Regulation of Investigatory Powers Bill - continued        House of Commons

back to previous text
 
  PART IV
  SCRUTINY ETC. OF INVESTIGATORY POWERS AND OF THE FUNCTIONS OF THE INTELLIGENCE SERVICES
 
Commissioners
New Commissioners.     53. - (1) The Prime Minister shall appoint two Commissioners, to be known as the Interception of Communications Commissioner and the Covert Investigations Commissioner.
 
      (2) Subject to subsection (5), the Interception of Communications Commissioner shall keep under review-
 
 
    (a) the exercise and performance by the Secretary of State of the powers and duties conferred or imposed on him by or under sections 1 to 11;
 
    (b) the exercise and performance, by the persons on whom they are conferred or imposed, of the powers and duties conferred or imposed by or under Chapter II of Part I;
 
    (c) the exercise and performance by the Secretary of State in relation to information obtained under Part I of the powers and duties conferred or imposed on him by or under Part III; and
 
    (d) the adequacy of the arrangements by virtue of which-
 
      (i) the duty which is imposed on the Secretary of State by section 14, and
 
      (ii) so far as applicable to information obtained under Part I, the duties imposed by section 51,

are sought to be discharged.
      (3) Subject to subsection (5), the Covert Investigations Commissioner shall keep under review, so far as they are not required to be kept under review by the Security Service Act Commissioner, the Intelligence Services Act Commissioner or the Chief Surveillance Commissioner-
 
 
    (a) the exercise and performance, by the persons on whom they are conferred or imposed, of the powers and duties conferred or imposed by or under Part II;
 
    (b) the exercise and performance, by any person other than a judicial authority, of the powers and duties conferred or imposed, otherwise than with the permission of such an authority, by or under Part III; and
 
    (c) the adequacy of the arrangements by virtue of which the duties imposed by section 51 are sought to be discharged in relation to persons whose conduct is subject to review under paragraph (b).
      (4) The Interception of Communications Commissioner and the Covert Investigations Commissioner shall each give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require-
 
 
    (a) in connection with the investigation of any matter by the Tribunal; or
 
    (b) otherwise for the purposes of the Tribunal's consideration or determination of any matter.
      (5) It shall not be the function of either Commissioner to keep under review the exercise of any power of the Secretary of State to make, amend or revoke any subordinate legislation.
 
      (6) A person shall not be appointed under this section as a Commissioner unless-
 
 
    (a) in the case of the Interception of Communications Commissioner, he holds or has held a high judicial office (within the meaning of the Appellate Jurisdiction Act 1876); or
 
    (b) in the case of the Covert Investigations Commissioner, he holds or has held any such high judicial office or holds or has held office as a Circuit judge, a sheriff in Scotland or a county court judge in Northern Ireland.
      (7) Each of the Commissioners shall hold office in accordance with the terms of his appointment; and there shall be paid to each Commissioner out of money provided by Parliament such allowances as the Treasury may determine.
 
      (8) On the coming into force of this section the Commissioner holding office as the Commissioner under section 8 of the Interception of Communications Act 1985 shall take and hold office as the Interception of Communications Commissioner as if appointed under this Act-
 
 
    (a) for the unexpired period of his term of office under that Act; and
 
    (b) otherwise, on the terms of his appointment under that Act.
      (9) In this section "judicial authority" means-
 
 
    (a) any judge of the High Court or of the Crown Court or any Circuit Judge;
 
    (b) any judge of the High Court of Justiciary or any sheriff;
 
    (c) any justice of the peace;
 
    (d) any county court judge or resident magistrate in Northern Ireland;
 
    (e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace.
Co-operation with and reports by new Commissioners.     54. - (1) It shall be the duty of-
 
 
    (a) every person holding office under the Crown,
 
    (b) every member of the National Criminal Intelligence Service,
 
    (c) every member of the National Crime Squad,
 
    (d) every person employed by or for the purposes of a police force,
 
    (e) every person required for the purposes of section 11 to provide assistance with giving effect to an interception warrant,
 
    (f) every person on whom an obligation to take any steps has been imposed under section 12,
 
    (g) every person by or to whom an authorisation under section 21(3) has been granted,
 
    (h) every person to whom a notice under section 21(4) has been given,
 
    (i) every person to whom a notice under section 46 has been given in relation to any information obtained under Part I, and
 
    (j) every person who is or has been employed for the purposes of any business of a person falling within paragraph (e), (f), (h) or (i),

to disclose or provide to the Interception of Communications Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions under section 53.
      (2) It shall be the duty of-
 
 
    (a) every person by whom, or on whose application, there has been granted any authorisation the grant of which is subject to review by the Covert Investigations Commissioner,
 
    (b) every person who holds or has held any office, rank or position with the same public authority as a person falling within paragraph (a),
 
    (c) every person who has engaged in any conduct with the authority of such an authorisation, and
 
    (d) every person who holds or has held any office, rank or position with a public authority for whose benefit any such authorisation has been or may be granted,

to disclose or provide to that Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions.
      (3) If it at any time appears to the Interception of Communications Commissioner or the Covert Investigations Commissioner-
 
 
    (a) that there has been a contravention of the provisions of this Act in relation to any matter with which that Commissioner is concerned, and
 
    (b) that the contravention has not been the subject of a report made to the Prime Minister by the Tribunal,

he shall make a report to the Prime Minister with respect to that contravention.
      (4) If it at any time appears to the Interception of Communications Commissioner that any arrangements by reference to which the duties imposed by sections 14 and 51 have sought to be discharged have proved inadequate in relation to any matter with which the Commissioner is concerned, he shall make a report to the Prime Minister with respect to those arrangements.
 
