Investigatory Powers Bill (HL Bill 62)

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(a) a warrant issued under this Chapter is no longer necessary on any
relevant grounds, or

(b) the conduct authorised by the warrant is no longer proportionate to
what is sought to be achieved by that conduct,

5the person must cancel the warrant.

(3) In subsection (2)(a) “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
10within section 21(4).

(4) For the purpose of this section “the appropriate persons” are—

(a) in the case of a warrant issued by the Secretary of State, the Secretary of
State or a senior official acting on behalf of the Secretary of State;

(b) in the case of a warrant issued by the Scottish Ministers, a member of
15the Scottish Government or a senior official acting on behalf of the
Scottish Ministers.

(5) Where a warrant is cancelled under this section, the 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
20possible.

(6) A warrant that has been cancelled under this section may not be renewed.

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

(a) in 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
25of 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
Civil Service.

(8) See also section 38 (which imposes a duty to cancel mutual assistance warrants
30in certain circumstances).

38 Special rules for certain mutual assistance warrants

(1) For the purposes of this section a warrant is a “relevant mutual assistance
warrant” if—

(a) the warrant is for the purposes of a request for assistance made under
35an EU mutual assistance instrument or an international mutual
assistance agreement by the competent authorities of a country or
territory outside the United Kingdom, and

(b) either—

(i) it appears that the interception subject is outside the United
40Kingdom, or

(ii) the interception to which the warrant relates is to take place in
relation only to premises outside the United Kingdom.

(2) The decision to issue a relevant mutual assistance warrant may be taken by a
senior official designated by the Secretary of State for that purpose.

(3) 45In such a case, the warrant must contain—

Investigatory Powers BillPage 31

(a) a statement that the warrant is issued for the purposes of a request for
assistance made under an EU mutual assistance instrument or an
international mutual assistance agreement (as the case may be) by the
competent authorities of a country or territory outside the United
5Kingdom, and

(b) whichever of the following statements is applicable—

(i) a statement that the interception subject appears to be outside
the United Kingdom;

(ii) a statement that the interception to which the warrant relates is
10to take place in relation only to premises outside the United
Kingdom.

(4) A relevant mutual assistance warrant may be renewed by a senior official
designated by the Secretary of State for that purpose; and references in section
31 to the appropriate person include, in the case of such a warrant, references
15to that senior official.

(5) Where a senior official renews a relevant mutual assistance warrant in
accordance with subsection (4), the instrument renewing the warrant must
contain—

(a) a statement that the renewal is for the purposes of a request for
20assistance made under an EU mutual assistance instrument or an
international mutual assistance agreement (as the case may be) by the
competent authorities of a country or territory outside the United
Kingdom, and

(b) whichever of the following statements is applicable—

(i) 25a statement that the interception subject appears to be outside
the United Kingdom;

(ii) a statement that the interception to which the warrant relates is
to take place in relation only to premises outside the United
Kingdom.

(6) 30Subsection (7) applies in a case where—

(a) a relevant mutual assistance warrant—

(i) was issued containing the statement set out in subsection
(3)(b)(i), or

(ii) has been renewed by an instrument containing the statement
35set out in subsection (5)(b)(i), and

(b) the last renewal (if any) of the warrant was a renewal by a senior official
in accordance with subsection (4).

(7) If the Secretary of State, or a senior official acting on behalf of the Secretary of
State, believes that the person, group or organisation named or described in the
40warrant as the interception subject is in the United Kingdom, that person must
cancel the warrant under section 37.

(8) In this section—

  • “the interception subject”, in relation to a warrant, means the person,
    group of persons or organisation about whose communications
    45information is sought by the interception to which the warrant relates;

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

Investigatory Powers BillPage 32

Implementation of warrants

39 Implementation of warrants

(1) This section applies to targeted interception warrants and mutual assistance
warrants.

(2) 5In giving effect to a warrant to which this section applies, the person to whom
it is addressed (“the intercepting authority”) may (in addition to acting alone)
act through, or together with, such other persons as the intercepting authority
may require (whether under subsection (3) or otherwise) to provide the
authority with assistance in giving effect to the warrant.

