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

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Clause 43: Cancellation of authorisations

245. Subsection (1) sets out when the person who granted or renewed an authorisation must cancel it.

246. Subsection (2) sets out who else is responsible for cancelling the authorisation, eg the person who would have granted it if it had not been an urgent case or been granted by a deputy. However, an authorising officer's deputy (defined in subsections (6) and (7)) is also under a duty to cancel an authorisation in those cases where he would have had the power to grant the authorisation on the authorising officer's behalf.

247. Subsections (4) and (5) provide for the Secretary of State to make regulations setting out how the duty for cancelling authorisations should be performed where the authorising officer is no longer available and on whom such a duty should fall.

Supplemental provision for Part II

Clause 44: Power to extend of modify authorisation provisions

248. The Secretary of State may, by order, change the types of activities which fall within the category of directed surveillance by providing that a type of directed surveillance will be treated as intrusive surveillance. Furthermore, he may, by order, provide that additional types of surveillance, which are not at present defined as directed or intrusive surveillance in clause 25, will be covered by the Bill and become capable of being authorised under Part II.

Clause 45: Interpretation of Part II

249. This Clause gives interpretations for the terms used in this part. Amongst other things, it gives an interpretation for "surveillance" and clarifies that this does not include references to:

  • the use of a recording device by a covert human intelligence source to record any information obtained in the presence of the source (subsection (3));

  • activity involving interference with property or wireless telegraphy which requires authorisation or warrant under section 5 of the Intelligence Services Act 1994 or Part III of the Police Act 1997.

249. It also provides that a reference to a police force will only include a reference to a Scottish police force in relation to directed surveillance and the use and conduct of covert sources on the grounds of national security.

PART III - INVESTIGATION OF ELECTRONIC DATA PROTECTED BY ENCRYPTION ETC

Clause 46: Notices requiring disclosure of key

250. This clause introduces a power to enable properly authorised persons (such as members of the law enforcement, security and intelligence agencies) to serve written notices on individuals or bodies requiring the surrender of information (such as a decryption key) to enable them to understand (make intelligible) protected material which they lawfully hold, or are likely to.

    Key is defined in clause 52(1); and

    Intelligible is defined in clause 52(4)

251. Subsection (1) limits the information to which this power to serve notices applies. It does so by defining the various means by which the protected information in question has been, or is likely to be, lawfully obtained. By way of illustration, this could be material:

  • Seized under a judicial warrant (e.g. under the Police and Criminal Evidence Act 1984 (PACE));

  • Intercepted under a warrant personally authorised by the Secretary of State under Chapter I of Part I of this Bill;

  • Lawfully obtained under an authorisation given under Chapter II of Part I or Part II of this Bill;

  • Lawfully obtained by an agency under their statutory functions but not under a warrant (e.g. under the Customs and Excise Management Act 1979); or

  • Which has lawfully come into the possession of an agency but not by use of statutory functions (e.g. material which has been voluntarily handed over).

252. Subsection (2) states that persons with the "appropriate permission" (see Schedule 1) may serve a notice demanding that the key be disclosed to make unintelligible data intelligible if there are reasonable grounds for believing:

  • that the key is in the possession of the person on whom the notice is being served;

  • that the requirement to disclose a key is necessary for the reasons set out in subsection (3), or likely to be of value in carrying out statutory powers;

  • that the requirement to disclose a key is proportionate to what is sought to be achieved by doing so; and

  • that the key cannot be obtained by other reasonable means.

    possession of a key is defined in clause 52(2)

253. Subsection (4) explains the format which notices must take.

254. Subsection (5) specifies the persons to whom the key may be disclosed.

255. Subsection (6) ensures that a key, which has been used solely for the purpose of generating electronic signatures, does not have to be disclosed in response to a notice.

    electronic signature is defined in Clause 52(1)

256. The effect of subsection (7) is to set authorisation levels (described in Schedule 1) for serving a written notice under clause 46. The level of authority required will vary depending on the power under which the protected material was, or is likely to be, lawfully obtained.

Clause 47: Disclosure of information in place of key

257. This clause provides that a person may, in response to the service of a written notice, provide an intelligible version (plain text) of relevant protected data rather than e.g. a decryption key, unless the person who gave the authorisation to serve the notice, or a person entitled to give such authorisation, has specified that only the disclosure of the key itself is sufficient.

258. This clause would, for example, allow a company - which might have received an encrypted message from the target of a particular enquiry (e.g. a suspected criminal) - to offer up an intelligible copy of the message rather than any decryption key.

