Regulation of Investigatory Powers Bill - continued        House of Lords
PART II, SURVEILLANCE AND COVERT HUMAN INTELLIGENCE SOURCES - continued

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Other authorisations
Secretary of State authorisations.     39. - (1) The Secretary of State shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by-
 
 
    (a) a member of any of the intelligence services;
 
    (b) an official of the Ministry of Defence;
 
    (c) a member of Her Majesty's forces;
 
    (d) an individual holding an office, rank or position with any such public authority as may be designated for the purposes of this section as an authority whose activities may require the carrying out of intrusive surveillance.
      (2) Section 30 shall have effect in relation to the grant of an authorisation by the Secretary of State on the application of an official of the Ministry of Defence, or of a member of Her Majesty's forces, as if the only matters mentioned in subsection (3) of that section were-
 
 
    (a) the interests of national security; and
 
    (b) the purpose of preventing or detecting serious crime.
      (3) The designation of any public authority for the purposes of this section shall be by order made by the Secretary of State.
 
      (4) The Secretary of State may by order provide, in relation to any public authority, that an application for an authorisation for the carrying out of intrusive surveillance may be made by an individual holding an office, rank or position with that authority only where his office, rank or position is one prescribed by the order.
 
      (5) The Secretary of State may by order impose restrictions-
 
 
    (a) on the authorisations for the carrying out of intrusive surveillance that may be granted on the application of an individual holding an office, rank or position with any public authority designated for the purposes of this section; and
 
    (b) on the circumstances in which, or the purposes for which, such authorisations may be granted on such an application.
      (6) The Secretary of State shall not make a designation under subsection (3) unless a draft of the order containing the designation has been laid before Parliament and approved by a resolution of each House.
 
      (7) References in this section to a member of Her Majesty's forces do not include references to any member of Her Majesty's forces who is a member of a police force by virtue of his service with the Royal Navy Regulating Branch, the Royal Military Police or the Royal Air Force Police.
 
Intelligence services authorisations.     40. - (1) The grant by the Secretary of State on the application of a member of one of the intelligence services of any authorisation under this Part must be made by the issue of a warrant.
 
      (2) A single warrant issued by the Secretary of State may combine both-
 
 
    (a) an authorisation under this Part; and
 
    (b) an intelligence services warrant;
  but the provisions of this Act or the Intelligence Services Act 1994 that are applicable in the case of the authorisation under this Part or the intelligence services warrant shall apply separately in relation to the part of the combined warrant to which they are applicable.
 
      (3) Intrusive surveillance in relation to any premises or vehicle in the British Islands shall be capable of being authorised by a warrant issued under this Part on the application of a member of the Secret Intelligence Service or GCHQ only if the authorisation contained in the warrant is one satisfying the requirements of section 30(2)(a) otherwise than in connection with any functions of that intelligence service in support of the prevention or detection of serious crime.
 
      (4) Subject to subsection (5), the functions of the Security Service shall include acting on behalf of the Secret Intelligence Service or GCHQ in relation to-
 
 
    (a) the application for and grant of any authorisation under this Part in connection with any matter within the functions of the Secret Intelligence Service or GCHQ; and
 
    (b) the carrying out, in connection with any such matter, of any conduct authorised by such an authorisation.
      (5) Nothing in subsection (4) shall authorise the doing of anything by one intelligence service on behalf of another unless-
 
 
    (a) it is something which either the other service or a member of the other service has power to do; and
 
    (b) it is done otherwise than in connection with functions of the other service in support of the prevention or detection of serious crime.
      (6) In this section "intelligence services warrant" means a warrant under section 5 of the Intelligence Services Act 1994.
 
 
Grant, renewal and duration of authorisations
General rules about grant, renewal and duration.     41. - (1) An authorisation under this Part-
 
 
    (a) may be granted or renewed orally in any urgent case in which the entitlement to act of the person granting or renewing it is not confined to urgent cases; and
 
    (b) in any other case, must be in writing.
      (2) A single authorisation may combine two or more different authorisations under this Part; but the provisions of this 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.
 
