Contents
- Part I Communications
- Part II Surveillance and covert human intelligence sources
- Part III Investigation of electronic data protected by encryption etc.
- Part IV Scrutiny etc. of investigatory powers and of the functions of the intelligence services
- Part V Miscellaneous and supplemental
- Schedule 1 Relevant Public Authorities
- Schedule 2 Persons having the appropriate permission
- Schedule 3 The Tribunal
- Schedule 4 Consequential amendments
- Schedule 5 Repeals
- Schedule A1 Monetary penalty notices in relation to certain unlawful interceptions
Part I · Communications
Chapter I · Interception
Interception capability and costs
12Maintenance of interception capability.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (repealed)
Interception warrants
6Application for issue of an interception warrant.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (repealed)
9Duration, cancellation and renewal of warrants.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (repealed)
Interpretation of Chapter I
Restrictions on use of intercepted material etc.
16Extra safeguards in the case of certificated warrants.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (repealed)
17Exclusion of matters from legal proceedings.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (repealed)
Chapter II · Acquisition and disclosure of communications data
21Lawful acquisition and disclosure of communications data.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (repealed)
22Obtaining and disclosing communications data.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (repealed)
23Form and duration of authorisations and notices.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (repealed)
23AAuthorisations requiring judicial approval#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (repealed)
23BProcedure for judicial approval#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (repealed)
Part II · Surveillance and covert human intelligence sources
Introductory
26Conduct to which Part II applies.#
(1)This Part applies to the following conduct—
(a)directed surveillance;
(b)intrusive surveillance; note...
(c)the conduct and use of covert human intelligence sources ; and
(d)criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources
(2)Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—
(a)for the purposes of a specific investigation or a specific operation;
(b)in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
(c)otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.
(3)Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that—
(a)is carried out in relation to anything taking place on any residential premises or in any private vehicle; and
(b)involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.
(4)For the purposes of this Part surveillance is not intrusive to the extent that—
(a)it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle; or
(b)it is surveillance consisting in any such interception of a communication as falls within section 48(4).
(5)For the purposes of this Part surveillance which—
(a)is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle, but
is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle.
(6)For the purposes of this Part surveillance which—
(b)is carried out from outside those premises exclusively for that purpose,
is neither directed nor intrusive.
(7)In this Part—
(a)references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of paragraphs (a) to (c) of subsection (8), or is incidental to anything falling within any of those paragraphs; and
(b)references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source.
(8)For the purposes of this Part a person is a covert human intelligence source if—
(a)he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);
(b)he covertly uses such a relationship to obtain information or to provide access to any information to another person; or
(c)he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.
(8A)In this Part references to criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source are references to any conduct that—
(a)disregarding this Part, would constitute crime, and
(b)consists of, is in the course of, or is otherwise in connection with, the conduct of a covert human intelligence source.
(9)For the purposes of this section—
(a)surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place;
(b)a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and
(c)a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question.
(10)In this section “private information”, in relation to a person, includes any information relating to his private or family life.
(11)References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.
Scotland
46Restrictions on authorisations extending to Scotland.#
(1)No person shall grant or renew an authorisation under this Part for the carrying out of any conduct if it appears to him—
(2) In relation to any authorisation, this Part is the relevant statutory provision for all parts of the United Kingdom in so far as it—
(a) is granted or renewed on the grounds that it is necessary in the interests of national security or in the interests of the economic well-being of the United Kingdom;
(b)is granted or renewed by or on the application of a person holding any office, rank or position with any of the public authorities specified in subsection (3);
(c)authorises conduct of a person holding an office, rank or position with any of the public authorities so specified;
(d)authorises conduct of or in relation to an individual acting as a covert human intelligence source for the benefit of any of the public authorities so specified; or
(e)authorises conduct that is surveillance by virtue of section 48(4).
(ea)the department of the Secretary of State by whom functions relating to immigration are exercisable; and
(3)The public authorities mentioned in subsection (2) are—
(a)each of the intelligence services;
(b)Her Majesty’s forces;
(c)the Ministry of Defence;
(d)the Ministry of Defence Police;
(da)the CMA;
(db)the National Crime Agency;
(dza)the Civil Nuclear Constabulary;
(dzb)the Service Police Complaints Commissioner;
(e)the Commissioners for Her Majesty's Revenue note... Customs;
(f)the British Transport Police.
(4)For the purposes of so much of this Part as has effect in relation to any other public authority by virtue of—
(a)the fact that it is a public authority for the time being specified in Schedule 1, or
(b)an order under subsection (1)(d) of section 41 designating that authority for the purposes of that section,
the authorities specified in subsection (3) of this section shall be treated as including that authority to the extent that the Secretary of State by order directs that the authority is a relevant public authority or, as the case may be, is a designated authority for all parts of the United Kingdom.
(5)No person may grant or renew a section 29B(5)(b) authorisation if it appears to the person that all or some of the conduct authorised by the section 29B(5)(b) authorisation is likely to take place in Scotland.
(6)But subsection (5) does not apply if the grant or renewal of the section 29B(5)(b) authorisation is for a purpose relating to a reserved matter (within the meaning of the Scotland Act 1998).
(7)For the purposes of subsections (5) and (6), “a section 29B(5)(b) authorisation” means an authorisation under section 29B in so far as it is granted or, as the case may be, renewed on the grounds that it is necessary on grounds falling within section 29B(5)(b).
(a)that the authorisation is not one for which this Part is the relevant statutory provision for all parts of the United Kingdom; and
(b)that all the conduct authorised by the grant or, as the case may be, renewal of the authorisation is likely to take place in Scotland.
Supplemental provision for Part II
47Power to extend or modify authorisation provisions.#
(1)The Secretary of State may by order do one or both of the following—
(a)apply this Part, with such modifications as he thinks fit, to any such surveillance that is neither directed nor intrusive as may be described in the order;
(b)provide for any description of directed surveillance to be treated for the purposes of this Part as intrusive surveillance.
(2)No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House.
48Interpretation of Part II.#
(1)In this Part—• “CMA” means the Competition and Markets Authority;• “covert human intelligence source” shall be construed in accordance with section 26(8);• “directed” and “intrusive”, in relation to surveillance, shall be construed in accordance with section 26(2) to (6);• note...• “private vehicle” means (subject to subsection (7)(a)) any vehicle which is used primarily for the private purposes of the person who owns it or of a person otherwise having the right to use it;• “residential premises” means (subject to subsection (7)(b)) so much of any premises as is for the time being occupied or used by any person, however temporarily, for residential purposes or otherwise as living accommodation (including hotel or prison accommodation that is so occupied or used);• “senior authorising officer” means a person who by virtue of subsection (6) of section 32 is a senior authorising officer for the purposes of that section;• “surveillance” shall be construed in accordance with subsections (2) to (4);• “surveillance device” means any apparatus designed or adapted for use in surveillance.• “the 2023 Regulations” means the Service Police (Complaints etc.) Regulations 2023;
(2)Subject to subsection (3), in this Part “surveillance” includes—
(a)monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications;
(b)recording anything monitored, observed or listened to in the course of surveillance; and
(c)surveillance by or with the assistance of a surveillance device.
(3)References in this Part to surveillance do not include references to—
(a)any conduct of a covert human intelligence source for obtaining or recording (whether or not using a surveillance device) any information which is disclosed in the presence of the source;
(b)the use of a covert human intelligence source for so obtaining or recording information; or
(c)any such entry on or interference with property or with wireless telegraphy as would be unlawful unless authorised under—
(i)section 5 of the noteIntelligence Services Act 1994 (warrants for the intelligence services); note...
(ii)Part III of the notePolice Act 1997 (powers of the police and of officers of Revenue and Customs); or
(iii)Part 5, or Chapter 3 of Part 6, of the Investigatory Powers Act 2016 (equipment interference).
(4)References in this Part to surveillance include references to the interception of a communication in the course of its transmission by means of a postal service or telecommunication system if, and only if—
(a)the communication is one sent by or intended for a person who has consented to the interception of communications sent by or to him; and
(b)there is no interception warrant authorising the interception.
(5)References in this Part to an individual holding an office or position with a public authority include references to any member, official or employee of that authority.
(6)For the purposes of this Part the activities of a covert human intelligence source which are to be taken as activities for the benefit of a particular public authority include any conduct of his as such a source which is in response to inducements or requests made by or on behalf of that authority.
(7)In subsection (1)—
(b)the reference to premises occupied or used by any person for residential purposes or otherwise as living accommodation does not include a reference to so much of any premises as constitutes any common area to which he has or is allowed access in connection with his use or occupation of any accommodation.
Part III · Investigation of electronic data protected by encryption etc.
Offences
53Failure to comply with a notice.#
(1)A person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.
(2)In proceedings against any person for an offence under this section, if it is shown that that person was in possession of a key to any protected information at any time before the time of the giving of the section 49 notice, that person shall be taken for the purposes of those proceedings to have continued to be in possession of that key at all subsequent times, unless it is shown that the key was not in his possession after the giving of the notice and before the time by which he was required to disclose it.
(3) For the purposes of this section a person shall be taken to have shown that he was not in possession of a key to protected information at a particular time if—
(a)sufficient evidence of that fact is adduced to raise an issue with respect to it; and
(b)the contrary is not proved beyond a reasonable doubt.
(4)In proceedings against any person for an offence under this section it shall be a defence for that person to show—
(a)that it was not reasonably practicable for him to make the disclosure required by virtue of the giving of the section 49 notice before the time by which he was required, in accordance with that notice, to make it; but
(b)that he did make that disclosure as soon after that time as it was reasonably practicable for him to do so.
(5)A person guilty of an offence under this section shall be liable—
(a)on conviction on indictment, to imprisonment for a term not exceeding the appropriate maximum term or to a fine, or to both;
(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.
(5A)In subsection (5) ‘the appropriate maximum term’ means—
(a)in a national security case or a child indecency case, five years; and
(b)in any other case, two years.
(5B)In subsection (5A) ‘a national security case’ means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary in the interests of national security.
(6) In subsection (5A) “ a child indecency case ” means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary for the purpose of preventing or detecting an offence under any of the provisions listed in subsection (7).
(7)Those provisions are—
(a)section 1 of the Protection of Children Act 1978 (showing or taking etc an indecent photograph of a child: England and Wales);
(b)Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (corresponding offence for Northern Ireland);
(c)section 52 or 52A of the Civic Government (Scotland) Act 1982 (showing or taking etc or possessing an indecent photograph of a child: Scotland);
(d)section 160 of the Criminal Justice Act 1988 (possessing an indecent photograph of a child: England and Wales);
(e)Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (corresponding offence for Northern Ireland).
54Tipping-off.#
(1)This section applies where a section 49 notice contains a provision requiring—
(b)every other person who becomes aware of it or of its contents,
to keep secret the giving of the notice, its contents and the things done in pursuance of it.
(2)A requirement to keep anything secret shall not be included in a section 49 notice except where—
(b)the person who gives the notice is himself a person whose permission for the giving of such a notice in relation to the information in question would have constituted appropriate permission under that Schedule.
(3)A section 49 notice shall not contain a requirement to keep anything secret except where the protected information to which it relates—
(a)has come into the possession of the police, the National Crime Agency, note... Her Majesty's Revenue and Customs or any of the intelligence services, or
(b)is likely to come into the possession of the police, the National Crime Agency, note... Her Majesty's Revenue and Customs or any of the intelligence services,
(4)A person who makes a disclosure to any other person of anything that he is required by a section 49 notice to keep secret shall be guilty of an offence and liable—
(a)on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;
(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.
(5)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that—
(a)the disclosure was effected entirely by the operation of software designed to indicate when a key to protected information has ceased to be secure; and
(6)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that—
(a)the disclosure was made by or to a professional legal adviser in connection with the giving, by the adviser to any client of his, of advice about the effect of provisions of this Part; and
(b)the person to whom or, as the case may be, by whom it was made was the client or a representative of the client.
(7)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was made by a legal adviser—
(a)in contemplation of, or in connection with, any legal proceedings; and
(b)for the purposes of those proceedings.
(8)Neither subsection (6) nor subsection (7) applies in the case of a disclosure made with a view to furthering any criminal purpose.
(9)In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the disclosure was confined to a disclosure made to a Judicial Commissioner or authorised—
(a)by such a Commissioner;
(b)by the terms of the notice;
(d)by or on behalf of a person who—
(i)is in lawful possession of the protected information to which the notice relates; and
(ii)came into possession of that information as mentioned in section 49(1).
(10)In proceedings for an offence under this section against a person other than the person to whom the notice was given, it shall be a defence for the person against whom the proceedings are brought to show that he neither knew nor had reasonable grounds for suspecting that the notice contained a requirement to keep secret what was disclosed.
(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Safeguards
55General duties of specified authorities.#
(1)This section applies to—
(a)the Secretary of State and every other Minister of the Crown in charge of a government department;
(b)every chief officer of police;
(ba)the Director General of the National Crime Agency;
(bb)note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)the Commissioners for Her Majesty's Revenue and Customs;
(d)every person whose officers or employees include persons with duties that involve the giving of section 49 notices.
(2)It shall be the duty of each of the persons to whom this section applies to ensure that such arrangements are in force, in relation to persons under his control who by virtue of this Part obtain possession of keys to protected information, as he considers necessary for securing—
(a)that a key disclosed in pursuance of a section 49 notice is used for obtaining access to, or putting into an intelligible form, only protected information in relation to which power to give such a notice was exercised or could have been exercised if the key had not already been disclosed;
(b)that the uses to which a key so disclosed is put are reasonable having regard both to the uses to which the person using the key is entitled to put any protected information to which it relates and to the other circumstances of the case;
(c)that, having regard to those matters, the use and any retention of the key are proportionate to what is sought to be achieved by its use or retention;
(d)that the requirements of subsection (3) are satisfied in relation to any key disclosed in pursuance of a section 49 notice;
(e)that, for the purpose of ensuring that those requirements are satisfied, any key so disclosed is stored, for so long as it is retained, in a secure manner;
(f)that all records of a key so disclosed (if not destroyed earlier) are destroyed as soon as the key is no longer needed for the purpose of enabling protected information to be put into an intelligible form.
(3)The requirements of this subsection are satisfied in relation to any key disclosed in pursuance of a section 49 notice if—
(a)the number of persons to whom the key is disclosed or otherwise made available, and
(b)the number of copies made of the key,
are each limited to the minimum that is necessary for the purpose of enabling protected information to be put into an intelligible form.
