|
| |
|
(3) | Where, on an application under section 23A, the relevant judicial |
| |
authority refuses to approve the grant or renewal of the authorisation |
| |
concerned or (as the case may be) the giving or renewal of the notice |
| |
concerned, the relevant judicial authority may make an order quashing |
| |
the authorisation or notice. |
| 5 |
(4) | In this section “relevant judicial authority” and “relevant person” have |
| |
the same meaning as in section 23A.” |
| |
38 | Judicial approval for directed surveillance and covert human intelligence |
| |
| |
(1) | After section 32 of the Regulation of Investigatory Powers Act 2000 |
| 10 |
(authorisation of surveillance and human intelligence sources: intrusive |
| |
| |
“Authorisations requiring judicial approval |
| |
32A | Authorisations requiring judicial approval |
| |
(1) | This section applies where a relevant person has granted an |
| 15 |
authorisation under section 28 or 29. |
| |
(2) | The authorisation is not to take effect until such time (if any) as the |
| |
relevant judicial authority has made an order approving the grant of |
| |
| |
(3) | The relevant judicial authority may give approval under this section to |
| 20 |
the granting of an authorisation under section 28 if, and only if, the |
| |
relevant judicial authority is satisfied that— |
| |
(a) | at the time of the grant— |
| |
(i) | there were reasonable grounds for believing that the |
| |
requirements of section 28(2) were satisfied in relation to |
| 25 |
| |
(ii) | the relevant conditions were satisfied in relation to the |
| |
| |
(b) | at the time when the relevant judicial authority is considering |
| |
the matter, there remain reasonable grounds for believing that |
| 30 |
the requirements of section 28(2) are satisfied in relation to the |
| |
| |
(4) | For the purposes of subsection (3) the relevant conditions are— |
| |
(a) | in relation to a grant by an individual holding an office, rank or |
| |
position in a local authority in England or Wales, that— |
| 35 |
(i) | the individual was a designated person for the purposes |
| |
| |
(ii) | the grant of the authorisation was not in breach of any |
| |
restrictions imposed by virtue of section 30(3), and |
| |
(iii) | any other conditions that may be provided for by an |
| 40 |
order made by the Secretary of State were satisfied, |
| |
(b) | in relation to a grant, for any purpose relating to a Northern |
| |
Ireland excepted or reserved matter, by an individual holding |
| |
an office, rank or position in a district council in Northern |
| |
| 45 |
|
| |
|
| |
|
(i) | the individual was a designated person for the purposes |
| |
| |
(ii) | the grant of the authorisation was not in breach of any |
| |
restrictions imposed by virtue of section 30(3), and |
| |
(iii) | any other conditions that may be provided for by an |
| 5 |
order made by the Secretary of State were satisfied, and |
| |
(c) | in relation to any other grant by a relevant person, that any |
| |
conditions that may be provided for by an order made by the |
| |
Secretary of State were satisfied. |
| |
(5) | The relevant judicial authority may give approval under this section to |
| 10 |
the granting of an authorisation under section 29 if, and only if, the |
| |
relevant judicial authority is satisfied that— |
| |
(a) | at the time of the grant— |
| |
(i) | there were reasonable grounds for believing that the |
| |
requirements of section 29(2), and any requirements |
| 15 |
imposed by virtue of section 29(7)(b), were satisfied in |
| |
relation to the authorisation, and |
| |
(ii) | the relevant conditions were satisfied in relation to the |
| |
| |
(b) | at the time when the relevant judicial authority is considering |
| 20 |
the matter, there remain reasonable grounds for believing that |
| |
the requirements of section 29(2), and any requirements |
| |
imposed by virtue of section 29(7)(b), are satisfied in relation to |
| |
| |
(6) | For the purposes of subsection (5) the relevant conditions are— |
| 25 |
(a) | in relation to a grant by an individual holding an office, rank or |
| |
position in a local authority in England or Wales, that— |
| |
(i) | the individual was a designated person for the purposes |
| |
| |
(ii) | the grant of the authorisation was not in breach of any |
| 30 |
prohibition imposed by virtue of section 29(7)(a) or any |
| |
restriction imposed by virtue of section 30(3), and |
| |
(iii) | any other conditions that may be provided for by an |
| |
order made by the Secretary of State were satisfied, |
| |
(b) | in relation to a grant, for any purpose relating to a Northern |
| 35 |
Ireland excepted or reserved matter, by an individual holding |
| |
an office, rank or position in a district council in Northern |
| |
| |
(i) | the individual was a designated person for the purposes |
| |
| 40 |
(ii) | the grant of the authorisation was not in breach of any |
| |
prohibition imposed by virtue of section 29(7)(a) or any |
| |
restriction imposed by virtue of section 30(3), and |
| |
(iii) | any other conditions that may be provided for by an |
| |
order made by the Secretary of State were satisfied, and |
| 45 |
(c) | in relation to any other grant by a relevant person, that any |
| |
conditions that may be provided for by an order made by the |
| |
Secretary of State were satisfied. |