      (3) Subject to subsections (4) and (8), an authorisation under this Part shall cease to have effect at the end of the following period-
 
 
    (a) in the case of an authorisation which-
 
      (i) has not been renewed and was granted either orally or by a person whose entitlement to act is confined to urgent cases, or
 
      (ii) was last renewed either orally or by such a person,
 
    the period of seventy-two hours beginning with the time when the grant of the authorisation or, as the case may be, its latest renewal takes effect;
 
    (b) in a case not falling within paragraph (a) in which the authorisation is for the conduct or the use of a covert human intelligence source, the period of twelve months beginning with the day on which the grant of the authorisation or, as the case may be, its latest renewal takes effect; and
 
    (c) in any case not falling within paragraph (a) or (b), the period of three months beginning with the day on which the grant of the authorisation or, as the case may be, its latest renewal takes effect.
      (4) Subject to subsection (6), an authorisation under this Part may be renewed, at any time before the time at which it ceases to have effect, by any person who would be entitled to grant a new authorisation in the same terms.
 
      (5) Sections 27 to 39 shall have effect in relation to the renewal of an authorisation under this Part as if references to the grant of an authorisation included references to its renewal.
 
      (6) A person shall not renew an authorisation for the conduct or the use of a covert human intelligence source, unless he-
 
 
    (a) is satisfied that a review has been carried out of the matters mentioned in subsection (7); and
 
    (b) has, for the purpose of deciding whether he should renew the authorisation, considered the results of that review.
      (7) The matters mentioned in subsection (6) are-
 
 
    (a) the use made of the source in the period since the grant or, as the case may be, latest renewal of the authorisation; and
 
    (b) the tasks given to the source during that period and the information obtained from the conduct or the use of the source.
      (8) The Secretary of State may by order provide in relation to authorisations of such descriptions as may be specified in the order that subsection (3) is to have effect as if the period at the end of which an authorisation of a description so specified is to cease to have effect were such period shorter than that provided for by that subsection as may be fixed by or determined in accordance with that order.
 
      (9) References in this section to the time at which, or the day on which, the grant or renewal of an authorisation takes effect are references-
 
 
    (a) in the case of the grant of an authorisation to which paragraph (c) does not apply, to the time at which or, as the case may be, day on which the authorisation is granted;
 
    (b) in the case of the renewal of an authorisation to which paragraph (c) does not apply, to the time at which or, as the case may be, day on which the authorisation would have ceased to have effect but for the renewal; and
 
    (c) in the case of any grant or renewal that takes effect under subsection (2) of section 34 at a time or on a day later than that given by paragraph (a) or (b), to the time at which or, as the case may be, day on which the grant or renewal takes effect in accordance with that subsection.
      (10) In relation to any authorisation granted by a member of any of the intelligence services, and in relation to any authorisation contained in a warrant issued by the Secretary of State on the application of a member of any of the intelligence services, this section has effect subject to the provisions of section 42.
 
Special rules for intelligence services authorisations.     42. - (1) Subject to subsection (2), a warrant containing an authorisation for the carrying out of intrusive surveillance-
 
 
    (a) shall not be issued on the application of a member of any of the intelligence services, and
 
    (b) if so issued shall not be renewed,
  except under the hand of the Secretary of State.
 
      (2) In an urgent case in which-
 
 
    (a) an application for a warrant containing an authorisation for the carrying out of intrusive surveillance has been made by a member of any of the intelligence services, and
 
    (b) the Secretary of State has himself expressly authorised the issue of the warrant in that case,
  the warrant may be issued (but not renewed) under the hand of a senior official.
 
      (3) Subject to subsection (6), a warrant containing an authorisation for the carrying out of intrusive surveillance which-
 
 
    (a) was issued, on the application of a member of any of the intelligence services, under the hand of a senior official, and
 
    (b) has not been renewed under the hand of the Secretary of State,
  shall cease to have effect at the end of the second working day following the day of the issue of the warrant, instead of at the time provided for by section 41(3).
 
      (4) Subject to subsections (3) and (6), where any warrant for the carrying out of intrusive surveillance which is issued or was last renewed on the application of a member of any of the intelligence services, the warrant (unless renewed or, as the case may be, renewed again) shall cease to have effect at the following time, instead of at the time provided for by section 41(3), namely-
 
 
    (a) in the case of a warrant that has not been renewed, at the end of the period of six months beginning with the day on which it was issued; and
 
    (b) in any other case, at the end of the period of six months beginning with the day on which it would have ceased to have effect if not renewed again.
      (5) Subject to subsection (6), where-
 
 
    (a) an authorisation for the carrying out of directed surveillance is granted by a member of any of the intelligence services, and
 
    (b) the authorisation is renewed by an instrument endorsed under the hand of the person renewing the authorisation with a statement that the renewal is believed to be necessary on grounds falling within section 30(3)(a) or (c),
  the authorisation (unless renewed again) shall cease to have effect at the end of the period of six months beginning with the day on which it would have ceased to have effect but for the renewal, instead of at the time provided for by section 41(3).
 