(3A)The power of the Director General of the National Crime Agency to delegate functions under paragraph 10 of Schedule 1 to the Crime and Courts Act 2013 does not apply in relation to the Director General's duties under this section.
(3B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)Subject to subsection (5), where any relevant person incurs any loss or damage in consequence of—
(a)any breach by a person to whom this section applies of the duty imposed on him by subsection (2), or
the breach or contravention shall be actionable against the person to whom this section applies at the suit or instance of the relevant person.
(5)A person is a relevant person for the purposes of subsection (4) if he is—
(a)a person who has made a disclosure in pursuance of a section 49 notice; or
(b)a person whose protected information or key has been disclosed in pursuance of such a notice;
and loss or damage shall be taken into account for the purposes of that subsection to the extent only that it relates to the disclosure of particular protected information or a particular key which, in the case of a person falling with paragraph (b), must be his information or key.
(6)For the purposes of subsection (5)—
(a)information belongs to a person if he has any right that would be infringed by an unauthorised disclosure of the information; and
(b)a key belongs to a person if it is a key to information that belongs to him or he has any right that would be infringed by an unauthorised disclosure of the key.
(7)In any proceedings brought by virtue of subsection (4), it shall be the duty of the court to have regard to any opinion with respect to the matters to which the proceedings relate that is or has been given by a Judicial Commissioner or the Investigatory Powers Commissioner for Northern Ireland .
(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Contributions to costs
52Arrangements for payments for disclosure.#
(1)It shall be the duty of the Secretary of State to ensure that such arrangements are in force as he thinks appropriate for requiring or authorising, in such cases as he thinks fit, the making to persons to whom section 49 notices are given of appropriate contributions towards the costs incurred by them in complying with such notices.
(2)For the purpose of complying with his duty under this section, the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.
Interpretation of Part III
56Interpretation of Part III.#
(1)In this Part—• “chief officer of police” means any of the following—(a) the chief constable of a police force maintained under or by virtue of section 2 of the notePolice Act 1996 note...;(b) the Commissioner of Police of the Metropolis;(c) the Commissioner of Police for the City of London;(ca) the chief constable of the Police Service of Scotland;(d) the Chief Constable of the Royal Ulster Constabulary;(e) the Chief Constable of the Ministry of Defence Police;(f) the Provost Marshal of the Royal Navy Police;(g) the Provost Marshal of the Royal Military Police;(h) the Provost Marshal of the Royal Air Force Police;(ha) the Provost Marshal for serious crime;(i) the Chief Constable of the British Transport Police;(j) note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(k) note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .• note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .• “electronic signature” means anything in electronic form which—(a) is incorporated into, or otherwise logically associated with, any electronic communication or other electronic data;(b) is generated by the signatory or other source of the communication or data; and(c) is used for the purpose of facilitating, by means of a link between the signatory or other source and the communication or data, the establishment of the authenticity of the communication or data, the establishment of its integrity, or both;• “key”, in relation to any electronic data, means any key, code, password, algorithm or other data the use of which (with or without other keys)—(a) allows access to the electronic data, or(b) facilitates the putting of the data into an intelligible form;• “the police” means—(a) any constable (except a constable who is a National Crime Agency officernote...);(b) the Commissioner of Police of the Metropolis or any Assistant Commissioner of Police of the Metropolis; or(c) the Commissioner of Police for the City of London;• “protected information” means any electronic data which, without the key to the data—(a) cannot, or cannot readily, be accessed, or(b) cannot, or cannot readily, be put into an intelligible form;• note... • “section 49 notice” means a notice under section 49;• note...• “warrant” includes any authorisation, notice or other instrument (however described) conferring a power of the same description as may, in other cases, be conferred by a warrant.
(2)References in this Part to a person’s having information (including a key to protected information) in his possession include references—
(a)to its being in the possession of a person who is under his control so far as that information is concerned;
(b)to his having an immediate right of access to it, or an immediate right to have it transmitted or otherwise supplied to him; and
(c)to its being, or being contained in, anything which he or a person under his control is entitled, in exercise of any statutory power and without otherwise taking possession of it, to detain, inspect or search.
(3)References in this Part to something’s being intelligible or being put into an intelligible form include references to its being in the condition in which it was before an encryption or similar process was applied to it or, as the case may be, to its being restored to that condition.
(4)In this section—
(a)references to the authenticity of any communication or data are references to any one or more of the following—
(i)whether the communication or data comes from a particular person or other source;
(ii)whether it is accurately timed and dated;
(iii)whether it is intended to have legal effect;
and
(b)references to the integrity of any communication or data are references to whether there has been any tampering with or other modification of the communication or data.
Power to require disclosure
49Notices requiring disclosure.#
(1)This section applies where any protected information—
(b)has come into the possession of any person by means of the exercise of any statutory power to intercept communications or obtain secondary data from communications, or is likely to do so;
(c)has come into the possession of any person by means of the exercise of any power conferred by an authorisation under section 22(3) or (3B) or under Part IIPart 3 of the Investigatory Powers Act 2016 or Part 2 of this Act, or as a result of the giving of a notice under section 22(4)in pursuance of an authorisation under Part 3 of the Act of 2016 or as the result of the issue of a warrant under Chapter 2 of Part 6 of the Act of 2016, or is likely to do so;
(d)has come into the possession of any person as a result of having been provided or disclosed in pursuance of any statutory duty (whether or not one arising as a result of a request for information), or is likely to do so; or
(e)has, by any other lawful means not involving the exercise of statutory powers, come into the possession of any of the intelligence services, the police, the National Crime Agencynote... or Her Majesty's Revenue and Customs, or is likely so to come into the possession of any of those services, the police, the National Crime Agencynote... or Her Majesty's Revenue and Customs.
(2)If any person with the appropriate permission under Schedule 2 believes, on reasonable grounds—
(a)that a key to the protected information is in the possession of any person,
(b)that the imposition of a disclosure requirement in respect of the protected information is—
(i)necessary on grounds falling within subsection (3), or
(ii)necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty,
(c)that the imposition of such a requirement is proportionate to what is sought to be achieved by its imposition, and
(d)that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under this section,
the person with that permission may, by notice to the person whom he believes to have possession of the key, impose a disclosure requirement in respect of the protected information.
(3)A disclosure requirement in respect of any protected information is necessary on grounds falling within this subsection if it is necessary—
(a)in the interests of national security;
(b)for the purpose of preventing or detecting crime; or
(c)in the interests of the economic well-being of the United Kingdom.
(4)A notice under this section imposing a disclosure requirement in respect of any protected information—
(a)must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given;
(b)must describe the protected information to which the notice relates;
(c)must specify the matters falling within subsection (2)(b)(i) or (ii) by reference to which the notice is given;
(d)must specify the office, rank or position held by the person giving it;
(e)must specify the office, rank or position of the person who for the purposes of Schedule 2 granted permission for the giving of the notice or (if the person giving the notice was entitled to give it without another person’s permission) must set out the circumstances in which that entitlement arose;
(f)must specify the time by which the notice is to be complied with; and
(g)must set out the disclosure that is required by the notice and the form and manner in which it is to be made;
and the time specified for the purposes of paragraph (f) must allow a period for compliance which is reasonable in all the circumstances.
(5)Where it appears to a person with the appropriate permission—
(a)that more than one person is in possession of the key to any protected information,
(b)that any of those persons is in possession of that key in his capacity as an officer or employee of any body corporate, and
(c)that another of those persons is the body corporate itself or another officer or employee of the body corporate,
a notice under this section shall not be given, by reference to his possession of the key, to any officer or employee of the body corporate unless he is a senior officer of the body corporate or it appears to the person giving the notice that there is no senior officer of the body corporate and (in the case of an employee) no more senior employee of the body corporate to whom it is reasonably practicable to give the notice.
(6)Where it appears to a person with the appropriate permission—
(b)that any of those persons is in possession of that key in his capacity as an employee of a firm, and
(c)that another of those persons is the firm itself or a partner of the firm,
a notice under this section shall not be given, by reference to his possession of the key, to any employee of the firm unless it appears to the person giving the notice that there is neither a partner of the firm nor a more senior employee of the firm to whom it is reasonably practicable to give the notice.
(7)Subsections (5) and (6) shall not apply to the extent that there are special circumstances of the case that mean that the purposes for which the notice is given would be defeated, in whole or in part, if the notice were given to the person to whom it would otherwise be required to be given by those subsections.
(9)A notice under this section shall not require the disclosure of any key which—
(a)is intended to be used for the purpose only of generating electronic signatures; and
(b)has not in fact been used for any other purpose.
(9A)In subsection (1)(b) the reference to obtaining secondary data from communications is to be read in accordance with section 16 of the Investigatory Powers Act 2016.
(10)In this section “senior officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.
(11)Schedule 2 (definition of the appropriate permission) shall have effect.
50Effect of notice imposing disclosure requirement.#
(1)Subject to the following provisions of this section, the effect of a section 49 notice imposing a disclosure requirement in respect of any protected information on a person who is in possession at a relevant time of both the protected information and a means of obtaining access to the information and of disclosing it in an intelligible form is that he—
(a)shall be entitled to use any key in his possession to obtain access to the information or to put it into an intelligible form; and
(b)shall be required, in accordance with the notice imposing the requirement, to make a disclosure of the information in an intelligible form.
(2)A person subject to a requirement under subsection (1)(b) to make a disclosure of any information in an intelligible form shall be taken to have complied with that requirement if—
(a) he makes, instead, a disclosure of any key to the protected information that is in his possession; and
(b)that disclosure is made, in accordance with the notice imposing the requirement, to the person to whom, and by the time by which, he was required to provide the information in that form.
(3)Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 49 notice—
(a)that person is not in possession of the information,
(b)that person is incapable, without the use of a key that is not in his possession, of obtaining access to the information and of disclosing it in an intelligible form, or
(c)the notice states, in pursuance of a direction under section 51, that it can be complied with only by the disclosure of a key to the information,
the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to make a disclosure of any key to the protected information that is in his possession at a relevant time.
(a)is entitled or obliged to disclose a key to protected information for the purpose of complying with any disclosure requirement imposed by a section 49 notice; and
(b)is in possession of more than one key to that information.
(5)It shall not be necessary, for the purpose of complying with the requirement, for the person given notice to make a disclosure of any keys in addition to those the disclosure of which is, alone, sufficient to enable the person to whom they are disclosed to obtain access to the information and to put it into an intelligible form.
(6)Where—
(b)there are different keys, or combinations of keys, in the possession of that person the disclosure of which would, under that subsection, constitute compliance,
(7)Subject to subsections (5) and (6), the person given notice shall not be taken to have complied with the disclosure requirement by the disclosure of a key unless he has disclosed every key to the protected information that is in his possession at a relevant time.
(8)Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 49 notice—
(a)that person has been in possession of the key to that information but is no longer in possession of it,
(b)if he had continued to have the key in his possession, he would have been required by virtue of the giving of the notice to disclose it, and
(c)he is in possession, at a relevant time, of information to which subsection (9) applies,
the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to disclose all such information to which subsection (9) applies as is in his possession and as he may be required, in accordance with that notice, to disclose by the person to whom he would have been required to disclose the key.
(9)This subsection applies to any information that would facilitate the obtaining or discovery of the key or the putting of the protected information into an intelligible form.
(10)In this section “relevant time”, in relation to a disclosure requirement imposed by a section 49 notice, means the time of the giving of the notice or any subsequent time before the time by which the requirement falls to be complied with.
51Cases in which key required.#
(1)A section 49 notice imposing a disclosure requirement in respect of any protected information shall not contain a statement for the purposes of section 50(3)(c) unless—
(a)the person who for the purposes of Schedule 2 granted the permission for the giving of the notice in relation to that information, or
(b)any person whose permission for the giving of a such a notice in relation to that information would constitute the appropriate permission under that Schedule,
has given a direction that the requirement can be complied with only by the disclosure of the key itself.
(2)A direction for the purposes of subsection (1) by the police, the National Crime Agency, note...,Her Majesty's Revenue and Customs or a member of Her Majesty’s forces shall not be given—
(a)in the case of a direction by the police or by a member of Her Majesty’s forces who is a member of a police force, except by or with the permission of a chief officer of police;
(aa)in the case of a direction by the National Crime Agency, except by or with the permission of the Director General of the National Crime Agency;
(ab). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)in the case of a direction by Her Majesty's Revenue and Customs, except by or with the permission of the Commissioners for Her Majesty's Revenue and Customs; or
(c)in the case of a direction by a member of Her Majesty’s forces who is not a member of a police force, except by or with the permission of a person of or above the rank of brigadier or its equivalent.
(3)A permission given for the purposes of subsection (2) by a chief officer of police, the Director General of the National Crime Agency,note... the Commissioners for Her Majesty's Revenue and Customs or a person of or above any such rank as is mentioned in paragraph (c) of that subsection must be given expressly in relation to the direction in question.
(4)A person shall not give a direction for the purposes of subsection (1) unless he believes—
(a)that there are special circumstances of the case which mean that the purposes for which it was believed necessary to impose the requirement in question would be defeated, in whole or in part, if the direction were not given; and
(b)that the giving of the direction is proportionate to what is sought to be achieved by prohibiting any compliance with the requirement in question otherwise than by the disclosure of the key itself.
(5)The matters to be taken into account in considering whether the requirement of subsection (4)(b) is satisfied in the case of any direction shall include—
(a)the extent and nature of any protected information, in addition to the protected information in respect of which the disclosure requirement is imposed, to which the key is also a key; and
(6)Where a direction for the purposes of subsection (1) is given by a chief officer of police, by the Director General of the National Crime Agency,note... by the Commissioners for Her Majesty's Revenue and Customs or by a member of Her Majesty’s forces, the person giving the direction shall give a notification that he has done so to the Investigatory Powers Commissioner.
(7)A notification under subsection (6)—
(a) must be given not more than seven days after the day of the giving of the direction to which it relates; and
(b)may be given either in writing or by being transmitted to the Investigatory Powers Commissioner by electronic means.
