Investigatory Powers Bill (HL Bill 62)

Investigatory Powers BillPage 160

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

(a) where section 53 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 54 to 56 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
55(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
188 (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).

204 Part 7: interpretation

(1) In this Part—

  • “class BPD warrant” has the meaning given by section 184(3)(a);

  • 40“personal data” has the meaning given by section 183(2);

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

  • “specific BPD warrant” has the meaning given by section 184(3)(b);

  • Investigatory Powers BillPage 161

  • “the specified operational purposes” has the meaning given by section
    194(12).

(2) See also—

  • section 239 (general definitions),

  • 5section 240 (index of defined expressions).

Part 8 Oversight arrangements

CHAPTER 1 Investigatory Powers Commissioner and other Judicial Commissioners

10The Commissioners

205 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
15considers 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
202005).

(3) A person is not to be appointed as the Investigatory Powers Commissioner
unless recommended jointly by—

(a) the Lord Chancellor,

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

(c) 25the Lord President of the Court of Session, and

(d) the Lord Chief Justice of Northern Ireland.

(4) A person is not to be appointed as a Judicial Commissioner under subsection
(1)(b) unless recommended jointly by—

(a) the Lord Chancellor,

(b) 30the Lord Chief Justice of England and Wales,

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

(d) the Lord Chief Justice of Northern Ireland, and

(e) the Investigatory Powers Commissioner.

(5) Before appointing any person under subsection (1), the Prime Minister must
35consult—

(a) the Scottish Ministers, and

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

(6) The Prime Minister must have regard to a memorandum of understanding
agreed between the Prime Minister and the Scottish Ministers when exercising
40functions under subsection (1) or (5)(a).

Investigatory Powers BillPage 162

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

(8) The Investigatory Powers Commissioner may, to such extent as the
5Investigatory Powers Commissioner may decide, delegate the exercise of
functions of the Investigatory Powers Commissioner to any other Judicial
Commissioner.

(9) References in any enactment—

(a) to a Judicial Commissioner are to be read as including the Investigatory
10Powers Commissioner, and

(b) to the Investigatory Powers Commissioner are to be read, so far as
necessary for the purposes of subsection (8), as references to the
Investigatory Powers Commissioner or any other Judicial
Commissioner.

206 15Terms and conditions of appointment

(1) Subject as follows, each Judicial Commissioner holds and vacates office in
accordance 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
20subsection (5)) may be re-appointed under section 205(1).

(4) A Judicial Commissioner may not, subject to subsection (5), be removed from
office 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) 25A Judicial Commissioner may be removed from office by the Prime Minister if,
after the appointment of the Commissioner—

(a) a 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
30Commissioner’s creditors,

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

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

(ii) 35an order under section 429(2)(b) of the Insolvency Act 1986
(failure to pay under county court administration order),

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

(c) 40the Commissioner’s disqualification undertaking is accepted under
section 7 or 8 of the Company Directors Disqualification Act 1986 or
under the Company Directors Disqualification (Northern Ireland)
Order 2002, or

(d) the Commissioner is convicted in the United Kingdom, the Channel
45Islands or the Isle of Man of an offence and receives a sentence of
imprisonment (whether suspended or not).

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Main functions of Commissioners

207 Main oversight functions

(1) The Investigatory Powers Commissioner must keep under review (including
by way of audit, inspection and investigation) the exercise by public
5authorities of statutory functions relating to—

(a) the 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) 10equipment interference.

(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
15Chapter 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) 20The 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 228 (national security
25notices),

(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 sections 1 to 4 of the Prisons
30(Interference with Wireless Telegraphy) Act 2012,

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

(f) 35the adequacy of the arrangements by virtue of which the duties
imposed by section 55 of that Act are sought to be discharged,

(g) the 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),

(h) 40the exercise of functions under Part 3 of the Police Act 1997
(authorisation of action in respect of property),

(i) the 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

(j) 45the exercise by the Scottish Ministers (by virtue of provision made
under section 63 of the Scotland Act 1998) of functions under sections 5
and 6(3) and (4) of the Act of 1994.

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

Investigatory Powers BillPage 164

(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) the exercise of any function by virtue of Part 3 of the Regulation of
5Investigatory 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
of any document or other property in connection with
10communications 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
Investigatory Powers Act 2000, the Regulation of Investigatory Powers
15(Scotland) Act 2000 or an enactment mentioned in subsection (3)(c), (h),
(i) or (j) above,

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

(i) conduct authorised by section 43, 45 or 48, or

(ii) conduct authorised by section 44 which is not conduct by or on
20behalf of an intercepting authority (within the meaning given
by section 18(1)), or

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

(5) In keeping matters under review in accordance with this section, the
25Investigatory Powers Commissioner must, in particular, keep under review
the operation of safeguards to protect privacy.

