Investigatory Powers Bill (HL Bill 62)

Investigatory Powers BillPage 50

(b) the investigation or operation concerned is one where there is an
exceptional need, in the interests of national security, to keep
knowledge of it to a minimum,

(c) there is an opportunity to obtain information where—

(i) 5the opportunity is rare,

(ii) the time to act is short, and

(iii) the need to obtain the information is significant and in the
interests of national security, or

(d) the size of the relevant public authority concerned is such that it is not
10practicable to have a designated senior officer who is not working on
the investigation or operation concerned.

61 Procedure for authorisations and authorised notices

(1) An authorisation must specify—

(a) the office, rank or position held by the designated senior officer
15granting it,

(b) the matters falling within section 58(7) by reference to which it is
granted,

(c) the conduct that is authorised,

(d) the data or description of data to be obtained, and

(e) 20the persons or descriptions of persons to whom the data is to be, or may
be, disclosed or how to identify such persons.

(2) An authorisation which authorises a person to impose requirements by notice
on a telecommunications operator must also specify—

(a) the operator concerned, and

(b) 25the nature of the requirements that are to be imposed,

but need not specify the other contents of the notice.

(3) The notice itself—

(a) must specify—

(i) the office, rank or position held by the person giving it,

(ii) 30the requirements that are being imposed, and

(iii) the telecommunications operator on whom the requirements
are being imposed, and

(b) must be given in writing or (if not in writing) in a manner that produces
a record of its having been given.

(4) 35An authorisation must be applied for, and granted, in writing or (if not in
writing) in a manner that produces a record of its having been applied for or
granted.

62 Duration and cancellation of authorisations and notices

(1) An authorisation ceases to have effect at the end of the period of one month
40beginning with the date on which it is granted.

(2) An authorisation may be renewed at any time before the end of that period by
the grant of a further authorisation.

(3) Subsection (1) has effect in relation to a renewed authorisation as if the period
of one month mentioned in that subsection did not begin until the end of the

Investigatory Powers BillPage 51

period of one month applicable to the authorisation that is current at the time
of the renewal.

(4) A designated senior officer who has granted an authorisation—

(a) may cancel it at any time, and

(b) 5must cancel it if the designated senior officer considers that the
requirements of this Part would not be satisfied in relation to granting
an equivalent new authorisation.

(5) The Secretary of State may by regulations provide for the person by whom any
function under subsection (4) is to be exercised where the person who would
10otherwise have exercised it is no longer available to do so.

(6) Such regulations may, in particular, provide for the person by whom the
function is to be exercised to be a person appointed in accordance with the
regulations.

(7) A notice given in pursuance of an authorisation (and any requirement imposed
15by the notice)—

(a) is not affected by the authorisation subsequently ceasing to have effect
under subsection (1), but

(b) is cancelled if the authorisation is cancelled under subsection (4).

63 Duties of telecommunications operators in relation to authorisations

(1) 20It is the duty of a telecommunications operator on whom a requirement is
imposed by notice given in pursuance of an authorisation to comply with that
requirement.

(2) It is the duty of a telecommunications operator who is obtaining or disclosing
communications data, in response to a request or requirement for the data in
25pursuance of an authorisation, to obtain or disclose the data in a way that
minimises the amount of data that needs to be processed for the purpose
concerned.

(3) A person who is under a duty by virtue of subsection (1) or (2) is not required
to take any steps in pursuance of that duty which it is not reasonably
30practicable for that person to take.

(4) For the purposes of subsection (3), where obligations have been imposed on a
telecommunications operator (“P”) under section 229 (maintenance of
technical capability), the steps which it is reasonably practicable for P to take
include every step which it would have been reasonably practicable for P to
35take if P had complied with all of those obligations.

(5) The duty imposed by subsection (1) or (2) is enforceable by civil proceedings
by the Secretary of State for an injunction, or for specific performance of a
statutory duty under section 45 of the Court of Session Act 1988, or for any
other appropriate relief.

