Investigatory Powers Bill (HL Bill 62)

Investigatory Powers BillPage 190

For the purposes of this definition “data”, in relation to a postal item, includes
anything written on the outside of the item.

Other definitions

(5) “Postal item” means—

(a) 5any letter, postcard or other such thing in writing as may be used by the
sender for imparting information to the recipient, or

(b) any packet or parcel.

(6) “Postal operator” means a person providing a postal service to persons in the
United Kingdom.

(7) 10“Postal service” means a service that—

(a) consists in the following, or in any one or more of them, namely, the
collection, sorting, conveyance, distribution and delivery (whether in
the United Kingdom or elsewhere) of postal items, and

(b) has as its main purpose, or one of its main purposes, to make available,
15or to facilitate, a means of transmission from place to place of postal
items containing communications.

(8) “Public postal service” means a postal service that is offered or provided to the
public, or a substantial section of the public, in any one or more parts of the
United Kingdom.

239 20General definitions

(1) In this Act—

  • “apparatus” includes any equipment, machinery or device (whether
    physical or logical) and any wire or cable,

  • “civil proceedings” means any proceedings in or before any court or
    25tribunal that are not criminal proceedings,

  • “crime” means conduct which—

    (a)

    constitutes one or more criminal offences, or

    (b)

    is, or corresponds to, any conduct which, if it all took place in
    any one part of the United Kingdom, would constitute one or
    30more criminal offences,

  • “criminal proceedings” includes proceedings before a court in respect of
    a service offence within the meaning of the Armed Forces Act 2006 (and
    references to criminal prosecutions are to be read accordingly),

  • “data” includes data which is not electronic data and any information
    35(whether or not electronic),

  • “destroy”, in relation to electronic data, means delete the data in such a
    way as to make access to the data impossible (and related expressions
    are to be read accordingly),

  • “enactment” means an enactment whenever passed or made; and
    40includes—

    (a)

    an enactment contained in subordinate legislation within the
    meaning of the Interpretation Act 1978,

    (b)

    an enactment contained in, or in an instrument made under, an
    Act of the Scottish Parliament,

    (c)

    45an enactment contained in, or in an instrument made under, a
    Measure or Act of the National Assembly for Wales, and

    Investigatory Powers BillPage 191

    (d)

    an enactment contained in, or in an instrument made under,
    Northern Ireland legislation,

  • “enhanced affirmative procedure” is to be read in accordance with section
    243,

  • 5“functions” includes powers and duties,

  • GCHQ” has the same meaning as in the Intelligence Services Act 1994,

  • “head”, in relation to an intelligence service, means—

    (a)

    in relation to the Security Service, the Director-General,

    (b)

    in relation to the Secret Intelligence Service, the Chief, and

    (c)

    10in relation to GCHQ, the Director,

  • “Her Majesty’s forces” has the same meaning as in the Armed Forces Act
    2006,

  • “identifying data” has the meaning given by subsection (2),

  • “intelligence service” means the Security Service, the Secret Intelligence
    15Service or GCHQ,

  • “the Investigatory Powers Commissioner” means the person appointed
    under section 205(1)(a) (and the expression is also to be read in
    accordance with section 205(9)(b)),

  • “the Investigatory Powers Tribunal” means the tribunal established under
    20section 65 of the Regulation of Investigatory Powers Act 2000,

  • “items subject to legal privilege”—

    (a)

    in relation to England and Wales, has the same meaning as in
    the Police and Criminal Evidence Act 1984 (see section 10 of that
    Act),

    (b)

    25in relation to Scotland, means—

    (i)

    communications between a professional legal adviser
    and the adviser’s client, or

    (ii)

    communications made in connection with, or in
    contemplation of, legal proceedings and for the
    30purposes of those proceedings,

    which would, by virtue of any rule of law relating to the
    confidentiality of communications, be protected in legal
    proceedings from disclosure, and

    (c)

    in relation to Northern Ireland, has the same meaning as in the
    35Police and Criminal Evidence (Northern Ireland) Order 1989
    (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12)) (see Article 12 of that Order),

  • “Judicial Commissioner” means a person appointed under section
    205(1)(a) or (b) (and the expression is therefore to be read in accordance
    with section 205(9)(a)),

  • 40“legal proceedings” means—

    (a)

    civil or criminal proceedings in or before a court or tribunal, or

    (b)

    proceedings before an officer in respect of a service offence
    within the meaning of the Armed Forces Act 2006,

  • “modify” includes amend, repeal or revoke (and related expressions are
    45to be read accordingly),

  • “person” (other than in Parts 2 and 5) includes an organisation and any
    association or combination of persons,

  • “person holding office under the Crown” includes any servant of the
    Crown and any member of Her Majesty’s forces,

