(1) The offices of the following are abolished—
(a) the Interception of Communications Commissioner,
(b) the Intelligence Services Commissioner,
(c) the Chief Surveillance Commissioner,
(d) the other Surveillance Commissioners,
(e) the Scottish Chief Surveillance Commissioner, and
(f) the other Scottish Surveillance Commissioners.
(2) Accordingly, the following enactments are repealed—
(a) sections 57 and 58 of the Regulation of Investigatory Powers Act 2000 (the Interception of Communications Commissioner),
(b) sections 59, 59A and 60 of that Act (the Intelligence Services Commissioner),
(c) sections 62 and 63 of that Act and sections 91 and 107 of the Police Act 1997 (the Surveillance Commissioners), and
(d) sections 2(1) to (9), 3 and 4 of the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11) (the Scottish Surveillance Commissioners).
(3) The Secretary of State may by regulations, with the consent of the Northern Ireland Assembly, provide for the abolition of the office of the Investigatory Powers Commissioner for Northern Ireland.
(4) The power to make regulations under subsection (3) (including that power as extended by section 267(1)(c)) may, in particular, be exercised by modifying any provision made by or under an enactment (including this Act).
(5) Regulations made by virtue of subsection (4) may, in particular, repeal—
(a) section 61 of the Regulation of Investigatory Powers Act 2000 (the Investigatory Powers Commissioner for Northern Ireland), and
(b) the words “or the Investigatory Powers Commissioner for Northern Ireland” in section 229(4)(f) of this Act.
(6) In this section—
“the Chief Surveillance Commissioner” means the Chief Commissioner appointed under section 91(1)(a) of the Police Act 1997,
“the other Scottish Surveillance Commissioners” means—
the Surveillance Commissioners appointed under section 2(1)(b) of the Regulation of Investigatory Powers (Scotland) Act 2000, and
the Assistant Surveillance Commissioners appointed under section 3 of that Act,
“the other Surveillance Commissioners” means—
the Commissioners appointed under section 91(1)(b) of the Police Act 1997, and
the Assistant Surveillance Commissioners appointed under section 63(1) of the Regulation of Investigatory Powers Act 2000,
“the Scottish Chief Surveillance Commissioner” means the Chief Surveillance Commissioner appointed under section 2(1)(a) of the Regulation of Investigatory Powers (Scotland) Act 2000.
(1) After section 67 of the Regulation of Investigatory Powers Act 2000 insert—
Appeals from the Tribunal
67A (1) A relevant person may appeal on a point of law against any determination of the Tribunal of a kind mentioned in section 68(4) or any decision of the Tribunal of a kind mentioned in section 68(4C).
(2) Before making a determination or decision which might be the subject of an appeal under this section, the Tribunal must specify the court which is to have jurisdiction to hear the appeal (the “relevant appellate court”).
(3) This court is whichever of the following courts appears to the Tribunal to be the most appropriate—
(a) the Court of Appeal in England and Wales,
(b) the Court of Session.
(4) The Secretary of State may by regulations, with the consent of the Northern Ireland Assembly, amend subsection (3) so as to add the Court of Appeal in Northern Ireland to the list of courts mentioned there.
(5) The Secretary of State may by regulations specify criteria to be applied by the Tribunal in making decisions under subsection (2) as to the identity of the relevant appellate court.
(6) An appeal under this section—
(a) is to be heard by the relevant appellate court, but
(b) may not be made without the leave of the Tribunal or, if that is refused, of the relevant appellate court.
(7) The Tribunal or relevant appellate court must not grant leave to appeal unless it considers that—
(a) the appeal would raise an important point of principle or practice, or
(b) there is another compelling reason for granting leave.
(8) In this section—
“relevant appellate court” has the meaning given by subsection (2),
“relevant person”, in relation to any proceedings, complaint or reference, means the complainant or—
in the case of proceedings, the respondent,
in the case of a complaint, the person complained against, and
in the case of a reference, any public authority to whom the reference relates.
(2) In section 67 of that Act (no appeal from the Investigatory Powers Tribunal except as provided by order of the Secretary of State)—
(a) in subsection (8) for “Except to such extent as the Secretary of State may by order otherwise provide,” substitute “ Except as provided by virtue of section 67A, ”, and
(b) omit subsections (9) to (12).
