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Protection of Freedoms Bill


Protection of Freedoms Bill
Part 2 — Regulation of surveillance
Chapter 2 — Safeguards for certain surveillance under RIPA

27

 

(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

sources

(1)   

After section 32 of the Regulation of Investigatory Powers Act 2000

10

(authorisation of surveillance and human intelligence sources: intrusive

surveillance) insert—

“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

the authorisation.

(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

the authorisation, and

(ii)   

the relevant conditions were satisfied in relation to the

authorisation, and

(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

authorisation.

(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

of section 28,

(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

Ireland, that—

45

 
 

Protection of Freedoms Bill
Part 2 — Regulation of surveillance
Chapter 2 — Safeguards for certain surveillance under RIPA

28

 

(i)   

the individual was a designated person for the purposes

of section 28,

(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

authorisation, and

(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

the authorisation.

(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

of section 29,

(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

Ireland, that—

(i)   

the individual was a designated person for the purposes

of section 29,

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.

(7)   

In this section—

“local authority in England” means—

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Protection of Freedoms Bill
Part 2 — Regulation of surveillance
Chapter 2 — Safeguards for certain surveillance under RIPA

29

 

(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,

“relevant person” means—

(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

each House;

(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

Parliament;

(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.

 
 

Protection of Freedoms Bill
Part 3 — Protection of property from disproportionate enforcement action
Chapter 1 — Powers of entry

30

 

(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

authorisation.

(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

authorisations)—

(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

(6A)”.

20

Part 3

Protection of property from disproportionate enforcement action

Chapter 1

Powers of entry

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

exercise the power,

(d)   

a requirement for a judicial or other authorisation before the power

may be exercised,

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Protection of Freedoms Bill
Part 3 — Protection of property from disproportionate enforcement action
Chapter 1 — Powers of entry

31

 

(e)   

a requirement to give notice within a particular period before the

power may be exercised,

(f)   

other conditions which must be met before the power may be exercised,

(g)   

modifications of existing conditions which must be met before the

power may be exercised,

5

(h)   

other restrictions on the circumstances in which the power may be

exercised,

(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

modifications—

(a)   

powers of entry, associated powers or any aspects of any such powers,

or

(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

without replacing it.

(3)   

But no order under this section may alter the effect of—

(a)   

a power of entry,

(b)   

any associated power connected with it, or

25

(c)   

any safeguard relating to, but not forming part of, the power of entry or

associated power,

   

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

relevant period—

(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

validity of the power.

(3)   

In this section—

“relevant associated power” means any associated power in a public

general Act or a statutory instrument made under such an Act,

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Protection of Freedoms Bill
Part 3 — Protection of property from disproportionate enforcement action
Chapter 1 — Powers of entry

32

 

“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

appropriate.

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

of Parliament.

(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.

 
 

 
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Revised 11 February 2011