(3) 10For the purpose of requiring any person to provide assistance in relation to a
warrant to which this section applies, the intercepting authority may—

(a) serve a copy of the warrant on any person who the intercepting
authority considers may be able to provide such assistance, or

(b) make arrangements for the service of a copy of the warrant on any such
15person.

(4) A copy of a warrant may be served under subsection (3) on a person outside
the United Kingdom for the purpose of requiring the person to provide such
assistance in the form of conduct outside the United Kingdom.

(5) For the purposes of this Act, the provision of assistance in giving effect to a
20warrant to which this section applies includes any disclosure to the
intercepting authority, or to persons acting on behalf of the intercepting
authority, of anything obtained under the warrant.

(6) References in this section and sections 40 and 41 to the service of a copy of a
warrant include—

(a) 25the service of a copy of one or more schedules contained in the warrant
with the omission of the remainder of the warrant, and

(b) the service of a copy of the warrant with the omission of any schedule
contained in the warrant.

40 Service of warrants

(1) 30This section applies to the service of warrants under section 39(3).

(2) A copy of the warrant must be served in such a way as to bring the contents of
the warrant to the attention of the person who the intercepting authority
considers may be able to provide assistance in relation to it.

(3) A copy of a warrant may be served on a person outside the United Kingdom in
35any of the following ways (as well as by electronic or other means of service)—

(a) by serving it at the person’s principal office within the United Kingdom
or, if the person has no such office in the United Kingdom, at any place
in the United Kingdom where the person carries on business or
conducts activities;

(b) 40if the person has specified an address in the United Kingdom as one at
which the person, or someone on the person’s behalf, will accept
service of documents of the same description as a copy of a warrant, by
serving it at that address;

Investigatory Powers BillPage 33

(c) by making it available for inspection (whether to the person or to
someone acting on the person’s behalf) at a place in the United
Kingdom (but this is subject to subsection (4)).

(4) A copy of a warrant may be served on a person outside the United Kingdom in
5the way mentioned in subsection (3)(c) only if—

(a) it is not reasonably practicable for a copy to be served by any other
means (whether as mentioned in subsection (3)(a) or (b) or otherwise),
and

(b) the intercepting authority takes such steps as the authority considers
10appropriate for the purpose of bringing the contents of the warrant, and
the availability of a copy for inspection, to the attention of the person.

(5) The steps mentioned in subsection (4)(b) must be taken as soon as reasonably
practicable after the copy of the warrant is made available for inspection.

(6) In this section “the intercepting authority” has the same meaning as in section
1539.

41 Duty of operators to assist with implementation

(1) A relevant operator that has been served with a copy of a warrant to which
section 39 applies by (or on behalf of) the intercepting authority must take all
steps for giving effect to the warrant that are notified to the relevant operator
20by (or on behalf of) the intercepting authority.

This is subject to subsection (4).

(2) In this section—

  • “relevant operator” means a postal operator or a telecommunications
    operator;

  • 25“the intercepting authority” has the same meaning as in section 39.

(3) Subsection (1) applies whether or not the relevant operator is in the United
Kingdom.

(4) The relevant operator is not required to take any steps which it is not
reasonably practicable for the relevant operator to take.

(5) 30In determining for the purposes of subsection (4) whether it is reasonably
practicable for a relevant operator outside the United Kingdom to take any
steps in a country or territory outside the United Kingdom for giving effect to
a warrant, the matters to be taken into account include the following—

(a) any requirements or restrictions under the law of that country or
35territory that are relevant to the taking of those steps, and

(b) the extent to which it is reasonably practicable to give effect to the
warrant in a way that does not breach any of those requirements or
restrictions.

(6) Where obligations have been imposed on a relevant operator (“P”) under
40section 229 (technical capability notices), for the purposes of subsection (4) the
steps which it is reasonably practicable for P to take include every step which
it would have been reasonably practicable for P to take if P had complied with
all of those obligations.