(3) After section 68(4) of that Act (requirement to give notice of determinations to complainant) insert—
(4A) Where the Tribunal make any determination of a kind mentioned in subsection (4), they must also give notice to—
(a) in the case of proceedings, the respondent,
(b) in the case of a complaint, the person complained against, and
(c) in the case of a reference, any public authority to whom the reference relates.
(4B) A notice under subsection (4A) is (subject to any rules made by virtue of section 69(2)(j)) to be confined, as the case may be, to either—
(a) a statement that they have made a determination in the complainant's favour, or
(b) a statement that no determination has been made in the complainant's favour.
(4C) Where the Tribunal make any decision which—
(a) is a final decision of a preliminary issue in relation to any proceedings, complaint or reference brought before or made to them, and
(b) is neither a determination of a kind mentioned in subsection (4) nor a decision relating to a procedural matter,
they must give notice of that decision to every person who would be entitled to receive notice of the determination under subsection (4) or (4A).
(4D) A notice under subsection (4C) is (subject to any rules made by virtue of section 69(2)(i) or (j)) to be confined to a statement as to what the decision is.
(4E) Subsections (4C) and (4D) do not apply so far as—
(a) the Tribunal are prevented from giving notice of a decision to a person by rules made by virtue of section 69(4) or decide under such rules not to give such a notice, or
(b) the giving of such a notice is inconsistent with such rules.
(4) In section 69(2) of that Act (Tribunal rules)—
(a) in paragraph (i), after “section 68(4)” insert “ or notice under section 68(4C) ”, and
(b) after paragraph (i), insert
;
(j) require information about any determination, award, order or other decision made by the Tribunal in relation to any proceedings, complaint or reference to be provided (in addition to any statement under section 68(4A) or notice under section 68(4C)) to—
(i) in the case of proceedings, the respondent,
(ii) in the case of a complaint, the person complained against, and
(iii) in the case of a reference, any public authority to whom the reference relates,
or to the person representing their interests;
(k) make provision about the making and determination of applications to the Tribunal for permission to appeal
.
(5) In section 78 of that Act (orders, regulations and rules)—
(a) in subsection (4), after “applies” insert “ (other than regulations under section 67A(5)) ”, and
(b) after subsection (4) insert—
(4A) A statutory instrument containing regulations under section 67A(5) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
243 Functions of Tribunal in relation to this Act etc.
(1) In section 65 of the Regulation of Investigatory Powers Act 2000 (the Investigatory Powers Tribunal)—
(a) in subsection (2)(c) (jurisdiction of the Investigatory Powers Tribunal where possible detriment due to evidential bar) for “section 17” substitute “ section 56 of the Investigatory Powers Act 2016 ”,
(b) in subsection (5) (conduct in relation to which the Tribunal has jurisdiction) after paragraph (b) insert—
(ba) conduct for or in connection with the obtaining of secondary data from communications transmitted by means of such a service or system;
(bb) the issue, modification, renewal or service of a warrant under Part 2 or Chapter 1 of Part 6 of the Investigatory Powers Act 2016 (interception of communications);
,
(c) in subsection (5) for paragraph (c) substitute—
(c) conduct of a kind which may be permitted or required by an authorisation or notice under Part 3 of that Act or a warrant under Chapter 2 of Part 6 of that Act (acquisition of communications data);
(cza) the giving of an authorisation or notice under Part 3 of that Act or the issue, modification, renewal or service of a warrant under Chapter 2 of Part 6 of that Act;
(czb) conduct of a kind which may be required or permitted by a retention notice under Part 4 of that Act (retention of communications data) but excluding any conduct which is subject to review by the Information Commissioner;
(czc) the giving or varying of a retention notice under that Part of that Act;
(czd) conduct of a kind which may be required or permitted by a warrant under Part 5 or Chapter 3 of Part 6 of that Act (equipment interference);
(cze) the issue, modification, renewal or service of a warrant under Part 5 or Chapter 3 of Part 6 of that Act;
(czf) the issue, modification, renewal or service of a warrant under Part 7 of that Act (bulk personal dataset warrants);
(czg) the giving of an authorisation under section 219(3)(b) (authorisation for the retention, or retention and examination, of material following expiry of bulk personal dataset warrant);
(czh) the giving or varying of a direction under section 225 of that Act (directions where no bulk personal dataset warrant required);
(czi) conduct of a kind which may be required by a notice under section 252 or 253 of that Act (national security or technical capability notices);
(czj) the giving or varying of such a notice;
(czk) the giving of an authorisation under section 152(5)(c) or 193(5)(c) of that Act (certain authorisations to examine intercepted content or protected material);
(czl) any failure to—
(i) cancel a warrant under Part 2, 5, 6 or 7 of that Act or an authorisation under Part 3 of that Act;
(ii) cancel a notice under Part 3 of that Act;
(iii) revoke a notice under Part 4, or section 252 or 253, of that Act; or
(iv) revoke a direction under section 225 of that Act;
(czm) any conduct in connection with any conduct falling within paragraph (c), (czb), (czd) or (czi);
,
(d) in subsection (6) (limitation for certain purposes of what is conduct falling within subsection (5))—
(i) after “on behalf of” insert “ an immigration officer or ”, and
(ii) after paragraph (d) insert—
(dza) the Competition and Markets Authority;
,
(e) after subsection (6) insert—
(6A) Subsection (6) does not apply to anything mentioned in paragraph (d) or (f) of subsection (5) which also falls within paragraph (czd) of that subsection.
