Investigatory Powers Bill (HL Bill 62)

Investigatory Powers BillPage 170

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

(6) 5On receiving a report from the Investigatory Powers Commissioner under
subsection (1), the Prime Minister must—

(a) publish the report, and

(b) lay a copy of the published report before Parliament together with a
statement as to whether any part of the report has been excluded from
10publication 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
Police 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
15publication of that part would 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) 20the continued discharge of the functions of any public authority whose
activities include activities that are subject to review by the
Investigatory Powers Commissioner.

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

(a) 25the 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) in the case of the First Minister and the deputy First Minister in
30Northern 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.

213 Investigation and information powers

(1) 35A 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
such documents and information as the Commissioner may require for the
40purposes 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) Assistance under subsection (3) may, in particular, include such access to
45apparatus, systems or other facilities or services as the Judicial Commissioner

Investigatory Powers BillPage 171

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
refusal by a telecommunications operator or postal operator to comply with
5any 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 209(9)) of which it is aware.

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

(a) 10any 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
provide assistance by virtue of section 39, 41, 119, 121, 140, 156, 158 or
15176, or

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

214 Referrals by the Intelligence and Security Committee of Parliament

(1) Subsection (2) applies if the Intelligence and Security Committee of Parliament
20refers a matter to the Investigatory Powers Commissioner with a view to the
Commissioner carrying out an investigation, inspection or audit into it.

(2) The Investigatory Powers Commissioner must inform the Intelligence and
Security Committee of Parliament of the Commissioner’s decision as to
whether to carry out the investigation, inspection or audit.

215 25Information gateway

(1) A 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,
30or

(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
35exempt from those provisions.

Supplementary provision

216 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) 40The 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—

Investigatory Powers BillPage 172

(a) such staff, and

(b) such accommodation, equipment and other facilities,

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

217 5Power 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) But such regulations may not modify any function conferred by virtue of this
Act on a Judicial Commissioner to approve, quash or cancel—

(a) 10an 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
extended by section 242(1)(c)) may, in particular, be exercised by modifying
any provision made by or under an enactment (including this Act).

218 15Abolition of existing oversight bodies

(1) The offices of the following are abolished—

(a) the Interception of Communications Commissioner,

(b) the Intelligence Services Commissioner,

(c) the Investigatory Powers Commissioner for Northern Ireland,

(d) 20the Chief Surveillance Commissioner,

(e) the other Surveillance Commissioners,

(f) the Scottish Chief Surveillance Commissioner, and

(g) the other Scottish Surveillance Commissioners.

(2) Accordingly, the following enactments are repealed—

(a) 25sections 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
Commissioner),

(c) section 61 of that Act (the Investigatory Powers Commissioner for
30Northern Ireland),

(d) sections 62 and 63 of that Act and sections 91 and 107 of the Police Act
1997 (the Surveillance Commissioners),

(e) section 64 of the Regulation of Investigatory Powers Act 2000
(delegation of Commissioners’ functions), and

(f) 35sections 2(1) to (9), 3 and 4 of the Regulation of Investigatory Powers
(Scotland) Act 2000 (2000 asp 112000 asp 11) (the Scottish Surveillance
Commissioners).

(3) In this section—

  • “the other Scottish Surveillance Commissioners” means—

    (a)

    40the Surveillance Commissioners appointed under section
    2(1)(b) of the Regulation of Investigatory Powers (Scotland) Act
    2000, and

    (b)

    the Assistant Surveillance Commissioners appointed under
    section 3 of that Act,

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  • “the Scottish Chief Surveillance Commissioner” means the Chief
    Surveillance Commissioner appointed under section 2(1)(a) of that Act.

CHAPTER 2 Other arrangements

5Codes of practice

219 Codes of practice

Schedule 7 (codes of practice) has effect.

Investigatory Powers Tribunal

220 Right of appeal from Tribunal

(1) 10After section 67 of the Regulation of Investigatory Powers Act 2000 insert—

67A Appeals from the Tribunal

(1) A relevant person may appeal on a point of law against any
determination of the Tribunal of a kind mentioned in section 68(4) or
any decision of the Tribunal of a kind mentioned in section 68(4C).

(2) 15Before making a determination or decision which might be the subject
of an appeal under this section, the Tribunal must specify the court
which is to have jurisdiction to hear the appeal (the “relevant appellate
court”).

(3) This court is whichever of the following courts appears to the Tribunal
20to be the most appropriate—

(a) the Court of Appeal in England and Wales,

(b) the Court of Session,

(c) the Court of Appeal in Northern Ireland.