      (5) As soon as practicable after the end of each calendar year, the Interception of Communications Commissioner and the Covert Investigations Commissioner shall each make a report to the Prime Minister with respect to the carrying out of that Commissioner's functions.
 
      (6) The Prime Minister shall lay before each House of Parliament a copy of every annual report made by a Commissioner under subsection (5), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7).
 
      (7) If it appears to the Prime Minister, after consultation with the Commissioner in question, that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to-
 
 
    (a) national security,
 
    (b) the prevention or detection of serious crime,
 
    (c) the economic well-being of the United Kingdom, or
 
    (d) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner,

the Prime Minister may exclude that matter from the copy of the report as laid before each House of Parliament.
Additional functions of other Commissioners.     55. - (1) Subject to subsection (5), the Security Service Act Commissioner shall (in addition to his functions under the Security Service Act 1989) keep under review, so far as they are not required to be kept under review by the Interception of Communications Commissioner-
 
 
    (a) the exercise and performance by the Secretary of State, in connection with or in relation to the activities of the Security Service, of the powers and duties conferred or imposed on him by Parts II and III;
 
    (b) the exercise and performance by members of the Security Service of the powers and duties conferred or imposed on them by or under Parts II and III; and
 
    (c) the adequacy of the arrangements by virtue of which the duty imposed by section 51 is sought to be discharged in relation to members of the Security Service.
      (2) Subject to subsection (5), the Intelligence Services Act Commissioner shall (in addition to his functions under the Intelligence Services Act 1994) keep under review, so far as they are not required to be kept under review by the Interception of Communications Commissioner-
 
 
    (a) the exercise and performance by the Secretary of State, in connection with or in relation to-
 
      (i) the activities of the Secret Intelligence Service and of GCHQ, and
 
      (ii) the activities in places other than Northern Ireland of officials of the Ministry of Defence and of members of Her Majesty's forces,

of the powers and duties conferred or imposed on him by Parts II and III;
 
    (b) the exercise and performance by members of the Secret Intelligence Service and of GCHQ of the powers and duties conferred or imposed on members of those services by or under Parts II and III;
 
    (c) the exercise and performance in places other than Northern Ireland, by officials of the Ministry of Defence and by members of Her Majesty's forces, of the powers and duties conferred or imposed on such officials or members of Her Majesty's forces by or under Parts II and III; and
 
    (d) the adequacy of the arrangements by virtue of which the duty imposed by section 51 is sought to be discharged-
 
      (i) in relation to the members of the Secret Intelligence Service and of GCHQ; and
 
      (ii) in connection with any of their activities in places other than Northern Ireland, in relation to officials of the Ministry of Defence and members of Her Majesty's forces.
      (3) The Chief Surveillance Commissioner shall (in addition to his functions under the Police Act 1997) keep under review, so far as they are not required to be kept under review by the Interception of Communications Commissioner, the Security Service Act Commissioner or the Intelligence Services Act Commissioner-
 
 
    (a) the exercise and performance by members of police forces, by members of the National Criminal Intelligence Service, by members of the National Crime Squad and by customs officers of the powers and duties conferred or imposed on them by or under Part II;
 
    (b) the exercise and performance by members of police forces, by members of the National Criminal Intelligence Service, by members of the National Crime Squad and by customs officers, in relation to-
 
      (i) information obtained under Part II of this Act or Part III of the Police Act 1997, or
 
      (ii) information in the case of which paragraph 4 of Schedule 1 to this Act applies,

of the powers and duties conferred or imposed on them by or under Part III of this Act;
 
    (c) the exercise and performance in Northern Ireland by officials of the Ministry of Defence and members of Her Majesty's forces, of the powers and duties conferred or imposed on such officials or members of Her Majesty's forces by or under Parts II and III; and
 
    (d) the adequacy of the arrangements by virtue of which the duty imposed by section 51 is sought to be discharged-
 
      (i) in relation, in connection with the exercise or performance of powers or duties with respect to information falling within paragraph (b)(i) or (ii), to members of police forces, members of the National Criminal Intelligence Service, members of the National Crime Squad and customs officers; and
 
      (ii) in relation, in connection with any of their activities in Northern Ireland, to officials of the Ministry of Defence and members of Her Majesty's forces.
      (4) The Chief Surveillance Commissioner may require any ordinary Surveillance Commissioner to provide him with assistance in carrying out his functions under subsection (3); and that assistance may include-
 
 
    (a) the conduct on behalf of the Chief Surveillance Commissioner of the review of any matter, and
 
    (b) the making of a report to the Chief Surveillance Commissioner about the matter reviewed.
      (5) It shall not by virtue of this section be the function of any Commissioner to keep under review the exercise of any power of the Secretary of State to make, amend or revoke any subordinate legislation.
 
