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Arrangement of clauses
Part I
Communications
Chapter I
Interceptions
Unlawful and authorised interception
Clause
1. Unlawful interception.
2. Meaning and location of "interception" etc.
3. Lawful interception without an interception warrant.
4. Power to provide for lawful interception.
5. Interception with a warrant.
Interception warrants
6. Applications for issue of an interception warrant.
7. Issue of warrants.
8. Contents of warrants.
9. Duration, cancellation and renewal of warrants.
10. Modification of warrants and certificates.
11. Implementation of warrants.
12. Maintenance of interception capability.
13. Grants for interception costs.
Restrictions on use of intercepted material etc.
14. General safeguards.
15. Extra safeguards in the case of certificated warrants.
16. Exclusion of matters from legal proceedings.
17. Exceptions to section 16.
18. Offence for unauthorised disclosures.
Interpretation of Chapter I
19. Interpretation of Chapter I.
Chapter II
Acquisition and disclosure of communications data
20. Lawful acquisition and disclosure of communications data.
21. Obtaining and disclosing communications data.
22. Form and duration of authorisations and notices.
23. Arrangements for payments.
24. Interpretation of Chapter II.
Part II
Surveillance and covert human intelligence sources
Introductory
25. Conduct to which Part II applies.
Authorisation of surveillance and human intelligence sources
26. Lawful surveillance etc.
27. Authorisation of directed surveillance.
28. Authorisation of covert human intelligence sources.
29. Persons entitled to grant authorisations under ss. 27 and 28.
30. Authorisation of intrusive surveillance.
Police and customs authorisations
31. Rules for grant of authorisations.
32. Grant of authorisations in the senior officer's absence.
33. Notification of authorisations for intrusive surveillance.
34. Approval required for authorisations to take effect.
35. Quashing of police and customs authorisations etc.
36. Appeals against decisions by Surveillance Commissioners.
37. Appeals to the Chief Surveillance Commissioner: supplementary.
38. Information to be provided to Surveillance Commissioners.
Other authorisations
39. Secretary of State authorisations.
40. Intelligence services authorisations.
Grant, renewal and duration of authorisations
41. General rules about grant, renewal and duration.
42. Special rules for intelligence services authorisations.
43. Cancellation of authorisations.
44. Power to extend or modify authorisation provisions.
45. Interpretation of Part II.
Part III
Investigation of electronic data protected
by encryption etc.
Power to require disclosure of key
46. Notices requiring disclosure of key.
47. Disclosure of information in place of key.
48. Arrangements for payments for key disclosure.
Offences
49. Failure to comply with a notice.
50. Tipping-off.
Safeguards
51. General duties of specified authorities.
Interpretation of Part III
52. Interpretation of Part III.
Part IV
Scrutiny etc. of investigatory powers and of the functions of the intelligence services
Commissioners
53. New Commissioners.
54. Co-operation with and reports by new Commissioners.
55. Additional functions of other Commissioners.
The Tribunal
56. The Tribunal.
57. Orders allocating proceedings to the Tribunal.
58. Exercise of the Tribunal's jurisdiction.
59. Tribunal procedure.
60. Tribunal rule.
61. Abolition of jurisdiction in relation to complaints.
Codes of practice
62. Issues and revision of codes of practice.
63. Effects of codes of practice.
Part V
Miscellaneous and supplemental
Miscellaneous
64. Conduct in relation to wireless telegraphy.
65. Warrants under the Intelligence Services Act 1994.
66. Authorisations under Part III of the Police Act 1997.
Supplemental
67. Ministerial expenditure etc.
68. Orders, regulation and rules.
69. Criminal liability of directors etc.
70. General saving for lawful conduct.
71. General interpretation.
72. Amendments, repeals and savings etc.
73. Short title, commencement and extent.
Schedules
Schedule 1 - Persons having the appropriate permission.
Schedule 2 - The Tribunal.
Schedule 3 - Consequential amendments.
Schedule 4 - Repeals.
A BILL TO
Make provision for and about the interception of communications, the acquisition and disclosure of data relating to communications, the carrying out of surveillance, the use of covert human intelligence sources and the acquisition of the means by which electronic data protected by encryption or passwords may be decrypted or accessed; to provide for the establishment of a tribunal with jurisdiction in relation to those matters, to entries on and interferences with property or with wireless telegraphy and to the carrying out of their functions by the Security Service, the Secret Intelligence Service and the Government Communications Headquarters; and for connected purposes.