(6) In 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) 30national security,

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

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

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

(a) 35jeopardise the success of an intelligence or security operation or a law
enforcement operation,

(b) compromise 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.

(8) 40Subsections (6) and (7) do not apply in relation to the functions of a Judicial
Commissioner of—

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

(b) dealing with the situation where a warrant issued, or modification
45made, for what was considered to be an urgent need is not approved,

(c) reviewing any decisions taken in dealing with the situation mentioned
in paragraph (b),

(d) deciding whether to approve the giving of a notice under section 228 or
229, or

Investigatory Powers BillPage 165

(e) participating in a review under section 233 or deciding whether to give
approval under that section.

(9) In this section—

  • “bulk personal dataset” is to be read in accordance with section 183,

  • 5“equipment data” has the same meaning as in Part 5 (see section 95),

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

  • “police force” has the same meaning as in Part 2 (see section 57(1)),

  • “related systems data” has the meaning given by section 15(6),

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

  • “secondary data” has the same meaning as in Part 2 (see section 16),

  • “statutory function” means any function conferred by virtue of this Act or
    15any other enactment.

208 Additional directed oversight functions

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

(a) 20an intelligence service,

(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
25kept under review by the Investigatory Powers Commissioner under section
207.

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

(4) 30The Prime Minister must publish, in a manner which the Prime Minister
considers 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) 35the 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.

209 40Error reporting

(1) The 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) 45it is in the public interest for the person to be informed of the error.

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(2) In 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) 5Accordingly, the fact that there has been a breach of a person’s Convention
rights (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) 10the seriousness of the error and its effect on the person concerned, and

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

(iv) the 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
20to make submissions to the Commissioner about the matters concerned.

(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) 25provide 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) 30The 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 212(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
35relates,

(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) 40by 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,

45and the Investigatory Powers Commissioner must keep under review the
definition of “relevant error”.

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210 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
opinion as to any issue falling to be determined by the Tribunal) as the Tribunal
5may 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) A Judicial Commissioner may provide advice or information to any public
10authority 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
Commissioner that providing the advice or information might be contrary to
15the 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) the continued discharge of the functions of any public authority whose
20activities include activities that are subject to review by the
Investigatory Powers Commissioner.

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

211 Functions under other Parts and other enactments

(1) 25The Investigatory Powers Commissioner and the other Judicial
Commissioners 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) 30in sections 96(1), 103(7)(b) and (8), 104(3) to (8) and 105(1) and (2) for
“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
35Commissioner”,

(c) in 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) 40in section 104(1) for “Chief Commissioner” substitute “Investigatory
Powers 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) 45in section 105(1)(a)(ii) and (b)(ii) for “the Commissioner” substitute “the
Judicial Commissioner”, and

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(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) 5in 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
10Commissioner”, 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
15“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
20Commissioner” substitute “Judicial Commissioner”, and

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

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

(a) 25in section 51(6) (notification to Intelligence Services Commissioner or
Chief Surveillance Commissioner of certain directions relating to the
disclosure of a key to protected information) for the words from “done
so” to the end substitute “done so to the Investigatory Powers
Commissioner”,

(b) 30in section 54(9) (tipping-off: protected disclosures to a relevant
Commissioner) for “relevant Commissioner” substitute “Judicial
Commissioner”,

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

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

(5) In 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) 40in 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
“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
45it appears, substitute “Investigatory Powers Commissioner”,

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

(d) in section 15(7)(b) for “Chief Surveillance Commissioner” substitute
“Investigatory Powers Commissioner (if the Commissioner is not that
50Commissioner)”,

Investigatory Powers BillPage 169

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

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

(g) in section 16(5) for “ordinary Surveillance Commissioner’s” substitute
“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
10authorisations to, and approval of certain authorisations by, ordinary
Surveillance Commissioner)—

(a) in 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
15Commissioner” substitute “Judicial Commissioner”,

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

(d) in article 6(1) for “an ordinary Surveillance Commissioner” substitute
“a Judicial Commissioner (other than the Investigatory Powers
20Commissioner)”, and

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

Reports and investigation and information powers

212 Annual and other reports

(1) 25The Investigatory Powers Commissioner must, as soon as reasonably
practicable after the end of each calendar year, make a report to the Prime
Minister 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
30review by the Investigatory Powers Commissioner (including the
number of warrants or authorisations issued, given, considered or
approved during the year),

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

(c) information about the operational purposes specified during the year
35in warrants issued under Part 6 or 7,

(d) the information on errors required by virtue of section 209(8),

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

(f) details of public engagements undertaken by the Judicial
40Commissioners 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
report to the Prime Minister, on any matter relating to the functions of the
45Judicial Commissioners, as the Investigatory Powers Commissioner considers
appropriate.