(7) A person who knowingly fails to comply with subsection (1) is guilty of an
45offence and liable—

(a) on summary conviction in England and Wales—

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(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or

(ii) 5to a fine,

or to both;

(b) on summary conviction in Scotland—

(i) to imprisonment for a term not exceeding 12 months, or

(ii) to a fine not exceeding the statutory maximum,

10or to both;

(c) on summary conviction in Northern Ireland—

(i) to imprisonment for a term not exceeding 6 months, or

(ii) to a fine not exceeding the statutory maximum,

or to both;

(d) 15on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.

(8) The duty imposed by subsection (1) is enforceable (whether or not the person
is in the United Kingdom) by civil proceedings by the Secretary of State for an
injunction, or for specific performance of a statutory duty under section 45 of
20the Court of Session Act 1988, or for any other appropriate relief.

CHAPTER 2 Other forms of lawful interception

Interception with consent

42 Interception with the consent of the sender or recipient

(1) The interception of a communication is authorised by this section if the sender
25and the intended recipient of the communication have each consented to its
interception.

(2) The interception of a communication is authorised by this section if—

(a) the communication is one sent by, or intended for, a person who has
consented to the interception, and

(b) 30surveillance by means of that interception has been authorised under—

(i) Part 2 of the Regulation of Investigatory Powers Act 2000, or

(ii) the Regulation of Investigatory Powers (Scotland) Act 2000
(2000 asp 112000 asp 11).

Interception for administrative or enforcement purposes

43 35Interception by providers of postal or telecommunications services

(1) The interception of a communication is authorised by this section if the
interception is carried out—

(a) by, or on behalf of, a person who provides a postal service or a
telecommunications service, and

(b) 40for any of the purposes in subsection (2).

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(2) The purposes referred to in subsection (1) are—

(a) purposes relating to the provision or operation of the service;

(b) purposes relating to the enforcement, in relation to the service, of any
enactment relating to—

(i) 5the use of postal or telecommunications services, or

(ii) the content of communications transmitted by means of such
services;

(c) purposes relating to the provision of services or facilities aimed at
preventing or restricting the viewing or publication of the content of
10communications transmitted by means of postal or
telecommunications services.

(3) A reference in this section to anything carried out for purposes relating to the
provision or operation of a telecommunications service includes, among other
things, a reference to anything done for the purposes of identifying, combating
15or preventing anything which could affect—

(a) any telecommunication system by means of which the service is
provided, or

(b) any apparatus attached to such a system.

44 Interception by businesses etc. for monitoring and record-keeping purposes

(1) 20Conduct is authorised by this section if it is authorised by regulations made
under subsection (2).

(2) The Secretary of State may by regulations authorise conduct of a description
specified in the regulations if that conduct appears to the Secretary of State to
constitute a legitimate practice reasonably required for the purpose, in
25connection with the carrying on of any relevant activities (see subsection (4)),
of monitoring or keeping a record of—

(a) communications by means of which transactions are entered into in the
course of the relevant activities, or

(b) other communications relating to the relevant activities or taking place
30in the course of the carrying on of those activities.

(3) But nothing in any regulations under subsection (2) may authorise the
interception of any communication except in the course of its transmission
using apparatus or services provided by or to the person carrying on the
relevant activities for use (whether wholly or partly) in connection with those
35activities.

(4) In this section “relevant activities” means—

(a) any business,

(b) any activities of a government department, the Welsh Government, a
Northern Ireland department or any part of the Scottish
40Administration,

(c) any activities of a public authority, and

(d) any activities of any person or office holder on whom functions are
conferred by or under any enactment.

45 Postal services: interception for enforcement purposes

(1) 45The interception of a communication in the course of its transmission by means
of a public postal service is authorised by this section if it is carried out by an

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officer of Revenue and Customs under section 159 of the Customs and Excise
Management Act 1979, as applied by virtue of—

(a) section 105 of the Postal Services Act 2000 (power to open postal items
etc.), or

(b) 5that section and another enactment.

(2) The interception of a communication in the course of its transmission by means
of a public postal service is authorised by this section if it is carried out under
paragraph 9 of Schedule 7 to the Terrorism Act 2000 (port and border controls).