259. Subsection (4) provides that a person may only require the disclosure of a key (as opposed to plain text) if he believes that there are special circumstances to the case making that necessary; and that giving such a direction is proportionate to what is sought to be achieved by doing so.

Clause 48: Arrangements for payments for key disclosure

260. This clause allows for payment arrangements to be made in order to compensate persons required to disclose information (e.g. a decryption key) following service of a written notice under clause 46.

Clause 49: Failure to comply with a notice

261. This clause creates a new offence of failing to comply with the terms of a written notice served under clause 46. It outlines statutory defences.

262. Subsection (1) states that a person is guilty of an offence if he:

  • fails to comply with a requirement to disclose a key; and

  • he has, or has had, possession of the key.

263. Subsections (2) and (3) allow a defence to a person who shows that he did not have the key to the information (or, where appropriate, the information itself) but gave as much information as he had about how the key could be obtained; or that he did what was required of him as soon as was reasonably practicable.

264. Subsection (5) specifies the maximum sentence for the offence of failing to comply with a notice. As regards financial penalties, there is no upper limit to fines set in the Crown Court (on conviction on indictment). In a Magistrates Court (on summary conviction) the maximum fine is £5,000.

Clause 50: Tipping-off

265. This clause creates a new offence where the recipient of a notice (but only one which explicitly contains a secrecy requirement), or a person that becomes aware of it, tips off another person that a notice has been served, or reveals its contents. This is designed to preserve, where necessary, the covert nature of an investigation by, for example, a law enforcement agency. It outlines various statutory defences.

266. Subsection (1) limits this offence to occasions where the notice served explicitly demands secrecy.

267. Subsection (2) specifies that the inclusion of a secrecy requirement in a notice must be authorised by the person giving permission for such a notice to be served (or where such a person has himself permission to serve a notice, e.g. a Superintendent in certain cases).

268. Subsection (3) places restrictions on the instances when such a requirement may be imposed.

269. Subsection (4) specifies the maximum sentence for the tipping-off offence. On conviction in the Crown Court, the maximum term of imprisonment is five years. The financial penalties are as for the offence set out in clause 49.

270. Subsection (5) provides a defence where the tipping-off occurred entirely as a result of software designed to give an automatic warning that a key had been compromised and where, in addition, the defendant was unable to stop this from taking place after receiving the notice.

271. Subsections (6) and (7) provide a defence where a disclosure is made to or by a professional legal adviser as part of advice about the effect of the provisions of this part of the Bill given to a client or his representative; or where a disclosure was made by a legal adviser in connection with any proceedings before a court or tribunal.

272. The effect of subsection (8) is that the protection in Subsections (6) and (7) will not apply where a professional legal adviser tips off a client with a view to furthering any criminal purpose.

273. Subsection (9) provides a statutory defence where the disclosure is authorised by:

  • the terms of the notice;

  • the person who gave the notice, or someone on his behalf; or

  • a person who is in possession of the data to which the notice relates, as described in clause 46.

274. The effect of subsection (9) is, for example, to allow persons serving notices to permit disclosure to those whom it is necessary to inform in order to give effect to the notice (e.g. accessing a key or plain text).

275. Subsection (10) provides a statutory defence for a person told about a notice but not about the fact that there was a requirement for secrecy.

Clause 51: General duties of specified authorities

276. This clause describes the safeguards that must be in place for the protection of any material (e.g. a decryption key) handed over in response to the serving of a notice under this Bill.

277. Subsection (1) ensures that the safeguard requirements apply to all those who may have responsibility for organisations that will handle material provided in response to a written notice. In the case of the security and intelligence agencies for example, this will mean the Secretary of State.

278. Subsection (2) places an onus on those identified to ensure that:

  • any material disclosed is used only for a purpose for which it may be required;

  • the uses to which the material is put are reasonable;

  • the use and any retention of the material are proportionate;

  • the requirements of subsection (3) are complied with; and

  • the material is destroyed as soon as it is no longer needed.

279. Subsection (3) specifies that the material is shared with the minimum number of people possible.

Clause 52: Interpretation of Part III

280. This clause provides for the interpretation of various terms used in Part III of the Bill.

PART IV: SCRUTINY ETC OF INVESTIGATORY POWERS AND OF THE FUNCTIONS OF THE INTELLIGENCE SERVICES

Commissioners

Clause 53: Interception of Communications Commissioner

281. This clause provides for the appointment of Interception of Communications Commissioner to replace the Commissioner appointed under the Interception of Communications Act 1985. This is currently Lord Justice Swinton Thomas.

