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

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Clause 21: Obtaining and disclosing communications data.

158. This clause explains the purposes for which communications data may be sought under this Chapter and the arrangements by which such data may be required.

159. Subsection (1) explains that the strict test of "necessity" must be met before any communications data is obtained under this Chapter. The assessment of necessity is one made by a person designated for the purposes of this Chapter (defined in clause 24(2)).

160. Subsection (2) explains the reasons for which communications data may be required. With the exception of (g), these are the same as the purposes for which directed surveillance and the use of a covert human intelligence source may be permitted by clauses 27 and 28 of the Bill.

161. Subsections (3) and (4) describe the two ways in which communications data may be obtained. Firstly, subsection (3) provides a means for a designated person to authorise someone within the same relevant public authority (see Clause 24(1)). This provides a legal basis upon which the public authority may collect the communications data themselves. For example, if a private telecommunications operator was technically unable to collect certain communications data, this subsection would provide the authority to allow an investigating body to collect the data themselves.

162. Subsection (4) provides the second way in which communications data may be obtained, where the designated person serves a notice upon the holder

of the data, requiring them to comply with the terms of the notice.

163. Subsection (5) introduces a proportionality test. The designated person must not only consider the communications data to be "necessary" (subsection (1)) but must also consider the conduct involved in obtaining the communications data to be "proportionate".

164. Subsection (6) requires a communications service provider in receipt of a notice under subsection (4) above to comply with it as soon as is reasonably practicable.

165. Subsection (7) provides that a holder of data will not be required to supply data unless it is reasonably practicable to do so.

166. Subsection (8) explains that if a communications service provider fails to provide the required communications data then the Secretary of State may take civil proceedings against them, which may result in the issue of, inter alia, an injunction which would have the effect of compelling the provision of data.

Clause 22:     Form and duration of authorisations and notices

167. This clause specifies the way in which authorisations and notices must be completed and their duration.

168. Subsections (1) and (2) explain the format which authorisations and notices must take.

169. Subsection (3) restricts the persons to whom the data may be disclosed to the person giving the notice or another specified person who must be from the same relevant public authority.

170. Subsection (4) explains that disclosure may only be required of data in the possession of, or obtained by the communications service provider during the authorisation period of authorisations and notices, which is set at one month.

171. Subsections (5) and (6) permit an authorisation or notice to be renewed at any period during the month, by following the same procedure as in obtaining a fresh authorisation or notice.

172. Subsection (7) explains that the period for which a renewed authorisation or notice is extant begins at the point at which the notice or authorisation it is renewing expires.

173. Subsection (8) requires the cancellation of a notice as soon as it is clear that the reasons for which it was granted are no longer valid.

Clause 23: Arrangements for payments

174. This clause allows for payment arrangements to be made in order to compensate holders of communications data for the costs involved in complying with notices issued under this Chapter.

Clause 24:     Interpretation of Chapter II

175. This clause defines the terms used in the Chapter dealing with communications data.

176. Subsection (2) explains that the Secretary of State will identify the "persons designated for the purposes of this Chapter" in an order (negative resolution, see Clause 69). Under subsection (3), he may place restrictions on who may act under these provisions and in what circumstances.

PART II: SURVEILLANCE AND COVERT HUMAN INTELLIGENCE SOURCES

Introductory

177. This Part of the Bill creates a system of authorisations for various types of surveillance and the conduct and use of covert human intelligence sources. In common with other Parts of the Bill, the provisions themselves do not impose a requirement on public authorities to seek or obtain an authorisation where, under the Bill, one is available (see Clause 71). Nevertheless, the consequences of not obtaining an authorisation under this Part may be, where there is an interference with Article 8 rights and there is no other source of authority, that the action is unlawful by virtue of section 6 of the Human Rights Act 1998.

Clause 25: Conduct to which Part II applies

178. This clause describes and defines the conduct that can be authorised under this part of the Bill. Three types of activity are covered: "directed surveillance", "intrusive surveillance" and the conduct and use of covert human intelligence sources.

179. "Directed surveillance" is defined in subsection (2) as covert surveillance that is undertaken in relation to a specific investigation or a specific operation which 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 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. By subsection (8), surveillance will be covert where it is carried out in a manner calculated to ensure that the person or persons subject to the surveillance are unaware that it is or may be taking place. Directed surveillance may also include the interception of communications where there is no interception warrant and where the communication is sent by or is intended for a person who has consented to the interception (clause 45(4)).

