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

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Clause 70: Criminal liability of directions etc

327. This clause provides for personal criminal liability on the part of certain individuals in companies and other bodies corporate.

Clause 71: General saving for lawful conduct

328. Clause 70 ensures that nothing in this Bill makes any actions unlawful unless that is explicitly stated. The availability of an authorisation or a warrant does not mean that it is unlawful not to seek or obtain one. In this respect, the Bill must be read with section 6 of the Human Rights Act, which makes it unlawful to act in a way which is incompatible with a Convention right.

Schedule 1: Persons Having the Appropriate Permission

329. Schedule 1 deals with the duration and types of appropriate permission which may empower a person to serve a written notice under Clause 46 of this Bill requiring disclosure of information. The authority required to grant such permission varies depending on the powers under which unintelligible information is or is likely to be obtained.

Paragraph 1: Requirement that appropriate permission is granted by a judge

330. This paragraph states that subject to the provisions of the paragraphs below, authority to serve a written notice must be given by a judge as described in sub-paragraph (1).

331. The effect of sub-paragraph (2) is that where a judge's permission has been obtained under this paragraph, no further authority is required to serve a written notice.

Paragraph 2: Data obtained under warrant etc

332. This paragraph deals with unintelligible information which is or is likely to be obtained under a statutory power exercised in accordance with:

  • a warrant issued by the Secretary of State or a person holding judicial office; or

  • an authorisation under Part III of the Police Act 1997.

Examples of legislation under which the Secretary of State may issue a warrant include Chapter I of Part I of the Bill and the Intelligence Services Act 1994. Examples of legislation under which a person holding judicial office may issue a warrant include the Police and Criminal Evidence Act 1984 and the Drug Trafficking Act 1994.

333. Sub-paragraph (2) states that the warrant or authorisation may empower a person to serve a notice requiring disclosure if

  • the warrant or authorisation gave explicit permission for the notice to be given; or

  • written permission has been given by the authority since the warrant or authorisation was issued.

334. Sub-paragraphs (3) to (5) describe those persons who are capable of having the appropriate permission to serve a notice in relation to material to which this paragraph applies. And Sub-paragraphs (6) to (8) describe those persons who may issue a warrant or authorisation under Clause 46 in relation to such material.

335. The effect of this paragraph is that where, for example, protected material has been obtained under an interception warrant, the authorisation to serve a disclosure notice may be granted by the Secretary of State.

336. Sub-paragraph (9) excludes from this paragraph unintelligible information:

  • which has been obtained under a statutory power without a warrant; but

  • which has been obtained in the course of, or in connection with, an exercise of another power for which a warrant was required.

337. This might include, for example, cases where a constable has a right to enter premises under a warrant and while on the premises uncovers matter which he suspects to be evidence of a crime unrelated to the warrant itself, in accordance with e.g. section 19 of the Police and Criminal Evidence Act 1984 (PACE).

Paragraph 3: Data obtained by the intelligence services under statute but without a warrant

338. This paragraph deals with unintelligible information which is, or is likely to be, lawfully obtained by the intelligence services but not under a warrant. This might include, for example, material obtained under an authorisation given under Part II of this Bill.

339. Sub-paragraph (2) enables the Secretary of State to give authority for a notice to be served in such instances.

Paragraph 4: Data obtained under statute by other persons but without a warrant

340. This paragraph deals with unintelligible information which is or is likely to be obtained by certain agencies (other than the intelligence services) under statutory powers but not under a warrant. This includes, for example, material obtained by the police under powers conferred by section 19 of PACE.

341. The effect of sub-paragraph (2) is that senior officers of the police, customs and excise and armed forces (as described in paragraph 6) may authorise the service of a written notice in relation to material to which this paragraph applies.

342. The effect of sub-paragraph (3) is that where material to which this paragraph applies is obtained by agencies other than those described in sub-paragraph (2), authority to serve a written notice is to be given by a judge, provided that the stipulations set out in sub-paragraph (4) are complied with.

Paragraph 5: Data obtained without the exercise of statutory powers

343. This paragraph deals with unintelligible information which is or is likely to come into the possession of an intelligence service, the police or customs and excise by any other lawful means not involving the exercise of statutory powers (e.g. material which has been voluntarily handed over).

344. The effect of sub-paragraph (2) is to enable the Secretary of State to give his permission to serve a notice in relation to material, obtained by an intelligence service, falling under this paragraph.

Paragraph 6: General requirements relating to the appropriate permission

345. This paragraph makes some further stipulations about the categories of person who may be empowered to require disclosure. It also makes some stipulations about the permissions that may be given by members of the police, customs and excise and the armed forces.

346. Sub-paragraph (3) states that in the case of information which has come into the police's possession by means of powers to stop and search vehicles and pedestrians under the Terrorism Act 2000 or the Prevention of Terrorism Act 1989 (PTA), those able to authorise the serving of notice to disclose keys must be an officer of police of or above the rank specified in section 42 and section 13A of those Acts respectively.

Section 13A of the PTA, for example, specifies such ranks as:

  • commander of the metropolitan police, as respects the metropolitan police area;

  • commander of the City of London police, as respects the City of London; or

  • assistant chief constable for any other police area.

Paragraph 7: Duration of permission

347. This paragraph provides for the duration of the validity of authorisations to serve a notice and prevents the issue of a notice after the authorisation has expired. The Bill does not require that a limit must be placed on the duration of an authorisation.