40Filtering arrangements for obtaining data

64 Filtering arrangements for obtaining data

(1) The Secretary of State may establish, maintain and operate arrangements for
the purposes of—

Investigatory Powers BillPage 52

(a) assisting a designated senior officer, who is considering whether to
grant an authorisation, to determine whether the requirements of this
Part in relation to granting the authorisation are satisfied, or

(b) facilitating the lawful, efficient and effective obtaining of
5communications data from any person by relevant public authorities in
pursuance of an authorisation.

(2) Arrangements under subsection (1) (“filtering arrangements”) may, in
particular, involve the obtaining of communications data in pursuance of an
authorisation (“the target data”) by means of—

(a) 10a request to the Secretary of State to obtain the target data on behalf of
an authorised officer, and

(b) the Secretary of State—

(i) obtaining the target data or data from which the target data may
be derived,

(ii) 15processing the target data or the data from which it may be
derived (and retaining data temporarily for that purpose), and

(iii) disclosing the target data to the person identified for this
purpose by, or in accordance with, the authorisation.

(3) Filtering arrangements may, in particular, involve the generation or use by the
20Secretary of State of information—

(a) for the purpose mentioned in subsection (1)(a), or

(b) for the purposes of—

(i) the support, maintenance, oversight, operation or
administration of the arrangements, or

(ii) 25the functions of the Investigatory Powers Commissioner
mentioned in subsection (4) or (5).

(4) Filtering arrangements must involve the generation and retention of such
information or documents as the Investigatory Powers Commissioner
considers appropriate for the purposes of the functions of the Commissioner
30under section 207(1) of keeping under review the exercise by public authorities
of functions under this Part.

(5) The Secretary of State must consult the Investigatory Powers Commissioner
about the principles on the basis of which the Secretary of State intends to
establish, maintain or operate any arrangements for the purpose mentioned in
35subsection (1)(a).

65 Use of filtering arrangements in pursuance of an authorisation

(1) This section applies in relation to the use of the filtering arrangements in
pursuance of an authorisation.

(2) The filtering arrangements may be used—

(a) 40to obtain and disclose communications data in pursuance of an
authorisation, only if the authorisation specifically authorises the use of
the arrangements to obtain and disclose the data,

(b) to process data in pursuance of an authorisation (and to retain the data
temporarily for that purpose), only if the authorisation specifically
45authorises processing data of that description under the arrangements
(and their temporary retention for that purpose).

(3) An authorisation must record the designated senior officer’s decision as to—

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(a) whether the communications data to be obtained and disclosed in
pursuance of the authorisation may be obtained and disclosed by use
of the filtering arrangements,

(b) whether the processing of data under the filtering arrangements (and
5its temporary retention for that purpose) is authorised,

(c) if the processing of data under the filtering arrangements is authorised,
the description of data that may be processed.

(4) A designated senior officer must not grant an authorisation which authorises—

(a) use of the filtering arrangements, or

(b) 10processing under the filtering arrangements,

unless the condition in subsection (5) is met.

(5) The condition is that the designated senior officer (as well as considering that
the other requirements of this Part in relation to granting the authorisation are
satisfied) considers that what is authorised in relation to the filtering
15arrangements is proportionate to what is sought to be achieved.

66 Duties in connection with operation of filtering arrangements

(1) The Secretary of State must secure—

(a) that no authorisation data is obtained or processed under the filtering
arrangements except for the purposes of an authorisation,

(b) 20that data which—

(i) has been obtained or processed under the filtering
arrangements, and

(ii) is to be disclosed in pursuance of an authorisation or for the
purpose mentioned in section 64(1)(a),

25is disclosed only to the person to whom the data is to be disclosed in
pursuance of the authorisation or (as the case may be) to the designated
senior officer concerned,

(c) that any authorisation data which is obtained under the filtering
arrangements in pursuance of an authorisation is immediately
30destroyed—

(i) when the purposes of the authorisation have been met, or

(ii) if at any time it ceases to be necessary to retain the data for the
purposes or purpose concerned.

(2) The Secretary of State must secure that data (other than authorisation data)
35which is retained under the filtering arrangements is disclosed only—

(a) for the purpose mentioned in section 64(1)(a),

(b) for the purposes of support, maintenance, oversight, operation or
administration of the arrangements,

(c) to the Investigatory Powers Commissioner for the purposes of the
40functions of the Commissioner mentioned in section 64(4) or (5), or

(d) otherwise as authorised by law.

