Regulation of Investigatory Powers Bill - continued        House of Lords

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  PART II
  SURVEILLANCE AND COVERT HUMAN INTELLIGENCE SOURCES
 
Introductory
Conduct to which Part II applies.     25. - (1) This Part applies to the following conduct-
 
 
    (a) directed surveillance;
 
    (b) intrusive surveillance; and
 
    (c) the conduct and use of covert human intelligence sources.
      (2) Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken-
 
 
    (a) for the purposes of a specific investigation or a specific operation;
 
    (b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
 
    (c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.
      (3) Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that either-
 
 
    (a) involves the presence of an individual, or of any surveillance device, on any residential premises or in any private vehicle; or
 
    (b) is carried out in relation to anything taking place on residential premises or in a private vehicle by means of any surveillance device that is not present on the premises or in the vehicle.
      (4) For the purposes of this Part surveillance is not intrusive to the extent that-
 
 
    (a) it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle; or
 
    (b) it is surveillance consisting in any such interception of a communication as falls within section 46(4).
      (5) For the purposes of this Part surveillance which-
 
 
    (a) is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle, but
 
    (b) is carried out without that device being present on the premises or in the vehicle,
 
    is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle.

 
      (6) For the purposes of this Part surveillance which-
 
 
    (a) is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of section 1 of the Wireless Telegraphy Act 1949), and
 
    (b) is carried out from outside those premises exclusively for that purpose,
  is neither directed nor intrusive.
 
      (7) In this Part-
 
 
    (a) references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of paragraphs (a) to (c) of subsection (8), or is incidental to anything falling within any of those paragraphs; and
 
    (b) references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source.
      (8) For the purposes of this Part a person is a covert human intelligence source if-
 
 
    (a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);
 
    (b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or
 
    (c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.
      (9) For the purposes of this section-
 
 
    (a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place;
 
    (b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and
 
    (c) a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question.
      (10) In this section "private information", in relation to a person, includes any information relating to his private or family life.
 
      (11) References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.
 
 
Authorisation of surveillance and human intelligence sources
Lawful surveillance etc.     26. - (1) Conduct to which this Part applies shall be lawful for all purposes if-
 
 
    (a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and
 
    (b) his conduct is in accordance with the authorisation.
      (2) A person shall not be subject to any civil liability in respect of any conduct of his which-
 
 
    (a) is incidental to any conduct that is lawful by virtue of subsection (1); and
 
    (b) is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.
      (3) The conduct that may be authorised under this Part includes conduct outside the United Kingdom.
 
      (4) In this section "relevant enactment" means-
 
 
    (a) an enactment contained in this Act;
 
    (b) section 5 of the Intelligence Services Act 1994 (warrants for the intelligence services); or
 
    (c) an enactment contained in Part III of the Police Act 1997 (powers of the police and of customs officers).
Authorisation of directed surveillance.     27. - (1) Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.
 
      (2) A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes-
 
 
    (a) that the authorisation is necessary on grounds falling within subsection (3); and
 
    (b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.
      (3) An authorisation is necessary on grounds falling within this subsection if it is necessary-
 
 
    (a) in the interests of national security;
 
    (b) for the purpose of preventing or detecting crime or of preventing disorder;
 
    (c) in the interests of the economic well-being of the United Kingdom;
 
    (d) in the interests of public safety;
 
    (e) for the purpose of protecting public health;
 
    (f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
 
    (g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.
      (4) The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that-
 
 
    (a) consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and
 
    (b) is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation.
      (5) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
 
Authorisation of covert human intelligence sources.     28. - (1) Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the conduct or the use of a covert human intelligence source.
 
      (2) A person shall not grant an authorisation for the conduct or the use of a covert human intelligence source unless he believes-
 
 
    (a) that the authorisation is necessary on grounds falling within subsection (3);
 
    (b) that the authorised conduct or use is proportionate to what is sought to be achieved by that conduct or use; and
 
    (c) that arrangements exist for the source's case that satisfy the requirements of subsection (5) and such other requirements as may be imposed by order made by the Secretary of State.
      (3) An authorisation is necessary on grounds falling within this subsection if it is necessary-
 
 
    (a) in the interests of national security;
 
    (b) for the purpose of preventing or detecting crime or of preventing disorder;
 
    (c) in the interests of the economic well-being of the United Kingdom;
 
    (d) in the interests of public safety;
 
    (e) for the purpose of protecting public health;
 
    (f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
 
    (g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.
      (4) The conduct that is authorised by an authorisation for the conduct or the use of a covert human intelligence source is any conduct that-
 
 
    (a) is comprised in any such activities involving conduct of a covert human intelligence source, or the use of a covert human intelligence source, as are specified or described in the authorisation;
 
    (b) consists in conduct by or in relation to the person who is so specified or described as the person to whose actions as a covert human intelligence source the authorisation relates; and
 