Part IV · Scrutiny etc. of investigatory powers and of the functions of the intelligence services
Commissioners
57Interception of Communications Commissioner.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
58Co-operation with and reports by s. 57 Commissioner.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
59Intelligence Services Commissioner.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
59AAdditional functions of the Intelligence Services Commissioner#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
60Co-operation with and reports by s. 59 Commissioner.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
61Investigatory Powers Commissioner for Northern Ireland.#
(1)The Prime Minister, after consultation with the First Minister and deputy First Minister in Northern Ireland, shall appoint a Commissioner to be known as the Investigatory Powers Commissioner for Northern Ireland.
(2)The Investigatory Powers Commissioner for Northern Ireland shall keep under review the exercise and performance in Northern Ireland, by the persons on whom they are conferred or imposed, of any powers or duties under Part II which are conferred or imposed by virtue of an order under section 30 made by the Office of the First Minister and deputy First Minister in Northern Ireland.
(3)The Investigatory Powers Commissioner for Northern Ireland shall 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.
(4)It shall be the duty of—
(a)every person by whom, or on whose application, there has been given or granted any authorisation the function of giving or granting which is subject to review by the Investigatory Powers Commissioner for Northern Ireland,
(b)every person who has engaged in conduct with the authority of such an authorisation,
(c)every person who holds or has held any office, rank or position with the same public authority as a person falling within paragraph (a), and
(d)every person who holds or has held any office, rank or position with any public authority for whose benefit (within the meaning of Part II) activities which are or may be subject to any such review have been or may be carried out,
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.
(5)As soon as practicable after the end of each calendar year, the Investigatory Powers Commissioner for Northern Ireland shall make a report to the First Minister and deputy First Minister in Northern Ireland with respect to the carrying out of that Commissioner’s functions.
(6)The First Minister and deputy First Minister in Northern Ireland shall lay before the Northern Ireland Assembly a copy of every annual report made by the Investigatory Powers Commissioner for Northern Ireland 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 First Minister and deputy First Minister in Northern Ireland, after consultation with the Investigatory Powers Commissioner for Northern Ireland, that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to—
(a)the prevention or detection of serious crime, or
(b)the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner,
they may exclude that matter from the copy of the report as laid before the Northern Ireland Assembly.
(8)A person shall not be appointed under this section as the Investigatory Powers Commissioner for Northern Ireland unless he holds or has held office in Northern Ireland—
(a)in any capacity in which he is or was the holder of a high judicial office (within the meaning of Part 3 of the Constitutional Reform Act 2005); or
(b)as a county court judge.
(9)The Investigatory Powers Commissioner for Northern Ireland shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of the Consolidated Fund of Northern Ireland such allowances as the Department of Finance and Personnel may determine.
(10)The First Minister and deputy First Minister in Northern Ireland shall, after consultation with the Investigatory Powers Commissioner for Northern Ireland, provide him with such staff as they consider necessary for the carrying out of his functions.
62Additional functions of Chief Surveillance Commissioner.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
63Assistant Surveillance Commissioners.#
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
64Delegation of functions of the Investigatory Powers Commissioner for Northern Ireland.#
(1)Anything authorised or required by or under any enactment note...to be done by the Investigatory Powers Commissioner for Northern Ireland may be done by any member of the staff of that Commissioner who is authorised for the purpose (whether generally or specifically) by that Commissioner.
(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Codes of practice
71Issue and revision of codes of practice.#
(1)The Secretary of State shall issue one or more codes of practice relating to the exercise and performance of the powers and duties mentioned in subsection (2).
(2)Those powers and duties are those (excluding any power to make subordinate legislation and subject to subsection (10)) that are conferred or imposed otherwise than on a Judicial Commissioner or the relevant judicial authority (within the meaning of section note... 32A) by or under—
(a)Parts 2 and 3 of this Act;
(b)section 5 of the noteIntelligence Services Act 1994 (warrants for interference with property or wireless telegraphy for the purposes of the intelligence services); and
(c)Part III of the notePolice Act 1997 (authorisation by the police or Her Majesty's Revenue and Customs of interference with property or wireless telegraphy).
(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)Before issuing a code of practice under subsection (1), the Secretary of State shall—
(a)prepare and publish a draft of that code; and
(b)consider any representations made to him about the draft;
and the Secretary of State may incorporate in the code finally issued any modifications made by him to the draft after its publication.
(4)The Secretary of State shall lay before both Houses of Parliament every draft code of practice prepared and published by him under this section.
(5)A code of practice issued by the Secretary of State under this section shall not be brought into force except in accordance with an order made by the Secretary of State.
(6)An order under subsection (5) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient in connection with the bringing into force of the code brought into force by that order.
(7)The Secretary of State may from time to time—
(a)revise the whole or any part of a code issued under this section; and
(b)issue the revised code.
(8)Subsections (3) to (6) shall apply (with appropriate modifications) in relation to the issue of any revised code under this section as they apply in relation to the first issue of such a code.
(9)The Secretary of State shall not make an order containing provision for any of the purposes of this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
72Effect of codes of practice.#
(1)A person exercising or performing any power or duty in relation to which provision may be made by a code of practice under section 71 shall, in doing so, have regard to the provisions (so far as they are applicable) of every code of practice for the time being in force under that section.
(2)A failure on the part of any person to comply with any provision of a code of practice for the time being in force under section 71 shall not of itself render him liable to any criminal or civil proceedings.
(3)A code of practice in force at any time under section 71 shall be admissible in evidence in any criminal or civil proceedings.
(4)If any provision of a code of practice issued or revised under section 71 appears to—
(a)the court or tribunal conducting any civil or criminal proceedings,
(b)the Tribunal,
(ba)the Investigatory Powers Commissioner for Northern Ireland carrying out functions under this Act, or
(bb)the Investigatory Powers Commissioner or any other Judicial Commissioner carrying out functions under this Act, the Investigatory Powers Act 2016 or the Police Act 1997,
to be relevant to any question arising in the proceedings, or in connection with the exercise of that jurisdiction or the carrying out of those functions, in relation to a time when it was in force, that provision of the code shall be taken into account in determining that question.
(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Tribunal
65The Tribunal.#
(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 only appropriate tribunal for the purposes of section 7 of the noteHuman 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) note ... , are complaints for which the Tribunal is the appropriate forum;
(ba)to consider and determine any complaints made to them which, in accordance with subsection (4AA), 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 56 of the Investigatory Powers Act 2016, 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, proposed conduct, by or on behalf of any of those services;
(c)they are proceedings brought by virtue of section 55(4); or
(ca). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(cb). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d)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.
(4A)note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4AA)The Tribunal is the appropriate forum for a complaint if it is a complaint by an individual about a relevant personal data breach.
(4AB)In subsection (4AA) “relevant personal data breach” means a personal data breach that the individual is informed of under section 235A(5) of the Investigatory Powers Act 2016 (serious personal data breaches).
(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;
(ba)conduct for or in connection with the obtaining of secondary data from communications transmitted by means of such a service or system;
(bb)the issue, modification, renewal or service of a warrant under Part 2 or Chapter 1 of Part 6 of the Investigatory Powers Act 2016 (interception of communications);
(c)conduct of a kind which may be permitted or required by an authorisation or notice under Part 3 of that Act or a warrant under Chapter 2 of Part 6 of that Act (acquisition of communications data);
(ca)the carrying out of surveillance by a foreign police or customs officer (within the meaning of section 76A);
(cza)the giving of an authorisation or notice under Part 3 of that Act or the issue, modification, renewal or service of a warrant under Chapter 2 of Part 6 of that Act;
(czb)conduct of a kind which may be required or permitted by a retention notice under Part 4 of that Act (retention of communications data) but excluding any conduct which is subject to review by the Information Commission;
(czc)the giving or varying of a retention notice under that Part of that Act;
(czd)conduct of a kind which may be required or permitted by a warrant under Part 5 or Chapter 3 of Part 6 of that Act (equipment interference);
(cze)the issue, modification, renewal or service of a warrant under Part 5 or Chapter 3 of Part 6 of that Act;
(czf)the issue, modification, renewal or service of a warrant under Part 7 of that Act (bulk personal dataset warrants);
(czg)the giving of an authorisation under section 219(3)(b) (authorisation for the retention, or retention and examination, of material following expiry of bulk personal dataset warrant);
(czh)the giving or varying of a direction under section 225 of that Act (directions where no bulk personal dataset warrant required);
(czha)the granting or renewal of an authorisation under Part 7A of that Act (low or no expectation of privacy bulk personal datasets);
(czhb)the issue, renewal or service of a warrant under Part 7B of that Act (third party bulk personal datasets);
(czi)conduct of a kind which may be required by a notice under section 252 , 253 or 258A of that Act (national security , technical capability or proposed changes to telecommunications services etc notices);
(czj)the giving or varying of such a notice;
(czk)the giving of an authorisation under section 152(5)(c) or 193(5)(c) of that Act (certain authorisations to examine intercepted content or protected material);
(czl)any failure to—
(i)cancel a warrant under Part 2, 5, 6 , 7 or 7B of that Act or an authorisation under Part 3 or 7A of that Act;
(ii)cancel a notice under Part 3 of that Act;
(iii)revoke a notice under Part 4, or section 252 , 253 or 258A, of that Act; or
(iv)revoke a direction under section 225 of that Act;
(czm)any conduct in connection with any conduct falling within paragraph (c), (czb), (czd) or (czi);
(d)other conduct to which Part II applies;
(e)the giving of a notice under section 49 or any disclosure or use of a key to protected information;
(f)any entry on or interference with property or any interference with wireless telegraphy.
(6)For the purposes only of subsection (3), nothing mentioned in paragraph (d) or (f) of subsection (5) shall be treated as falling within that subsection unless it is conduct by or on behalf of an immigration officer or 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;
(ca)the Police Investigations and Review Commissioner;
(cza)the Service Police Complaints Commissioner;
(d)the National Crime Agency;
(da). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(dza)the Competition and Markets Authority;
(f)the Commissioners for Her Majesty's Revenue and Customs;
and section 48(5) applies for the purposes of this subsection as it applies for the purposes of Part II.
(6A)Subsection (6) does not apply to anything mentioned in paragraph (d) or (f) of subsection (5) which also falls within paragraph (czd) of that subsection.
(7)For the purposes of this section conduct takes place in challengeable circumstances if it is conduct of a public authority and —
(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;
but , subject to subsection (7ZA), conduct does not take place in challengeable circumstances to the extent that it is authorised by, or takes place with the permission of, a judicial authority.
(7A)For the purposes of this section conduct also takes place in challengeable circumstances if it takes place, or purports to take place, under section 76A.
(7ZA)The exception in subsection (7) so far as conduct is authorised by, or takes place with the permission of, a judicial authority does not include conduct authorised by an approval given by a Judicial Commissioner or under section 32A of this Act or section 75 of the Investigatory Powers Act 2016.
(7ZB)For the purposes of this section conduct also takes place in challengeable circumstances if it is, or purports to be, conduct falling within subsection (5)(bb), (cza), (czc), (cze), (czf), (czg), (czh) , (czha), (czhb), (czj), (czk) or (czl) or (so far as the conduct is, or purports to be, the giving of a notice under section 49) subsection (5)(e).
(8)The following fall within this subsection—
(a)a warrant under Part 2, 5, 6 , 7 or 7B of the Investigatory Powers Act 2016;
(b)an authorisation or notice under Part 3 of that Act;
(ba)a retention notice under Part 4 of that Act;
(bb)a direction under section 225 of that Act;
(bba)an authorisation under Part 7A of that Act;
(bc)a notice under section 252 , 253 or 258A of that Act;
(c)an authorisation under Part II of this Act or under any enactment contained in or made under an Act of the Scottish Parliament which makes provision equivalent to that made by that Part;
(d)a permission for the purposes of Schedule 2 to this Act;
(e)a notice under section 49 of this Act; or
(f)an authorisation under section 93 of the notePolice Act 1997.
(9)Schedule 3 (which makes further provision in relation to the Tribunal) shall have effect.
(9A)In subsection (5)(ba) the reference to obtaining secondary data from communications transmitted by means of a postal service or telecommunication system is to be read in accordance with section 16 of the Investigatory Powers Act 2016.
(10)In this section—
(a)references to a key and to protected information shall be construed in accordance with section 56;
(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 of any disclosure in an intelligible form (within the meaning of section 56) of protected information by a person who is or has been in possession of the key to that information;
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 56.
(11)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.
67Exercise of the Tribunal’s jurisdiction.#
(1)Subject to subsections (4) and (5), it shall be the duty of the Tribunal—
(a)to hear and determine any proceedings brought before them by virtue of section 65(2)(a) or (d); and
(b)to consider and determine any complaint or reference made to them by virtue of section 65(2)(b) , (ba) or (c).
(2)Where the Tribunal hear any proceedings by virtue of section 65(2)(a), they shall apply the same principles for making their determination in those proceedings as would be applied by a court on an application for judicial review.
(3)Where the Tribunal consider a complaint made to them by virtue of section 65(2)(b), it shall be the duty of the Tribunal—
(a)to investigate whether the persons against whom any allegations are made in the complaint have engaged in relation to—
(i)the complainant,
(ii)any of his property,
(iii)any communications sent by or to him, or intended for him, or
(iv)his use of any postal service, telecommunications service or telecommunication system,
in any conduct falling within section 65(5);
(b)to investigate the authority (if any) for any conduct falling within section 65(5) which they find has been so engaged in; and
(c)in relation to the Tribunal’s findings from their investigations, to determine the complaint by applying the same principles as would be applied by a court on an application for judicial review.
(4)The Tribunal shall not be under any duty to hear, consider or determine any proceedings, complaint or reference if it appears to them that the bringing of the proceedings or the making of the complaint or reference is frivolous or vexatious.
(5)Except where the Tribunal, having regard to all the circumstances, are satisfied that it is equitable to do so, they shall not consider or determine any complaint made by virtue of
(a) section 65(2)(b) if it is made more than one year after the taking place of the conduct to which it relates , or
(b)section 65(2)(ba) if it is made more than one year after the personal data breach to which it relates.
(6)Subject to any provision made by rules under section 69, where any proceedings have been brought before the Tribunal or any complaint or reference has been made to the Tribunal, they shall have power to make such interim orders, pending their final determination, as they think fit.