46 Interception by OFCOM in connection with wireless telegraphy

(1) 10Conduct falling within subsection (2) is authorised by this section if it is carried
out by OFCOM for purposes connected with a relevant matter (see subsection
(3)).

(2) The conduct referred to in subsection (1) is—

(a) the interception of a communication in the course of its transmission by
15means of a telecommunication system;

(b) the obtaining, by or in connection with the interception, of information
about the sender or recipient, or intended recipient, of the
communication;

(c) the disclosure of anything obtained by conduct falling within
20paragraph (a) or (b).

(3) Each of the following is a relevant matter for the purposes of subsection (1)

(a) the grant of wireless telegraphy licences under the Wireless Telegraphy
Act 2006 (“the 2006 Act”);

(b) the prevention or detection of anything which constitutes interference
25with wireless telegraphy;

(c) the enforcement of—

(i) any provision of Part 2 (other than Chapter 2 and sections 27 to
31) or Part 3 of the 2006 Act, or

(ii) any enactment not falling within sub-paragraph (i) that relates
30to interference with wireless telegraphy.

(4) In this section—

  • “interference”, in relation to wireless telegraphy, has the same meaning as
    in the Wireless Telegraphy Act 2006 (see section 115(3) of that Act);

  • OFCOM” means the Office of Communications established by section 1
    35of the Office of Communications Act 2002;

  • “wireless telegraphy” has the same meaning as in the Wireless Telegraphy
    Act 2006 (see section 116 of that Act).

Interception taking place in certain institutions

47 Interception in prisons

(1) 40Conduct taking place in a prison is authorised by this section if it is conduct in
exercise of any power conferred by or under prison rules.

(2) In this section “prison rules” means any rules made under—

(a) section 47 of the Prison Act 1952,

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(b) section 39 of the Prisons (Scotland) Act 1989, or

(c) section 13 of the Prison Act (Northern Ireland) 1953.

(3) In this section “prison” means—

(a) any prison, young offender institution, young offenders centre, secure
5training centre, secure college or remand centre which—

(i) is under the general superintendence of, or is provided by, the
Secretary of State under the Prison Act 1952, or

(ii) is under the general superintendence of, or is provided by, the
Department of Justice in Northern Ireland under the Prison Act
10(Northern Ireland) 1953, or

(b) any prison, young offenders institution or remand centre which is
under the general superintendence of the Scottish Ministers under the
Prisons (Scotland) Act 1989,

and includes any contracted out prison, within the meaning of Part 4 of the
15Criminal Justice Act 1991 or section 106(4) of the Criminal Justice and Public
Order Act 1994, and any legalised police cells within the meaning of section 14
of the Prisons (Scotland) Act 1989.

48 Interception in psychiatric hospitals etc.

(1) Conduct is authorised by this section if—

(a) 20it takes place in any hospital premises where high security psychiatric
services are provided, and

(b) it is conduct in pursuance of, and in accordance with, any relevant
direction given to the body providing those services at those premises.

(2) “Relevant direction” means—

(a) 25a direction under section 4(3A)(a) of the National Health Service Act
2006, or

(b) a direction under section 19 or 23 of the National Health Service (Wales)
Act 2006.

(3) Conduct is authorised by this section if—

(a) 30it takes place in a state hospital, and

(b) it is conduct in pursuance of, and in accordance with, any direction
given to the State Hospitals Board for Scotland under section 2(5) of the
National Health Service (Scotland) Act 1978 (regulations and directions
as to the exercise of their functions by health boards).

35The reference to section 2(5) of that Act is to that provision as applied by Article
5(1) of, and the Schedule to, the State Hospitals Board for Scotland Order 1995
(which applies certain provisions of that Act to the State Hospitals Board).

(4) Conduct is authorised by this section if it is conduct in exercise of any power
conferred by or under—

(a) 40section 281 of the Mental Health (Care and Treatment) (Scotland) Act
2003 (2003 asp 132003 asp 13) (power to withhold correspondence of certain
persons detained in hospital), or

(b) section 284 of that Act (powers relating to the use of telephones by
certain persons detained in hospital).

