Investigatory Powers Bill (HL Bill 62)

Investigatory Powers BillPage 20

(4) The Judicial Commissioner—

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

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

(a) the person who decided to issue the warrant;

(b) 10the person to whom the warrant was addressed.

(6) The person who decided to issue the warrant 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
15may—

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

(b) make a fresh determination.

(8) Nothing in this section or section 24 affects the lawfulness of—

(a) anything done under the warrant before it ceases to have effect;

(b) 20if anything is in the process of being done under the warrant when it
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.

Additional safeguards

26 25Members of Parliament etc.

(1) This section applies where—

(a) an application is made to the Secretary of State for the issue of a
targeted interception warrant or a targeted examination warrant, and

(b) the purpose of the warrant is—

(i) 30in the case of a targeted interception warrant, to authorise or
require the interception of communications sent by, or intended
for, a person who is a member of a relevant legislature, or

(ii) in the case of a targeted examination warrant, to authorise the
selection for examination of the content of such
35communications.

(2) The Secretary of State may not issue the warrant without the approval of the
Prime Minister.

(3) In this section “member of a relevant legislature” means—

(a) a member of either House of Parliament;

(b) 40a member of the Scottish Parliament;

(c) a member of the National Assembly for Wales;

(d) a member of the Northern Ireland Assembly;

(e) a member of the European Parliament elected for the United Kingdom.

Investigatory Powers BillPage 21

27 Items subject to legal privilege

(1) Subsections (2) and (3) apply if—

(a) an application is made by or on behalf of an intercepting authority for
a warrant under this Chapter, and

(b) 5the purpose, or one of the purposes, of the warrant is—

(i) in the case of a targeted interception warrant or mutual
assistance warrant, to authorise or require the interception of
items subject to legal privilege, or

(ii) in the case of a targeted examination warrant, to authorise the
10selection of such items for examination.

(2) The application must contain a statement that the purpose, or one of the
purposes, of the warrant is to authorise or require the interception, or (in the
case of a targeted examination warrant) the selection for examination, of items
subject to legal privilege.

(3) 15The person to whom the application is made may issue the warrant only if the
person considers—

(a) that there are exceptional and compelling circumstances that make it
necessary to authorise the interception, or (in the case of a targeted
examination warrant) the selection for examination, of items subject to
20legal privilege, and

(b) that the arrangements made for the purposes of section 51 or (as the
case may be) section 141 (safeguards relating to retention and
disclosure of material) include specific arrangements for the handling,
retention, use and destruction of such items.

(4) 25Subsections (5) and (6) apply if—

(a) an application is made by or on behalf of an intercepting authority for
a warrant under this Chapter,

(b) the intercepting authority considers that the relevant communications
are likely to include items subject to legal privilege, and

(c) 30subsections (2) and (3) do not apply.

(5) The application must contain—

(a) a statement that the intercepting authority considers that the relevant
communications are likely to include items subject to legal privilege,
and

(b) 35an assessment of how likely it is that the relevant communications will
include such items.

(6) The person to whom the application is made may issue the warrant only if the
person considers that the arrangements made for the purposes of section 51 or
(as the case may be) section 141 include specific arrangements for the handling,
40retention, use and destruction of items subject to legal privilege.

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

(a) in relation to a targeted interception warrant or mutual assistance
warrant, any communications the interception of which is authorised
or required by the warrant;

(b) 45in relation to a targeted examination warrant, any communications the
content of which the warrant authorises to be selected for examination.

Investigatory Powers BillPage 22

Further provision about warrants

28 Decisions to issue warrants to be taken personally by Ministers

(1) The decision to issue a warrant under this Chapter must be taken personally
by—

(a) 5the Secretary of State, or

(b) in the case of a warrant to be issued by the Scottish Ministers, a member
of the Scottish Government.

(2) Before a warrant under this Chapter is issued, it must be signed by the person
who has taken the decision to issue it.