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
Part I
Communications
Chapter I
Interception
Unlawful and authorised interception
Unlawful interception. 1. - (1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of-
(a) a public postal service; or
(b) a public telecommunication system.
(2) It shall be an offence for a person-
(a) intentionally and without lawful authority, and
(b) otherwise than in circumstances in which his conduct is excluded by subsection (6) from criminal liability under this subsection,
to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system.
(3) Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either-
(a) an interception of that communication in the course of its transmission by means of that private system; or
(b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system.
(...)
Power to provide for lawful interception 4. - (1) Conduct by any person ("the interceptor") consisting in the interception of a communication in the course of its transmission by means of a telecommunication system is authorised by this section if-
(a) the interception is carried out for the purpose of obtaining information about the communications of a person who, or who the interceptor has reasonable grounds for believing, is in a country or territory outside the United Kingdom;
(b) the interception relates to the use of a telecommunications service provided to persons in that country or territory which is either-
(i) a public telecommunications service; or
(ii) a telecommunications service that would be a public telecommunications service if the persons to whom it is offered or provided were members of the public in a part of the United Kingdom;
(c) the person who provides that service (whether the interceptor or another person) is required by the law of that country or territory to carry out, secure or facilitate the interception in question; and
(d) the situation is one satisfying such conditions as may be prescribed for the purposes of this subsection by regulations made by the Secretary of State.
(2) Subject to subsection (3), the Secretary of State may by regulations authorise any such conduct described in the regulations as appears to him to constitute a legitimate practice reasonably required for the purpose, in connection with the carrying on of any business, of monitoring or keeping a record of-
(a) communications by means of which transactions are entered into in the course of that business; or
(b) other communications relating to that business or taking place in the course of its being carried on.
(3) Nothing in any regulations under subsection (2) shall authorise the interception of any communication except in the course of its transmission using apparatus or services provided by or to the person carrying on the business for use wholly or partly in connection with that business.
(4) Conduct taking place in a prison is authorised by this section if it is conduct in exercise of any power conferred by or under any rules made under section 47 of the Prison Act 1952, section 39 of the Prisons (Scotland) Act 1989 or section 13 of the Prison Act (Northern Ireland) 1953 (prison rules).
(5) Conduct taking place in any hospital premises where high security psychiatric services are provided is authorised by this section if it is conduct in pursuance of, and in accordance with, any direction given under section 17 of the National Health Service Act 1977 (directions as to the carrying out of their functions by health bodies) to the body providing those services at those premises.
(6) In this section references to a business include references to any activities of a government department, of any public authority or of any person or office holder on whom functions are conferred by or under any enactment.
(7) In this section -
"government department" includes any part of the Scottish Administration, a Northern Ireland department and the National Assembly for Wales;
"high security psychiatric services" has the same meaning as in the National Health Service Act 1977;
"hospital premises" has the same meaning as in section 4(3) of that Act; and
"prison" has the meaning given by subsection (8) of this section.
(...)
Interception with a warrant. 5. - (1) Subject to the following provisions of this Chapter, the Secretary of State may issue a warrant authorising or requiring the person to whom it is addressed, by any such conduct as may be described in the warrant, to secure any one or more of the following-
(a) the interception in the course of their transmission by means of a postal service or telecommunication system of the communications described in the warrant;
(b) the making, in accordance with an international mutual assistance agreement, of a request for the provision of such assistance in connection with, or in the form of, an interception of communications as may be so described;
(c) the provision, in accordance with an international mutual assistance agreement, to the competent authorities of a country or territory outside the United Kingdom of any such assistance in connection with, or in the form of, an interception of communications as may be so described;
(d) the disclosure, in such manner as may be so described, of intercepted material obtained by any interception authorised or required by the warrant, and of related communications data.
(2) The Secretary of State shall not issue an interception warrant unless he believes-
(a) that the warrant is necessary on grounds falling within subsection (3); and
(b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(3) Subject to the following provisions of this section, a warrant 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;
(c) for the purpose of safeguarding the economic well-being of the United Kingdom; or
(d) for the purpose, in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a warrant by virtue of paragraph (b), of giving effect to the provisions of any international mutual assistance agreement.
(4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any warrant shall include whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means.
(5) A warrant shall not be considered necessary on the ground falling within subsection (3)(c) unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.
(6) The conduct authorised by an interception warrant shall be taken to include-
(a) all such conduct (including the interception of communications not identified by the warrant) as it is necessary to undertake in order to do what is expressly authorised or required by the warrant;
(b) conduct for obtaining related communications data; and
(c) conduct by any person which is conduct in pursuance of a requirement imposed by or on behalf of the person to whom the warrant is addressed to be provided with assistance with giving effect to the warrant.