(5) 45In this section—

  • “high security psychiatric services” has the same meaning as in section 4
    of the National Health Service Act 2006;

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  • “hospital premises” has the same meaning as in section 4(3) of that Act;

  • “state hospital” has the same meaning as in the National Health Service
    (Scotland) Act 1978.

49 Interception in immigration detention facilities

(1) 5Conduct taking place in immigration detention facilities is authorised by this
section if it is conduct in exercise of any power conferred by or under relevant
rules.

(2) In this section—

  • “immigration detention facilities” means any removal centre, short-term
    10holding facility or pre-departure accommodation;

  • “removal centre”, “short-term holding facility” and “pre-departure
    accommodation” have the meaning given by section 147 of the
    Immigration and Asylum Act 1999;

  • “relevant rules” means—

    (a)

    15in the case of a removal centre, rules made under section 153 of
    that Act;

    (b)

    in the case of a short-term holding facility, rules made under, or
    having effect by virtue of, section 157 of that Act;

    (c)

    in the case of pre-departure accommodation, rules made under,
    20or having effect by virtue of, section 157A of that Act.

Interception in accordance with overseas requests

50 Interception in accordance with overseas requests

(1) The interception of a communication in the course of its transmission by means
of a telecommunication system is authorised by this section if conditions A to
25D are met.

(2) Condition A is that the interception—

(a) is carried out by or on behalf of a telecommunications operator, and

(b) relates to the use of a telecommunications service provided by the
telecommunications operator.

(3) 30Condition B is that the interception is carried out in response to a request made
in accordance with a relevant international agreement by the competent
authorities of a country or territory outside the United Kingdom.

In this subsection “relevant international agreement” means an international
agreement to which the United Kingdom is a party and which is designated as
35a relevant international agreement by regulations made by the Secretary of
State.

(4) Condition C is that the interception is carried out for the purpose of obtaining
information about the communications of an individual—

(a) who is outside the United Kingdom, or

(b) 40who each of the following persons believes is outside the United
Kingdom—

(i) the person making the request;

(ii) the person carrying out the interception.

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(5) Condition D is that any further conditions specified in regulations made by the
Secretary of State for the purposes of this section are met.

CHAPTER 3 Other provisions about interception

5Restrictions on use or disclosure of material obtained under warrants etc.

51 Safeguards relating to retention and disclosure of material

(1) The issuing authority must ensure, in relation to every targeted interception
warrant or mutual assistance warrant issued by that authority, that
arrangements are in force for securing that the requirements of subsections (2)
10and (5) are met in relation to the material obtained under the warrant.

This is subject to subsection (9).

(2) The requirements of this subsection are met in relation to the material obtained
under a warrant if each of the following is limited to the minimum that is
necessary for the authorised purposes (see subsection (3))—

(a) 15the number of persons to whom any of the material is disclosed or
otherwise made available;

(b) the extent to which any of the material is disclosed or otherwise made
available;

(c) the extent to which any of the material is copied;

(d) 20the number of copies that are made.

(3) For the purposes of this section something is necessary for the authorised
purposes if, and only if—

(a) it is, or is likely to become, necessary on any of the grounds falling
within section 20 on which a warrant under Chapter 1 of this Part may
25be necessary,

(b) it is necessary for facilitating the carrying out of any functions under
this Act of the Secretary of State, the Scottish Ministers or the person to
whom the warrant is or was addressed,

(c) it is necessary for facilitating the carrying out of any functions of the
30Judicial Commissioners or the Investigatory Powers Tribunal under or
in relation to this Act,

(d) it is necessary to ensure that a person (“P”) who is conducting a
criminal prosecution has the information P needs to determine what is
required of P by P’s duty to secure the fairness of the prosecution, or

(e) 35it is necessary for the performance of any duty imposed on any person
by the Public Records Act 1958 or the Public Records Act (Northern
Ireland) 1923.

(4) The arrangements for the time being in force under this section for securing
that the requirements of subsection (2) are met in relation to the material
40obtained under the warrant must include arrangements for securing that every
copy made of any of that material is stored, for so long as it is retained, in a
secure manner.

(5) The requirements of this subsection are met in relation to the material obtained
under a warrant if every copy made of any of that material (if not destroyed