(7)Subject to any provision made by rules under section 69, the Tribunal on determining any proceedings, complaint or reference shall have power to make any such award of compensation or other order as they think fit; and, without prejudice to the power to make rules under section 69(2)(h), the other orders that may be made by the Tribunal include—
(a)an order quashing or cancelling any warrant or authorisation;
(aa)an order quashing an order under section 23A or 32Asection 75 of the Investigatory Powers Act 2016 or section 32A of this Act by the relevant judicial authority (within the meaning of that section); and
(aza)an order quashing or cancelling a notice under Part 3 of the Investigatory Powers Act 2016 or a retention notice under Part 4 of that Act;
(azb)an order quashing or revoking a direction under section 225 of that Act;
(azc)an order quashing or revoking a notice under section 252 , 253 or 258A of that Act;
(b)an order requiring the destruction of any records of information which—
(i)has been obtained in exercise of any power conferred by a warrant or authorisation or by a notice under Part 3 of the Investigatory Powers Act 2016 ; or
(ii)is held by any public authority in relation to any person.
(8)Except as provided by virtue of section 67A, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.
(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
67AAppeals from the Tribunal#
(1)A relevant person may appeal on a point of law against any determination of the Tribunal of a kind mentioned in section 68(4) or any decision of the Tribunal of a kind mentioned in section 68(4C).
(2)Before making a determination or decision which might be the subject of an appeal under this section, the Tribunal must specify the court which is to have jurisdiction to hear the appeal (the “relevant appellate court”).
(3)This court is whichever of the following courts appears to the Tribunal to be the most appropriate—
(a)the Court of Appeal in England and Wales,
(b)the Court of Session.
(4)The Secretary of State may by regulations, with the consent of the Northern Ireland Assembly, amend subsection (3) so as to add the Court of Appeal in Northern Ireland to the list of courts mentioned there.
(5)The Secretary of State may by regulations specify criteria to be applied by the Tribunal in making decisions under subsection (2) as to the identity of the relevant appellate court.
(6)An appeal under this section—
(a)is to be heard by the relevant appellate court, but
(b)may not be made without the leave of the Tribunal or, if that is refused, of the relevant appellate court.
(7)The Tribunal or relevant appellate court must not grant leave to appeal unless it considers that—
(a)the appeal would raise an important point of principle or practice, or
(b)there is another compelling reason for granting leave.
(8)In this section—• “relevant appellate court” has the meaning given by subsection (2),• “relevant person”, in relation to any proceedings, complaint or reference, means the complainant or—(a) in the case of proceedings, the respondent,(b) in the case of a complaint, the person complained against, and(c) in the case of a reference, any public authority to whom the reference relates.
68Tribunal procedure.#
(1)Subject to any rules made under section 69, the Tribunal shall be entitled to determine their own procedure in relation to any proceedings, complaint or reference brought before or made to them.
(2)The Tribunal shall have power—
(a)in connection with the investigation of any matter, or
(b)otherwise for the purposes of the Tribunal’s consideration or determination of any matter,
to require a relevant Commissioner or Commission appearing to the Tribunal to have functions in relation to the matter in question to provide the Tribunal with all such assistance (including that Commissioner’s or Commission’s opinion as to any issue falling to be determined by the Tribunal) as the Tribunal think fit.
(3)Where the Tribunal hear or consider any proceedings, complaint or reference relating to any matter, they shall secure that every relevant Commissioner or Commission appearing to them to have functions in relation to that matter—
(a)is aware that the matter is the subject of proceedings, a complaint or a reference brought before or made to the Tribunal; and
(b)is kept informed of any determination, award, order or other decision made by the Tribunal with respect to that matter.
(4)Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either—
(a)a statement that they have made a determination in his favour; or
(b)a statement that no determination has been made in his favour.
(4A)Where the Tribunal make any determination of a kind mentioned in subsection (4), they must also give notice to—
(a)in the case of proceedings, the respondent,
(b)in the case of a complaint, the person complained against, and
(c)in the case of a reference, any public authority to whom the reference relates.
(4B)A notice under subsection (4A) is (subject to any rules made by virtue of section 69(2)(j)) to be confined, as the case may be, to either—
(a)a statement that they have made a determination in the complainant's favour, or
(b)a statement that no determination has been made in the complainant's favour.
(4C)Where the Tribunal make any decision which—
(a)is a final decision of a preliminary issue in relation to any proceedings, complaint or reference brought before or made to them, and
(b)is neither a determination of a kind mentioned in subsection (4) nor a decision relating to a procedural matter,
they must give notice of that decision to every person who would be entitled to receive notice of the determination under subsection (4) or (4A).
(4D)A notice under subsection (4C) is (subject to any rules made by virtue of section 69(2)(i) or (j)) to be confined to a statement as to what the decision is.
(4E)Subsections (4C) and (4D) do not apply so far as—
(a)the Tribunal are prevented from giving notice of a decision to a person by rules made by virtue of section 69(4) or decide under such rules not to give such a notice, or
(b)the giving of such a notice is inconsistent with such rules.
(5)Where—
(a)the Tribunal make a determination in favour of any person by whom any proceedings have been brought before the Tribunal or by whom any complaint or reference has been made to the Tribunal, and
(b)the determination relates to any act or omission by or on behalf of the Secretary of State or to conduct for which any warrant, authorisation or permission , or notice under Part 4 of the Investigatory Powers Act 2016 or under section 252 , 253 or 258A of that Act or direction under section 225 of that Act, was issued, granted or given by the Secretary of State,
they shall make a report of their findings to the Prime Minister.
(6)It shall be the duty of the persons specified in subsection (7) to disclose or provide to the Tribunal all such documents and information as the Tribunal may require for the purpose of enabling them—
(a)to exercise the jurisdiction conferred on them by or under section 65; or
(b)otherwise to exercise or perform any power or duty conferred or imposed on them by or under this Act or the Investigatory Powers Act 2016.
(7)Those persons are—
(a)every person holding office under the Crown;
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ba). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d)every person employed by or for the purposes of a police force;
(da)the Police Investigations and Review Commissioner and every member of the Commissioner’s staff;
(db)the Service Police Complaints Commissioner and every member of the Commissioner’s staff;
(e)every person required for the purposes of section 41, 126, 149, 168 or 190 of the Investigatory Powers Act 2016 to provide assistance with giving effect to a warrant;
(f)every person on whom an obligation to take any steps has been imposed under section 252 , 253 or 258A of that Act;
(g)every person by or to whom an authorisation under Part 3 of that Act has been granted;
(h)every person to whom a notice under Part 3 of that Act has been given;
(ha)every person to whom a retention notice under Part 4 of that Act or a notice under section 252 , 253 or 258A of that Act has been given;
(i)every person by whom, or on whose application, there has been granted or given any authorisation under Part II of this Act or under Part III of the notePolice Act 1997;
(i)an authorisation under Part 3 of the Investigatory Powers Act 2016, Part 2 of this Act or Part 3 of the Police Act 1997, or
(ii)a warrant under Chapter 2 of Part 6 of the Investigatory Powers Act 2016;
(j)every person who holds or has held any office, rank or position with the same public authority as a person falling within paragraph (i);
(k)every person who has engaged in any conduct with the authority of—
(l)every person who holds or has held any office, rank or position with a public authority for whose benefit any such authorisation or warrant has been or may be given;
(8)In this section “relevant Commissioner or Commission” means—
(a)the Investigatory Powers Commissioner or any other Judicial Commissioner,
(b)the Investigatory Powers Commissioner for Northern Ireland, or
(c)the Information Commission.
69Tribunal rules.#
(1)The Secretary of State may make rules regulating—
(a)the exercise by the Tribunal of the jurisdiction conferred on them by or under section 65; and
(b)any matters preliminary or incidental to, or arising out of, the hearing or consideration of any proceedings, complaint or reference brought before or made to the Tribunal.
(2)Without prejudice to the generality of subsection (1), rules under this section may—
(a)enable the jurisdiction of the Tribunal to be exercised at any place in the United Kingdom by any two or more members of the Tribunal designated for the purpose by the President of the Tribunal;
(b)enable different members of the Tribunal to carry out functions in relation to different complaints at the same time;
(c)prescribe the form and manner in which proceedings are to be brought before the Tribunal or a complaint or reference is to be made to the Tribunal;
(d)require persons bringing proceedings or making complaints or references to take such preliminary steps, and to make such disclosures, as may be specified in the rules for the purpose of facilitating a determination of whether—
(i)the bringing of the proceedings, or
(ii)the making of the complaint or reference,
is frivolous or vexatious;
(e)make provision about the determination of any question as to whether a person by whom—
(i)any proceedings have been brought before the Tribunal, or
(ii)any complaint or reference has been made to the Tribunal,
is a person with a right to bring those proceedings or make that complaint or reference;
(f)prescribe the forms of hearing or consideration to be adopted by the Tribunal in relation to particular proceedings, complaints or references (including a form that requires any proceedings brought before the Tribunal to be disposed of as if they were a complaint or reference made to the Tribunal);
(g)prescribe the practice and procedure to be followed on, or in connection with, the hearing or consideration of any proceedings, complaint or reference (including, where applicable, the mode and burden of proof and the admissibility of evidence);
(h)prescribe orders that may be made by the Tribunal under section 67(6) or (7);
(i)require information about any determination, award, order or other decision made by the Tribunal in relation to any proceedings, complaint or reference to be provided (in addition to any statement under section 68(4) or notice under section 68(4C)) to the person who brought the proceedings or made the complaint or reference, or to the person representing his interests;
(j)require information about any determination, award, order or other decision made by the Tribunal in relation to any proceedings, complaint or reference to be provided (in addition to any statement under section 68(4A) or notice under section 68(4C)) to—
(i)in the case of proceedings, the respondent,
(ii)in the case of a complaint, the person complained against, and
(iii)in the case of a reference, any public authority to whom the reference relates,
or to the person representing their interests;
(k)make provision about the making and determination of applications to the Tribunal for permission to appeal
(3)Rules under this section in relation to the hearing or consideration of any matter by the Tribunal may provide—
(a)for a person who has brought any proceedings before or made any complaint or reference to the Tribunal to have the right to be legally represented;
(b)for the manner in which the interests of a person who has brought any proceedings before or made any complaint or reference to the Tribunal are otherwise to be represented;
(4)The power to make rules under this section includes power to make rules—
(a)enabling or requiring the Tribunal to hear or consider any proceedings, complaint or reference without the person who brought the proceedings or made the complaint or reference having been given full particulars of the reasons for any conduct which is the subject of the proceedings, complaint or reference;
(b)enabling or requiring the Tribunal to take any steps in exercise of their jurisdiction in the absence of any person (including the person bringing the proceedings or making the complaint or reference and any legal representative of his);
(c)enabling or requiring the Tribunal to give a summary of any evidence taken in his absence to the person by whom the proceedings were brought or, as the case may be, to the person who made the complaint or reference;
(d)enabling or requiring the Tribunal to exercise their jurisdiction, and to exercise and perform the powers and duties conferred or imposed on them (including, in particular, in relation to the giving of reasons), in such manner provided for in the rules as prevents or limits the disclosure of particular matters.
(5)Rules under this section may also include provision—
(a)enabling powers or duties of the Tribunal that relate to matters preliminary or incidental to the hearing or consideration of any proceedings, complaint or reference to be exercised or performed by a single member of the Tribunal; and
(b)conferring on the Tribunal such ancillary powers as the Secretary of State thinks necessary for the purposes of, or in connection with, the exercise of the Tribunal’s jurisdiction, or the exercise or performance of any power or duty conferred or imposed on them.
(6)In making rules under this section the Secretary of State shall have regard, in particular, to—
(a)the need to secure that matters which are the subject of proceedings, complaints or references brought before or made 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.
(7)Rules under this section may make provision by the application, with or without modification, of the provision from time to time contained in specified rules of court.
(8)Subject to subsection (9), no rules shall be made under this section unless a draft of them has first been laid before Parliament and approved by a resolution of each House.
(9)Subsection (8) does not apply in the case of the rules made on the first occasion on which the Secretary of State exercises his power to make rules under this section.
(10)The rules made on that occasion shall cease to have effect at the end of the period of forty days beginning with the day on which they were made unless, before the end of that period, they have been approved by a resolution of each House of Parliament.
(11)For the purposes of subsection (10)—
(a)the rules’ ceasing to have effect shall be without prejudice to anything previously done or to the making of new rules; and
(b)in reckoning the period of forty days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(12)The Secretary of State shall consult the Scottish Ministers before making any rules under this section; and any rules so made shall be laid before the Scottish Parliament.
70Abolition of jurisdiction in relation to complaints.#
(1)The provisions set out in subsection (2) (which provide for the investigation etc. of certain complaints) shall not apply in relation to any complaint made after the coming into force of this section.
(2)Those provisions are—
(a)section 5 of, and Schedules 1 and 2 to, the noteSecurity Service Act 1989 (investigation of complaints about the Security Service made to the Tribunal established under that Act);
(b)section 9 of, and Schedules 1 and 2 to, the noteIntelligence Services Act 1994 (investigation of complaints about the Secret Intelligence Service or GCHQ made to the Tribunal established under that Act); and
(c)section 102 of, and Schedule 7 to, the notePolice Act 1997 (investigation of complaints made to the Surveillance Commissioners).
Part V · Miscellaneous and supplemental
Miscellaneous
73Conduct in relation to wireless telegraphy.#
note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
74Warrants under the Intelligence Services Act 1994.#
(1)In subsection (2) of section 5 of the noteIntelligence Services Act 1994 (the circumstances in which the Secretary of State may issue a warrant authorising interference with property or wireless telegraphy)—
(a)in paragraph (a), for “on the ground that it is likely to be of substantial value in” there shall be substituted “for the purpose of”; and
(b)for paragraph (b) there shall be substituted—“b is satisfied that the taking of the action is proportionate to what the action seeks to achieve;”
(2)After that subsection, there shall be inserted—“2A The matters to be taken into account in considering whether the requirements of subsection (2)(a) and (b) are satisfied in the case of any warrant shall include whether what it is thought necessary to achieve by the conduct authorised by the warrant could reasonably be achieved by other means.”
(3)In each of sections 6(1)(b) and 7(5)(b) of that Act (warrants issued under the hand of a senior official of the Secretary of State’s department), the words “of his department” shall be omitted.
(4)In section 11 of that Act (interpretation), for paragraph (1)(d) there shall be substituted—“d “senior official” has the same meaning as in the Regulation of Investigatory Powers Act 2000;”
75Authorisations under Part III of the Police Act 1997.#
(1)Section 93 of the notePolice Act 1997 (authorisations to interfere with property etc.) shall be amended as follows.
