House of Lords - Explanatory Note
Regulation of Investigatory Powers Bill - continued          House of Lords

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Clause 9: Duration, cancellation and renewal of warrants.

79. Clause 9 provides for the issue, duration and renewal of warrants.

80. Subsection (1)(a) states that a warrant ceases to have effect at the end of the relevant period unless renewed under the power in subsection (1)(b). A renewal instrument must be issued under the hand of the Secretary of State unless the warrant was issued under clause 7(2)(b), in which case the renewal instrument may be issued by a senior official. Clause 7(2)(b) applies to cases in which the warrant is issued to comply with a request for mutual assistance where the subject of interception or the relevant premises and the competent authority making the request are outside the United Kingdom.

    "Relevant period" is defined in subsection (6).

    "Working day" is defined in clause 71(1).

81. Subsection (2) adds a condition that the Secretary of State may only renew a warrant under subsection (1) if he considers that the warrant continues to be necessary as mentioned in Clause 5(3) (in the interests of national security, for the purpose of preventing or detecting serious crime, for the purpose of safeguarding the economic well-being of the UK or for the purpose, in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a warrant by virtue of paragraph (b), of giving effect to the provisions of any international mutual assistance agreement).

82. Subsection (3) requires the Secretary of State to cancel a warrant at any time if he considers that it is no longer necessary as mentioned in Clause 5(3).

83. Subsection (4) requires the Secretary of State to cancel a warrant where the warrant or renewal instrument was issued under the hand of a senior official on the basis that the subject of the interception was outside the United Kingdom, but the subject is now in the United Kingdom. For the interception to continue in such circumstances, a new warrant will need to be issued by the Secretary of State himself.

84. Subsection (5) applies to renewal instruments issued under the hand of a senior official for the purpose of renewing a warrant issued to comply with a request for mutual assistance where the subject of interception and the competent authority making the request are outside the United Kingdom. In such cases, the renewal instrument must contain a statement that the interception subject or the premises to which the interception relates are outside the United Kingdom.

85. Subsection (6)(a) applies to warrants issued under the urgency procedure in 7(2)(a). Such warrants last for a maximum of five working days following the day of the warrant's issue. Thus a warrant issued in this way at any time on day one will expire at midnight on the fifth working day after day one. If renewed under the hand of the Secretary of State within five working days a warrant initially issued under the urgency procedure then falls within subsection (6)(c) and is valid for three months beginning with the day of the renewal.

86. Under subsection (6)(b) the relevant period is six months, beginning with the day of the warrant's renewal. The result of this is that warrants the renewal of which is considered necessary as mentioned in section 5(3)(a) (in the interests of national security) or (c) (for the purpose of safeguarding the economic well-being of the UK), lapse unless renewed by the Secretary of State within a period of six months.

87. Under subsection (6)(c) the relevant period is three months beginning with the day of the warrant's issue or, in the case of a warrant that has been renewed, of its latest renewal. The effect of this is that all new warrants, and all warrants the renewal of which is considered necessary as mentioned in section 5(3)(b) (for the purpose of preventing or detecting serious crime), are valid for three months from the day of the warrant's issue or renewal.

"International mutual assistance agreement" is defined in Clause 19.

Clause 10: Modification of warrants and certificates

88. Clause 10 sets out the circumstances in which warrants and certificates may be modified and by whom this may be done.

89. Subsection (1)(a) gives the Secretary of State the power to modify the provisions of an interception warrant.

90. Subsection (1)(b) gives the Secretary of State the power to modify the description of interception material specified in a clause 8(3) certificate so as to include any material the examination of which he considers necessary for a purpose mentioned in clause 5(3)(a), (b) or (c) (in the interests of national security, for the purpose of preventing or detecting serious crime, for the purpose of safeguarding the economic well-being of the UK).

91. Subsection (2) requires the Secretary of State to modify a schedule if at any time he considers that any factor in the schedule is no longer relevant for identifying communications from, or intended for, the person named or described in the warrant or the communications originating on or intended for transmission to the premises so named or described. The modification is to take the form of the deletion of the factor in question. This provision is the modification equivalent of the cancellation provision in Clause 9(3).