| |
| |
“local authority in England” means— |
| 50 |
|
| |
|
| |
|
(a) | a district or county council in England, |
| |
(b) | a London borough council, |
| |
(c) | the Common Council of the City of London in its |
| |
capacity as a local authority, or |
| |
(d) | the Council of the Isles of Scilly, |
| 5 |
“local authority in Wales” means any county council or county |
| |
borough council in Wales, |
| |
“Northern Ireland excepted or reserved matter” means an |
| |
excepted or reserved matter (within the meaning of section 4(1) |
| |
of the Northern Ireland Act 1998), |
| 10 |
“Northern Ireland transferred matter” means a transferred matter |
| |
(within the meaning of section 4(1) of the Act of 1998), |
| |
“relevant judicial authority” means— |
| |
(a) | in relation to England and Wales, a justice of the peace, |
| |
(b) | in relation to Scotland, a sheriff, and |
| 15 |
(c) | in relation to Northern Ireland, a district judge |
| |
(magistrates’ courts) in Northern Ireland, |
| |
| |
(a) | an individual holding an office, rank or position in a |
| |
local authority in England or Wales, |
| 20 |
(b) | also, in relation to a grant for any purpose relating to a |
| |
Northern Ireland excepted or reserved matter, an |
| |
individual holding an office, rank or position in a |
| |
district council in Northern Ireland, and |
| |
(c) | also, in relation to any grant of a description that may be |
| 25 |
prescribed for the purposes of this subsection by an |
| |
order made by the Secretary of State or every grant if so |
| |
prescribed, a person of a description so prescribed. |
| |
(8) | No order of the Secretary of State— |
| |
(a) | may be made under subsection (7) unless a draft of the order |
| 30 |
has been laid before Parliament and approved by a resolution of |
| |
| |
(b) | may be made under this section so far as it makes provision |
| |
which would be within the legislative competence of the |
| |
Scottish Parliament if it were contained in an Act of the Scottish |
| 35 |
| |
(c) | may be made under this section so far as it makes provision |
| |
which, if it were contained in an Act of the Northern Ireland |
| |
Assembly, would be within the legislative competence of the |
| |
Northern Ireland Assembly because it deals with a Northern |
| 40 |
Ireland transferred matter. |
| |
32B | Procedure for judicial approval |
| |
(1) | The public authority with which the relevant person holds an office, |
| |
rank or position may apply to the relevant judicial authority for an |
| |
order under section 32A approving the grant of an authorisation. |
| 45 |
(2) | The applicant is not required to give notice of the application to— |
| |
(a) | any person to whom the authorisation relates, or |
| |
(b) | such a person’s legal representatives. |
| |
|
| |
|
| |
|
(3) | Where, on an application under section 32A, the relevant judicial |
| |
authority refuses to approve the grant of the authorisation concerned, |
| |
the relevant judicial authority may make an order quashing the |
| |
| |
(4) | In this section “relevant judicial authority” and “relevant person” have |
| 5 |
the same meaning as in section 32A.” |
| |
(2) | In section 43 of that Act (general rules about grant, renewal and duration of |
| |
| |
(a) | after subsection (6) insert— |
| |
“(6A) | The relevant judicial authority (within the meaning given by |
| 10 |
subsection (7) of section 32A) shall not make an order under |
| |
that section approving the renewal of an authorisation for the |
| |
conduct or the use of a covert human intelligence source unless |
| |
the relevant judicial authority— |
| |
(a) | is satisfied that a review has been carried out of the |
| 15 |
matters mentioned in subsection (7) below, and |
| |
(b) | has, for the purpose of deciding whether to make the |
| |
order, considered the results of that review.”, and |
| |
(b) | in subsection (7) for “subsection (6)” substitute “subsections (6) and |
| |
| 20 |
| |
Protection of property from disproportionate enforcement action |
| |
| |
| |
Repealing, adding safeguards or rewriting powers of entry |
| 25 |
39 | Repealing etc. unnecessary or inappropriate powers of entry |
| |
(1) | The appropriate national authority may by order repeal any power of entry or |
| |
associated power which the appropriate national authority considers to be |
| |
unnecessary or inappropriate. |
| |
(2) | Schedule 2 (which contains repeals etc. of certain powers of entry) has effect. |
| 30 |
40 | Adding safeguards to powers of entry |
| |
(1) | The appropriate national authority may by order provide for safeguards in |
| |
relation to any power of entry or associated power. |
| |
(2) | Such safeguards may, in particular, include— |
| |
(a) | restrictions as to the premises over which the power may be exercised, |
| 35 |
(b) | restrictions as to the times at which the power may be exercised, |
| |
(c) | restrictions as to the number or description of persons who may |
| |
| |
(d) | a requirement for a judicial or other authorisation before the power |
| |
| 40 |
|
| |
|
| |
|
(e) | a requirement to give notice within a particular period before the |
| |
| |
(f) | other conditions which must be met before the power may be exercised, |
| |
(g) | modifications of existing conditions which must be met before the |
| |
| 5 |