  • 50“primary legislation” means—

    Investigatory Powers BillPage 192

    (a)

    an Act of Parliament,

    (b)

    an Act of the Scottish Parliament,

    (c)

    a Measure or Act of the National Assembly for Wales, or

    (d)

    Northern Ireland legislation,

  • 5“public authority” means a public authority within the meaning of section
    6 of the Human Rights Act 1998, other than a court or tribunal,

  • “serious crime” means crime where—

    (a)

    the offence, or one of the offences, which is or would be
    constituted by the conduct concerned is an offence for which a
    10person who has reached the age of 18 (or, in relation to Scotland
    or Northern Ireland, 21) and has no previous convictions could
    reasonably be expected to be sentenced to imprisonment for a
    term of 3 years or more, or

    (b)

    the conduct involves the use of violence, results in substantial
    15financial gain or is conduct by a large number of persons in
    pursuit of a common purpose,

  • “specified”, in relation to an authorisation, warrant, notice or regulations,
    means specified or described in the authorisation, warrant, notice or (as
    the case may be) regulations (and “specify” is to be read accordingly),

  • 20“subordinate legislation” means—

    (a)

    subordinate legislation within the meaning of the Interpretation
    Act 1978, or

    (b)

    an instrument made under an Act of the Scottish Parliament,
    Northern Ireland legislation or a Measure or Act of the National
    25Assembly for Wales,

  • “systems data” has the meaning given by subsection (4),

  • “the Technical Advisory Board” means the Board provided for by section
    223,

  • “working day” means a day other than a Saturday, a Sunday, Christmas
    30Day, Good Friday or a bank holiday under the Banking and Financial
    Dealings Act 1971 in any part of the United Kingdom.

(2) In this Act “identifying data” means—

(a) data which may be used to identify, or assist in identifying, any person,
apparatus, system or service,

(b) 35data which may be used to identify any event, or

(c) data which may be used to identify the location of any person, event or
thing.

(3) For the purposes of subsection (2), the reference to data which may be used to
identify any event includes—

(a) 40data relating to the fact of the event;

(b) data relating to the type, method or pattern of event;

(c) data relating to the time or duration of the event.

(4) In this Act “systems data” means any data that enables or facilitates, or
identifies or describes anything connected with enabling or facilitating, the
45functioning of any of the following—

(a) a postal service;

(b) a telecommunication system (including any apparatus forming part of
the system);

Investigatory Powers BillPage 193

(c) any telecommunications service provided by means of a
telecommunication system;

(d) a relevant system (including any apparatus forming part of the system);

(e) any service provided by means of a relevant system.

(5) 5For the purposes of subsection (4), a system is a “relevant system” if any
communications or other information are held on or by means of the system.

(6) For the purposes of this Act detecting crime or serious crime is to be taken to
include—

(a) establishing by whom, for what purpose, by what means and generally
10in what circumstances any crime or (as the case may be) serious crime
was committed, and

(b) the apprehension of the person by whom any crime or (as the case may
be) serious crime was committed.

(7) References in this Act to the examination of material obtained under a warrant
15are references to the material being read, looked at or listened to by the persons
to whom it becomes available as a result of the warrant.

240 Index of defined expressions

In this Act, the expressions listed in the left-hand column have the meaning
given by, or are to be interpreted in accordance with, the provisions listed in
20the right-hand column.

Expression Provision
Apparatus Section 239(1)
Bulk equipment interference warrant Section 163(1)
Bulk interception warrant Section 128(1)
Civil proceedings 25Section 239(1)
Communication Sections 237(2) and 238(2)
Communications data Sections 237(5) and 238(3)
Content of a communication (in relation to a
telecommunications operator, telecommunications service
or telecommunication system)
Section 237(6)

30
Crime Section 239(1)
Criminal proceedings Section 239(1)
Criminal prosecution Section 239(1)
Data Section 239(1)
Destroy (in relation to electronic data) and related
expressions
35Section 239(1)
Detecting crime or serious crime Section 239(6)
Enactment Section 239(1)

Investigatory Powers BillPage 194

Expression Provision
Enhanced affirmative procedure Section 239(1)
Entity Section 237(7)
Entity data Section 237(3)
Events data 5Section 237(4)
Examination (in relation to material obtained under a
warrant)
Section 239(7)
Functions Section 239(1)
GCHQ Section 239(1)
Head (in relation to an intelligence service) 10Section 239(1)
Her Majesty’s forces Section 239(1)
Identifying data Section 239(2) and (3)
Intelligence service Section 239(1)
Interception of communication (postal service) Sections 4(7) and 5
Interception of communication (telecommunication system) 15Sections 4(1) to (6) and 5(1)
Interception of communication in the United Kingdom Section 4(8)
Internet connection record Section 59(7)
Investigatory Powers Commissioner Section 239(1)
Investigatory Powers Tribunal Section 239(1)
Items subject to legal privilege 20Section 239(1)
Judicial Commissioner Section 239(1)
Judicial Commissioners Section 205(7)
Lawful authority (in relation to interception of
communication)
Section 6
Legal proceedings 25Section 239(1)
Modify (and related expressions) Section 239(1)
Person (other than in Parts 2 and 5) Section 239(1)
Person holding office under the Crown Section 239(1)
Postal data Section 238(4)
Postal item 30Section 238(5)
Postal item in course of transmission by postal service Section 4(7)
Postal operator Section 238(6)
Postal service Section 238(7)
Primary legislation Section 239(1)