180. "Intrusive surveillance" is defined in subsections (3) to (5) as covert surveillance carried out in relation to anything taking place on residential premises or in any private vehicle. This kind of surveillance may take place by means either of a person or device located inside residential premises or a private vehicle or by means of a device placed outside which consistently provides a product of equivalent quality and detail as a product which would be obtained from a device located inside.

181. For these purposes, a private vehicle is one used primarily for private purposes, for example for family, leisure or domestic purposes (clause 45(1)). Subsection (4) provides that surveillance is not intrusive when the device is one that only provides information about the location of the vehicle (eg a tracking device).

182. Subsection (7) defines a "covert human intelligence source".

183. Subsection (9) defines "private information", in relation to a person, as including any information relating to his private or family life.

Authorisation of surveillance and human intelligence sources

Clause 26: Lawful surveillance etc

184. This clause provides that all conduct defined in clause 25 will be lawful, provided it is carried out in accordance with the authorisation to which it relates. Authorised conduct may cover any action taken either in the UK or abroad.

185. Furthermore, there will be no civil liability arising out of conduct that is incidental to the authorised conduct. However, this is only the case where the incidental conduct should not have been separately authorised either under this Bill or under existing legislation.

Clauses 27, 28 and 29: Authorisation of directed surveillance; Authorisation of covert human intelligence sources; and Persons entitled to grant authorisations under sections 27 and 28

186. These clauses deal with the scheme of authorisations for directed surveillance and the conduct and use of covert human intelligence sources.

187. Clause 29 provides that the persons entitled to grant such authorisations will be such persons within the relevant public authorities that are designated by order of the Secretary of State. In this respect, the relevant public authorities are:

  • a police force, the National Criminal Intelligence Service and the National Crime Squad;

  • any of the intelligence services;

  • the Ministry of Defence and any of the Armed Forces;

  • Customs & Excise; or

  • any other public authority specified by order of the Secretary of State.

188. Where an authorisation for directed surveillance or the use or conduct of a covert human intelligence source is combined with a Secretary of State authorisation for intrusive surveillance, the combined authorisation must be issued by the Secretary of State .

189. Police and Customs authorisations may only be granted on an application from within the force or authority in question (see clause 31(1) and (2)).

190. Clauses 27 and 28 provide that authorisations cannot be granted unless specific criteria are satisfied, namely, that the person granting the authorisation believes that:

  • the authorisation is necessary on specific grounds; and

  • the authorised activity is proportionate to what is sought to be achieved by it.

191. The specific grounds are that the authorisation is necessary:

  • in the interests of national security;

  • for the purpose of preventing or detecting crime or preventing disorder;

  • in the interests of the economic well-being of the UK;

  • in the interests of public safety;

  • for the purpose of protecting public health;

  • for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

  • for other purposes which may be specified by order of the Secretary of State.

192. In addition, there are two further criteria in relation to covert human intelligence sources: namely that specific arrangements exist to ensure that, amongst other things, the source is independently managed and supervised, that records are kept of the use made of the source and that arrangements also exist to satisfy such other requirements as may be imposed by order made by the Secretary of State. The responsibility for the management and supervision of a source falls to specified individuals within the organisation benefiting from the use of the source. As there may be cases where a source carries out activities for more than one organisation, it is provided that only one organisation will be identified as having responsibility for each requirement in relation to such arrangements and record-keeping.

193. Clause 28(6) provides that the Secretary of State may prohibit, by order, certain conduct/uses of covert sources altogether and enables him, in other specific cases, to impose additional requirements which must be satisfied before an authorisation may be granted.

194. Subsection (3) of clause 29 provides that the Secretary of State may impose, by order, restrictions on the types of authorisations granted and on the circumstances or purpose for which such authorisations may be granted.

195. Clauses 27(4) and 28(4) set out the conduct that is authorised by the authorisation. Broadly speaking, it covers any conduct that occurs whilst carrying out the specified surveillance or is comprised in the activities involving the specified conduct or use of a covert human intelligence source, provided it is carried out or takes place in the manner and for the purposes described.