      (6) The Secretary of State may by order provide in relation to authorisations of such descriptions as may be specified in the order that subsection (3), (4) or (5) is to have effect as if the period at the end of which an authorisation of a description so specified is to cease to have effect were such period shorter than that provided for by that subsection as may be fixed by or determined in accordance with that order.
 
      (7) Notwithstanding anything in section 41(2), in a case in which there is a combined warrant containing both-
 
 
    (a) an authorisation for the carrying out of intrusive surveillance, and
 
    (b) an authorisation for the carrying out of directed surveillance,
  the reference in subsection (4) of this section to a warrant for the carrying out of intrusive surveillance is a reference to the warrant so far as it confers both authorisations.
 
Cancellation of authorisations.     43. - (1) The person who granted or, as the case may be, last renewed an authorisation under this Part shall cancel it if-
 
 
    (a) he is satisfied that the authorisation is one in relation to which the requirements of section 27(2)(a) and (b), 28(2)(a) and (b) or, as the case may be, 30(2)(a) and (b) are no longer satisfied; or
 
    (b) in the case of an authorisation under section 28, he is satisfied that arrangements for the source's case that satisfy the requirements mentioned in subsection (2)(c) of that section no longer exist.
      (2) Where an authorisation under this Part was granted or, as the case may be, last renewed-
 
 
    (a) by a person entitled to act for any other person, or,
 
    (b) by the deputy of any other person,
  that other person shall cancel the authorisation if he is satisfied as to either of the matters mentioned in subsection (1).
 
      (3) Where an authorisation under this Part was granted or, as the case may be, last renewed by a person whose deputy had power to grant it, that deputy shall cancel the authorisation if he is satisfied as to either of the matters mentioned in subsection (1).
 
      (4) The Secretary of State may by regulations provide for the person by whom any duty imposed by this section is to be performed in a case in which it would otherwise fall on a person who is no longer available to perform it.
 
      (5) Regulations under subsection (4) may provide for the person on whom the duty is to fall to be a person appointed in accordance with the regulations.
 
      (6) The references in this section to a person's deputy are references to the following-
 
 
    (a) in relation to-
 
      (i) a chief constable of a police force maintained under section 2 of the Police Act 1996,
 
      (ii) the Commissioner of Police for the City of London, or
 
      (iii) a chief constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967,
 
    to his designated deputy;
 
    (b) in relation to the Commissioner of Police of the Metropolis, to an Assistant Commissioner of Police of the Metropolis;
 
    (c) in relation to the Chief Constable of the Royal Ulster Constabulary, to the Deputy Chief Constable of the Royal Ulster Constabulary;
 
    (d) in relation to the Director General of the National Criminal Intelligence Service, to his designated deputy; and
 
    (e) in relation to the Director General of the National Crime Squad, to any person designated by him for the purposes of section 30(6)(l) or to his designated deputy.
      (7) In this section "designated deputy" has the same meaning as in section 32.
 
Restrictions on authorisations extending to Scotland.     44. - (1) No person shall grant or renew an authorisation under this Part for the carrying out of any conduct if it appears to him-
 
 
    (a) that the authorisation is not one for which this Part is the relevant statutory provision for all parts of the United Kingdom; and
 
    (b) that all the conduct authorised by the grant or, as the case may be, renewal of the authorisation is likely to take place in Scotland.
      (2) In relation to any authorisation, this Part is the relevant statutory provision for all parts of the United Kingdom in so far as it-
 
 
    (a) is granted or renewed on the grounds that it is necessary in the interests of national security or in the interests of the economic well-being of the United Kingdom;
 
    (b) is granted or renewed by or on the application of a person holding any office, rank or position with any of the public authorities specified in subsection (3);
 
    (c) authorises conduct of a person holding an office, rank or position with any of the public authorities so specified;
 
    (d) authorises conduct of an individual acting as a covert human intelligence source for the benefit of any of the public authorities so specified; or
 