(...)
Interception warrants
Application for issue of an interception warrant. 6. - (1) An interception warrant shall not be issued except on an application made by or on behalf of a person specified in subsection (2).
(2) Those persons are-
(a) the Director-General of the Security Service;
(b) the Chief of the Secret Intelligence Service;
(c) the Director of GCHQ;
(d) the Director General of the National Criminal Intelligence Service;
(e) the Commissioner of Police of the Metropolis;
(f) the Chief Constable of the Royal Ulster Constabulary;
(g) the Chief Constable of any police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967;
(h) the Commissioners of Customs and Excise;
(i) a Permanent Under-Secretary of State in the Ministry of Defence;
(j) a person who, for the purposes of any international mutual assistance agreement, is the competent authority of a country or territory outside the United Kingdom;
(k) any such other person as the Secretary of State may by order designate for the purposes of this subsection.
(3) An application for the issue of an interception warrant shall not be made on behalf of a person specified in subsection (2) except by a person holding office under the Crown.
(4) The Secretary of State may by order remove any person from the list of persons for the time being specified in subsection (2).
(...)
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 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.
(5) 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.
(...)
Part IV
Scrutiny etc. of investigatory powers and of the functions of the intelligence services
Commissioners
New Commissioners. 53. - (1) The Prime Minister shall appoint two Commissioners, to be known as the Interception of Communications Commissioner and the Covert Investigations Commissioner.
(2) Subject to subsection (5), the Interception of Communications Commissioner shall keep under review-
(a) the exercise and performance by the Secretary of State of the powers and duties conferred or imposed on him by or under sections 1 to 11;
(b) the exercise and performance, by the persons on whom they are conferred or imposed, of the powers and duties conferred or imposed by or under Chapter II of Part I;
(c) the exercise and performance by the Secretary of State in relation to information obtained under Part I of the powers and duties conferred or imposed on him by or under Part III; and
(d) the adequacy of the arrangements by virtue of which-
(i) the duty which is imposed on the Secretary of State by section 14, and
(ii) so far as applicable to information obtained under Part I, the duties imposed by section 51,
are sought to be discharged.
(3) Subject to subsection (5), the Covert Investigations Commissioner shall keep under review, so far as they are not required to be kept under review by the Security Service Act Commissioner, the Intelligence Services Act Commissioner or the Chief Surveillance Commissioner-
(a) the exercise and performance, by the persons on whom they are conferred or imposed, of the powers and duties conferred or imposed by or under Part II;
(b) the exercise and performance, by any person other than a judicial authority, of the powers and duties conferred or imposed, otherwise than with the permission of such an authority, by or under Part III; and
(c) the adequacy of the arrangements by virtue of which the duties imposed by section 51 are sought to be discharged in relation to persons whose conduct is subject to review under paragraph (b).
(4) The Interception of Communications Commissioner and the Covert Investigations Commissioner shall each give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require-
(a) in connection with the investigation of any matter by the Tribunal; or
(b) otherwise for the purposes of the Tribunal's consideration or determination of any matter.
(5) It shall not be the function of either Commissioner to keep under review the exercise of any power of the Secretary of State to make, amend or revoke any subordinate legislation.
(6) A person shall not be appointed under this section as a Commissioner unless-
(a) in the case of the Interception of Communications Commissioner, he holds or has held a high judicial office (within the meaning of the Appellate Jurisdiction Act 1876); or
(b) in the case of the Covert Investigations Commissioner, he holds or has held any such high judicial office or holds or has held office as a Circuit judge, a sheriff in Scotland or a county court judge in Northern Ireland.
(7) Each of the Commissioners shall hold office in accordance with the terms of his appointment; and there shall be paid to each Commissioner out of money provided by Parliament such allowances as the Treasury may determine.
(8) On the coming into force of this section the Commissioner holding office as the Commissioner under section 8 of the Interception of Communications Act 1985 shall take and hold office as the Interception of Communications Commissioner as if appointed under this Act-
(a) for the unexpired period of his term of office under that Act; and
(b) otherwise, on the terms of his appointment under that Act.
(9) In this section "judicial authority" means-
(a) any judge of the High Court or of the Crown Court or any Circuit Judge;
(b) any judge of the High Court of Justiciary or any sheriff;
(c) any justice of the peace;
(d) any county court judge or resident magistrate in Northern Ireland;
(e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace.
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