is approved by a Judicial Commissioner.

(6) Section 190 (approval of warrants by Judicial Commissioners) applies in
relation 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
40warrant.

Section 198 contains provision about the approval of major modifications made
in urgent cases.

(7) A minor modification may be made by—

(a) the Secretary of State, or

(b) 45a senior official acting on behalf of the Secretary of State.

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(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
operational purpose specified in a warrant is no longer a purpose for which the
5examination 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
warrant must be taken personally by the person making the modification, and
10the 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
signed by a senior official designated by the Secretary of State for that purpose.

(12) 15In 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) the Secretary of State has personally and expressly authorised the
20making of the modification.

198 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
warrant or a specific BPD warrant without the approval of a Judicial
25Commissioner, 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
modification has been made.

(3) 30The 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
the day on which the modification was made.

(4) 35If 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) the person to whom the warrant is addressed must, so far as is
40reasonably 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—

(a) anything done in reliance on the warrant by virtue of the modification
45before the modification ceases to have effect;

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

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

199 5Cancellation 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) If 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
10class BPD warrant or a specific BPD warrant, the person must cancel the
warrant.

(3) The cancellation conditions are—

(a) that the warrant is no longer necessary on any grounds falling within
section 187(3)(a) or (as the case may be) section 188(6)(a);

(b) 15that 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
a 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
20personal 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 194).

200 Non-renewal or cancellation of BPD warrants

(1) This section applies where a class BPD warrant or a specific BPD warrant
25ceases 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,
before the end of the period of 5 working days beginning with the day on
which the warrant ceases to have effect—

(a) 30apply for—

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

(ii) 35a 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
authorise the retention or (as the case may be) the retention and
examination of the whole or any part of such material, or

(b) 40where 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
to retain, or to retain and examine, the whole or any part of the material
retained by the intelligence service in reliance on the warrant.

(3) 45On an application under subsection (2)(b), the Secretary of State may—

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(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
or (as the case may be) the retention and examination of any of that
5material, 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
of State to authorise the retention or (as the case may be) the retention and
10examination 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
ask the Investigatory Powers Commissioner to decide whether to approve the
15decision.

(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
must make the application as soon as reasonably practicable and before the end
20of 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 184(1) or (2) by
virtue of its retention or examination of any material to which the warrant
25related 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.

Second period

30The 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

The period during which the retention or examination of the material is
35authorised 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
application for a specific BPD warrant or a class BPD warrant in relation to the
40material, 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.

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Further and supplementary provision

201 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 183).

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
184(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

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(b) the intelligence service is not to be regarded as in breach of section
184(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.

202 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 194.

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

203 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 184(1) and (2) do not
25apply by virtue of section 185(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 185(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.