    (c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.
      (5) For the purposes of this Part there are arrangements for the source's case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring-
 
 
    (a) that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have day-to-day responsibility for dealing with the source on behalf of that authority, and for the source's security and welfare;
 
    (b) that there will at all times be another person holding an office, rank or position with the relevant investigating authority who will have general oversight of the use made of the source;
 
    (c) that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have responsibility for maintaining a record of the use made of the source;
 
    (d) that the records relating to the source that are maintained by the relevant investigating authority will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and
 
    (e) that records maintained by the relevant investigating authority that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.
      (6) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
 
      (7) The Secretary of State may by order-
 
 
    (a) prohibit the authorisation under this section of any such conduct or uses of covert human intelligence sources as may be described in the order; and
 
    (b) impose requirements, in addition to those provided for by subsection (2), that must be satisfied before an authorisation is granted under this section for any such conduct or uses of covert human intelligence sources as may be so described.
      (8) In this section "relevant investigating authority", in relation to an authorisation for the conduct or the use of an individual as a covert human intelligence source, means (subject to subsection (9)) the public authority for whose benefit the activities of that individual as such a source are to take place.
 
      (9) In the case of any authorisation for the conduct or the use of a covert human intelligence source whose activities are to be for the benefit of more than one public authority, the references in subsection (5) to the relevant investigating authority are references to one of them (whether or not the same one in the case of each reference).
 
Persons entitled to grant authorisations under ss. 27 and 28.     29. - (1) Subject to subsection (3), the persons designated for the purposes of sections 27 and 28 are the individuals holding such offices, ranks or positions with relevant public authorities as are prescribed for the purposes of this subsection by an order under this section.
 
      (2) For the purposes of the grant of an authorisation that combines-
 
 
    (a) an authorisation under section 27 or 28, and
 
    (b) an authorisation by the Secretary of State for the carrying out of intrusive surveillance,
  the Secretary of State himself shall be a person designated for the purposes of that section.
 
      (3) An order under this section may impose restrictions-
 
 
    (a) on the authorisations under sections 27 and 28 that may be granted by any individual holding an office, rank or position with a specified public authority; and
 
    (b) on the circumstances in which, or the purposes for which, such authorisations may be granted by any such individual.
      (4) A public authority is a relevant public authority for the purposes of this section-
 
 
    (a) in relation to section 27 if it is specified in Part I or II of Schedule 1; and
 
    (b) in relation to section 28 if it is specified in Part I of that Schedule.
      (5) The Secretary of State may by order amend Schedule 1 by-
 
 
    (a) adding a public authority to Part I or II of that Schedule;
 
    (b) removing a public authority from that Schedule;
 
    (c) moving a public authority from one Part of that Schedule to the other;
 
    (d) making any change consequential on any change in the name of a public authority specified in that Schedule.
      (6) The Secretary of State shall not make an order under subsection (5) containing any provision for-
 
 
    (a) adding any public authority to Part I or II of that Schedule, or
 
    (b) moving any public authority from Part II to Part I of that Schedule,
  unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
 
      (7) The power to make an order under this section shall be exercisable by the Secretary of State.
 
      (8) Subject to subsections (9) and (10), the power to make an order under this section for the purposes of the grant of authorisations for conduct in Northern Ireland shall also be exercisable by the First Minister and deputy First Minister in Northern Ireland acting jointly.
 
      (9) The power of the First Minister and deputy First Minister in Northern Ireland to make an order under this section by virtue of subsection (1) or (3) shall not be exercisable except in relation to an authority added to Schedule 1 by an order made under subsection (5) by those Ministers acting jointly.
 
      (10) The power of the First Minister and deputy First Minister in Northern Ireland to make an order under this section-
 
 
    (a) shall not include power to make any provision dealing with an excepted matter;
 
    (b) shall not include power, except with the consent of the Secretary of State, to make any provision dealing with a reserved matter.
      (11) The power of the First Minister and deputy First Minister in Northern Ireland to make an order under this section shall be exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979; and any such statutory rule containing an order under this section shall be subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954).
 
      (12) An order under this section made by the First Minister and deputy First Minister in Northern Ireland may-
 
 
    (a) make different provision for different cases;
 
    (b) contain such incidental, supplemental, consequential and transitional provision as those Ministers think fit.
      (13) In this section "excepted matter" and "reserved matter" have the same meanings as in the Northern Ireland Act 1998; and, in relation to those matters, section 98(2) of that Act (meaning of "deals with") applies for the purposes of this section as it applies for the purposes of that Act.
 
Authorisation of intrusive surveillance.     30. - (1) Subject to the following provisions of this Part, the Secretary of State and each of the senior authorising officers shall have power to grant authorisations for the carrying out of intrusive surveillance.
 