92. Subsection (3) requires the Secretary of State to modify the description in a certificate if at any time he considers that it includes material the examination of which is no longer necessary for the purposes mentioned in paragraphs 5(3)(a) to (c). The modification is to take the form of the exclusion of the material in question.

93. Subsection (4) allows only the Secretary of State or a senior official to modify a warrant or certificate subject to subsections (5) and (6).

94. By subsection (5), a senior official may only modify the unscheduled parts (explained in subsection (10) below) of an interception warrant in an urgent case where the official is expressly authorised by the Secretary of State himself to make the modification and a statement of that fact is on the modifying instrument. This is the same as the urgency procedure for the issue of warrants.

95. The restriction in subsection (5) does not apply to the scheduled parts of a warrant, which may therefore be modified without each modification being referred to the Secretary of State personally. Such modifications shall be valid for five working days - see subsection (9). But subsection (6) restricts the senior officials who may modify the scheduled parts of a warrant by prohibiting those listed in Clause 6(2) or their subordinates from making modifications under this provision. The intention is that this function will only be exercised by senior officials in the department of a Secretary of State.

96. Subsection (7) requires that a senior official may only modify a section 8(3) certificate in an urgent case where the official is expressly authorised by the provisions contained in the certificate to modify the certificate on the Secretary of State's behalf or the Secretary of State has expressly authorised the modification and a statement of that fact is on the modifying instrument. Again such modifications shall be valid for five working days - see subsection (9).

97. Subsection (8) is a separate power to that provided by subsection (4). It permits the persons listed in Clause 6(2) or any of their subordinates, where they are expressly authorised by the warrant, to make urgent modifications to the scheduled parts of an interception warrant. Again such modifications shall be valid for five working days - see subsection (9).

"Working day" is defined in Clause 71(1).

98. Subsection (10) explains the meaning of the term "scheduled parts of an interception warrant".

Clause 11: Implementation of warrants

99. This clause addresses the question of how an interception warrant may be implemented once it has been authorised, and the role of different people within this process.

100. Subsection (1) allows the interception to be carried out either by the person to whom the warrant is addressed (ie where it is technically feasible, by the intercepting agency itself), or by other persons providing assistance in the implementation.

101. Subsection (2). Where an intercepting agency either requires or requests another person to assist it in implementing an interception, it is likely that the person providing assistance will wish to be satisfied that there is an interception warrant in existence to provide legal cover for their actions. This subsection provides for this, allowing the intercepting agency to provide either a copy of the warrant or to make arrangements whereby a copy is provided.

102. Subsection (3). Where a copy of a warrant is served upon a person providing assistance in accordance with subsection (2), this subsection allows the intercepting agency to restrict the disclosure of the warrant to just that material which the person providing assistance needs to see in order to satisfy themselves that their actions are authorised. Most commonly this may involve a communications service provider only being shown the front of the warrant (showing the name of the person to be intercepted) and the specific schedule which identifies the communications which they are being asked to provide assistance in intercepting.

103. Subsection (4) states that where a person providing a communications service is required to give assistance in accordance with an interception warrant, they must do everything required of them by the person to whom the warrant is addressed in order to effect the interception, subject to subsection (5).

104. Subsection (5) provides the balance for subsection (4) above by requiring that no unreasonable requests may be made of a person providing a communications service in implementing an interception warrant.

105. Subsection (6) expands upon what "reasonable assistance" could mean for a person providing a communications service, and cross references to Clause 12 (maintenance of intercept capability). It explains that that where such a person has had an obligation to provide an intercept capability imposed upon them, it is reasonable to expect them to be able to provide assistance with an intercept up to the level of the imposed capability.

106. Subsection (7) creates a criminal offence of knowingly failing to comply with a requirement to provide reasonable assistance in implementing an interception warrant. It goes on to specify the maximum penalties which a person who is found guilty of this offence may be sentenced to; if he is found guilty in a Magistrates' Court he may be fined up to the statutory maximum (currently £5000) or imprisoned for up to six months, or both. In a Crown Court he may be imprisoned for a period up to two years, or may be fined (unlimited fine) or both.

107. Subsection (8) also allows the Secretary of State to take civil proceedings against a person who fails to provide reasonable assistance under subsection (4) in order to compel them to provide such assistance by means of, inter alia, an injunction or other appropriate relief.