196. Subsections (5) to (11) of clause 29 provide for the First Minister and Deputy First Minister, acting jointly, to be able to make an order specifying which authorities, with devolved functions in Northern Ireland, can lawfully authorise directed surveillance and the use of covert human intelligence sources. Such an order would not be made until the powers of the Northern Ireland Assembly were once again devolved.

INTRUSIVE SURVEILLANCE

Clause 30: Authorisation of intrusive surveillance

197. This clause deals with authorisations for intrusive surveillance. Such authorisations may only be granted by the Secretary of State (see clauses 39 and 40) and by senior authorising officers as defined in subsection (6). Clause 31(3) and (4) provide that a senior authorising officer may not grant an authorisation, except on an application by a member of his/her force, Service, Squad or organisation.

198. Again, intrusive surveillance authorisations cannot be granted unless specific criteria are satisfied, namely that, the Secretary of State or senior authorising officer believes that:

  • the authorisation is necessary on specific grounds; and

  • the authorised activity is proportionate to what is sought to be achieved by it.

199. An additional factor which must be taken into account when considering whether the requirements are satisfied, is whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means.

200. The specific grounds in this case are that it is necessary:

  • in the interests of national security;

  • for the purpose of preventing or detecting serious crime; or

  • in the interests of the economic well-being of the United Kingdom.

Police and customs authorisations

201. Clauses 32 to 37 only apply to intrusive surveillance authorisations for investigations carried by the police, National Criminal Intelligence Service, the National Crime Squad and Customs & Excise. They outline very similar procedures to those set out in part III of the Police Act 1997 (interference with property and wireless telegraphy).

Clause 31: Rules for grant of authorisations

202. In the case of a police force, NCIS and the National Crime Squad, subsection (3) restricts an authorisation for intrusive surveillance involving residential premises to being granted only where the premises are within the area of operation of that force, Service or Squad. The areas of operations are set out in subsection (6). For the three service police forces, this is defined in subsection (7), in terms of the persons who are subject to "service discipline".

Clause 32: Grant of authorisations for intrusive surveillance in the senior officer's absence

203. Where an application is made for an intrusive surveillance authorisation and the case is urgent but it is not reasonably practicable for the application to be considered by the "senior authorising officer" (as defined in clause 30) or his designated deputy, an authorisation may be granted by a person entitled to act in his/her absence. Subsection (4) lists the officers entitled so to act and subsection (5) sets down those officers entitled to act as "designated deputies".

Clause 33: Notification of authorisations for intrusive surveillance

204. Where a police or customs intrusive surveillance authorisation is granted, renewed or cancelled, except where it is cancelled under clause 35(3), written notification must be given to an ordinary Surveillance Commissioner as soon as reasonably practicable. Subsection (2) requires that notification to be in accordance with arrangements made by the Chief Surveillance Commissioner and must specify the matters prescribed by order of the Secretary of State. Such a notice will indicate that the authorisation or renewal requires the approval of an ordinary Surveillance Commissioner before it takes effect (see clause 34) or it will state that the case is one of urgency, together with the grounds for that belief. Although the order by the Secretary of State will be subject to the affirmative procedure, the initial order will be made without the approval of both Houses of Parliament, provided it is approved by Parliament within 40 days.

205. Subsection (4) provides that the ordinary Surveillance Commissioner will, as soon as practicable, scrutinise the notice, which can be transmitted by electronic means, and decide whether or not to approve the authorisation in those case where his approval is required.

Clause 34: Approval required for authorisations for intrusive surveillance to take effect

206. Except in urgent cases, authorisations granted for intrusive surveillance will not take effect until they have been approved by an ordinary Surveillance Commissioner and written notice of the Commissioner's decision has been given to the person who granted the authorisation.

207. Where the person who granted the authorisation believes the case to be one of urgency, the authorisation will take effect from the time of grant, provided the appropriate notice is given to the ordinary Surveillance Commissioner, as described in clause 34(3).

208. Subsection (4) provides that an ordinary Surveillance Commissioner shall give his approval only if he is satisfied that there are reasonable grounds for believing that the authorisation is necessary and that the surveillance is proportionate to what is sought to be achieved.

209. If an ordinary Surveillance Commissioner decides not to approve an authorisation, subsection (5) requires him to make a report of his findings to the "most senior relevant person" (as defined in subsections (6) and (7)). This will be the chief constable or equivalent.

Clause 35: Quashing of police and customs authorisations for intrusive surveillance etc

210. This clause gives Surveillance Commissioners the power to quash or cancel an authorisation for intrusive surveillance.