282. Subsection (2) details the remit of the Interception Commissioner. This will involve reviewing:

  • the Secretary of State's role in interception warrantry;

  • the operation of the regime for acquiring communications data;

  • any notices for requiring the decryption of data authorised by the Secretary of State which relate to intercepted material or communications data;

  • the adequacy of the arrangements made by the Secretary of State for the protection of intercepted material and by those persons listed in Clause 51 for the protection of encryption keys.

283. Subsection (7) requires the Secretary of State to provide the Commissioners with staff, after consultation with the Commissioner in question. The provision itself places no limitation on the number of staff and (subject to Treasury approval as to numbers) allows flexibility over the numbers, grades and individuals.

284. Subsection (8) is a transitional provision allowing the existing Interception Commissioner to take office as the new Interception Commissioner on the coming into force of this section.

Clause 54: Cooperation with and reports by new Commissioner

285. Subsection (1) requires that all those who may be involved in requesting, authorising, or carrying out, interception should cooperate with the Interception Commissioner as he reviews the operation of the regime.

286. Subsection (3) provides that the Interception Commissioner should report to the Prime Minister if he believes that arrangements made by the Secretary of State are inadequate either for the protection of intercepted material or decryption keys.

Clause 55: Additional functions of other Commissioners

287. This clause allocates oversight of certain powers in this Bill to the existing Security Service Commissioner, Intelligence Services Commissioner or Surveillance Commissioner as appropriate.

288. This means that for every intercepting agency, two Commissioners will oversee their use of the powers. The Interception Commissioner will look at their use of interception, the other relevant Commissioner will review their use of all other powers. All other public authorities will be overseen by one Commissioner only.

289. Subsection (1) adds to the existing remit of the Security Service Commissioner the function of reviewing:

  • the use by the Security Service of surveillance, agents, informants, undercover officers and decryption notices;

  • Secretary of State authorisation of Security Service surveillance or decryption notices;

  • the Security Service arrangement for protecting decryption keys.

290. Subsection (2) adds to the remit of the existing Intelligence Services Commissioner the function of reviewing the:

  • use by the Secret Intelligence Service and GCHQ of surveillance, agents, informants, undercover officers and decryption notices;

  • use by the Armed Forces of surveillance, agents, informants, undercover officers and decryption notices except in Northern Ireland;

  • Secretary of State authorisations of SIS, GCHQ and Armed Forces (other than the Service Police, Ministry of Defence Police and in Northern Ireland other members of the Armed Forces) surveillance and decryption notices;

  • SIS, GCHQ and Armed Forces (other than as above) arrangements for protecting decryption keys.

291. Subsection (3) adds to the existing remit of the Chief Surveillance Commissioner the functions of reviewing the use of surveillance, agents, informants, undercover officers and decryption notices, and the arrangements for protecting decryption keys, so far as these are not required to be kept under review by any of the other Commissioners mentioned in this Clause.

Clause 56: Delegation of Commissioners' functions

292. This clause allows Commissioners to delegate statutory powers or duties to members of staff.

Clause 57: The Tribunal

293. This clause establishes a Tribunal, sets out its jurisdiction and supports Schedule 2 which provides for its constitution and functioning.

294. Subsections (2) to (5) set out the key elements of the Tribunal's jurisdiction. It is to be the appropriate forum for complaints or proceedings in relation to the following categories:

  • any proceedings for actions incompatible with Convention rights which are proceedings against any of the intelligence services or people acting on their behalf; or which concern the use of investigatory powers under this Bill, any other entry on or interference with property, any interference with wireless telegraphy; where any of these take place in relation to conduct by any of the public authorities listed in subsection (6);

  • any complaint by a person who believes that he has been subject to any use of investigatory powers under this Bill, any other entry on or interference with property, any interference with wireless telegraphy which he believes to have been carried out by or on behalf of any of the intelligence services or in the challengeable circumstances described in subsection (7);

  • any complaint by a person that he has suffered detriment as a result of any prohibition or restriction in clause 16 on his relying on any civil proceedings (clause 16 imposes various restrictions and prohibitions on the disclosure in court of intercepted material and related information); and

  • any other proceedings against any of the intelligence services or people acting on their behalf, or which concern the use of investigatory powers under this Bill, any other entry on or interference with property, any interference with wireless telegraphy where any of these take place in relation to conduct by any of the public authorities listed in subsection (6). This category only applies to proceedings allocated to the Tribunal by the Secretary of State. Clause 58 makes further provision concerning such orders.