(3) The Secretary of State must secure that—

(a) only the Secretary of State and designated individuals are permitted to
read, obtain or otherwise process data for the purposes of support,
45maintenance, oversight, operation or administration of the filtering
arrangements, and

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(b) no other persons are permitted to access or use the filtering
arrangements except in pursuance of an authorisation or for the
purpose mentioned in section 64(1)(a).

(4) In subsection (3)(a) “designated” means designated by the Secretary of State;
5and the Secretary of State may designate an individual only if the Secretary of
State thinks that it is necessary for the individual to be able to act as mentioned
in subsection (3)(a).

(5) The Secretary of State must—

(a) put in place and maintain an adequate security system to govern access
10to, and use of, the filtering arrangements and to protect against any
abuse of the power of access, and

(b) impose measures to protect against unauthorised or unlawful data
retention, processing, access or disclosure.

(6) The Secretary of State must—

(a) 15put in place and maintain procedures (including the regular testing of
relevant software and hardware) to ensure that the filtering
arrangements are functioning properly, and

(b) report, as soon as possible after the end of each calendar year, to the
Investigatory Powers Commissioner about the functioning of the
20filtering arrangements during that year.

(7) A report under subsection (6)(b) must, in particular, contain information about
the destruction of authorisation data during the calendar year concerned.

(8) If the Secretary of State believes that significant processing errors have
occurred giving rise to a contravention of any of the requirements of this Part
25which relate to the filtering arrangements, the Secretary of State must report
that fact immediately to the Investigatory Powers Commissioner.

(9) In this section “authorisation data”, in relation to an authorisation, means
communications data that is, or is to be, obtained in pursuance of the
authorisation or any data from which that data is, or may be, derived.

30Relevant public authorities other than local authorities

67 Relevant public authorities and designated senior officers

(1) Schedule 4 (relevant public authorities and designated senior officers) has
effect.

(2) A public authority listed in column 1 of the table in the Schedule is a relevant
35public authority for the purposes of this Part.

(3) In this Part “designated senior officer”, in relation to a relevant public authority
listed in column 1 of the table, means an individual who holds with the
authority—

(a) an office, rank or position specified in relation to the authority in
40column 2 of the table, or

(b) an office, rank or position higher than that specified in relation to the
authority in column 2 of the table (subject to subsections (4) and (5)).

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(4) Subsection (5) applies where an office, rank or position specified in relation to
a relevant public authority in column 2 of the table is specified by reference
to—

(a) a particular branch, agency or other part of the authority, or

(b) 5responsibility for functions of a particular description.

(5) A person is a designated senior officer by virtue of subsection (3)(b) only if the
person—

(a) holds an office, rank or position in that branch, agency or part, or

(b) has responsibility for functions of that description.

(6) 10A person who is a designated senior officer of a relevant public authority by
virtue of subsection (3) and an entry in column 2 of the table may grant an
authorisation—

(a) only for obtaining communications data of the kind specified in the
corresponding entry in column 3 of the table, and

(b) 15only if section 58(1)(a) is met in relation to a purpose within one of the
paragraphs of section 58(7) specified in the corresponding entry in
column 4 of the table.

(7) Where there is more than one entry in relation to a relevant public authority in
column 2 of the table, and a person is a designated senior officer of the
20authority by virtue of subsection (3) as it applies to more than one of those
entries, subsection (6) applies in relation to each entry.

68 Power to modify section 67 and Schedule 4

(1) The Secretary of State may by regulations modify section 67 or Schedule 4.

(2) Regulations under subsection (1) may in particular—

(a) 25add a public authority to, or remove a public authority from, the list in
column 1 of the table,

(b) modify an entry in column 2 of the table,

(c) impose or remove restrictions on the authorisations that may be
granted by a designated senior officer with a specified public authority,

(d) 30impose or remove restrictions on the circumstances in which or
purposes for which such authorisations may be granted by a
designated senior officer.

(3) The power to make regulations under subsection (1) includes power to make
such modifications in any enactment (including this Act) as the Secretary of
35State considers appropriate in consequence of a person becoming, or ceasing to
be, a relevant public authority because of regulations under that subsection.