Paragraph 8: Formalities for permissions granted by the Secretary of State

348. This paragraph states that any permissions granted by the Secretary of State in accordance with Schedule 1 may only be granted:

  • if signed by him personally; or

  • if signed by a member of the Senior Civil Service and expressly authorised by the Secretary of State. The express authorisation must be in relation to that particular warrant (i.e. there can be no standing authorisation).

Schedule 2: The Tribunal

349. This Schedule provides for the constitution of the Tribunal established under clause 57.

Paragraph 1: Membership of the Tribunal

350. This paragraph determines the membership of the Tribunal.

351. Sub-paragraph (1) ensures that members of the Tribunal may be drawn from the legal profession in all parts of the United Kingdom.

    "High Judicial Office" is defined in section 25 of the Appellate Jurisdiction Act 1876 as follows:

    "'High Judicial Office' means any of the following offices; that is to say

    The office of Lord Chancellor of Great Britain.. or of Judge of one of Her Majesty's superior courts of Great Britain and Ireland:

'Superior courts of Great Britain and Ireland' means and includes

    As to England, Her Majesty's High Court of Justice and Her Majesty's Court of Appeal; and

    As to Northern Ireland, Her Majesty's High Court of Justice in Northern Ireland and Her Majesty's Court of Appeal in Northern Ireland; and

    As to Scotland, the Court of Session."

    The Appellate Jurisdiction Act of 1887 amended the term 'High Judicial Office' in Section 5 to include the office of a Lord of Appeal in Ordinary and the office of a member of the Judicial Committee of the Privy Council.

    The requirement of ten years' standing means that only those eligible for appointment to the judiciary can serve.

    The Courts and Legal Services Act 1990 states that a person has a "general qualification" if he has a right of audience in relation to any class of proceedings in any part of the Supreme Court, or all proceedings in county courts or magistrates' courts.

352. Sub-paragraph (3) limits the term of office to five years. A member whose term of office expires is eligible for reappointment. Were he to serve a second time he would have to be re-appointed by further Letters Patent. There is no retirement age.

353. Sub-paragraph (4) provides the means whereby a member may resign.

Paragraph 2: President and Vice-President

354. This paragraph establishes the positions of President and Vice-President who will be members of the Tribunal.

Paragraph 3: Members of the Tribunal with special responsibilities

355. This paragraph requires the President of the Tribunal:

  • to give one or more members of the Tribunal special responsibility for matters involving the intelligence services; and

  • to ensure that in the consideration or hearing of any complaints or proceedings considered by the Tribunal which relate to an allegation against any of the intelligence services or their members or to conduct by or on behalf of any of those services or their members, the Tribunal on that occasion includes one or more of the members with such special responsibility.

Paragraph 4: Salaries and expenses

356. This paragraph deals with the payments of the members of the Tribunal and of its expenses.

Paragraph 5: Officers

357. Sub-paragraph (1) provides for the appointment of officers of the Tribunal by the Secretary of State, after consultation with the Tribunal. The Secretary of State may not therefore proceed unilaterally to make appointments. The provision itself places no limitation on the number of officers and (subject to Treasury approval as numbers) allows flexibility over the numbers, grades and individuals.

358. Sub-paragraph (2) enables an officer who is so authorised by the Tribunal to obtain documents or information on the Tribunal's behalf.

Paragraph 6: Parliamentary disqualification

359. The parts of the Schedules referred to in this paragraph list the bodies whose members are disqualified from membership of the House of Commons and the Northern Ireland Assembly respectively. They include Tribunals and public Boards, Commissions and Councils. Members of this Tribunal (as people paid for adjudicating in a quasi-judicial capacity on the decisions of Ministers, and able to overturn those decisions) clearly fall within the category of those who are normally disqualified.

Schedule 3

Paragraph 8: The Police Act 1997 (c. 50)

360. This makes necessary consequential changes in the light of the amendments to Part III of the Police Act 1997. These take account of the extension of authorising powers to the Ministry of Defence Police, the British Transport Police, the Service Police, the three service police forces, the Deputy Director General of the National Crime Squad and additional designated customs officers.

361. Sub-paragraph (10) extends the functions of the Chief Surveillance Commissioner so that he reports annually to the Prime Minister and at any other time on any matters arising from his functions in relation to part III of the Police Act 1997 or Part II of this Bill.

362. Sub-paragraph (11) imposes a duty on those exercising functions under these provisions to disclose or provide the Chief Surveillance Commissioner with any documents or information he requires to enable him to carry out his functions. It also imposes a duty on every Commissioner to give the Tribunal established under clause 57 of this Bill all such assistance as may be required.

PUBLIC SECTOR FINANCIAL COST AND PUBLIC SECTOR MANPOWER EFFECTS

363. Increases in public expenditure and public service manpower contingent in this Bill will be limited to those arising from the expanded remit of the existing Commissioners and the establishment of the Investigatory Powers Tribunal. But these latter costs should be offset against the savings from removing the Interception Tribunal, Security Service Tribunal, Intelligence Services Tribunal and the complaints function of the Police Act Commissioners. Overall extra costs are estimated at £750,000.

REGULATORY APPRAISAL

364. A complete appraisal of the Regulatory Impact of these proposals can be found at www.homeoffice.gov.uk/oicd/ripbill.htm.

COMMENCEMENT DATE

365. Clause 74(2) provides that the provisions of this Bill will come into force as set out by the Secretary of State by order.

EUROPEAN CONVENTION ON HUMAN RIGHTS

366. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before Second Reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). Lord Bassam of Brighton, Parliamentary Under-Secretary of State at the Home Office, has made the following statement:

    In my view the provisions of the Regulation of Investigatory Powers Bill are compatible with the Convention Rights.

 
 
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Prepared: 10 May 2000