211. Under subsection (2), an ordinary Surveillance Commissioner may quash an authorisation, with effect from the time of the grant of the authorisation or renewal, if he believes that the criteria for authorisation in clause 30 were not met at the time the authorisation was granted or renewed.

212. Alternatively, he may, under subsection (3) cancel an authorisation if he believes that there are no longer any reasonable grounds for believing that the criteria in clause 30 are met. In such a case, he may cancel the authorisation from the time that the criteria, in his opinion, ceased to be met.

213. If an authorisation was granted or renewed by way of the urgency procedure, and the ordinary Surveillance Commissioner is not satisfied that, at the time of grant or renewal, there were reasonable grounds for believing the case to be one of urgency, he may quash the authorisation.

214. He may also, under subsections (5) and (6), order the destruction of records, apart from those required for pending civil or criminal procedures. Where an authorisation is cancelled, he may only order the destruction of records from the time the authorisation no longer meets the criteria specified in clause 30.

215. An order to destroy records does not become operative until after the period allowed for appealing against the decision or the dismissal of such an appeal.

216. Where an ordinary Surveillance Commissioner exercises a power conferred by this clause, he will make a report of his actions, together with his reasons, as soon as reasonably practicable, to the most senior relevant person (usually the chief constable) and to the Chief Surveillance Commissioner.

Clause 36: Appeals against decisions by Surveillance Commissioners

217. A senior authorising officer, or a designated deputy or other person granting an intrusive surveillance authorisation in the absence of the senior authorising officer, may appeal to the Chief Surveillance Commissioner against:

  • a refusal of a Surveillance Commissioner to approve an authorisation or renewal;

  • a decision by a Surveillance Commissioner to quash or cancel an authorisation;

  • a decision to make an order for the destruction of records.

218. Subsection (4) provides that the Chief Surveillance Commissioner must allow an appeal if:

  • he is satisfied that the criteria set out in clause 30 were met at the time in question; and

  • he is not satisfied that the urgency procedure has been abused.

219. In relation to appeals against decisions to quash or cancel authorisations, the Chief Surveillance Commissioner may modify the decision if he considers that there were grounds for the action which the Surveillance Commissioner has taken but such action should have taken effect at a different time. In such cases, he may modify the Surveillance Commissioner's decision to that which he considers should have been made.

220. Where an appeal against a decision to quash or cancel an authorisation is allowed, subsection (6) provides that the Chief Surveillance Commissioner shall quash any related order for the destruction of records.

Clause 37: Appeals to the Chief Surveillance Commissioner: supplementary

221. Where the Chief Surveillance Commissioner has determined an appeal, subsection (1) requires him to give notice of his determination to:

  • the person who brought the appeal; and

  • the ordinary Surveillance Commissioner whose decision was appealed against.

222. Where the appeal is dismissed, he will report his findings, to the appellant, the ordinary Surveillance Commissioner and to the Prime Minister. Other than this report, he will not give any reasons for his determination.

223. As with section 107 of the Police Act 1997, the Chief Surveillance Commissioner will make an annual report on the discharge of his functions to the Prime Minister and may make a report to him at any other time of any matter relating to those functions (Schedule 3, paragraph 8(10)).

224. Subsection (3) provides that the annual reporting provisions contained in subsections (3) and (4) of the Police Act 1997 also relate to reports made by the Chief Surveillance Commissioner under subsection (2).

OTHER AUTHORISATIONS

225. Clauses 39 and 40 still relate to intrusive surveillance authorisations, but deal with those granted by the Secretary of State.

Clause 39: Secretary of State authorisations

226. Subsection (1) provides that the Secretary of State shall not grant such authorisations unless an application is made by a member of the intelligence agencies (Security Service, Secret Intelligence Service (SIS) and GCHQ), an official of the Ministry of Defence, the Armed Forces, or a specified individual within a public authority designated for this purpose by order of the Secretary of State (subsection (3)). Such an order would be subject to the affirmative procedure. For these purposes, the three service police forces are not treated as members of the armed forces (subsection (7)); instead, their use of intrusive surveillance is regulated, in the same way as other police forces, by clause 30.

227. The effect of subsection (2) is that authorisations will only be granted to an official of the Ministry of Defence or a member of the Armed Forces, where it is necessary in the interests of national security or for preventing or detecting serious crime.