(2)In subsection (1) (the action that the authorising officer may authorise), for “or” at the end of paragraph (a) there shall be substituted—“ab the taking of such action falling within subsection (1A), in respect of property outside the relevant area, as he may specify, or”
(3)After that subsection there shall be inserted—“1A The action falling within this subsection is action for maintaining or retrieving any equipment, apparatus or device the placing or use of which in the relevant area has been authorised under this Part or Part II of the Regulation of Investigatory Powers Act 2000 or under any enactment contained in or made under an Act of the Scottish Parliament which makes provision equivalent to that made by Part II of that Act of 2000.1B Subsection (1) applies where the authorising officer is a customs officer with the omission of—a the words “in the relevant area”, in each place where they occur; andb paragraph (ab).”
(4)In subsection (2) (the grounds on which action may be authorised)—
(a)in paragraph (a), for the words from “on the ground” to “detection of” there shall be substituted “for the purpose of preventing or detecting”; and
(b)for paragraph (b) there shall be substituted—“b that the taking of the action is proportionate to what the action seeks to achieve.”
(5)After subsection (2) there shall be inserted—“2A Subsection (2) applies where the authorising officer is the Chief Constable or the Deputy Chief Constable of the Royal Ulster Constabulary as if the reference in subsection (2)(a) to preventing or detecting serious crime included a reference to the interests of national security.2B The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether what it is thought necessary to achieve by the authorised action could reasonably be achieved by other means.”
(6)In subsection (5) (the meaning of authorising officer)—
(a)after paragraph (e) there shall be inserted—“ea the Chief Constable of the Ministry of Defence Police;eb the Provost Marshal of the Royal Navy Regulating Branch;ec the Provost Marshal of the Royal Military Police;ed the Provost Marshal of the Royal Air Force Police;ee the Chief Constable of the British Transport Police;”
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)in paragraph (h), for the word “the”, in the first place where it occurs, there shall be substituted “any”.
(7)In subsection (6) (the meaning of relevant area), after paragraph (c) there shall be inserted—“ca in relation to a person within paragraph (ea), means any place where, under section 2 of the noteMinistry of Defence Police Act 1987, the members of the Ministry of Defence Police have the powers and privileges of a constable;cb in relation to a person within paragraph (ee), means the United Kingdom;”
(8)After that subsection there shall be inserted—“6A For the purposes of any authorisation by a person within paragraph (eb), (ec) or (ed) of subsection (5) property is in the relevant area or action in respect of wireless telegraphy is taken in the relevant area if, as the case may be—a the property is owned, occupied, in the possession of or being used by a person subject to service discipline; orb the action is taken in relation to the use of wireless telegraphy by such a person.6B For the purposes of this section a person is subject to service discipline—a in relation to the Royal Navy Regulating Branch, if he is subject to the noteNaval Discipline Act 1957 or is a civilian to whom Parts I and II of that Act for the time being apply by virtue of section 118 of that Act ;b in relation to the Royal Military Police, if he is subject to military law or is a civilian to whom Part II of the noteArmy Act 1955 for the time being applies by virtue of section 209 of that Act; andc in relation to the Royal Air Force Police, if he is subject to air-force law or is a civilian to whom Part II of the noteAir Force Act 1955 for the time being applies by virtue of section 209 of that Act.”
76Surveillance etc. operations beginning in Scotland.#
(1)Subject to subsection (2), where—
(a)an authorisation under the relevant Scottish legislation has the effect of authorising the carrying out in Scotland of the conduct described in the authorisation,
(b)the conduct so described is or includes conduct to which Part II of this Act applies, and
(c)circumstances arise by virtue of which some or all of the conduct so described can for the time being be carried out only outwith Scotland,
section 27 of this Act shall have effect for the purpose of making lawful the carrying out outwith Scotland of the conduct so described as if the authorisation, so far as is it relates to conduct to which that Part applies, were an authorisation duly granted under that Part.
(2)Where any such circumstances as are mentioned in paragraph (c) of subsection (1) so arise as to give effect outwith Scotland to any authorisation granted under the relevant Scottish legislation, that authorisation shall not authorise any conduct outwith Scotland at any time after the end of the period of three weeks beginning with the time when the circumstances arose.
(3)Subsection (2) is without prejudice to the operation of subsection (1) in relation to any authorisation on the second or any subsequent occasion on which any such circumstances as are mentioned in subsection (1)(c) arise while the authorisation remains in force.
(4)In this section “the relevant Scottish legislation” means an enactment contained in or made under an Act of the Scottish Parliament which makes provision, corresponding to that made by Part II, for the authorisation of conduct to which that Part applies.
76AForeign surveillance operations#
(1)This section applies where—
(a)a foreign police or customs officer is carrying out relevant surveillance outside the United Kingdom which is lawful under the law of the country or territory in which it is being carried out;
(b)circumstances arise by virtue of which the surveillance can for the time being be carried out only in the United Kingdom; and
(c)it is not reasonably practicable in those circumstances for a United Kingdom officer to carry out the surveillance in the United Kingdom in accordance with an authorisation under Part 2 or the Regulation of Investigatory Powers (Scotland) Act 2000.
(2) “Relevant surveillance” means surveillance which—
(a)is carried out in relation to a person who is suspected of having committed a relevant crime; and
(b)is, for the purposes of Part 2, directed surveillance or intrusive surveillance.
(3) “Relevant crime” means crime which—
(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)is crime for the purposes of any note... international agreement to which the United Kingdom is a party and which is specified for the purposes of this section in an order made by the Secretary of State with the consent of the Scottish Ministers.
(4)Relevant surveillance carried out by the foreign police or customs officer in the United Kingdom during the permitted period is to be lawful for all purposes if—
(a)the condition mentioned in subsection (6) is satisfied;
(b)the officer carries out the surveillance only in places to which members of the public have or are permitted to have access, whether on payment or otherwise; and
(c)conditions specified in any order made by the Secretary of State with the consent of the Scottish Ministers are satisfied in relation to its carrying out;
but no surveillance is lawful by virtue of this subsection if the officer subsequently seeks to stop and question the person in the United Kingdom in relation to the relevant crime.
(5)The officer is not to be subject to any civil liability in respect of any conduct of his which is incidental to any surveillance that is lawful by virtue of subsection (4).
(6)The condition in this subsection is satisfied if, immediately after the officer enters the United Kingdom—
(a)he notifies a person designated by the Director General of the National Crime Agency of that fact; and
(b)(if the officer has not done so before) he requests an application to be made for an authorisation under Part 2, or the Regulation of Investigatory Powers (Scotland) Act 2000, for the carrying out of the surveillance.
(7) “The permitted period” means the period of five hours beginning with the time when the officer enters the United Kingdom.
(8)But a person designated by an order made by the Secretary of State may notify the officer that the surveillance is to cease being lawful by virtue of subsection (4) when he gives the notification.
(9)The Secretary of State is not to make an order under subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(10)In this section references to a foreign police or customs officer are to a police or customs officer who, in relation to a country or territory other than the United Kingdom, is an officer for the purposes of—
(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)any note... international agreement to which the United Kingdom is a party and which is specified for the purposes of this section in an order made by the Secretary of State with the consent of the Scottish Ministers.
(11)In this section—
• note...• “United Kingdom officer” means— (a) a member of a police force;(b) a National Crime Agency officer;(c) note...(d) an officer of Revenue and Customs.
Supplemental
77Ministerial expenditure etc.#
There shall be paid out of money provided by Parliament—
(a)any expenditure incurred by the Secretary of State for or in connection with the carrying out of his functions under this Act; and
(b)any increase attributable to this Act in the sums which are payable out of money so provided under any other Act.
77AProcedure for order of sheriff under section ... 32A: Scotland#
(1)This section applies to an application to the sheriff for an order under section note... 32A.
(2)Rules of court must make provision for the purposes of ensuring that an application to which this section applies is dealt with in private and must, in particular—
(a)require the sheriff to determine an application in private,
(b)secure that any hearing is to be held in private, and
(c)ensure that notice of an application (or of any order being made) is not given to—
(i)the person to whom the authorisation or notice which is the subject of the application or order relates, or
(ii)such a person's representatives.
(3)The Court of Session's power under section 32 of the Sheriff Courts (Scotland) Act 1971 to regulate and prescribe the procedure and practice to be followed in relation to an application to which this section applies is subject to, but is not otherwise constrained by, section 32B and this section.
77BProcedure for order of district judge under section ... 32A: Northern Ireland#
(1)The Lord Chancellor may by order make further provision about the procedure and practice to be followed in relation to an application to a district judge (magistrates' courts) in Northern Ireland for an order under section note... 32A.
(2)Such an order may, in particular, provide—
(a)for the manner in which, and time within which, an application may be made,
(b)that the district judge (magistrates' courts) is to determine an application—
(i)in chambers,
(ii)in the absence of the person to whom the authorisation or notice which is the subject of the application relates,
(c)that any hearing is to be held in private,
(d)that notice of an order given is not to be given to—
(i)the person to whom the authorisation or notice which is the subject of the order relates, or
(ii)such a person's legal representatives.
(3)An order of the Lord Chancellor under this section may not make 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 and would deal with a transferred matter (within the meaning of section 4(1) of the Northern Ireland Act 1998).
(4)The power of the Magistrates' Courts Rules Committee under Article 13 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) to regulate and prescribe the procedure and practice to be followed in relation to an application to a district judge (magistrates' courts) in Northern Ireland for an order under section note... 32A is subject to, but is not otherwise constrained by, section 32B and any order made under this section.
78Orders, regulations and rules.#
(1)This section applies to any power of the Secretary of State or the Lord Chancellor to make any order, regulations or rules under any provision of this Act.
(2)The powers to which this section applies shall be exercisable by statutory instrument.
(3)A statutory instrument which contains any order made in exercise of a power to which this section applies (other than the power to appoint a day under section 83(2)) but which contains neither—
(a)an order a draft of which has been approved for the purposes of section note... note... 28(5), 29(6), 30(7), 32A(7), 35(5), 41(6), 47(2), 66(3), 67(11) , 71(9) or 76A(9) nor
(b)the order to which section 35(7) applies,
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(4)A statutory instrument containing any regulations made in exercise of a power to which this section applies (other than regulations under section 67A(5)) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(4A)A statutory instrument containing regulations under section 67A(5) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(5)Any order, regulations or rules made in exercise of a power to which this section applies may—
(a)make different provisions for different cases;
(b)contain such incidental, supplemental, consequential and transitional provision as the Secretary of State or (as the case may be) the Lord Chancellor thinks fit.
79Criminal liability of directors etc.#
(1)Where an offence under any provision of this Act other than a provision of Part III is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a)a director, manager, secretary or other similar officer of the body corporate, or
(b)any person who was purporting to act in any such capacity,
he (as well as the body corporate) shall be guilty of that offence and liable to be proceeded against and punished accordingly.
(2)Where an offence under any provision of this Act other than a provision of Part III—
(a)is committed by a Scottish firm, and
(b)is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner of the firm,
he (as well as the firm) shall be guilty of that offence and liable to be proceeded against and punished accordingly.
(3)In this section “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.
80General saving for lawful conduct.#
Nothing in any of the provisions of this Act by virtue of which conduct of any description is or may be authorised by any warrant, authorisation or notice, or by virtue of which information may be obtained in any manner, shall be construed—
(a)as making it unlawful to engage in any conduct of that description which is not otherwise unlawful under this Act and would not be unlawful apart from this Act;
(b)as otherwise requiring—
before any such conduct of that description is engaged in; or
(c)as prejudicing any power to obtain information by any means not involving conduct that may be authorised under this Act.
81General interpretation.#
(1)In this Act—• “apparatus” has the same meaning as in the Investigatory Powers Act 2016 (see section 263(1) of that Act);• “Assistant Commissioner of Police of the Metropolis” includes the Deputy Commissioner of Police of the Metropolis;• note...• “civil proceedings” means any proceedings in or before any court or tribunal that are not criminal proceedings;• “communication” includes—(a) note... anything transmitted by means of a postal service;(b) anything comprising speech, music, sounds, visual images or data of any description; and(c) signals serving either for the impartation of anything between persons, between a person and a thing or between things or for the actuation or control of any apparatus;• “criminal”, in relation to any proceedings note..., shall be construed in accordance with subsection (4);• note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .• “document” includes a map, plan, design, drawing, picture or other image;• “enactment” includes—(a) an enactment passed after the passing of this Act; and(b) an enactment contained in Northern Ireland legislation;• “GCHQ” has the same meaning as in the noteIntelligence Services Act 1994;• “Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006;• “intelligence service” means the Security Service, the Secret Intelligence Service or GCHQ;• “interception” and cognate expressions shall be construed (so far as it is applicable) in accordance with section 2sections 4 and 5 of the Investigatory Powers Act 2016;• “interception warrant” means— (a) a targeted interception warrant or mutual assistance warrant under Chapter 1 of Part 2 of the Investigatory Powers Act 2016, or(b) a bulk interception warrant under Chapter 1 of Part 6 of that Act;• “the Investigatory Powers Commissioner” and “Judicial Commissioner” have the same meanings as in the Investigatory Powers Act 2016 (see section 263(1) of that Act);• “justice of the peace” does not include a justice of the peace in Northern Ireland;• “legal proceedings” means civil or criminal proceedings in or before any court or tribunal or proceedings before an officer in respect of a service offence within the meaning of the Armed Forces Act 2006;• “modification” includes alterations, additions and omissions, and cognate expressions shall be construed accordingly;• note...• “person” includes any organisation and any association or combination of persons;• “police force” means any of the following—(a) any police force maintained under section 2 of the notePolice Act 1996 (police forces in England and Wales outside London);(b) the metropolitan police force;(c) the City of London police force;(d) the Police Service of Scotland;(e) the Royal Ulster Constabulary;(f) the Ministry of Defence Police;(g) the Royal Navy Police;(h) the Royal Military Police;(i) the Royal Air Force Police;(j) the British Transport Police;• “postal service” and “public postal service” have the meanings given by section 2(1);“postal service” has the same meaning as in the Investigatory Powers Act 2016 (see section 262(7) of that Act);• note...• “public authority” means any public authority within the meaning of section 6 of the noteHuman Rights Act 1998 (acts of public authorities) other than a court or tribunal;• “senior official” means, subject to subsection (7), a member of the Senior Civil Service or a member of the Senior Management Structure of Her Majesty’s Diplomatic Service;• “statutory”, in relation to any power or duty, means conferred or imposed by or under any enactment or subordinate legislation;• “subordinate legislation” means any subordinate legislation (within the meaning of the noteInterpretation Act 1978) or any statutory rules (within the meaning of the noteStatutory Rules (Northern Ireland) Order 1979);• note...• “telecommunication system” and “telecommunications service” have the same meanings as in the Investigatory Powers Act 2016 (see section 261(11) to (13) of that Act);• “tri-service serious crime unit” means the unit described in section 375(1A) of the Armed Forces Act 2006;• “the Tribunal” means the tribunal established under section 65;• “wireless telegraphy” has the same meaning as in the the Wireless Telegraphy Act 2006 and, in relation to wireless telegraphy, “interfere” has the same meaning as in that Act;• “working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the noteBanking and Financial Dealings Act 1971 in any part of the United Kingdom.