      (2) Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes-
 
 
    (a) that the authorisation is necessary on grounds falling within subsection (3); and
 
    (b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.
      (3) Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary-
 
 
    (a) in the interests of national security;
 
    (b) for the purpose of preventing or detecting serious crime; or
 
    (c) in the interests of the economic well-being of the United Kingdom.
      (4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means.
 
      (5) The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that-
 
 
    (a) consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation;
 
    (b) is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and
 
    (c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.
      (6) For the purposes of this section the senior authorising officers are-
 
 
    (a) the chief constable of every police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);
 
    (b) the Commissioner of Police of the Metropolis and every Assistant Commissioner of Police of the Metropolis;
 
    (c) the Commissioner of Police for the City of London;
 
    (d) the chief constable of every police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 (police forces for areas in Scotland);
 
    (e) the Chief Constable of the Royal Ulster Constabulary and the Deputy Chief Constable of the Royal Ulster Constabulary;
 
    (f) the Chief Constable of the Ministry of Defence Police;
 
    (g) the Provost Marshal of the Royal Navy Regulating Branch;
 
    (h) the Provost Marshal of the Royal Military Police;
 
    (i) the Provost Marshal of the Royal Air Force Police;
 
    (j) the Chief Constable of the British Transport Police;
 
    (k) the Director General of the National Criminal Intelligence Service;
 
    (l) the Director General of the National Crime Squad and any person holding the rank of assistant chief constable in that Squad who is designated for the purposes of this paragraph by that Director General; and
 
    (m) any customs officer designated for the purposes of this paragraph by the Commissioners of Customs and Excise.
 
Police and customs authorisations
Rules for grant of authorisations.     31. - (1) A person who is a designated person for the purposes of section 27 or 28 by reference to his office, rank or position with a police force, the National Criminal Intelligence Service or the National Crime Squad shall not grant an authorisation under that section except on an application made by a member of the same force, Service or Squad.
 
      (2) A person who is designated for the purposes of section 27 or 28 by reference to his office, rank or position with the Commissioners of Customs and Excise shall not grant an authorisation under that section except on an application made by a customs officer.
 
      (3) A person who is a senior authorising officer by reference to a police force, the National Criminal Intelligence Service or the National Crime Squad shall not grant an authorisation for the carrying out of intrusive surveillance except-
 
 
    (a) on an application made by a member of the same force, Service or Squad; and
 
    (b) in the case of an authorisation for the carrying out of intrusive surveillance in relation to any residential premises, where those premises are in the area of operation of that force, Service or Squad.
      (4) A person who is a senior authorising officer by virtue of a designation by the Commissioners of Customs and Excise shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by a customs officer.
 
      (5) A single authorisation may combine both-
 
 
    (a) an authorisation granted under this Part by, or on the application of, an individual who is a member of a police force, the National Criminal Intelligence Service or the National Crime Squad, or who is a customs officer; and
 
    (b) an authorisation given by, or on the application of, that individual under Part III of the Police Act 1997;
  but the provisions of this Act or that Act that are applicable in the case of each of the authorisations shall apply separately in relation to the part of the combined authorisation to which they are applicable.
 
      (6) For the purposes of this section-
 
 
    (a) the area of operation of a police force maintained under section 2 of the Police Act 1996, of the metropolitan police force, of the City of London police force or of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 is the area for which that force is maintained;
 
    (b) the area of operation of the Royal Ulster Constabulary is Northern Ireland;
 
    (c) residential premises are in the area of operation of the Ministry of Defence Police if they are premises where the members of that police force, under section 2 of the Ministry of Defence Police Act 1987, have the powers and privileges of a constable;
 
    (d) residential premises are in the area of operation of the Royal Navy Regulating Branch, the Royal Military Police or the Royal Air Force Police if they are premises owned or occupied by, or used for residential purposes by, a person subject to service discipline;
 
    (e) the area of operation of the British Transport Police and also of the National Criminal Intelligence Service is the United Kingdom;
 
    (f) the area of operation of the National Crime Squad is England and Wales;
  and references in this section to the United Kingdom or to any part or area of the United Kingdom include any adjacent waters within the seaward limits of the territorial waters of the United Kingdom.
 
      (7) For the purposes of this section a person is subject to service discipline-
 
 
    (a) in relation to the Royal Navy Regulating Branch, if he is subject to the Naval Discipline Act 1957 or is a civilian to whom Parts I and II of that Act for the time being apply by virtue of section 118 of that Act ;
 
    (b) in relation to the Royal Military Police, if he is subject to military law or is a civilian to whom Part II of the Army Act 1955 for the time being applies by virtue of section 209 of that Act; and
 
    (c) in relation to the Royal Air Force Police, if he is subject to air-force law or is a civilian to whom Part II of the Air Force Act 1955 for the time being applies by virtue of section 209 of that Act.
 
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