108. Subsection (9) explains that the term "provision of assistance" includes the actual disclosure of the intercepted material and related communications data to the person to whom the warrant is addressed (or his representative).

Clause 12: Maintenance of interception capability

109. This clause provides a power allowing the Secretary of State to impose obligations upon providers of publicly available communication services to maintain a reasonable intercept capability.

110. Subsection (1) provides the mechanism by which the Secretary of State may impose obligations upon persons providing or planning to provide public postal services or public telecommunications services. It requires that the Secretary of State does this through an order (affirmative resolution, see subsection 7) which lays out the obligations which he believes are reasonable, with the aim of ensuring that providers of publicly available communications are capable of providing assistance with the implementation of interception warrants. The order itself will not impose specific requirements on communication service providers but it will describe in general terms the kind of intercept capability which they may be required to provide. The order to be made by the Secretary of State describing the reasonable capability will be subject to the affirmative resolution procedure.

111. Subsection (2) follows on from subsection (1) above and explains that the Secretary of State is required to issue an individual notice to each provider of public postal services or public telecommunications services describing in much greater detail than the order the precise intercept requirement which he is imposing.

112. Subsection (3) makes clear that requirements imposed by the Secretary of State under subsection (2) must be restricted to requirements ensuring the provision of an intercept capability.

113. Subsection (4) requires persons served with a notice under subsection (2) to comply with it, and goes on to allow the Secretary of State to take civil proceedings against a person who fails to comply with the notice in order to compel them to provide an intercept capability by means of, inter alia, an injunction, or other appropriate relief.

114. Subsection (5) requires the Secretary of State to give a clear time scale within notices issued under subsection (2), explaining how long communication service providers have in order to implement the requirements described in the notice.

115. Subsection (6) requires the Secretary of State to consult with a number of parties prior to making an order. These parties include the persons the order is likely to affect (ie providers of publicly available communications services) and their representatives, and bodies such as OFTEL and the DTI which have statutory functions affecting providers of communication services.

116. Subsection (8) explains that the term "reasonable intercept capability" may include arrangements for disclosure of intercepted material and security arrangements.

117. Subsection (9) explains the meaning of the term "relevant interception warrant" as it applies to this clause.

Clause 13: Grants for interception costs

118. This clause permits, but does not require, the Secretary of State to make contributions towards costs incurred by communications service providers in providing an intercept capability or in the provision of assistance required as a result of the issue of an interception warrant. This Clause further provides for a duty on the Secretary of State to make appropriate contributions towards the costs incurred.

Clause 14: General safeguards

119. This clause has the effect of restricting the use of intercepted material to the minimum necessary for the authorised purposes. Clause 73(6) contains a transitional provision applying the provisions of clauses 14 and 15 to warrants and certificates under the 1985 Act.

120. Subsection (1) imposes a duty upon the Secretary of State to ensure that safeguard arrangements are in place to ensure the requirements of this clause and clause 15.

121. Subsection (2) requires that the distribution and disclosure of intercepted material and related communications data are kept to a minimum.

122. Subsection (3) requires that all copies of any intercepted material and related communications data must be destroyed as soon it is no longer necessary to retain it for any of the authorised purposes (see below). This does not impose any obligation to retain material, which may therefore be destroyed earlier in some cases.

"Copy" is defined in subsection (7).

123. Subsection (4) defines "authorised purposes", which are the reasons for which intercepted material may be retained rather than being destroyed under subsection (3).

124. Subsections (5) and (6) apply where possession of intercepted material or related communications data has been surrendered to any authorities of a country or territory outside the United Kingdom. Possession may be surrendered in this way where an interception warrant has been issued for the purpose of complying with a request under an international mutual assistance agreement designated under clause 1(4). For example, where such a request results in the provision of intercept material by the communication service provider to the competent authorities of another country in real-time, the material will not, at any point, be under the control of an intercepting agency in the United Kingdom.

125. For these reasons, the Secretary of State will be required to make such arrangements (if any) corresponding to subsections (2) and (3) as he thinks fit. The Secretary of State will also be required to ensure, to such extent (if any) as he thinks fit, that restrictions are in force preventing the disclosure in any proceedings outside the United Kingdom which could not be made in the United Kingdom by virtue of clause 16 (the exclusion of intercept material from legal proceedings).