(3) 10Subsections (1) and (2) are subject to—

(a) subsection (4), and

(b) section 38 (special rules for certain mutual assistance warrants).

(4) If it is not reasonably practicable for a warrant to be signed by the person who
has taken the decision to issue it, the warrant may be signed by a senior official
15designated by the Secretary of State or (as the case may be) the Scottish
Ministers 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
person who took the decision to issue it, and

(b) 20the Secretary of State or (as the case may be) a member of the Scottish
Government has personally and expressly authorised the issue of the
warrant.

(6) In this section “senior official” means—

(a) in the case of a warrant to be issued by the Secretary of State, a member
25of the Senior Civil Service or a member of the Senior Management
Structure of Her Majesty’s Diplomatic Service;

(b) in the case of a warrant to be issued by the Scottish Ministers, a member
of the staff of the Scottish Administration who is a member of the Senior
Civil Service.

29 30Requirements that must be met by warrants

(1) A warrant under this Chapter must contain a provision stating whether it is a
targeted interception warrant, a targeted examination warrant or a mutual
assistance warrant.

(2) A warrant issued under this Chapter must be addressed to the person by
35whom, or on whose behalf, the application for the warrant was made.

(3) A warrant that relates to a particular person or organisation, or to a single set
of premises, must name or describe that person or organisation or those
premises.

(4) A warrant that relates to a group of persons who share a common purpose or
40who carry on (or may carry on) a particular activity must—

(a) describe that purpose or activity, and

(b) name or describe as many of those persons as it is reasonably
practicable to name or describe.

Investigatory Powers BillPage 23

(5) A warrant that relates to more than one person or organisation, or more than
one set of premises, where the conduct authorised or required by the warrant
is for the purposes of a single investigation or operation, must—

(a) describe the investigation or operation, and

(b) 5name or describe as many of those persons or organisations, or as many
of those sets of premises, as it is reasonably practicable to name or
describe.

(6) A warrant that relates to any testing or training activities must—

(a) describe those activities, and

(b) 10name or describe as many of the persons within subsection (7) as it is
reasonably practicable to name or describe.

“Testing or training activities” has the meaning given by section 17(3).

(7) A person is within this subsection if—

(a) in the case of a targeted interception warrant, communications from, or
15intended for, the person will or may be intercepted by an interception
authorised or required by the warrant, or

(b) in the case of a targeted examination warrant, the content of
communications from, or intended for, the person may be selected for
examination under the warrant.

(8) 20Where—

(a) a targeted interception warrant or mutual assistance warrant
authorises or requires the interception of communications described in
the warrant, or

(b) a targeted examination warrant authorises the selection of the content
25of communications for examination,

the warrant must specify the addresses, numbers, apparatus, or other factors,
or combination of factors, that are to be used for identifying the
communications.

(9) Any factor, or combination of factors, specified in accordance with subsection
30(8) must be one that identifies communications which are likely to be or to
include—

(a) communications from, or intended for, any person named or described
in the warrant, or

(b) communications originating on, or intended for transmission to, any
35premises named or described in the warrant.

30 Duration of warrants

(1) A warrant under this Chapter ceases to have effect at the end of the relevant
period (see subsection (2)), unless—

(a) it is renewed before the end of that period (see section 31), or

(b) 40it is cancelled or otherwise ceases to have effect before the end of that
period (see sections 24 and 37).

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

(a) in the case of an urgent warrant which has not been renewed, means the
period ending with the fifth working day after the day on which the
45warrant was issued;

(b) in any other case, means the period of 6 months beginning with—

(i) the day on which the warrant was issued, or

Investigatory Powers BillPage 24

(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 warrant is an “urgent warrant” if—

(a) 5the warrant was 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.

31 Renewal of warrants

(1) 10If the renewal conditions are met, a warrant issued under this Chapter may be
renewed, at any time during the renewal period, by an instrument issued by
the appropriate person (see subsection (3)).