(2)In this Act—
(a)references to crime are references to conduct which constitutes one or more criminal offences or is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom would constitute one or more criminal offences; and
(b)references to serious crime are references to crime that satisfies the test in subsection (3)(a) or (b).
(3)Those tests are—
(a)that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more;
(b)that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.
(4)In this Act “criminal proceedings” includes proceedings before a court in respect of a service offence within the meaning of the Armed Forces Act 2006,note....
(5)For the purposes of this Act detecting crime shall be taken to include—
(a)establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and
(b)the apprehension of the person by whom any crime was committed;
and any reference in this Act to preventing or detecting serious crime shall be construed accordinglynote....
(6)In this Act—
(a)references to a person holding office under the Crown include references to any servant of the Crown and to any member of Her Majesty’s forces; and
(b)references to a member of a police force, in relation to the Royal Navy Police, the Royal Military Police or the Royal Air Force Police, do not include references to any member of that force who is not for the time being attached to or serving—
(i)with that force,
(ii)with another of those police forces, or
(iii)with the tri-service serious crime unit.
(7)If it appears to the Secretary of State that it is necessary to do so in consequence of any changes to the structure or grading of the statutory civil service (or any part of it), he may by order make such amendments of the definition of “senior official” in subsection (1) as appear to him appropriate to preserve, so far as practicable, the effect of that definition.
(8) In subsection (7) “the statutory civil service” means—
(a)the civil service within the meaning of Chapter 1 of Part 1 of the Constitutional Reform and Governance Act 2010 (see section 1(4) of that Act), but
(b)also includes the Government Communications Headquarters.
(9)References in this Act to provision which, if it were contained in an Act of the Northern Ireland Assembly, would deal with a Northern Ireland transferred matter or (as the case may be) a transferred matter (see sections note... 32A(8)(c) and 77B(3)) do not include references to any such provision which would be ancillary to other provision (whether in the Act of the Northern Ireland Assembly or previously enacted) which deals with an excepted or reserved matter (within the meaning given by section 4(1) of the Northern Ireland Act 1998).
82Amendments, repeals and savings etc.#
(1)The enactments specified in Schedule 4 (amendments consequential on the provisions of this Act) shall have effect with the amendments set out in that Schedule.
(2)The enactments mentioned in Schedule 5 are hereby repealed to the extent specified in the third column of that Schedule.
(3)For the avoidance of doubt it is hereby declared that nothing in this Act note. . .affects any power conferred on a postal operator (within the meaning of Part 3 of the Postal Services Act 2011) by or under any enactment to open, detain or delay any postal packet or to deliver any such packet to a person other than the person to whom it is addressed.
(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
83Short title, commencement and extent.#
(1)This Act may be cited as the Regulation of Investigatory Powers Act 2000.
(2)The provisions of this Act, other than this section, shall come into force on such day as the Secretary of State may by order appoint; and different days may be appointed under this subsection for different purposes.
(3)This Act extends to Northern Ireland.
Schedule 1 · Relevant Public Authorities
Part A1 · Relevant authorities for the purposes of ss. 28, 29 and 29B
(A1)Any police force.
(B1)The National Crime Agency.
(C1)The Serious Fraud Office.
(D1)Any of the intelligence services.
(E1)Any of Her Majesty's forces.
(F1)Her Majesty's Revenue and Customs.
(G1)The Department of Health and Social Care.
(H1)The Home Office.
(I1)The Ministry of Justice.
(J1)The Competition and Markets Authority.
(K1)The Environment Agency.
(L1)The Financial Conduct Authority.
(M1)The Food Standards Agency.
(N1)The Gambling Commission.
(A1A)The tri-service serious crime unit.
Part I · Relevant authorities for the purposes only of ss. 28 and 29
(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Police forces etc.
(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1A)The Civil Nuclear Constabulary.
(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4B)The force comprising the constables appointed under article 3 of the Mersey Docks and Harbour (Police) Order 1975 note on the nomination of the Mersey Docks and Harbour Company.
...
(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
...
(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
...
(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Government departments
(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9A)The Ministry of Housing, Communities and Local Government.
(9ZA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9ZB). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9ZC). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(13A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(13ZA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(15). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(15C)The Department for Business and Trade.
(15D)The Department for Energy Security and Net Zero.
(15E)The Department for Science, Innovation and Technology.
The Welsh Assembly Government
(16)The Welsh Assembly Government.
Other bodies
(17B)The Charity Commission.
(18). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(18A)The Marine Management Organisation.
(19). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(19A)The Prudential Regulation Authority.
(19B)The Service Police Complaints Commissioner.
(20). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(20A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(20B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(20C)The Office of the Police Ombudsman for Northern Ireland.
(20D)note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(20E)note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(20F)The Care Quality Commission.
(20G)The Health and Safety Executive.
(21). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(22). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(23). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(23A)The Office of Communications.
Part II · Relevant authorities for the purposes only of s. 28
The Health and Safety Executive
(24). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NHS bodies in England and Wales
(25). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(26)A Special Health Authority established under section 28 of the National Health Service Act 2006 or section 22 of the National Health Service (Wales) Act 2006 .
(27). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(27A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
HM Chief Inspector of Education, Children's Services and Skills
(27B)Her Majesty's Chief Inspector of Education, Children's Services and Skills.
...
(27C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Information Commission
(27CA)The Information Commission.
. . .
(27D)note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The General Pharmaceutical Council.
(28)The General Pharmaceutical Council.
...
(28A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
...
(28B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Department for Work and Pensions
(28C)The Department for Work and Pensions.
. . .
(28D)note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Universal service providers
(28E)A universal service provider (within the meaning of Part 3 of the Postal Services Act 2011) acting in connection with the provision of a universal postal service (within the meaning of that Part).
The Natural Resources Body for Wales
(28F)The Natural Resources Body for Wales.
Schedule 2 · Persons having the appropriate permission
Requirement that appropriate permission is granted by a judge
(1)
(1)Subject to the following provisions of this Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted—
(a)in England and Wales, by a Circuit judge;
(b)in Scotland, by a sheriff; or
(c)in Northern Ireland, by a county court judge.
(2)Nothing in paragraphs 2 to 5 of this Schedule providing for the manner in which a person may be granted the appropriate permission in relation to any protected information without a grant under this paragraph shall be construed as requiring any further permission to be obtained in a case in which permission has been granted under this paragraph.
Data obtained under warrant etc.
(2)
(1)This paragraph applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with—
(b)an authorisation under Part III of the notePolice Act 1997 (authorisation of otherwise unlawful action in respect of property); or
(c)a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers).
(2)Subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if—
(a)the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation; or
(b)since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation.
(3)Only persons holding office under the Crown, the police , the National Crime Agency,note... and Her Majesty's Revenue and Customs shall be capable of having the appropriate permission in relation to protected information obtained, or to be obtained, under a warrant issued by the Secretary of State.
(4)Only a person who—
(a)was entitled to exercise the power conferred by the warrant, or
(b)is of the description of persons on whom the power conferred by the warrant was, or could have been, conferred,
shall be capable of having the appropriate permission in relation to protected information obtained, or to be obtained, under a warrant issued by a person holding judicial office.
(5)Only the police , the National Crime Agency,note... and Her Majesty's Revenue and Customs shall be capable of having the appropriate permission in relation to protected information obtained, or to be obtained, under an authorisation under Part III of the notePolice Act 1997 or under a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016.
(6)In this paragraph “the relevant authority”—
(a)in relation to a warrant issued by the Secretary of State, means the Secretary of State;
(c)in relation to protected information obtained under an authorisation under Part III of the notePolice Act 1997, means (subject to sub-paragraph (7)) an authorising officer within the meaning of section 93 of that Act; and
(d)in relation to protected information obtained under a warrant issued under section 106 of the Investigatory Powers Act 2016, means the person who issued the warrant or, if that person was an appropriate delegate in relation to a law enforcement chief, either that person or the law enforcement chief.
(6A)In sub-paragraph (6)(d), the references to a law enforcement chief and to an appropriate delegate in relation to a law enforcement chief are to be read in accordance with section 106(5) of the Investigatory Powers Act 2016.
(7)Section 94 of the notePolice Act 1997 (power of other persons to grant authorisations in urgent cases) shall apply in relation to—
(a)an application for permission for the giving of section 49 notices in relation to protected information obtained, or to be obtained, under an authorisation under Part III of that Act, and
(b)the powers of any authorising officer (within the meaning of section 93 of that Act) to grant such a permission,
as it applies in relation to an application for an authorisation under section 93 of that Act and the powers of such an officer under that section.
(8)References in this paragraph to a person holding judicial office are references to—
(a)any judge of the Crown Court or of the High Court of Justiciary;
(b)any sheriff;
(c)any justice of the peace;
(d)any resident magistrate in Northern Ireland; or
(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.
(9)Protected information that comes into a person’s possession by means of the exercise of any statutory power which—
(a)is exercisable without a warrant, but
(b)is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required,
shall not be taken, by reason only of the warrant required for the exercise of the power mentioned in paragraph (b), to be information in the case of which this paragraph applies.
Data obtained by the intelligence services under statute but without a warrant
(3)
(1)This paragraph applies in the case of protected information falling within section 49(1)(a), (b) or (c) which—
(a)has come into the possession of any of the intelligence services or is likely to do so; and
(b)is not information in the case of which paragraph 2 applies.
(2)Subject to paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if written permission for the giving of section 49 notices in relation to that information has been granted by the Secretary of State.
(3)Sub-paragraph (2) applies where the protected information is in the possession, or (as the case may be) is likely to come into the possession, of both—
(a)one or more of the intelligence services, and
(b)a public authority which is not one of the intelligence services,
as if a grant of permission under paragraph 1 were unnecessary only where the application to the Secretary of State for permission under that sub-paragraph is made by or on behalf of a member of one of the intelligence services.
Data obtained under statute by other persons but without a warrant
(4)
(1)This paragraph applies—
(a)in the case of protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies; and
(b)in the case of protected information falling within section 49(1)(d) which is not information also falling within section 49(1)(a), (b) or (c) in the case of which paragraph 3 applies.
(2)Subject to paragraph 6, where—
(a)the statutory power was exercised, or is likely to be exercised, by the police, the National Crime Agency, note... Her Majesty's Revenue and Customs or a member of Her Majesty’s forces, or
(b)the information was provided or disclosed, or is likely to be provided or disclosed, to the police, the National Crime Agency, note... Her Majesty's Revenue and Customs or a member of Her Majesty’s forces, or
(c)the information is in the possession of, or is likely to come into the possession of, the police, the National Crime Agency, note... Her Majesty's Revenue and Customs or a member of Her Majesty’s forces,
the police, the National Crime Agency, note... Her Majesty's Revenue and Customs or, as the case may be, members of Her Majesty’s forces have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1.
(4)A person falls within this sub-paragraph if, as the case may be—
(a)he is the person who exercised the statutory power or is of the description of persons who would have been entitled to exercise it;
(b)he is the person to whom the protected information was provided or disclosed, or is of a description of person the provision or disclosure of the information to whom would have discharged the statutory duty; or
(c)he is a person who is likely to be a person falling within paragraph (a) or (b) when the power is exercised or the protected information provided or disclosed.
Data obtained without the exercise of statutory powers
(5)Where the head organisation is a licensor for the purposes of determining whether the condition in regulation 12(2)(b) is met, only the following packaging or packaging materials are to be taken into account—
(1)This paragraph applies in the case of protected information falling within section 49(1)(e).
(2)Subject to paragraph 6, a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if—
(a)the information is in the possession of any of the intelligence services, or is likely to come into the possession of any of those services; and
(b)written permission for the giving of section 49 notices in relation to that information has been granted by the Secretary of State.
(3)Sub-paragraph (2) applies where the protected information is in the possession, or (as the case may be) is likely to come into the possession, of both—
(a)one or more of the intelligence services, and
(b)the police, the National Crime Agencynote... or Her Majesty's Revenue and Customs,
as if a grant of permission under paragraph 1 were unnecessary only where the application to the Secretary of State for permission under that sub-paragraph is made by or on behalf of a member of one of the intelligence services.
General requirements relating to the appropriate permission
(6)Where the head organisation is a licensor—
(1)A person does not have the appropriate permission in relation to any protected information unless he is either—
(a)a person who has the protected information in his possession or is likely to obtain possession of it; or
(2)Subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless—
(a)he is of or above the rank of superintendent; or
(b)permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.
(3)In the case of protected information that has come into the police’s possession by means of the exercise of powers conferred by—
(a)section 47A of the noteTerrorism Act 2000 (power to stop and search) (including that section as it had effect by virtue of the Terrorism Act 2000 (Remedial) Order 2011 (S.I. 2011/631), or
(b)section 44 of the Terrorism Act 2000 or section 13A or 13B of the notePrevention of Terrorism (Temporary Provisions) Act 1989 (which previously had effect for similar purposes,
the permission required by sub-paragraph (2) shall not be granted by any person below the rank mentioned in paragraph 14(1) and (2) of Schedule 6B to that Act of 2000 (see the definition of “senior police officer”), section 44(4) of that Act of 2000 or, as the case may be, section 13A(1) of that Act of 1989.