(h) | other restrictions on the circumstances in which the power may be |
| |
| |
(i) | new obligations on the person exercising the power which must be met |
| |
before, during or after its exercise, |
| |
(j) | modifications of existing obligations which must be met by the person |
| 10 |
exercising the power before, during or after its exercise, |
| |
(k) | restrictions on any power to use force, or any other power, which may |
| |
be exercised in connection with the power of entry or associated power. |
| |
41 | Rewriting powers of entry |
| |
(1) | The appropriate national authority may by order rewrite, with or without |
| 15 |
| |
(a) | powers of entry, associated powers or any aspects of any such powers, |
| |
| |
(b) | enactments relating to, or connected with, any such powers or aspects. |
| |
(2) | The power under subsection (1) to rewrite a power of entry or associated |
| 20 |
power includes, in particular, the power to remove an aspect of such a power |
| |
| |
(3) | But no order under this section may alter the effect of— |
| |
| |
(b) | any associated power connected with it, or |
| 25 |
(c) | any safeguard relating to, but not forming part of, the power of entry or |
| |
| |
| unless, on and after the changes made by the order, the safeguards in relation |
| |
to the power of entry and associated powers connected with it, taken together, |
| |
provide a greater level of protection than any safeguards applicable |
| 30 |
immediately before the changes. |
| |
42 | Duty to review certain existing powers of entry |
| |
(1) | Each Minister of the Crown who is a member of the Cabinet must, within the |
| |
| |
(a) | review relevant powers of entry, and relevant associated powers, for |
| 35 |
which the Minister is responsible with a view to deciding whether to |
| |
make an order under section 39(1), 40 or 41 in relation to any of them, |
| |
(b) | prepare a report of that review, and |
| |
(c) | lay a copy of the report before Parliament. |
| |
(2) | A failure by a Minister of the Crown to comply with a duty under subsection |
| 40 |
(1) in relation to a power of entry or associated power does not affect the |
| |
| |
| |
“relevant associated power” means any associated power in a public |
| |
general Act or a statutory instrument made under such an Act, |
| 45 |
|
| |
|
| |
|
“the relevant period” means the period of two years beginning with the |
| |
day on which this Act is passed, |
| |
“relevant power of entry” means any power of entry in a public general |
| |
Act or a statutory instrument made under such an Act. |
| |
43 | Consultation requirements before modifying powers of entry |
| 5 |
Before making an order under section 39(1), 40 or 41 in relation to a power of |
| |
entry or associated power, the appropriate national authority must consult— |
| |
(a) | such persons appearing to the appropriate national authority to be |
| |
representative of the views of persons entitled to exercise the power of |
| |
entry or associated power as the appropriate national authority |
| 10 |
considers appropriate, and |
| |
(b) | such other persons as the appropriate national authority considers |
| |
| |
44 | Procedural and supplementary provisions |
| |
(1) | An order under section 39(1), 40 or 41— |
| 15 |
(a) | is to be made by statutory instrument, |
| |
(b) | may modify any enactment, |
| |
(c) | may include such incidental, consequential, supplementary, transitory, |
| |
transitional or saving provision as the appropriate national authority |
| |
considers appropriate (including provision modifying any enactment). |
| 20 |
(2) | Subject to subsection (4), no instrument containing an order of a Minister of the |
| |
Crown under section 39(1), 40 or 41 is to be made unless a draft of it has been |
| |
laid before, and approved by a resolution of, each House of Parliament. |
| |
(3) | If a draft of an instrument containing an order of a Minister of the Crown under |
| |
section 39(1), 40 or 41 would, apart from this subsection, be treated as a hybrid |
| 25 |
instrument for the purposes of the standing orders of either House of |
| |
Parliament, it is to proceed in that House as if it were not a hybrid instrument. |
| |
(4) | An instrument containing an order of a Minister of the Crown under section |
| |
39(1), 40 or 41 which neither amends nor repeals any provision of primary |
| |
legislation is subject to annulment in pursuance of a resolution of either House |
| 30 |
| |
(5) | In subsection (4) “primary legislation” means— |
| |
(a) | a public general Act, |
| |
(b) | an Act of the Scottish Parliament, |
| |
(c) | a Measure or Act of the National Assembly for Wales, and |
| 35 |
(d) | Northern Ireland legislation. |
| |
(6) | Subject to subsection (7), no instrument containing an order of the Welsh |
| |
Ministers under section 39(1), 40 or 41 is to be made unless a draft of it has been |
| |
laid before, and approved by a resolution of, the National Assembly for Wales. |
| |
(7) | An instrument containing an order of the Welsh Ministers under section 39(1), |
| 40 |
40 or 41 is subject to annulment in pursuance of a resolution of the National |
| |
Assembly for Wales if it neither amends nor repeals any of the following— |
| |
(a) | any provision of a public general Act, |
| |
(b) | any provision of a Measure or Act of the National Assembly for Wales. |
| |
|
| |
|