(2) The renewal conditions are—

(a) that the appropriate person considers that the warrant continues to be
15necessary on any relevant grounds (see subsection (4)),

(b) that the appropriate person considers that the conduct that would be
authorised by the renewed warrant continues to be proportionate to
what is sought to be achieved by that conduct,

(c) that, in the case of a targeted examination warrant, the appropriate
20person considers that the warrant continues to be necessary to
authorise the selection of relevant content for examination in breach of
the prohibition in section 143(4), and

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

(3) 25The appropriate person is—

(a) in the case of a warrant issued by the Secretary of State, the Secretary of
State;

(b) in the case of a warrant issued by the Scottish Ministers, a member of
the Scottish Government.

(4) 30“Relevant grounds” means—

(a) in the case of a warrant issued by the Secretary of State, grounds falling
within section 20;

(b) in the case of a warrant issued by the Scottish Ministers, grounds falling
within section 21(4).

(5) 35“The renewal period” means—

(a) in the case of an urgent 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
of which the warrant would otherwise cease to have effect.

(6) 40The decision to renew a warrant must be taken personally by the appropriate
person, and the instrument renewing the warrant must be signed by that
person.

(7) Section 23 (approval of warrants by Judicial Commissioners) applies in relation
to a decision to renew a warrant as it applies in relation to a decision to issue a
45warrant (and accordingly any reference in that section to the person who

Investigatory Powers BillPage 25

decided to issue the warrant is to be read as a reference to the person who
decided to renew it).

(8) Sections 26 (Members of Parliament etc.) and 27 (items subject to legal
privilege) apply in relation to a decision to renew a warrant as they apply in
5relation to a decision to issue a warrant.

(9) In this section—

  • “the relevant period” has the same meaning as in section 30;

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

(10) 10This section is subject to section 38 (special rules for certain mutual assistance
warrants).

32 Modification of warrants

(1) The provisions of a warrant issued under this Chapter may be modified at any
time by an instrument issued by the person making the modification.

(2) 15The only modifications that may be made under this section are—

(a) adding, varying or removing the name or description of a person,
organisation or set of premises to which the warrant relates, and

(b) adding, varying or removing any factor specified in the warrant in
accordance with section 29(8).

(3) 20But a warrant may not be modified as mentioned in subsection (2)(a) if it relates
only to a particular person or organisation, or to a single set of premises, as
mentioned in section 17(1).

(4) The decision to modify the provisions of a warrant must be taken personally
by the person making the modification, and the instrument making the
25modification must be signed by that person.

This is subject to section 34(8).

(5) In this Chapter—

(a) a modification adding or varying a name or description as mentioned
in paragraph (a) of subsection (2) is referred to as a “major
30modification”, and

(b) any other modification within that subsection is referred to as a “minor
modification”.

(6) Nothing in this section applies in relation to modifying the provisions of a
warrant in a way which does not affect the conduct authorised or required by
35it.

(7) Sections 33 to 36 contain further provision about making modifications under
this section.

33 Persons who may make modifications

(1) A major modification may be made by—

(a) 40the Secretary of State, in the case of a warrant issued by the Secretary of
State,

(b) a member of the Scottish Government, in the case of a warrant issued
by the Scottish Ministers, or

Investigatory Powers BillPage 26

(c) a senior official acting on behalf of the Secretary of State or (as the case
may be) the Scottish Ministers.

(2) A minor modification may be made by—

(a) the Secretary of State, in the case of a warrant issued by the Secretary of
5State,

(b) a member of the Scottish Government, in the case of a warrant issued
by the Scottish Ministers,

(c) a senior official acting on behalf of the Secretary of State or (as the case
may be) the Scottish Ministers,

(d) 10the person to whom the warrant is addressed, or

(e) a person who holds a senior position in the same public authority as the
person mentioned in paragraph (d).

(3) But if a person within subsection (2)(d) or (e) considers that there is an urgent
need to make a major modification, that person (as well as a person within
15subsection (1)) may do so.

Section 36 contains provision about the approval of major modifications made
in urgent cases.