(3A)A National Crime Agency officer does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless permission to give a section 49 notice in relation to that information has been granted—
(a)by the Director General; or
(b)by a member of the staff of the Agency of or above such level as the Director General may designate for the purposes of this sub-paragraph.
(3B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)An officer of Revenue and Customs does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless permission to give a section 49 notice in relation to that information has been granted—
(a)by the Commissioners for Her Majesty's Revenue and Customs; or
(b)by an officer of Revenue and Customs of or above such level as the Commissioners may designate for the purposes of this sub-paragraph.
(5)A member of Her Majesty’s forces does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless—
(a)he is of or above the rank of lieutenant colonel or its equivalent; or
(b)permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of lieutenant colonel or its equivalent, or by a person holding a rank higher than lieutenant colonel or its equivalent.
(6) In sub-paragraph (2) “constable” does not include a constable who is a National Crime Agency officernote....
Duration of permission
(7)
(1)A permission granted by any person under any provision of this Schedule shall not entitle any person to give a section 49 notice at any time after the permission has ceased to have effect.
(2)Such a permission, once granted, shall continue to have effect (notwithstanding the cancellation, expiry or other discharge of any warrant or authorisation in which it is contained or to which it relates) until such time (if any) as it—
(a)expires in accordance with any limitation on its duration that was contained in its terms; or
Formalities for permissions granted by the Secretary of State
(8)A permission for the purposes of any provision of this Schedule shall not be granted by the Secretary of State except—
(a)under his hand; or
(b)in an urgent case in which the Secretary of State has expressly authorised the grant of the permission, under the hand of a senior official.
Schedule 3 · The Tribunal
Membership of the Tribunal
(1)
(1)A person shall not be appointed as a member of the Tribunal unless he is—
(a)a person who holds or has held a high judicial office (within the meaning of Part 3 of the Constitutional Reform Act 2005) or is or has been a member of the Judicial Committee of the Privy Council);
(b)a person who satisfies the judicial-appointment eligibility condition on a 7-year basis;
(c)an advocate or solicitor in Scotland of at least seven years’ standing; or
(d)a member of the Bar of Northern Ireland or solicitor of the Court of Judicature of Northern Ireland of at least seven years’ standing.
(2)Subject to the following provisions of this paragraph, the members of the Tribunal shall hold office during good behaviour.
(3)A member of the Tribunal shall vacate office at the end of the period of five years beginning with the day of his appointment, but shall be eligible for reappointment.
(4)A member of the Tribunal may be relieved of office by Her Majesty at his own request.
(5)A member of the Tribunal may be removed from office by Her Majesty on an Address presented to Her by both Houses of Parliament.
(6)If the Scottish Parliament passes a resolution calling for the removal of a member of the Tribunal, it shall be the duty of the Secretary of State to secure that a motion for the presentation of an Address to Her Majesty for the removal of that member, and the resolution of the Scottish Parliament, are considered by each House of Parliament.
President and Vice-President
(2)
(1)Her Majesty may by Letters Patent appoint as President or Vice-President of the Tribunal a person who is, or by virtue of those Letters will be, a member of the Tribunal.
(2)A person shall not be appointed President of the Tribunal unless he holds or has held a high judicial office (within the meaning of Part 3 of the Constitutional Reform Act 2005) or is or has been a member of the Judicial Committee of the Privy Council).
(3)If at any time—
(a)the President of the Tribunal is temporarily unable to carry out any functions conferred on him by this Schedule or any rules under section 69, or
(b)the office of President of the Tribunal is for the time being vacant,
the Vice-President shall carry out those functions.
(4)A person shall cease to be President or Vice-President of the Tribunal if he ceases to be a member of the Tribunal.
Members of the Tribunal with special responsibilities
(3)
(1)The President of the Tribunal shall designate one or more members of the Tribunal as the member or members having responsibilities in relation to matters involving the intelligence services.
(2)It shall be the duty of the President of the Tribunal, in exercising any power conferred on him by rules under section 69 to allocate the members of the Tribunal who are to consider or hear any complaint, proceedings, reference or preliminary or incidental matter, to exercise that power in a case in which the complaint, proceedings or reference relates to, or to a matter involving—
(a)an allegation against any of the intelligence services or any member of any of those services, or
(b)conduct by or on behalf of any of those services or any member of any of those services,
in such manner as secures that the allocated members consist of, or include, one or more of the members for the time being designated under sub-paragraph (1).
Salaries and expenses
(4)
(1)The Secretary of State shall pay to the members of the Tribunal out of money provided by Parliament such remuneration and allowances as he may with the approval of the Treasury determine.
(2)Such expenses of the Tribunal as the Secretary of State may with the approval of the Treasury determine shall be defrayed by him out of money provided by Parliament.
Officers
(5)Where the head organisation is a licensor for the purposes of determining whether the condition in regulation 12(2)(b) is met, only the following packaging or packaging materials are to be taken into account—
(1)The Secretary of State may, after consultation with the Tribunal and with the approval of the Treasury as to numbers, provide the Tribunal with such officers as he thinks necessary for the proper discharge of their functions.
(2)The Tribunal may authorise any officer provided under this paragraph to obtain any documents or information on the Tribunal’s behalf.
Parliamentary disqualification
(6)In Part II of Schedule 1 to the noteHouse of Commons Disqualification Act 1975 and in Part II of Schedule 1 to the noteNorthern Ireland Assembly Disqualification Act 1975 (bodies whose members are disqualified) there shall be inserted (at the appropriate places) the following entry—“The Tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000”
Schedule 4 · Consequential amendments
The Post Office Act 1953 (c. 36)
(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Post Office Act 1969 (c. 48)
(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Telecommunications Act 1984 (c. 12)
(3)
The Security Service Act 1989 (c. 5)
(4)
(1)In section 1 of the noteSecurity Service Act 1989 (functions of the Security Service), after subsection (4) there shall be inserted—“5 Section 81(5) of the Regulation of Investigatory Powers Act 2000 (meaning of “prevention” and “detection”), so far as it relates to serious crime, shall apply for the purposes of this Act as it applies for the purposes of the provisions of that Act not contained in Chapter I of Part I.”
(2)In section 2(2)(a) of that Act (duty of Director General to secure that information not disclosed except for authorised purposes), for “preventing or detecting” there shall be substituted “ the prevention or detection of ”.
The Official Secrets Act 1989 (c. 6)
(5)In section 4(3)(a) of the noteOfficial Secrets Act 1989 (offence of disclosing interception information), after “1985” there shall be inserted “ or under the authority of an interception warrant under section 5 of the Regulation of Investigatory Powers Act 2000 ”.
The Intelligence Services Act 1994 (c. 13)
(6)In section 11 of the noteIntelligence Services Act 1994 (interpretation), after subsection (1) there shall be inserted—“1A Section 81(5) of the Regulation of Investigatory Powers Act 2000 (meaning of “prevention” and “detection”), so far as it relates to serious crime, shall apply for the purposes of this Act as it applies for the purposes of Chapter I of Part I of that Act.”
The Criminal Procedure and Investigations Act 1996 (c. 25)
(7)
(1)In each of sections 3(7), 7(6), 8(6) and 9(9) of the noteCriminal Procedure and Investigations Act 1996 (exceptions for interceptions from obligations to make disclosures to the defence), for paragraphs (a) and (b) there shall be substituted “ it is material the disclosure of which is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000. ”
(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Police Act 1997 (c. 50)
(8)Where the head organisation is a pub operating business—
(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)In section 93(3) of that Act (persons who may make an application to an authorising officer within section 93(5))—
(a)in paragraph (a), for “(e)” there shall be substituted “ (ea) or (ee) ”; and
(b)after that paragraph there shall be inserted—“aa if the authorising officer is within subsection (5)(eb) to (ed), by a member, as the case may be, of the Royal Navy Regulating Branch, the Royal Military Police or the Royal Air Force Police;”
(3)In section 94(1) of that Act (circumstances in which authorisations may be given in absence of authorising officer), in paragraph (b), for “, (f), (g) or (h)” there shall be substituted “ or (f) ”, and after that paragraph there shall be inserted“or c if the authorising officer is within paragraph (g) of section 93(5), it is also not reasonably practicable for the application to be considered either—i by any other person designated for the purposes of that paragraph; orii by the designated deputy of the Director General of the National Crime Squad.”
(4)In section 94(2) of that Act (persons who may act in absence of the authorising officer)—
(a)after paragraph (d), there shall be inserted—“da where the authorising officer is within paragraph (ea) of that subsection, by a person holding the rank of deputy or assistant chief constable in the Ministry of Defence Police;db where the authorising officer is within paragraph (eb) of that subsection, by a person holding the position of assistant Provost Marshal in the Royal Navy Regulating Branch;dc where the authorising officer is within paragraph (ec) or (ed) of that subsection, by a person holding the position of deputy Provost Marshal in the Royal Military Police or, as the case may be, in the Royal Air Force Police;dd where the authorising officer is within paragraph (ee) of that subsection, by a person holding the rank of deputy or assistant chief constable in the British Transport Police;”
(b)in paragraph (e), the words “or (g)” and “or, as the case may be, of the National Crime Squad” shall be omitted; and
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)In section 95 of that Act (authorisations: form and duration etc.)—
(a)in each of subsections (4) and (5), for the words from “the action” onwards there shall be substituted “ the authorisation is one in relation to which the requirements of paragraphs (a) and (b) of section 93(2) are no longer satisfied. ”; and
(b)in subsection (6), for “or (e)” there shall be substituted “ , (e) or (g) ”.
(7)In section 97 of that Act (authorisations requiring approval), in subsection (6), the words from “(and paragraph 7” onwards shall be omitted, and after that subsection there shall be inserted—“6A The reference in subsection (6) to the authorising officer who gave the authorisation or in whose absence it was given shall be construed, in the case of an authorisation given by or in the absence of a person within paragraph (b), (e) or (g) of section 93(5), as a reference to the Commissioner of Police, Chief Constable or, as the case may be, Director General mentioned in the paragraph concerned.”
(8)In section 103(7) of that Act (quashing authorisations), for the words from “and paragraph 7” onwards there shall be substituted “ and subsection (6A) of section 97 shall apply for the purposes of this subsection as it applies for the purposes of subsection (6) of that section. ”
(9)In section 105 of that Act (appeals by authorising officers: supplementary), in subsection (1)(a), the word “and” shall be inserted at the end of sub-paragraph (i), and sub-paragraph (iii) and the word “and” immediately preceding it shall be omitted.
(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11)note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(12)In section 108(1) of that Act after “In this Part—” there shall be inserted—““Assistant Commissioner of Police of the Metropolis” includes the Deputy Commissioner of Police of the Metropolis;”
(13)In Part VII of that Act, before section 134 there shall be inserted—“133A Section 81(5) of the Regulation of Investigatory Powers Act 2000 (meaning of “prevention” and “detection”) shall apply for the purposes of this Act as it applies for the purposes of the provisions of that Act not contained in Chapter I of Part I.”
The Northern Ireland Act 1998 (c. 47)
(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Electronic Communications Act 2000 (c. 7)
(10)In section 4(2) of the noteElectronic Communications Act 2000 (exception to rules restricting disclosure of information obtained under Part I of that Act), for the word “or” at the end of paragraph (e) there shall be substituted—“ea for the purposes of any proceedings before the tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000; or”
The Financial Services and Markets Act 2000 (c. 8)
(11)In section 394(7) of the noteFinancial Services and Markets Act 2000 (exclusion of material from material of the Authority to which a person must be allowed access), for paragraphs (a) and (b) there shall be substituted—“a is material the disclosure of which for the purposes of or in connection with any legal proceedings is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000; or”
The Terrorism Act 2000 (c. 11)
(12)The weight in kilograms of household packaging in each packaging category the producer has supplied during the relevant period.
(1)In section 9(2)(d) of the noteTerrorism Act 2000 (proceedings under the noteHuman Rights Act 1998), for “8” there shall be substituted “ 7 ”.
(2)In each of paragraphs 6(3) and 7(5) of Schedule 3 to that Act (references to an organisation and representative in paragraphs 5 and 8 of that Schedule), for “paragraphs 5 and 8” there shall be substituted “ paragraph 5 ”.
Schedule 5 · Repeals
Schedule A1 · Monetary penalty notices in relation to certain unlawful interceptions
Part 1 · Monetary penalty notices
General
(1)
(1)A monetary penalty notice is a notice requiring the person on whom it is served to pay to the Interception of Communications Commissioner (“the Commissioner”) a monetary penalty of an amount determined by the Commissioner and specified in the notice.
(2)The amount determined by the Commissioner must not exceed £50,000.
(3)The monetary penalty must be paid to the Commissioner within such period as is specified in the notice.
(4)The period concerned must not be less than 28 days beginning with the day after the day on which the notice is served.
(5)The notice must, in particular—
(a)state the name and address of the person on whom it is to be served,
(b)provide details of the notice of intent served on that person,
(c)state whether the Commissioner has received written representations in accordance with that notice,
(d)state the grounds on which the Commissioner serves the monetary penalty notice,
(e)state the grounds on which the Commissioner decided the amount of the monetary penalty,
(f)state the details of how the monetary penalty is to be paid,
(g)provide details of the rights of appeal of the person concerned under paragraph 5 in respect of the monetary penalty notice,
(h)provide details of the Commissioner's rights of enforcement under paragraph 6 in respect of the monetary penalty notice.
(6)Any sum received by the Commissioner by virtue of a monetary penalty notice must be paid into the Consolidated Fund.
Enforcement obligations
(2)
(1)The Commissioner may include one or more than one enforcement obligation in a monetary penalty notice if the Commissioner considers that the interception to which the notice relates is continuing.
(2)Each of the following is an enforcement obligation—
(a)a requirement on the person on whom the notice is served to cease the interception concerned on such day, or within such period, as is specified in the notice,
(b)(where appropriate for achieving such a cessation) a requirement on the person to take within such period as is specified in the notice, or to refrain from taking after the end of such period as is so specified, such steps as are so specified.
(3)No enforcement obligation is to have effect before the end of the period of 7 days beginning with the day after the day on which the notice is served.
(4)Where an enforcement obligation is included in a monetary penalty notice under this paragraph, the notice must state what the obligation is and the grounds for including it.
Consultation requirements before service of notices
(3)
(1)The Commissioner must proceed in accordance with sub-paragraphs (2) to (7) before serving a monetary penalty notice on a person.