69 Certain regulations under section 68: supplementary

(1) This section applies to regulations under section 68 other than regulations
which do only one or both of the following—

(a) 40remove a public authority from the list in column 1 of the table in
Schedule 4 and make consequential modifications,

(b) modify column 2 of the table in a way that does not involve replacing
an office, rank or position specified in that column in relation to a
particular public authority with a lower office, rank or position in
45relation to the same authority.

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(2) Before making regulations to which this section applies, the Secretary of State
must consult—

(a) the Investigatory Powers Commissioner, and

(b) the public authority to which the modifications relate.

(3) 5A statutory instrument containing regulations to which this section applies
may not be made except in accordance with the enhanced affirmative
procedure.

Local authorities

70 Local authorities as relevant public authorities

(1) 10A local authority is a relevant public authority for the purposes of this Part.

(2) In this Part “designated senior officer”, in relation to a local authority, means
an individual who holds with the authority—

(a) the position of director, head of service or service manager (or
equivalent), or

(b) 15a higher position.

(3) A designated senior officer of a local authority may grant an authorisation for
obtaining communications data only if section 58(1)(a) is met in relation to a
purpose within section 58(7)(b).

(4) The Secretary of State may by regulations amend subsection (2).

(5) 20Before making regulations under subsection (4) which amend subsection (2) so
as to replace an office, rank or position specified in that subsection with a lower
office, rank or position, the Secretary of State must consult—

(a) the Investigatory Powers Commissioner, and

(b) each local authority to which the amendment relates.

(6) 25A statutory instrument containing regulations under subsection (4) to which
subsection (5) applies may not be made except in accordance with the
enhanced affirmative procedure.

(7) Sections 71 and 72 impose further restrictions in relation to the grant of
authorisations by local authorities.

71 30Requirement to be party to collaboration agreement

(1) A designated senior officer of a local authority may not grant an authorisation
unless—

(a) the local authority is a party to a collaboration agreement (whether as a
supplying authority or a subscribing authority or both), and

(b) 35that collaboration agreement is certified by the Secretary of State
(having regard to guidance given by virtue of section 76(6) and (7)) as
being appropriate for the local authority.

(2) A designated senior officer of a local authority may only grant an authorisation
to a person within subsection (3).

(3) 40A person is within this subsection if the person is an officer of a relevant public
authority which is a supplying authority under a collaboration agreement to
which the local authority is a party.

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(4) If a local authority is itself a supplying authority under a collaboration
agreement, the persons within subsection (3) include officers of the local
authority.

(5) In this section “collaboration agreement”, “subscribing authority” and
5“supplying authority” have the same meaning as in section 75.

72 Judicial approval for local authority authorisations

(1) This section applies to an authorisation granted by a designated senior officer
of a local authority other than an authorisation to which section 74 applies.

(2) The authorisation is not to take effect until such time (if any) as the relevant
10judicial authority has made an order under this section approving it.

(3) The local authority may apply to the relevant judicial authority for an order
under this section approving the authorisation.

(4) The local authority is not required to give notice of the application to—

(a) any person to whom the authorisation relates, or

(b) 15that person’s legal representatives.

(5) The relevant judicial authority may approve the authorisation if, and only if,
the relevant judicial authority considers that—

(a) at the time of the grant, there were reasonable grounds for considering
that the requirements of this Part were satisfied in relation to the
20authorisation, and

(b) at the time when the relevant judicial authority is considering the
matter, there are reasonable grounds for considering that the
requirements of this Part would be satisfied if an equivalent new
authorisation were granted at that time.

(6) 25Where, on an application under this section, the relevant judicial authority
refuses to approve the grant of the authorisation, the relevant judicial authority
may make an order quashing the authorisation.

(7) In this section “the relevant judicial authority” means—

(a) in relation to England and Wales, a justice of the peace,

(b) 30in relation to Scotland, a sheriff, and

(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in
Northern Ireland.

(8) See also sections 77A and 77B of the Regulation of Investigatory Powers Act
2000 (procedure for orders under this section of a sheriff in Scotland or a
35district judge (magistrates’ courts) in Northern Ireland).