(4) Subsections (1) and (3) are subject to section 34(5) and (6) (special rules where
section 26 or 27 applies in relation to the making of a major modification).

(5) 20For the purposes of subsection (2)(e) a person holds a senior position in a public
authority if—

(a) in the case of any of the intelligence services—

(i) the person is a member of the Senior Civil Service or a member
of the Senior Management Structure of Her Majesty’s
25Diplomatic Service, or

(ii) the person holds a position in the intelligence service of
equivalent seniority to such a person;

(b) in the case of the National Crime Agency, the person is a National
Crime Agency officer of grade 2 or above;

(c) 30in the case of the metropolitan police force, the Police Service of
Northern Ireland or the Police Service of Scotland, a person is of or
above the rank of superintendent;

(d) in the case of Her Majesty’s Revenue and Customs, the person is a
member of the Senior Civil Service;

(e) 35in the case of the Ministry of Defence—

(i) the person is a member of the Senior Civil Service, or

(ii) the person is of or above the rank of brigadier, commodore or
air commodore.

(6) In this section “senior official” means—

(a) 40in the case of a warrant issued by the Secretary of State, a member of the
Senior Civil Service or a member of the Senior Management Structure
of Her Majesty’s Diplomatic Service;

(b) in the case of a warrant issued by the Scottish Ministers, a member of
the staff of the Scottish Administration who is a member of the Senior
45Civil Service.

Investigatory Powers BillPage 27

34 Further provision about modifications

(1) A person may make a modification within subsection (2) only if the person
considers—

(a) that the modification is necessary on any relevant grounds (see
5subsection (3)), and

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

(2) The modifications within this subsection are—

(a) a major modification adding the name or description of a person,
10organisation or set of premises to which the warrant relates, and

(b) a minor modification adding any factor specified in the warrant in
accordance with section 29(8).

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

(a) in the case of a warrant issued by the Secretary of State, grounds falling
15within section 20;

(b) in the case of a warrant issued by the Scottish Ministers, grounds falling
within section 21(4);

and for the purposes of subsection (1) any reference to the Secretary of State in
section 20(3)(b) or the Scottish Ministers in section 21(4)(b) is to be read as a
20reference to the person making the modification.

(4) Sections 26 (Members of Parliament etc.) and 27 (items subject to legal
privilege) apply in relation to the making of a major modification within
subsection (2)(a) above as they apply in relation to the issuing of a warrant.

(5) Where section 26 applies in relation to the making of a major modification—

(a) 25the modification must be made by the Secretary of State, and

(b) the modification has effect only if the decision to make the modification
has been approved by a Judicial Commissioner.

(6) Where section 27 applies in relation to the making of a major modification—

(a) the modification must be made by—

(i) 30the Secretary of State or (in the case of a warrant issued by the
Scottish Ministers) a member of the Scottish Government, or

(ii) if a senior official acting on behalf of a person within sub-
paragraph (i) considers that there is an urgent need to make the
modification, that senior official, and

(b) 35except where the person making the modification considers that there
is an urgent need to make it, the modification has effect only if the
decision to make the modification has been approved by a Judicial
Commissioner.

(7) In a case where section 26 or 27 applies in relation to the making of a major
40modification, section 23 (approval of warrants by Judicial Commissioners)
applies in relation to the decision to make the modification as it applies in
relation to a decision to issue a warrant, but as if—

(a) the references in subsection (1)(a) and (b) of that section to the warrant
were references to the modification,

(b) 45any reference to the person who decided to issue the warrant were a
reference to the person who decided to make the modification, and

(c) “relevant grounds” in that section had the meaning given by subsection
(3) above.

Investigatory Powers BillPage 28

Section 36 contains provision about the approval of major modifications made
in urgent cases.

(8) If, in a case where section 26 or 27 applies in relation to the making of a major
modification, it is not reasonably practicable for the instrument making the
5modification to be signed by the Secretary of State or (as the case may be) a
member of the Scottish Government in accordance with section 32(4), the
instrument may be signed by a senior official designated by the Secretary of
State or (as the case may be) the Scottish Ministers for that purpose.