Clause 15: Extra safeguards in the case of certificated warrants

126. This Clause creates extra safeguards in addition to those provided in Clause 14, in the case of warrants to which Clause 8(3) certificates apply.

127. Subsections (1) and (2) provide the additional safeguards which apply: material intercepted under the authority of a warrant to which a certificate applies should only be examined if it:

  • has been certified as necessary to examine in the interests of national security; for the purpose of preventing or detecting serious crime; or for the purpose of safeguarding the economic well-being of the United Kingdom; and

  • does not have as its purpose, or one of its purposes, the identification of material contained in communications sent by, or intended for, an individual who is known to be for the time being in the British Islands; and

  • has not been selected by reference to such an individual.

128. Subsection (3) provides an exception to the second and third criteria above where under a clause 8(3) certificate the Secretary of State has certified that material selected by reference to such an individual is necessary for one of the three purposes outlined above. This material may only relate to communications sent during the period specified in the certificate; and the period specified must not be more than three months.

129. Subsections (4), (5) and (6) provide two further exceptions where:

  • the person to whom the warrant is addressed believes on reasonable grounds both that the material examined is not referable to an individual known to be in the British Islands, and that the material has not been selected for the purpose of identifying material contained in communications sent by, or intended for, such an individual; or

  • it has appeared to the person to whom the warrant is addressed that circumstances have changed such that the individual concerned has entered the British Islands, or that their belief in the individual's absence from the British Islands was mistaken; and since it first so appeared, written authorisation to examine the material has been given by a senior official.

130. The senior official may only provide authorisation until the end of the first working day after the day on which the change of circumstances became apparent.

Clause 16: Exclusion of matters from legal proceedings

131. Clause 16, subject to certain exceptions, excludes evidence, questioning or assertion in legal proceedings likely to reveal the existence or absence of a warrant. A similar provision is contained in section 9 of the Interception of Communications Act 1985, which this Bill repeals.

132. Subsection (1) places a prohibition on the use of intercept material in connection with court proceedings. It does this directly, by stating that the contents of intercepted material and associated communications data may not be disclosed, and indirectly by prohibiting the disclosure of any suggestion that actions under subsection (2) have occurred.

133. Subsection (2) describes the actions which may not be disclosed in connection with court proceedings, including actions by persons named in subsection (3) which would constitute an offence under this Bill or section 1 of the Interception of Communications Act.

134. Subsection (3) lists the people referred to in subsection (2)(a). They are people who may be in possession of information about authorised interception. In clause 16(3)(b) persons holding office under the Crown includes Ministers, Crown Servants, members of the Armed Forces and the police.

135. Subsection (4) gives a definition of "intercepted communication" for this section.

Clause 17: Exceptions to section 16

136. Subsection (1) lists the occasions when the prohibition in section 16(1) will not apply.

"Relevant offence" is explained in subsection (8).

137. Subsection (2) allows the use in evidence of intercept material in any legal proceedings relating to the fairness or unfairness of a dismissal on the grounds of any conduct constituting an offence under clause 1(1) or (2), 11(7) or 18 or section 1 of the Interception of Communications Act 1985.

138. Subsection (3) provides for the disclosure of the contents of a communication if the interception was lawful without the need for a warrant by virtue of Clauses 1(5)(c), 3 or 4. For further details of the circumstances in which it is lawful to intercept without a warrant refer to the explanatory notes for clauses 1(5)(c), 3 and 4.

139. Subsection (5) allows the disclosure of any conduct of a person for which he has been convicted of an offence under section 1(1) or (2) 11(7), or 18 of this Act or section 1 of the Interception of Communications Act 1985.

140. Subsection (6) allows the disclosure of the fact and contents of an interception to a person conducting a criminal prosecution. A prosecutor has a duty, recognised in case-law, to ensure that a prosecution is fair. This provision allows the intercepting agency to give the prosecutor access to any intercept material which has not been destroyed so that he can discharge that duty effectively. This subsection further provides that the fact and contents of an interception may also be disclosed to a relevant judge in exceptional circumstances (see subsection (7) below). The subsection allows disclosure to the judge alone.