(2)The Commissioner must serve a notice of intent on the person.
(3)A notice of intent is a notice that the Commissioner proposes to serve a monetary penalty notice on the person.
(4)A notice of intent must, in particular—
(a)state the name and address of the person concerned,
(b)state the grounds on which the Commissioner proposes to serve the monetary penalty notice,
(c)provide an indication of the amount of the monetary penalty that the Commissioner proposes to impose and the Commissioner's grounds for deciding that amount,
(d)state whether the monetary penalty notice is to include any enforcement obligation and, if so, what the obligation is and the grounds for including it,
(e)state the date on which the Commissioner proposes to serve the monetary penalty notice,
(f)inform the person concerned that the person may make written representations in relation to the Commissioner's proposal within a period specified in the notice, and
(g)inform the person concerned that the person may, within a period specified in the notice, request an oral hearing before the Commissioner in order to make representations of the kind mentioned in sub-paragraph (6)(b).
(5)No period specified as mentioned in sub-paragraph (4)(f) or (g) may be less than 21 days beginning with the day after the day on which the notice is served.
(6)Where the person concerned has requested an oral hearing within the period specified for the purpose in the notice—
(a)the Commissioner must arrange such a hearing, and
(b)the person may make representations at the hearing about—
(i)i)any matter falling within section 1(1A)(a)(ii), or
(ii)any other matter relating to the Commissioner's proposal which, by virtue of section 17, the person would be unable to raise on an appeal under paragraph 5.
(7)The Commissioner must consider any representations which have been made by the person concerned in accordance with the notice or sub-paragraph (6).
(8)Subject to sub-paragraph (9), the Commissioner may not vary a notice of intent.
(9)The Commissioner may vary a notice of intent by extending the period mentioned in sub-paragraph (4)(f) or (g).
(10)Sub-paragraph (8) does not prevent the Commissioner from issuing a new notice of intent instead of varying such a notice.
(11)The Commissioner may cancel a notice of intent.
(12)A variation or cancellation of a notice of intent is effected by serving on the person on whom the notice was served a notice setting out the variation or cancellation.
(13)Subject to sub-paragraph (14), the Commissioner must not serve a monetary penalty notice on a person in respect of an interception if any notice of intent in respect of that interception was served on the person more than 3 months earlier.
(14)The Commissioner may serve a monetary penalty notice on a person where the service of the notice would otherwise be prevented by virtue of sub-paragraph (13) if the Commissioner—
(a)considers it reasonable to do so, and
(b)includes the reasons for doing so in the monetary penalty notice.
(15)If the Commissioner decides not to serve a monetary penalty notice on a person as a result of any representations which have been made by the person in accordance with a notice of intent or sub-paragraph (6), the Commissioner must inform the person of that fact.
Variation or cancellation of notices
(4)
(1)The Commissioner may, subject as follows, vary or cancel a monetary penalty notice.
(2)The Commissioner may not vary a monetary penalty notice in a way that is detrimental to the person on whom it was served (whether by increasing the amount of the monetary penalty, by reducing the period specified in the notice as the period within which the penalty must be paid, by imposing a new enforcement obligation or making an existing enforcement obligation effective earlier or otherwise more onerous, or otherwise).
(3)The Commissioner must—
(a)in the case of a variation which reduces the amount of a monetary penalty, repay any excess already paid in accordance with the notice, and
(b)in the case of a cancellation, repay any amount already paid in accordance with the notice.
(4)A variation or cancellation of a monetary penalty notice is effected by serving on the person on whom the monetary penalty notice was served a notice setting out the variation or cancellation.
(5)The Commissioner may not serve another monetary penalty notice on a person in respect of an interception if the Commissioner has cancelled a previous notice served on the person in respect of the same interception.
(6)If the Commissioner refuses a request by a person to vary or cancel a monetary penalty notice which has been served on the person, the Commissioner must inform the person of that fact.
Appeals against notices
(5)Where the head organisation is a licensor for the purposes of determining whether the condition in regulation 12(2)(b) is met, only the following packaging or packaging materials are to be taken into account—
(1)A person on whom a monetary penalty notice is served may appeal to the First-tier Tribunal against—
(a)the monetary penalty notice or any provision of it, or
(b)any refusal of a request by the person to issue a notice of variation or cancellation in relation to the monetary penalty notice.
(2)Where there is an appeal under sub-paragraph (1)(a) in relation to a monetary penalty notice or any provision of it, any requirement in the notice or (as the case may be) provision concerned which does not relate to the imposition of an enforcement obligation need not be complied with until the appeal is withdrawn or finally determined.
(3)Sub-paragraphs (4) to (6) apply in relation to an appeal under sub-paragraph (1)(a).
(4)The First-tier Tribunal must allow the appeal or substitute such other monetary penalty notice as could have been served by the Commissioner if the Tribunal considers—
(a)that the notice concerned is not in accordance with the law, or
(b)to the extent that the notice involved an exercise of discretion by the Commissioner, that the Commissioner ought to have exercised the discretion differently.
(5)In any other case, the First-tier Tribunal must dismiss the appeal.
(6)The First-tier Tribunal may review any determination of fact on which the notice concerned was based.
(7)Sub-paragraphs (8) to (10) apply in relation to an appeal under sub-paragraph (1)(b).
(8)The First-tier Tribunal must direct the Commissioner to issue, on such terms as the Tribunal considers appropriate, a notice of variation or cancellation in relation to the monetary penalty notice if the Tribunal considers that the monetary penalty notice ought to be varied or cancelled on those terms.
(9)In any other case, the First-tier Tribunal must dismiss the appeal.
(10)The First-tier Tribunal may review any determination of fact on which the refusal to issue the notice of variation or cancellation was based.
Enforcement of notices
(6)Where the head organisation is a licensor—
(1)Sub-paragraphs (2) and (3) apply in relation to any penalty payable to the Commissioner by virtue of a monetary penalty notice.
(2)In England and Wales or Northern Ireland, the penalty is recoverable—
(a)if the county court in England and Wales or a county court in Northern Ireland so orders, as if it were payable under an order of that court,
(b)if the High Court so orders, as if it were payable under an order of that court.
(3)In Scotland, the penalty is recoverable as if it were payable under an extract registered decree arbitral bearing a warrant for execution issued by the sheriff for any sheriffdom in Scotland.
(4)The person on whom a monetary penalty notice containing an enforcement obligation is served must comply with the obligation; and that duty is enforceable by civil proceedings by the Commissioner for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 note, or for any other appropriate relief.
Guidance
(7)
(1)The Commissioner must prepare and issue guidance on how the Commissioner proposes to exercise the Commissioner's functions under section 1(1A) and (1B) and this Schedule.
(2)The guidance must, in particular, deal with—
(a)the manner in which the Commissioner is to deal with claims of a description specified in the guidance which may give rise to grounds for serving a monetary penalty notice,
(b)the circumstances in which the Commissioner would consider it appropriate to serve a monetary penalty notice,
(c)how the Commissioner will determine the amount of the penalty, and
(d)the circumstances in which the Commissioner would consider it appropriate to impose an enforcement obligation.
(3)The Commissioner may alter or replace the guidance.
(4)If the guidance is altered or replaced, the Commissioner must issue the altered or replacement guidance.
(5)The Commissioner must arrange for the publication, in such form and manner as the Commissioner considers appropriate, of any guidance issued under this paragraph.
Interpretation: Part 1
(8)In this Part—• “address” means—(a) in the case of a registered company, the address of its registered office, and(b) in the case of a person (other than a registered company) carrying on a business, the address of the person's principal place of business in the United Kingdom;• “business” includes any trade or profession;• “the Commissioner” has the meaning given by paragraph 1(1);• “enforcement obligation” has the meaning given by paragraph 2(2);• “monetary penalty notice” means a monetary penalty notice under section 1(1A);• “notice” means notice in writing;• “notice of intent” means a notice under paragraph 3(2) to (5);• “registered company” means a company registered under the enactments relating to companies for the time being in force in the United Kingdom.
Part 2 · Information provisions
Information notices
(9)Where the producer is a brand owner—
(1)The Commissioner may by notice (“an information notice”) request any person on whom the Commissioner is considering whether to serve a Part 1 notice of intent or a Part 1 monetary penalty notice to provide such information as the Commissioner reasonably requires for the purpose of deciding whether to serve the Part 1 notice concerned.
(2)Where the Commissioner requests that documents be produced, the Commissioner may take copies of, or extracts from, any document so produced.
(3)An information notice must—
(a)specify or describe the information to be provided,
(b)specify the manner in which, and the period within which, the information is to be provided,
(c)state that the Commissioner considers that the information is information which the Commissioner reasonably requires for the purpose of deciding whether to serve a Part 1 notice of intent or (as the case may be) a Part 1 monetary penalty notice,
(d)state the Commissioner's grounds for this view, and
(e)provide details of the rights of appeal under paragraph 10 in respect of the information notice.
(4)For the purposes of sub-paragraph (3)(b)—
(a)specifying the manner in which the information is to be provided may include specifying the form in which it is to be provided, and
(b)the specified period within which the information is to be provided must not be less than 28 days beginning with the day after the day on which the information notice is served.
(5)Subject to sub-paragraph (6), the Commissioner may not vary an information notice.
(6)The Commissioner may vary an information notice by extending the period within which the information is to be provided if the person on whom the notice is served appeals under paragraph 10 in relation to the notice.
(7)Sub-paragraph (5) does not prevent the Commissioner from issuing a new information notice instead of varying such a notice.
(8)The Commissioner may cancel an information notice.
(9)A variation or cancellation of an information notice is effected by serving on the person on whom the notice was served a notice setting out the variation or cancellation.
Appeals against notices
(10)
(1)A person on whom an information notice is served may appeal to the First-tier Tribunal against—
(a)the information notice or any provision of it, or
(b)any refusal of a request by the person to issue a notice of variation or cancellation in relation to the information notice.
(2)Subject to paragraph 9(6), an appeal under this paragraph does not affect the need to comply with the information notice while the appeal is not finally determined.
(3)Sub-paragraphs (4) to (6) apply in relation to an appeal under sub-paragraph (1)(a).
(4)The First-tier Tribunal must allow the appeal or substitute such other information notice as could have been served by the Commissioner if the Tribunal considers—
(a)that the notice concerned is not in accordance with the law, or
(b)to the extent that the notice involved an exercise of discretion by the Commissioner, that the Commissioner ought to have exercised the discretion differently.
(5)In any other case, the First-tier Tribunal must dismiss the appeal.
(6)The First-tier Tribunal may review any determination of fact on which the notice concerned was based.
(7)Sub-paragraphs (8) to (10) apply in relation to an appeal under sub-paragraph (1)(b).
(8)The First-tier Tribunal must direct the Commissioner to issue, on such terms as the Tribunal considers appropriate, a notice of variation or cancellation in relation to the information notice if the Tribunal considers that the information notice ought to be varied or cancelled on those terms.
(9)In any other case, the First-tier Tribunal must dismiss the appeal.
(10)The First-tier Tribunal may review any determination of fact on which the refusal to issue the notice of variation or cancellation was based.
Enforcement of notices
(11)The weight in kilograms of packaging in each packaging category the producer has supplied during the relevant period.
(1)The Commissioner may serve a Part 2 monetary penalty notice on a person if the person—
(a)without reasonable excuse refuses or fails to comply with an information notice, or
(b)knowingly or recklessly gives any information which is false in a material particular in response to an information notice.
(2)Subject to sub-paragraphs (3) to (7), Part 1 of this Schedule applies in relation to a Part 2 monetary penalty notice and the penalty that relates to that notice as it applies in relation to a Part 1 monetary penalty notice and the penalty that relates to that notice.
(3)The amount of the monetary penalty determined by the Commissioner and specified in the Part 2 monetary penalty notice may be—
(a)a fixed amount,
(b)an amount calculated by reference to a daily rate, or
(c)a fixed amount and an amount calculated by reference to a daily rate,
provided that the total amount payable does not exceed £10,000.
(4)In the case of an amount calculated by reference to a daily rate—
(a)no account is to be taken of the day on which the Part 2 monetary penalty notice is served or any day before that day, and
(b)the Part 2 monetary penalty notice must specify—
(i)i)the day on which the amount first starts to accumulate and the circumstances in which it is to cease to accumulate, and
(ii)the period or periods within which the amount, or any part or parts so far accumulated, must be paid to the Commissioner (provided that no such period ends less than 28 days beginning with the day after the day on which the notice is served).
(5)The provisions in Part 1 of this Schedule so far as relating to enforcement obligations do not apply in relation to a Part 2 monetary penalty notice.
(6)Paragraph 3 applies by virtue of sub-paragraph (2) above as if—
(a)paragraph 3(6)(b)(i), the word “or” at the end of that sub-paragraph (i) and the word “other” in paragraph 3(6)(b)(ii) were omitted, and
(b)in paragraph 3(13) the references to an interception were references to conduct falling within paragraph 11(1)(a) or (b).
(7)Paragraph 4(5) applies by virtue of sub-paragraph (2) above as if the references to an interception were references to conduct falling within paragraph 11(1)(a) or (b).
Technical assistance for the Commissioner
(12)The weight in kilograms of household packaging in each packaging category the producer has supplied during the relevant period.
(1)OFCOM must comply with any reasonable request made by the Commissioner, in connection with the Commissioner's functions under section 1(1A) and (1B) and this Schedule, for advice on technical and similar matters relating to electronic communications.
(2)For this purpose, the Commissioner may disclose to OFCOM any information obtained by the Commissioner under this Schedule.
(3)In this paragraph “OFCOM” means the Office of Communications established by section 1 of the Office of Communications Act 2002 note.
Interpretation: Part 2
(13)In this Part—• “the Commissioner” has the meaning given by paragraph 1(1);• “enforcement obligation” has the meaning given by paragraph 2(2);• “information” includes documents; and any reference to providing or giving information includes a reference to producing a document;• “information notice” has the meaning given by paragraph 9(1);• “notice” means notice in writing;• “Part 1 monetary penalty notice” means a monetary penalty notice under section 1(1A);• “Part 2 monetary penalty notice” means a monetary penalty notice under paragraph 11; “Part 1 notice of intent” means a notice under paragraph 3(2) to (5) (but excluding those provisions as applied by paragraph 11).
Contains public sector information licensed under the Open Government Licence v3.0.