(9) In such a case, the instrument making the modification must contain a
10statement that—

(a) it is not reasonably practicable for the instrument to be signed by the
person who took the decision to make the modification, and

(b) the Secretary of State or (as the case may be) a member of the Scottish
Government has personally and expressly authorised the making of the
15modification.

(10) If at any time a person mentioned in section 33(2) considers that any factor
specified in a warrant in accordance with section 29(8) is no longer relevant for
identifying communications which, in the case of that warrant, are likely to be,
or to include, communications falling within section 29(9)(a) or (b), the person
20must modify the warrant by removing that factor.

(11) In this section “senior official” has the same meaning as in section 33.

35 Notification of major modifications

(1) As soon as is reasonably practicable after a person makes a major modification
of a warrant under this Chapter, a Judicial Commissioner must be notified of
25the modification and the reasons for making it.

(2) But subsection (1) does not apply where—

(a) the modification is made by virtue of section 33(3), or

(b) section 26 or 27 applies in relation to the making of the modification.

(3) Where a major modification is made by a senior official in accordance with
30section 33(1) or section 34(6)(a)(ii), the Secretary of State or (in the case of a
warrant issued by the Scottish Ministers) a member of the Scottish Government
must be notified personally of the modification and the reasons for making it.

(4) In this section “senior official” has the same meaning as in section 33.

36 Approval of major modifications made in urgent cases

(1) 35This section applies where a person makes a major modification of a warrant
under this Chapter by virtue of section 33(3).

(2) This section also applies where—

(a) section 27 applies in relation to the making of a major modification of a
warrant under this Chapter,

(b) 40the person making the modification does so without the approval of a
Judicial Commissioner, and

(c) the person considered that there was an urgent need to make the
modification.

Investigatory Powers BillPage 29

(3) The person who made the modification must inform the appropriate person
that it has been made.

(4) In this section—

  • “the appropriate person” is—

    (a)

    5in a case falling within subsection (1), a designated senior
    official, and

    (b)

    in a case falling within subsection (2), a Judicial Commissioner,

  • “designated senior official” means a senior official who has been
    designated by the Secretary of State or (in the case of warrants issued
    10by the Scottish Ministers) the Scottish Ministers for the purposes of this
    section, and

  • “senior official” has the same meaning as in section 33.

(5) The appropriate person must, before the end of the relevant period—

(a) decide whether to approve the decision to make the modification, and

(b) 15notify the person of the appropriate person’s decision.

“The relevant period” means the period ending with the fifth working day after
the day on which the modification was made.

(6) As soon as is reasonably practicable after a designated senior official makes a
decision under subsection (5)—

(a) 20a Judicial Commissioner must be notified of—

(i) the decision, and

(ii) if the senior official has decided to approve the decision to make
the modification, the modification in question, and

(b) the Secretary of State or (in the case of a warrant issued by the Scottish
25Ministers) a member of the Scottish Government must be notified
personally of the matters mentioned in paragraph (a)(i) and (ii).

(7) If the appropriate person refuses to approve the decision to make the
modification—

(a) the warrant (unless it no longer has effect) has effect as if the
30modification had not been made, and

(b) the person to whom the warrant is addressed must, so far as is
reasonably practicable, secure that anything in the process of being
done under the warrant by virtue of that modification stops as soon as
possible.

(8) 35Nothing in this section affects the lawfulness of—

(a) anything done under the warrant by virtue of the modification before
the modification ceases to have effect;

(b) if anything is in the process of being done under the warrant by virtue
of the modification when the modification ceases to have effect—

(i) 40anything done before that thing could be stopped, or

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

37 Cancellation of warrants

(1) Any of the appropriate persons may cancel a warrant issued under this
Chapter at any time.

(2) 45If any of the appropriate persons considers that—