Additional protections

73 Use of a single point of contact

(1) Before granting an authorisation, the designated senior officer must consult a
person who is acting as a single point of contact in relation to the granting of
40authorisations.

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(2) But, if the designated senior officer considers that there are exceptional
circumstances which mean that subsection (1) should not apply in a particular
case, that subsection does not apply in that case.

(3) Examples of exceptional circumstances include—

(a) 5an imminent threat to life or another emergency, or

(b) the interests of national security.

(4) A person is acting as a single point of contact if that person—

(a) is an officer of a relevant public authority, and

(b) is responsible for advising—

(i) 10officers of the relevant public authority about applying for
authorisations, or

(ii) designated senior officers of the relevant public authority about
granting authorisations.

(5) A person acting as a single point of contact may, in particular, advise an officer
15of a relevant public authority who is considering whether to apply for an
authorisation about—

(a) the most appropriate methods for obtaining data where the data
concerned is processed by more than one telecommunications
operator,

(b) 20the cost, and resource implications, for—

(i) the relevant public authority concerned of obtaining the data,
and

(ii) the telecommunications operator concerned of disclosing the
data,

(c) 25any unintended consequences of the proposed authorisation, and

(d) any issues as to the lawfulness of the proposed authorisation.

(6) A person acting as a single point of contact may, in particular, advise a
designated senior officer who is considering whether to grant an authorisation
about—

(a) 30whether it is reasonably practical to obtain the data sought in
pursuance of the proposed authorisation,

(b) the cost, and resource implications, for—

(i) the relevant public authority concerned of obtaining the data,
and

(ii) 35the telecommunications operator concerned of disclosing the
data,

(c) any unintended consequences of the proposed authorisation, and

(d) any issues as to the lawfulness of the proposed authorisation.

(7) A person acting as a single point of contact may also provide advice about—

(a) 40whether requirements imposed by virtue of an authorisation have been
met,

(b) the use in support of operations or investigations of communications
data obtained in pursuance of an authorisation, and

(c) any other effects of an authorisation.

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74 Commissioner approval for authorisations to identify or confirm journalistic
sources

(1) Subsection (2) applies if—

(a) a designated senior officer has granted an authorisation in relation to
5the obtaining by a relevant public authority of communications data for
the purpose of identifying or confirming a source of journalistic
information, and

(b) the authorisation is not necessary because of an imminent threat to life.

(2) The authorisation is not to take effect until such time (if any) as a Judicial
10Commissioner has approved it.

(3) The relevant public authority for which the authorisation has been granted
may apply to a Judicial Commissioner for approval of the authorisation.

(4) The applicant is not required to give notice of the application to—

(a) any person to whom the authorisation relates, or

(b) 15that person’s legal representatives.

(5) A Judicial Commissioner may approve the authorisation if, and only if, the
Judicial Commissioner considers that—

(a) at the time of the grant, there were reasonable grounds for considering
that the requirements of this Part were satisfied in relation to the
20authorisation, and

(b) at the time when the Judicial Commissioner is considering the matter,
there are reasonable grounds for considering that the requirements of
this Part would be satisfied if an equivalent new authorisation were
granted at that time.

(6) 25In considering whether the position is as mentioned in subsection (5)(a) and
(b), the Judicial Commissioner must, in particular, have regard to—

(a) the public interest in protecting a source of journalistic information,
and

(b) the need for there to be another overriding public interest before a
30relevant public authority seeks to identify or confirm a source of
journalistic information.

(7) Where, on an application under this section, the Judicial Commissioner refuses
to approve the grant of the authorisation, the Judicial Commissioner may
quash the authorisation.

(8) 35In this Act “source of journalistic information” means an individual who
provides material intending the recipient to use it for the purposes of
journalism or knowing that it is likely to be so used.

Collaboration agreements

75 Collaboration agreements

(1) 40A collaboration agreement is an agreement (other than a police collaboration
agreement) under which—

(a) a relevant public authority (“the supplying authority”) puts the services
of designated senior officers of that authority or other officers of that
authority at the disposal of another relevant public authority (“the