"Relevant judge" is explained in subsection (10).

141. Subsection (7) makes it clear that the judge must be satisfied that the exceptional circumstances of the case make any disclosure under subsection (6)(b) essential in the interests of justice.

142. Subsection (8) provides for a relevant judge where he has ordered disclosure under subsection (6)(b) in exceptional circumstances to direct the person conducting the prosecution in any criminal proceedings to make any such admission of fact as that judge may think essential.

143. Subsection (9) makes it clear that a judge cannot order a disclosure if it is in contravention of Clause 16(1).

Clause 18: Offence for unauthorised disclosures

144. This clause places a requirement upon specified groups of persons to keep secret all matters relating to warranted interception.

145. Subsection (2) describes the groups of persons upon whom there is a duty to keep secret matters relating to warranted interception. These include:

  • anyone to whom an interception warrant may be addressed. These are described in Clause 6 and include both heads of intercepting agencies but also anyone who may make an application for an interception warrant on their behalf;

  • anyone holding office under the Crown (civil servants, police officers and members of Her Majesty's forces) and civilian employees of police authorities;

  • anyone providing or employed for the purpose of providing either a postal service or a public telecommunications service;

  • anyone controlling any part of a telecommunications system in the United Kingdom.

146. Subsection (3) describes the matters which must be kept secret. In essence these are anything to do with the existence or implementation of a warrant, including the content of the intercepted material and related communications data.

147. Subsection (4) creates the offence of unlawful disclosure and specifies the maximum penalties which a person who is found guilty of the criminal offence of unlawful disclosure may be sentenced to; if he is found guilty in a Magistrates' Court he may be imprisoned for a period up to six months or fined up to the statutory maximum (currently £5000) or both; in a Crown Court he may be imprisoned for a period up to five years, or may be fined (no upper limit), or both.

148. Subsection (5) gives a defence where a person could not reasonably have been expected to take steps to prevent the unlawful disclosure.

149. Subsections (6) and (7) give further defences to the offence of unlawful disclosure and addresses the question of a person consulting their legal adviser about requirements placed upon them under this Bill, and disclosures which their legal adviser may be required to make as a result of such consultation. For example, where a communications service provider is required to provide assistance with the implementation of an interception warrant, the provider may wish to first consult their lawyer. Subsection (6) provides a defence to such a consultation being an unlawful disclosure.

150. Subsection (8) places a limitation on the defences described in subsections (6) and (7), stating that the defences are not valid where a disclosure was made with a view to furthering any criminal purpose.

151. Subsection (9) gives a further defence to the offence of unlawful disclosure, stating that where such a disclosure was authorised in any of the ways described in this subsection this would constitute a defence.

Clause 19

152. Clause 19 interprets terms used in this Chapter.

    "External communications": under the Interpretation Act 1978, the term "British Islands" means the United Kingdom, the Isle of Man and the Channel Islands. Hence the use of the term in this Chapter means that communications sent between the UK and the Islands, or between the Channel Islands and the Isle of Man, are not treated as external.

    "Related communications data": the term "communications data" is defined for the purposes of Chapter II in Clause 20(4).

CHAPTER II

153. This Chapter provides a legislative framework to cover the requisition, provision and handling of communications data. It explains the duties and responsibilities placed upon each party involved in these processes and is designed to create a system of safeguards, reflecting the requirements of Article 8 of the Convention.

Clause 20: Lawful acquisition and disclosure of communications data

154. This Clause explains the scope of this Chapter, the meaning of the term "communications data", and ensures that provision of communications data under these provisions fully meets the requirements of Article 8.

155. Subsection (1) draws a distinction between interception of communications in the course of their transmission, which is activity excluded from this part of the Bill, and conduct involving the obtaining of or disclosure of communications data, which is activity covered by this part of the Bill.

156. Subsections (2) and (3) have the effect of making the provision of communications data under this Chapter lawful. This ensures that there is no civil liability attached to actions undertaken as a result of a requirement or authorisation under this Chapter.

"Relevant enactment" is defined in subsection (5)

157. Subsection (4) explains what "communications data" means. In essence, it includes information relating to the use of a communications service but makes clear that this does not include the contents of the communication itself.

 
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