Investigatory Powers BillPage 195

Expression Provision
Private telecommunication system Section 237(14)
Public authority Section 239(1)
Public postal service Section 238(8)
Public telecommunications service 5Section 237(8)
Public telecommunication system Section 237(9)
Serious crime Section 239(1) (and
paragraph 4A of Schedule 9)
Source of journalistic information Section 74(8)
Specified and specify (in relation to an authorisation,
warrant, notice or regulations)
10Section 239(1)
Subordinate legislation Section 239(1)
Systems data Section 239(4) and (5)
Technical Advisory Board Section 239(1)
Telecommunications operator 15Section 237(10)
Telecommunications service Section 237(11) and (12)
Telecommunication system Section 237(13)
Working day Section 239(1)

Supplementary provision

241 20Offences by bodies corporate etc.

(1) This section applies if an offence under this Act is committed by a body
corporate or a Scottish partnership.

(2) If the offence is proved to have been committed with the consent or connivance
of, or to be attributable to any neglect on the part of—

(a) 25a senior officer of the body corporate or Scottish partnership, or

(b) a person purporting to act in such a capacity,

the senior officer or person (as well as the body corporate or partnership) is
guilty of the offence and liable to be proceeded against and punished
accordingly.

(3) 30In this section—

  • “director”, in relation to a body corporate whose affairs are managed by
    its members, means a member of the body corporate,

  • “senior officer” means—

    (a)

    in relation to a body corporate, a director, manager, secretary or
    35other similar officer of the body corporate, and

    (b)

    in relation to a Scottish partnership, a partner in the
    partnership.

Investigatory Powers BillPage 196

242 Regulations

(1) Any power of the Secretary of State or the Treasury to make regulations under
this Act—

(a) is exercisable by statutory instrument,

(b) 5may be exercised so as to make different provision for different
purposes or different areas, and

(c) includes power to make supplementary, incidental, consequential,
transitional, transitory or saving provision.

(2) See sections 69(3) and 70(6) for the procedure for a statutory instrument
10containing regulations under section 68 to which section 69 applies or (as the
case may be) regulations under section 70(4) to which section 70(5) applies
(enhanced affirmative procedure).

(3) A statutory instrument containing regulations under—

(a) section 12(4) or 246(2) which amend or repeal any provision of primary
15legislation,

(b) section 44(2),

(c) section 50(5),

(d) section 80,

(e) section 86(1),

(f) 20section 217,

(g) section 223,

(h) section 229,

(i) section 233(1), or

(j) paragraph 33 of Schedule 8,

25may not be made unless a draft of the instrument has been laid before, and
approved by a resolution of, each House of Parliament.

(4) A statutory instrument containing—

(a) regulations under section 12(4) or 246(2) to which subsection (3) does
not apply,

(b) 30regulations under section 62(5), or

(c) regulations under paragraph 2(1)(b) of Schedule 5,

is (if a draft of the instrument has not been laid before, and approved by a
resolution of, each House of Parliament) subject to annulment in pursuance of
a resolution of either House of Parliament.

(5) 35A statutory instrument containing—

(a) regulations under section 10(3),

(b) regulations under section 50(3),

(c) regulations under section 55(7)(a),

(d) regulations under section 68 to which section 69 does not apply,

(e) 40regulations under section 70(4) to which section 70(5) does not apply,

(f) regulations under section 125(6)(a), or

(g) regulations under section 231(7),

is subject to annulment in pursuance of a resolution of either House of
Parliament.

(6) 45A statutory instrument containing regulations under paragraph 4 of Schedule
5 is subject to annulment in pursuance of a resolution of the House of
Commons.

Investigatory Powers BillPage 197

(7) See paragraphs 4(4) and 5(5) of Schedule 7 for the procedure for a statutory
instrument containing regulations about the coming into force of a code of
practice under that Schedule or of any revisions to such a code of practice
(affirmative procedure or, in the case of the coming into force of revisions, a
5choice between that procedure and laying before Parliament after being made).

(8) A statutory instrument containing regulations which are subject to a particular
parliamentary procedure under this Act may also include regulations which
are subject to a different or no parliamentary procedure under this Act (but this
subsection does not apply to regulations mentioned in subsection (2), (4), (6) or
10(7)).