    (e) authorises conduct that is surveillance by virtue of section 46(4).
      (3) The public authorities mentioned in subsection (2) are-
 
 
    (a) each of the intelligence services;
 
    (b) Her Majesty's forces;
 
    (c) the Ministry of Defence;
 
    (d) the Ministry of Defence Police;
 
    (e) the Commissioners of Customs and Excise; and
 
    (f) the British Transport Police.
      (4) For the purposes of so much of this Part as has effect in relation to any other public authority by virtue of-
 
 
    (a) the fact that it is a public authority for the time being specified in Schedule 1, or
 
    (b) an order under subsection (1)(d) of section 39 designating that authority for the purposes of that section,
  the authorities specified in subsection (3) of this section shall be treated as including that authority to the extent that the Secretary of State by order directs that the authority is a relevant public authority or, as the case may be, is a designated authority for all parts of the United Kingdom.
 
 
Supplemental provision for Part II
Power to extend or modify authorisation provisions.     45. - (1) The Secretary of State may by order do one or both of the following-
 
 
    (a) apply this Part, with such modifications as he thinks fit, to any such surveillance that is neither directed nor intrusive as may be described in the order;
 
    (b) provide for any description of directed surveillance to be treated for the purposes of this Part as intrusive surveillance.
      (2) No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House.
 
Interpretation of Part II.     46. - (1) In this Part-
 
 
    "covert human intelligence source" shall be construed in accordance with section 25(8);
 
    "directed" and "intrusive", in relation to surveillance, shall be construed in accordance with section 25(2) to (6);
 
    "private vehicle" means (subject to subsection (7)(a)) any vehicle which is used primarily for the private purposes of the person who owns it or of a person otherwise having the right to use it;
 
    "residential premises" means (subject to subsection (7)(b)) so much of any premises as is for the time being occupied or used by any person, however temporarily, for residential purposes or otherwise as living accommodation (including hotel or prison accommodation that is so occupied or used);
 
    "senior authorising officer" means a person who by virtue of subsection (6) of section 30 is a senior authorising officer for the purposes of that section;
 
    "surveillance" shall be construed in accordance with subsections (2) to (4);
 
    "surveillance device" means any apparatus designed or adapted for use in surveillance.
      (2) Subject to subsection (3), in this Part "surveillance" includes-
 
 
    (a) monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications;
 
    (b) recording anything monitored, observed or listened to in the course of surveillance; and
 
    (c) surveillance by or with the assistance of a surveillance device.
      (3) References in this Part to surveillance do not include references to-
 
 
    (a) any conduct of a covert human intelligence source for obtaining or recording (whether or not using a surveillance device) any information which is disclosed in the presence of the source;
 
    (b) the use of a covert human intelligence source for so obtaining or recording information; or
 
    (c) any such entry on or interference with property or with wireless telegraphy as would be unlawful unless authorised under-
 
      (i) section 5 of the Intelligence Services Act 1994 (warrants for the intelligence services); or
 
      (ii) Part III of the Police Act 1997 (powers of the police and of customs officers).
      (4) References in this Part to surveillance include references to the interception of a communication in the course of its transmission by means of a postal service or telecommunication system if, and only if-
 
 
    (a) the communication is one sent by or intended for a person who has consented to the interception of communications sent by or to him; and
 
    (b) there is no interception warrant authorising the interception.
      (5) References in this Part to an individual holding an office or position with a public authority include references to any member, official or employee of that authority.
 
      (6) For the purposes of this Part the activities of a covert human intelligence source which are to be taken as activities for the benefit of a particular public authority include any conduct of his as such a source which is in response to inducements or requests made by or on behalf of that authority.
 
      (7) In subsection (1)-
 
 
    (a) the reference to a person having the right to use a vehicle does not, in relation to a motor vehicle, include a reference to a person whose right to use the vehicle derives only from his having paid, or undertaken to pay, for the use of the vehicle and its driver for a particular journey; and
 
    (b) the reference to premises occupied or used by any person for residential purposes or otherwise as living accommodation does not include a reference to so much of any premises as constitutes any common area to which he has or is allowed access in connection with his use or occupation of any accommodation.
      (8) In this section-
 
 
    "premises" includes any vehicle or moveable structure and any other place whatever, whether or not occupied as land;
 
    "vehicle" includes any vessel, aircraft or hovercraft.
 
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