295. Subsection (6) limits the Tribunal's jurisdiction in respect of Human Rights Act cases and proceedings allocated to the Tribunal by the Secretary of State. The jurisdiction will only apply to conduct by or on behalf of the police, Customs or intelligence services.

296. Subsection (7) qualifies the first, second and fourth categories of the Tribunal's jurisdiction.

Clause 58: Orders allocating proceedings to the Tribunal

297. This clause makes further provision concerning the orders (by affirmative resolution, see clause 69) that the Secretary of State may make to provide for the Tribunal to exercise jurisdiction over certain types of case. It ensures that:

  • the Tribunal is given the power to remit proceedings to the court or tribunal which would have had jurisdiction but for the order;

  • proceedings before the Tribunal are properly heard and considered;

  • information is not disclosed where this might be damaging or prejudicial as described in subsection (2)(b).

Clause 59: Exercise of the Tribunal's jurisdiction

298. This clause makes further provision concerning the exercise of the Tribunal's jurisdiction under clause 57. It describes how the Tribunal is to hear, consider and investigate complaints and proceedings, confers on the Tribunal the power to award compensation, quash or cancel any warrant or authorisation and require the destruction of records of information.

299. Subsection (7) confers powers on the Tribunal. An order to quash or cancel any warrant or authorisation would overturn the decision of the person who authorised such an instrument, and any continued conduct under the terms of the quashed authorisation or examination of information obtained under its authority would not be lawful.

Clause 60: Tribunal procedure

300. This clause provides for the Tribunal to determine their own procedure (subject to any rules made by the Secretary of State under clause 61), and requires it to inform certain persons of proceedings, complaints and their determinations, and empowers it to require the cooperation of certain persons in exercising their powers and duties.

301. Subsection (2) empowers the Tribunal to require any Commissioner listed in subsection (8) to advise it on any matters falling within his knowledge which are relevant to the Tribunal's functions.

Clause 61: Tribunal rules

302. This Clause describes those rules which the Secretary of State may make in Parliament (by affirmative resolution) to regulate the Tribunal's exercise of its powers, and any matters related to them.

303. Subsections (2) to (5) describe rules the Secretary of State may make, without limiting his power to make rules only to those matters listed.

304. Subsection (6) requires the Secretary of State, in making any rules, to ensure that:

  • proceedings before the Tribunal are properly heard and considered; and that

  • information is not disclosed where this might be damaging or prejudicial as described in subsection (2)(b).

305. Subsection (7) enables any rules to incorporate, for example, Civil Procedure Rules which have already been made. This avoids the need to create such rules from scratch for the Tribunal where they already exist elsewhere.

306. Subsections (9) to (11) provide that where rules governing the conduct of the Tribunal are made for the first time, they be made under the 40 day procedure. This will ensure that the Tribunal is operational as soon as the substantive provisions in the Bill are brought into force. For all subsequent rules, the affirmative resolution procedure will apply.

Clause 62: Abolition of jurisdiction in relation to complaints

307. This clause repeals those provisions listed in subsection (2), which provide for the jurisdiction of Tribunals established by other Acts of Parliament to investigate complaints concerning conduct which is in future to be investigated by the Tribunal established in this Bill. Those Tribunals may, however, finish their investigation of those cases which they begin to consider before the Bill comes into force.

Clause 63: Issue and revision of Codes of Practice

308. This clause deals with the issuing of Codes of Practice to explain in greater detail the practical arrangements relating to the use of the provisions of this Bill.

309. Subsections (1) and (2) require the Secretary of State to issue one or more Codes of Practice covering the powers and duties in this Bill and those relating to interference with property or wireless telegraphy in either the Intelligence Services Act 1994 or Part III of the Police Act 1997.

310. Subsections (3), (4) and (5) require the Secretary of State to consult on any Codes of Practice, lay the drafts before Parliament and bring them into force through an Order (by affirmative resolution, see clause 69).

Clause 64: Effect of Codes of Practice

311. Subsection (1) requires any person to take account of any applicable Code of Practice issued under clause 63 while exercising or performing any power or duty under this Bill.

312. Subsection (2) explains that a failure to comply with a Code of Practice issued under clause 63 will not of itself constitute a criminal offence or civil tort.

313. Subsection (3) allows the evidential use of a Code of Practice in court.

314. Subsection (4) requires that, where relevant, the statutory bodies described in this subsection must take into account the provisions of a Code of Practice.