(4) The Secretary of State may by regulations specify criteria to be applied
25by the Tribunal in making decisions under subsection (2) as to the
identity of the relevant appellate court.

(5) An appeal under this section—

(a) is to be heard by the relevant appellate court, but

(b) may not be made without the leave of the Tribunal or, if that is
30refused, of the relevant appellate court.

(6) The Tribunal or relevant appellate court must not grant leave to appeal
unless it considers that—

(a) the appeal would raise an important point of principle or
practice, or

(b) 35there is another compelling reason for granting leave.

(7) In this section—

  • “relevant appellate court” has the meaning given by subsection
    (2),

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  • “relevant person”, in relation to any proceedings, complaint or
    reference, means the complainant or—

    (a)

    in the case of proceedings, the respondent,

    (b)

    in the case of a complaint, the person complained
    5against, and

    (c)

    in the case of a reference, any public authority to whom
    the reference relates.”

(2) In section 67 of that Act (no appeal from the Investigatory Powers Tribunal
except as provided by order of the Secretary of State)—

(a) 10in subsection (8) for “Except to such extent as the Secretary of State may
by order otherwise provide,” substitute “Except as provided by virtue
of section 67A,”, and

(b) omit subsections (9) to (12).

(3) After section 68(4) of that Act (requirement to give notice of determinations to
15complainant) insert—

(4A) Where the Tribunal make any determination of a kind mentioned in
subsection (4), they must also give notice to—

(a) in the case of proceedings, the respondent,

(b) in the case of a complaint, the person complained against, and

(c) 20in the case of a reference, any public authority to whom the
reference relates.

(4B) A notice under subsection (4A) is (subject to any rules made by virtue
of section 69(2)(j)) to be confined, as the case may be, to either—

(a) a statement that they have made a determination in the
25complainant’s favour, or

(b) a statement that no determination has been made in the
complainant’s favour.

(4C) Where the Tribunal make any decision which—

(a) is a final decision of a preliminary issue in relation to any
30proceedings, complaint or reference brought before or made to
them, and

(b) is neither a determination of a kind mentioned in subsection (4)
nor a decision relating to a procedural matter,

they must give notice of that decision to every person who would be
35entitled to receive notice of the determination under subsection (4) or
(4A).

(4D) A notice under subsection (4C) is (subject to any rules made by virtue
of section 69(2)(i) or (j)) to be confined to a statement as to what the
decision is.

(4E) 40Subsections (4C) and (4D) do not apply so far as—

(a) the Tribunal are prevented from giving notice of a decision to a
person by rules made by virtue of section 69(4) or decide under
such rules not to give such a notice, or

(b) the giving of such a notice is inconsistent with such rules.”

(4) 45In section 69(2) of that Act (Tribunal rules)—

(a) in paragraph (i), after “section 68(4)” insert “or notice under section
68(4C)”, and

Investigatory Powers BillPage 175

(b) after paragraph (i), insert ;

(j) require information about any determination, award,
order or other decision made by the Tribunal in relation
to any proceedings, complaint or reference to be
5provided (in addition to any statement under section
68(4A) or notice under section 68(4C)) to—

(i) in the case of proceedings, the respondent,

(ii) in the case of a complaint, the person
complained against, and

(iii) 10in the case of a reference, any public authority to
whom the reference relates,

or to the person representing their interests;

(k) make provision about the making and determination of
applications to the Tribunal for permission to appeal”.

(5) 15In section 78 of that Act (orders, regulations and rules)—

(a) in subsection (4), after “applies” insert “(other than regulations under
section 67A(4))”, and

(b) after subsection (4) insert—

(4A) A statutory instrument containing regulations under section
2067A(4) may not be made unless a draft of the instrument has
been laid before, and approved by a resolution of, each House
of Parliament.”

221 Functions of Tribunal in relation to this Act

(1) In section 65 of the Regulation of Investigatory Powers Act 2000 (the
25Investigatory Powers Tribunal)—

(a) in subsection (2)(c) (jurisdiction of the Investigatory Powers Tribunal
where possible detriment due to evidential bar) for “section 17”
substitute “section 53 of the Investigatory Powers Act 2016”,

(b) in subsection (5) (conduct in relation to which the Tribunal has
30jurisdiction) after paragraph (b) insert—

(ba) conduct for or in connection with the obtaining of
secondary data from communications transmitted by
means of such a service or system;”,