228. This clause also provides the power for the Secretary of State to impose, by order, restrictions on designated public authorities for the carrying out of intrusive surveillance, on the circumstances in which, or the purposes for which, such authorisations may be granted, and on prescribing the persons who can make such an application.

Clause 40: Intelligence services authorisations

229. Where the Secretary of State grants an authorisation to one of the intelligence services under this Part (which will be for intrusive surveillance, or intrusive surveillance combined with directed surveillance), the authorisation will take the form of a warrant. This is consistent with section 5 of the Intelligence Services Act 1994.

230. Subsection (2) provides that a single warrant may combine an authorisation for intrusive surveillance with an intelligence services warrant (defined in subsection (6): a property warrant under section 5 of the Intelligence Services Act 1994).

231. In addition to the requirements in clause 30, subsection (3) limits SIS and GCHQ to obtaining a warrant for intrusive surveillance in the British Islands to investigations carried out in the interests of national security or the economic well-being of the UK. Subsections (4) and (5) enable the Security Service to act on behalf of SIS and GCHQ in applying for and granting any authorisation in connection with a function of SIS or GCHQ, provided that the SIS or GCHQ would have the power to act in that way, and provided that it does not relate to the functions of SIS or GCHQ in support of the prevention or detection of serious crime.

Grant, renewal and duration of authorisations

Clause 41: General rules about grant, renewal and duration

232. This clause sets out the general rules for authorisations, including their granting, renewal, and duration.

233. Subsection (1) provides that, in urgent cases, an authorising officer may give an oral authorisation. All other authorisations must be in writing.

234. A single authorisation may be given, combining two or more authorisations under this part. When this occurs, the provisions of this Part which relate to one type of activity only shall apply to those parts of the authorisation which authorises that type of activity. Further provisions for combined authorisations are in clause 31(5), 40(2) and 42(6).

235. Oral authorisations and those granted by officers entitled to act in urgent cases in the absence of the authorising officer or his designated deputy will expire after 72 hours, beginning with the time when the grant or renewal of an authorisation takes effect.

236. Except where granted or renewed orally or by an officer entitled to act in urgent cases, authorisations for the use of covert human intelligence sources will last for 12 months, beginning with the day on which the grant or renewal takes effect.

237. In all other cases (except those made under the special provisions for the intelligence services contained in clause 42), the authorisation will last for 3 months, beginning with the day on which the grant or renewal takes effect.

238. Subsection (4) provides that an authorisation may be renewed at any time before it ceases to have effect by any person entitled to grant a new authorisation of the same type. The same conditions attach to a renewal of surveillance as to the original authorisation. However, before renewal of an authorisation for the use or conduct of a covert human intelligence source, subsection (6) requires there to be a review of the use made of that source, the tasks given to that source and the information so obtained.

239. Subsection (8) enables the Secretary of State, by order, to provide that certain authorisations will cease to have effect after a shorter period of time than is otherwise provided for.

240. Subsection (9) clarifies the time from which a grant or renewal of an authorisation takes effect. It synchronises the duration of authorisations with those given for interference with property.

Clause 42: Special rules for intelligence services authorisations

241. This clause sets out special provisions in relation to authorisations granted to or by the intelligence services.

242. Under subsection (1), a warrant for intrusive surveillance or a renewal of such a warrant will not be issued except under the hand of the Secretary of State. However, in an urgent case, where the Secretary of State has personally authorised it, a warrant can be signed (but not renewed) by a senior official. This is the same urgency procedure as is provided in Clause 7(2)(a) for interception. Where this has happened, such a warrant will cease to have effect at the end of the second working day following its issue, unless renewed under the hand of the Secretary of State.

243. Subsections (4) and (5) relate to the authorisation of warrants for the intelligence services and for the authorisations and renewal of authorisations for directed surveillance where the authorisation is necessary in the interests of national security or in the interests of the economic well-being of the UK. Such warrants or authorisations last for a period of six months. Where this is a renewal, the period will start on the day when the previous authorisation or warrant would have expired. This is consistent with the provisions of the Intelligence Service Act 1994.

244. Subsection (6) enables the Secretary of State, by order, to provide that certain authorisations will cease to have effect after a shorter period of time than is otherwise provided for.

 
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Prepared: 10 May 2000