(9) A statutory instrument which, by virtue of subsection (8), contains regulations
which are subject to different parliamentary procedures, or one or more
parliamentary procedure and no parliamentary procedure, is subject to
whichever procedure is the higher procedure; and the order is as follows (the
15highest first)—

(a) the procedure set out in subsection (3) (the affirmative procedure),

(b) the procedure set out in subsection (5) above (the negative procedure),

(c) no procedure.

(10) Provision is not prevented from being included in regulations made under this
20Act merely because the provision could have been included in other
regulations made under this Act which would have been subject to a different
or no parliamentary procedure.

243 Enhanced affirmative procedure

(1) For the purposes of regulations under section 68 to which section 69 applies
25and regulations under section 70(4) to which section 70(5) applies, the
enhanced affirmative procedure is as follows.

(2) Subsection (3) applies if—

(a) the Secretary of State has consulted under section 69(2) or (as the case
may be) 70(5) in relation to making such regulations,

(b) 30a period of at least 12 weeks, beginning with the day on which any such
consultation first began, has elapsed, and

(c) the Secretary of State considers it appropriate to proceed with making
such regulations.

(3) The Secretary of State must lay before Parliament—

(a) 35draft regulations, and

(b) a document which explains the regulations.

(4) The Secretary of State may make regulations in the terms of the draft
regulations laid under subsection (3) if, after the end of the 40-day period, the
draft regulations are approved by a resolution of each House of Parliament.

(5) 40But subsections (6) to (9) apply instead of subsection (4) if—

(a) either House of Parliament so resolves within the 30-day period, or

(b) a committee of either House charged with reporting on the draft
regulations so recommends within the 30-day period and the House to
which the recommendation is made does not by resolution reject the
45recommendation within that period.

(6) The Secretary of State must have regard to—

Investigatory Powers BillPage 198

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament
charged with reporting on the draft regulations,

5made during the 60-day period with regard to the draft regulations.

(7) If after the end of the 60-day period the draft regulations are approved by a
resolution of each House of Parliament, the Secretary of State may make
regulations in the terms of the draft regulations.

(8) If after the end of the 60-day period the Secretary of State wishes to proceed
10with the draft regulations but with material changes, the Secretary of State may
lay before Parliament—

(a) revised draft regulations, and

(b) a statement giving a summary of the changes proposed.

(9) If the revised draft regulations are approved by a resolution of each House of
15Parliament, the Secretary of State may make regulations in the terms of the
revised draft regulations.

(10) For the purposes of this section regulations are made in the terms of draft
regulations or revised draft regulations if they contain no material changes to
the provisions of the draft, or revised draft, regulations.

(11) 20References in this section to the “30-day”, “40-day” and “60-day” periods in
relation to any draft regulations are to the periods of 30, 40 and 60 days
beginning with the day on which the draft regulations were laid before
Parliament; and, for this purpose, no account is to be taken of any time during
which Parliament is dissolved or prorogued or during which either House is
25adjourned for more than four days.

244 Financial provisions

There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown or government
department by virtue of this Act, and

(b) 30any increase attributable to this Act in the sums payable by virtue of
any other Act out of money so provided.

245 Transitional, transitory or saving provision

(1) Schedule 9 (which contains transitional, transitory and saving provision
including a general saving for lawful conduct) has effect.

(2) 35The Secretary of State may by regulations make such transitional, transitory or
saving provision as the Secretary of State considers appropriate in connection
with the coming into force of any provision of this Act.

246 Minor and consequential provision

(1) Schedule 10 (which contains minor and consequential provision) has effect.

(2) 40The Secretary of State may by regulations make such provision as the Secretary
of State considers appropriate in consequence of this Act.

Investigatory Powers BillPage 199

(3) The power to make regulations under subsection (2) may, in particular, be
exercised by modifying any provision made by or under an enactment.

Final provision

247 Commencement, extent and short title

(1) 5Subject to subsections (2) and (3), this Act comes into force on such day as the
Secretary of State may by regulations appoint; and different days may be
appointed for different purposes.

(2) Sections 236 to 244, 245(2), 246(2) and (3) and this section come into force on the
day on which this Act is passed.

(3) 10Sections 205 and 206 come into force at the end of the period of two months
beginning with the day on which this Act is passed.

(4) Subject to subsections (5) and (6), this Act extends to England and Wales,
Scotland and Northern Ireland.

(5) An amendment, repeal or revocation of an enactment has the same extent as
15the enactment amended, repealed or revoked.

(6) Her Majesty may by Order in Council provide for any of the provisions of this
Act to extend, with or without modifications, to any of the British overseas
territories.

(7) This Act may be cited as the Investigatory Powers Act 2016.