(c) in subsection (5) for paragraph (c) substitute—

(c) 35conduct of a kind which may be permitted or required
by an authorisation or notice under Part 3 of the
Investigatory Powers Act 2016 or a warrant under
Chapter 2 of Part 6 of that Act (acquisition of
communications data);

(cza) 40the giving or varying of an authorisation or notice under
Part 3 of that Act or of a warrant under Chapter 2 of Part
6 of that Act;

(czb) conduct of a kind which may be required or permitted
by a retention notice under Part 4 of that Act (retention
45of communications data) but excluding any conduct
which is subject to review by the Information
Commissioner;

(czc) the giving or varying of a retention notice under that
Part of that Act;”,

Investigatory Powers BillPage 176

(d) in subsection (7ZA) (role for Tribunal where judicial authority
involved) for “under section 23A or 32A” substitute “by a Judicial
Commissioner or under section 32A of this Act or section 72 of the
Investigatory Powers Act 2016”,

(e) 5after subsection (7ZA) insert—

(7ZB) For the purposes of this section conduct also takes place in
challengeable circumstances if it is, or purports to be, conduct
falling within subsection (5)(cza) or (czc).”,

(f) in subsection (8) (matters that may be challenged before the Tribunal)
10for paragraphs (a) and (b) substitute—

(a) a warrant under Part 2, 5, 6 or 7 of the Investigatory
Powers Act 2016;

(b) an authorisation or notice under Part 3 of that Act;

(ba) a retention notice under Part 4 of that Act;”, and

(g) 15after subsection (9) insert—

(9A) In subsection (5)(ba) the reference to obtaining secondary data
from communications transmitted by means of a postal service
or telecommunication system is to be read in accordance with
section 16 of the Investigatory Powers Act 2016.”

(2) 20In section 67(7) of the Act of 2000 (powers of the Tribunal)—

(a) after paragraph (a) insert—

(aza) an order quashing or cancelling a notice under Part 3 of
the Investigatory Powers Act 2016 or a retention notice
under Part 4 of that Act;”,

(b) 25in paragraph (aa) for “section 23A or 32A” substitute “section 72 of the
Investigatory Powers Act 2016 or section 32A of this Act”, and

(c) in paragraph (b)(i) after “authorisation” insert “or by a notice under
Part 3 of the Investigatory Powers Act 2016”.

(3) In section 68(5)(b) of the Act of 2000 (report of certain findings to the Prime
30Minister) after “permission” insert “, or notice under Part 4 of the Investigatory
Powers Act 2016,”.

(4) In section 68(6)(b) of the Act of 2000 (disclosures etc. to the Tribunal to enable
the exercise of functions conferred by or under that Act) after “this Act” insert
“or the Investigatory Powers Act 2016”.

(5) 35In section 68(7) of the Act of 2000 (persons subject to duty to co-operate with
the Tribunal)—

(a) in paragraph (e)—

(i) for “section 11” substitute “section 39, 119, 140, 156 or 176 of the
Investigatory Powers Act 2016”, and

(ii) 40for “an interception warrant” substitute “a warrant”,

(b) in paragraph (f) for “section 12” substitute “section 229 of that Act”,

(c) for paragraphs (g) and (h) substitute—

(g) every person by or to whom an authorisation under Part
3 of that Act has been granted;

(h) 45every person to whom a notice under Part 3 of that Act
has been given;

(ha) every person to whom a retention notice under Part 4 of
that Act has been given;”,

Investigatory Powers BillPage 177

(d) in paragraph (k), for the words from “an authorisation” to the end
substitute

(i) an authorisation under Part 3 of the
Investigatory Powers Act 2016, Part 2 of this Act
5or Part 3 of the Police Act 1997, or

(ii) a warrant under Chapter 2 of Part 6 of the
Investigatory Powers Act 2016;”,

(e) in paragraph (l) after “authorisation” insert “or warrant”, and

(f) in paragraph (n) after “(h)” insert “, (ha)”.

(6) 10In section 68(8) of the Act of 2000 (meaning of “relevant Commissioner”) for the
words from “Interception” to the end substitute “Investigatory Powers
Commissioner or any other Judicial Commissioner”.

Information Commissioner

222 Oversight by Information Commissioner in relation to Part 4

15The Information Commissioner must audit compliance with requirements or
restrictions imposed by virtue of Part 4 in relation to the integrity, security or
destruction of data retained by virtue of that Part.

Technical Advisory Board

223 Technical Advisory Board

(1) 20There is to continue to be a Technical Advisory Board consisting of such
number of persons appointed by the Secretary of State as the Secretary of State
may by regulations provide.