      (6) Subsection (5) of section 39 shall apply for the purposes of this section as it applies for the purposes of that section.
 
 
The Tribunal
The Tribunal.     56. - (1) There shall, for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.
 
      (2) The jurisdiction of the Tribunal shall be-
 
 
    (a) to be the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;
 
    (b) to consider and determine any complaints made to them which, in accordance with subsection (4), are complaints for which the Tribunal is the appropriate forum;
 
    (c) to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of section 16, on his relying in, or for the purposes of, any civil proceedings on any matter; and
 
    (d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order.
      (3) Proceedings fall within this subsection if-
 
 
    (a) they are proceedings against any of the intelligence services;
 
    (b) they are proceedings against any other person in respect of any conduct, or proposed conduct, by or on behalf of any of those services; or
 
    (c) they are proceedings relating to the taking place in any challengeable circumstances of any conduct falling within subsection (5).
      (4) The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes-
 
 
    (a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunications service or telecommunication system; and
 
    (b) to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services.
      (5) Subject to subsection (6), conduct falls within this subsection if (whenever it occurred) it is-
 
 
    (a) conduct by or on behalf of any of the intelligence services;
 
    (b) conduct for or in connection with the interception of communications in the course of their transmission by means of a postal service or telecommunication system;
 
    (c) conduct to which Chapter II of Part I or Part II applies;
 
    (d) the giving of a notice under section 46 or any disclosure or use of a key to protected information;
 
    (e) any entry on or interference with property or any interference with wireless telegraphy.
      (6) For the purposes only of subsection (3), conduct to which Part II applies, an entry on or interference with property or an interference with wireless telegraphy is not conduct falling within subsection (5) unless it is conduct by or on behalf of a person holding any office, rank or position with-
 
 
    (a) any of the intelligence services;
 
    (b) any of Her Majesty's forces;
 
    (c) any police force;
 
    (d) the National Criminal Intelligence Service;
 
    (e) the National Crime Squad; or
 
    (f) the Commissioners of Customs and Excise;

and section 45(5) applies for the purposes of this subsection as it applies for the purposes of Part II.
      (7) For the purposes of this section conduct takes place in challengeable circumstances if-
 
 
    (a) it takes place with the authority, or purported authority, of anything falling within subsection (8); or
 
    (b) the circumstances are such that (whether or not there is such authority) it would not have been appropriate for the conduct to take place without it, or at least without proper consideration having been given to whether such authority should be sought.
      (8) The following fall within this subsection-
 
 
    (a) an interception warrant or a warrant under the Interception of Communications Act 1985;
 
    (b) an authorisation or notice under Chapter II of Part I of this Act;
 
    (c) an authorisation under Part II of this Act;
 
    (d) a permission of the Secretary of State for the purposes of Schedule 1 to this Act;
 
    (e) any such notice under section 46 of this Act as may be given with such a permission of the Secretary of State; or
 
    (f) an authorisation under section 93 of the Police Act 1997.
      (9) Schedule 2 (which makes further provision in relation to the Tribunal) shall have effect.
 
      (10) In this section-
 
 
    (a) references to a key and to protected information shall be construed in accordance with section 52;
 
    (b) references to the disclosure or use of a key to protected information taking place in relation to a person are references to such a disclosure or use taking place in a case in which that person has had possession of the key or of the protected information; and
 
    (c) references to the disclosure of a key to protected information include references to the making, instead, of a disclosure in intelligible form (within the meaning of section 52) of the protected information to which the key applies;

and the reference in paragraph (b) to a person's having possession of a key or of protected information shall be construed in accordance with section 52.
Orders allocating proceedings to the Tribunal.     57. - (1) An order under section 56(2)(d) allocating proceedings to the Tribunal may-
 
 
    (a) provide for the Tribunal to exercise jurisdiction in relation to that matter to the exclusion of the jurisdiction of any court or tribunal; but
 
    (b) if it does so provide, must contain provision conferring a power on the Tribunal, in the circumstances provided for in the order, to remit the proceedings to the court or tribunal which would have had jurisdiction apart from the order.
      (2) In making any provision by an order under section 56(2)(d) the Secretary of State shall have regard, in particular, to-
 
 
    (a) the need to secure that proceedings allocated to the Tribunal are properly heard and considered; and
 
    (b) the need to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.
      (3) The Secretary of State shall not make an order under section 56(2)(d) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
 
 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2000
Prepared 7 April 2000