PART V: MISCELLANEOUS AND SUPPLEMENTAL

Clause 65: Conduct in relation to Wireless Telegraphy

315. This clause amends section 5 of the Wireless Telegraphy Act 1949 and is intended to ensure that the interception provisions of that Act comply with the Human Rights Act 1998.

316. Subsection (1) transfers the words of the existing section 5 of the Wireless Telegraphy Act to a new subsection 5(1). It also has the effect of removing the general authority to intercept wireless telegraphy which existed for persons acting in their duty as a servant of the Crown, and of changing the authority level which is required to authorise interception of wireless telegraphy from "under the authority of the Secretary of State" to "under the authority of a designated person".

"Designated person" is defined in the inserted section 5(11)

317. Subsection (2) creates new subsections 5(2) to 5(11) to the Wireless Telegraphy Act 1949 as follows:

  • 5(2) restricts the ability of a designated person to authorise interception of wireless telegraphy to activity which cannot be warranted under this Bill;

  • 5(3) requires that where the an authorisation is granted under the Wireless Telegraphy Act 1949, consideration must be given to both the necessity and proportionality of the interception in the context of what is sought to be achieved through it;

  • 5(4) explains the purposes for which an authorisation under the Wireless Telegraphy Act 1949 may be granted;

  • 5(5) requires that where a requirement exists to intercept wireless telegraphy which would not meet one of the tests in 5(4) above but would fit within the criteria of this subsection, a separate authority must be sought;

  • 5(6) requires a designated person to consider whether that which is sought to be achieved through the interception could be done in another way;

  • 5(9) follows on from subsection (2) and explains that where interception of wireless telegraphy is required to be authorised under the Regulation of Investigatory Powers Bill, the fact that the applicant cannot be authorised in this way because they are not mentioned as one of the bodies to which the Bill applies does not mean that they can rely upon other legislation to obtain authorisation;

  • 5(10) explains the meaning of "separate authority".

Clause 66: Warrants under the Intelligence Services Act 1994

318. This clause changes the test which must be satisfied before a warrant is issued under section 5 of the Intelligence Services Act 1994. Instead of "likely to be of substantial value", the test is now that the Secretary of State must be satisfied that:

  • the action is necessary for the purpose of a function of the intelligence agency;

  • the action is proportionate to what it seeks to achieve;

  • the action authorised by the warrant could not reasonably be achieved by other means.

319. Subsection (3) amends the urgent provisions so that a senior official of any department may sign an urgent warrant issued on the oral authority of the Secretary of State. Such a senior official will be a member of the Senior Civil Service.

Clause 67: Authorisations under Part III of the Police Act 1997

320. This clause makes amendments to Part III of the Police Act 1997.

321. Subsections (2) and (3) amend section 93 of the Police Act to allow a police authorising officer to authorise interference with property outside his force area solely for the purpose of maintenance or retrieval of equipment. This will allow a chief constable to authorise action to maintain or retrieve a tracking device from a vehicle that has travelled outside the force area, without having to seek authorisation from the chief constable into whose force area the vehicle has travelled. In addition it removes the restriction on where a customs officer may act.

322. In the same way that clause 66 amends the Intelligence Services Act 1994, subsections (4) and (5) introduce the new tests in the Part III authorisation process. These again require that the action authorised must be necessary and proportionate to what it seeks to achieve and that the action could not reasonably be achieved by other means.

323. Subsection (5) provides for an authorising officer of the Royal Ulster Constabulary to authorise interference with property or wireless telegraphy where it is necessary in the interests of national security as well as for the prevention or detection of serious crime. This is required because of the particular responsibilities of the Chief Constable of the RUC in relation to counter-terrorism.

324. Subsections (6), (7) and (8) extend the provisions of part III to allow the chief constables of the British Transport Police and the Ministry of Defence Police and the Provost Marshals of the three service police forces to be authorising officers and to authorise interference with property or wireless telegraphy within their own jurisdictions. It also allows the Deputy Director General of the National Crime Squad to be an authorising officer in his own right and for the Commissioners of Customs & Excise to designate more than one customs officer to act as an authorising officer.

325. Subsection (7) makes an amendment to section 93(6) to provide that "relevant area" for the MOD police means the places described in section 2 of the Ministry of Defence Police Act 1987.

326. Subsection (8) makes provision about where the Service Police forces may exercise powers under the 1997 Act.

 
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Prepared: 10 May 2000