(2) The regulations providing for the membership of the Technical Advisory
Board must also make provision which is calculated to ensure—

(a) 25that the membership of the Board includes persons likely effectively to
represent the interests of persons on whom obligations may be
imposed by virtue of retention notices under Part 4 or technical
capability notices under section 229,

(b) that the membership of the Board includes persons likely effectively to
30represent the interests of persons entitled to apply for warrants under
Part 2, 5, 6 or 7 or authorisations under Part 3,

(c) that such other persons (if any) as the Secretary of State considers
appropriate may be appointed to be members of the Board, and

(d) that the Board is so constituted as to produce a balance between the
35representation of the interests mentioned in paragraph (a) and the
representation of those mentioned in paragraph (b).

(3) Regulations under this section may also make provision about quorum and the
filling of vacancies.

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Part 9 Miscellaneous and general provisions

CHAPTER 1 Miscellaneous

5Combined warrants and authorisations

224 Combination of warrants and authorisations

Schedule 8 (which makes provision for the combination of certain warrants
and authorisations in a single instrument) has effect.

Compliance with Act

225 10Payments towards certain compliance costs

(1) The Secretary of State must ensure that arrangements are in force for securing
that telecommunications operators and postal operators receive an
appropriate contribution in respect of such of their relevant costs as the
Secretary of State considers appropriate.

(2) 15In subsection (1) “relevant costs” means costs incurred, or likely to be incurred,
by telecommunications operators and postal operators in complying with this
Act.

(3) The arrangements may provide for payment of a contribution to be subject to
terms and conditions determined by the Secretary of State.

(4) 20Such terms and conditions may, in particular, include a condition on the
operator concerned to comply with any audit that may reasonably be required
to monitor the claim for costs.

(5) The arrangements may provide for the Secretary of State to determine—

(a) the scope and extent of the arrangements, and

(b) 25the appropriate level of contribution which should be made in each
case.

(6) Different levels of contribution may apply for different cases or descriptions of
case but the appropriate contribution must never be nil.

(7) A retention notice under Part 4 given to a telecommunications operator or a
30postal operator, or a national security notice under section 228 given to a
telecommunications operator, must specify the level or levels of contribution
which the Secretary of State has determined should be made in respect of the
costs incurred, or likely to be incurred, by the operator as a result of the notice
in complying with that Part or (as the case may be) with the national security
35notice.

(8) For the purpose of complying with this section the Secretary of State may
make, or arrange for the making of, payments out of money provided by
Parliament.

Investigatory Powers BillPage 179

226 Power to develop compliance systems etc.

(1) The Secretary of State may—

(a) develop, provide, maintain or improve, or

(b) enter into financial or other arrangements with any person for the
5development, provision, maintenance or improvement of,

such apparatus, systems or other facilities or services as the Secretary of State
considers appropriate for enabling or otherwise facilitating compliance by the
Secretary of State, another public authority or any other person with this Act.

(2) Arrangements falling within subsection (1)(b) may, in particular, include
10arrangements consisting of the giving of financial assistance by the Secretary
of State.

(3) Such financial assistance—

(a) may, in particular, be given by way of—

(i) grant,

(ii) 15loan,

(iii) guarantee or indemnity,

(iv) investment, or

(v) incurring expenditure for the benefit of the person assisted, and

(b) may be given subject to terms and conditions determined by the
20Secretary of State.

(4) Terms and conditions imposed by virtue of subsection (3)(b) may include
terms and conditions as to repayment with or without interest.

Additional powers

227 Amendments of the Intelligence Services Act 1994

(1) 25The Intelligence Services Act 1994 is amended as follows.

(2) In section 3 (the Government Communications Headquarters)—

(a) in subsection (1)(a), after “monitor” insert “, make use of”, and

(b) in the words following subsection (1)(b)(ii), for the words from “or to
any other organisation” to the end substitute “or, in such cases as it
30considers appropriate, to other organisations or persons, or to the
general public, in the United Kingdom or elsewhere.”

(3) In section 5 (warrants: general)—

(a) in subsection (2), omit “, subject to subsection (3) below,”

(b) omit subsection (3),

(c) 35in subsection (3A), after “1989” insert “, or on the application of the
Intelligence Service or GCHQ for the purposes of the exercise of their
functions by virtue of section 1(2)(c) or 3(2)(c),”.

228 National security notices

(1) The Secretary of State may give any telecommunications operator in the United
40Kingdom a national security notice under this section if—

(a) the Secretary of State considers that the notice is necessary in the
interests of national security,