Investigatory Powers Bill (HL Bill 62)

(d) the Scottish Ministers consider that satisfactory arrangements made for
the purposes of sections 51 and 52 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and

(e) except where the Scottish Ministers consider that there is an urgent
35need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.

(2) The Scottish Ministers may, on an application made by or on behalf of the head
of an intelligence service, issue a targeted examination warrant if—

(a) the application is a relevant Scottish application,

(b) 40the Scottish Ministers consider that the warrant is necessary on
grounds falling within subsection (4),

(c) the Scottish Ministers consider that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,

(d) 45the Scottish Ministers consider that the warrant is or may be necessary
to authorise the selection of relevant content for examination in breach
of the prohibition in section 143(4) (prohibition on seeking to identify
communications of individuals in the British Islands), and

Investigatory Powers BillPage 17

(e) except where the Scottish Ministers consider that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.

(3) The Scottish Ministers may, on an application made by or on behalf of an
5intercepting authority, issue a mutual assistance warrant if—

(a) the application is a relevant Scottish application,

(b) the Scottish Ministers consider that the warrant is necessary on
grounds falling within subsection (4),

(c) the Scottish Ministers consider that the conduct authorised by the
10warrant is proportionate to what is sought to be achieved by that
conduct,

(d) the Scottish Ministers consider that satisfactory arrangements made for
the purposes of sections 51 and 52 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and

(e) 15except where the Scottish Ministers consider that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.

(4) A warrant is necessary on grounds falling within this subsection if—

(a) in the case of a targeted interception warrant or targeted examination
20warrant, it is necessary for the purposes of preventing or detecting
serious crime, and

(b) in the case of a mutual assistance warrant—

(i) it is necessary for the purpose of giving effect to the provisions
of an EU mutual assistance instrument or an international
25mutual assistance agreement, and

(ii) the circumstances appear to the Scottish Ministers to be
equivalent to those in which the Scottish Ministers would issue
a warrant by virtue of paragraph (a).

(5) A warrant may not be considered necessary on grounds falling within
30subsection (4) if it is considered necessary only for the purpose of gathering
evidence for use in any legal proceedings.

(6) The fact that the information which would be obtained under a warrant relates
to the activities in the British Islands of a trade union is not, of itself, sufficient
to establish that the warrant is necessary on grounds falling within subsection
35(4).

22 “Relevant Scottish applications”

(1) An application for the issue of a warrant under this Chapter is a “relevant
Scottish application” for the purposes of this Chapter if any of conditions A to
C is met.

40In this section “the applicant” means the person by whom, or on whose behalf,
the application is made.

(2) Condition A is that—

(a) the application is for the issue of a targeted interception warrant or a
targeted examination warrant, and

(b) 45the warrant, if issued, would relate to—

Investigatory Powers BillPage 18

(i) a person who is in Scotland, or is reasonably believed by the
applicant to be in Scotland, at the time of the issue of the
warrant, or

(ii) premises which are in Scotland, or are reasonably believed by
5the applicant to be in Scotland, at that time.

(3) Condition B is that—

(a) the application is for the issue of a mutual assistance warrant which, if
issued, would authorise or require—

(i) the making of a request falling within section 15(4)(a), or

(ii) 10the making of such a request and disclosure falling within
section 15(4)(c), and

(b) the application—

(i) is made by, or on behalf of, the chief constable of the Police
Service of Scotland, or

(ii) 15is made by, or on behalf of, the Commissioners for Her
Majesty’s Revenue and Customs or the Director General of the
National Crime Agency for the purpose of preventing or
detecting serious crime in Scotland.

(4) Condition C is that—

(a) 20the application is for the issue of a mutual assistance warrant which, if
issued, would authorise or require—

(i) the provision of assistance falling within section 15(4)(b), or

(ii) the provision of such assistance and disclosure falling within
section 15(4)(c), and

(b) 25the warrant, if issued, would relate to—

(i) a person who is in Scotland, or is reasonably believed by the
applicant to be in Scotland, at the time of the issue of the
warrant, or

(ii) premises which are in Scotland, or are reasonably believed by
30the applicant to be in Scotland, at that time.

Approval of warrants by Judicial Commissioners

23 Approval of warrants by Judicial Commissioners

(1) In deciding whether to approve a person’s decision to issue a warrant under
this Chapter, a Judicial Commissioner must review the person’s conclusions as
35to the following matters—

(a) whether the warrant is necessary on relevant grounds (see subsection
(3)), and

(b) whether the conduct that would be authorised by the warrant is
proportionate to what is sought to be achieved by that conduct.

(2) 40In doing so, the Judicial Commissioner must—

(a) apply the same principles as would be applied by a court on an
application for judicial review, and

(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
45with the duties imposed by section 2 (general duties in relation to
privacy).

Investigatory Powers BillPage 19

(3) In subsection (1)(a) “relevant grounds” means—

(a) in the case of a decision of the Secretary of State to issue a warrant,
grounds falling within section 20;

(b) in the case of a decision of the Scottish Ministers to issue a warrant,
5grounds falling within section 21(4).

(4) Where a Judicial Commissioner refuses to approve a person’s decision to issue
a warrant under this Chapter, the Judicial Commissioner must give the person
written reasons for the refusal.

(5) Where a Judicial Commissioner, other than the Investigatory Powers
10Commissioner, refuses to approve a person’s decision to issue a warrant under
this Chapter, the person may ask the Investigatory Powers Commissioner to
decide whether to approve the decision to issue the warrant.

24 Approval of warrants issued in urgent cases

(1) This section applies where—

(a) 15a warrant under this Chapter is issued without the approval of a
Judicial Commissioner, and

(b) the person who decided to issue the warrant considered that there was
an urgent need to issue it.

(2) The person who decided to issue the warrant must inform a Judicial
20Commissioner that it has been issued.

(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 person of the Judicial Commissioner’s decision.

“The relevant period” means the period ending with the third working day
25after the day on which the warrant was issued.

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

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

(b) may not be renewed.

(5) 30Section 25 contains further provision about what happens if a Judicial
Commissioner refuses to approve the decision to issue a warrant.

25 Failure to approve warrant issued in urgent case

(1) This section applies where under section 24(3) a Judicial Commissioner refuses
to approve the decision to issue a warrant.

(2) 35The person to whom the warrant was addressed must, so far as is reasonably
practicable, secure that anything in the process of being done under the
warrant stops as soon as possible.

(3) The Judicial Commissioner may—

(a) direct that any of the material obtained under the warrant is destroyed;

(b) 40impose conditions as to the use or retention of any of that material;

(c) in the case of a targeted examination warrant, impose conditions as to
the use of any relevant content selected for examination under the
warrant.