,
(f) in subsection (7) after “if” insert “ it is conduct of a public authority and ”,
(g) in subsection (7ZA) (role for Tribunal where judicial authority involved) for “under section 23A or 32A” substitute “ by a Judicial Commissioner or under section 32A of this Act or section 75 of the Investigatory Powers Act 2016 ”,
(h) after subsection (7ZA) insert—
(7ZB) For the purposes of this section conduct also takes place in challengeable circumstances if it is, or purports to be, conduct falling within subsection (5)(bb), (cza), (czc), (cze), (czf), (czg), (czh), (czj), (czk) or (czl) or (so far as the conduct is, or purports to be, the giving of a notice under section 49) subsection (5)(e).
,
(i) in subsection (8) (matters that may be challenged before the Tribunal) for paragraphs (a) and (b) substitute—
(a) a warrant under Part 2, 5, 6 or 7 of the Investigatory Powers Act 2016;
(b) an authorisation or notice under Part 3 of that Act;
(ba) a retention notice under Part 4 of that Act;
(bb) a direction under section 225 of that Act;
(bc) a notice under section 252 or 253 of that Act;
, and
(j) after subsection (9) insert—
(9A) In subsection (5)(ba) the reference to obtaining secondary data from communications transmitted by means of a postal service or telecommunication system is to be read in accordance with section 16 of the Investigatory Powers Act 2016.
(2) In section 67(7) of the Act of 2000 (powers of the Tribunal)—
(a) after paragraph (a) insert—
(aza) an order quashing or cancelling a notice under Part 3 of the Investigatory Powers Act 2016 or a retention notice under Part 4 of that Act;
(azb) an order quashing or revoking a direction under section 225 of that Act;
(azc) an order quashing or revoking a notice under section 252 or 253 of that Act;
,
(b) in paragraph (aa) for “section 23A or 32A” substitute “ section 75 of the Investigatory Powers Act 2016 or section 32A of this Act ”, and
(c) in paragraph (b)(i) after “authorisation” insert “ or by a notice under Part 3 of the Investigatory Powers Act 2016 ”.
(3) In section 68(5)(b) of the Act of 2000 (report of certain findings to the Prime Minister) after “permission” insert “ , or notice under Part 4 of the Investigatory Powers Act 2016 or under section 252 or 253 of that Act or direction under section 225 of that Act, ”.
(4) In section 68(6)(b) of the Act of 2000 (disclosures etc. to the Tribunal to enable the exercise of functions conferred by or under that Act) after “this Act” insert “ or the Investigatory Powers Act 2016 ”.
(5) In section 68(7) of the Act of 2000 (persons subject to duty to co-operate with the Tribunal)—
(a) in paragraph (e)—
(i) for “section 11” substitute “ section 41, 126, 149, 168 or 190 of the Investigatory Powers Act 2016 ”, and
(ii) for “an interception warrant” substitute “ a warrant ”,
(b) in paragraph (f) for “section 12” substitute “ section 252 or 253 of that Act ”,
(c) for paragraphs (g) and (h) substitute—
(g) every person by or to whom an authorisation under Part 3 of that Act has been granted;
(h) every person to whom a notice under Part 3 of that Act has been given;
(ha) every person to whom a retention notice under Part 4 of that Act or a notice under section 252 or 253 of that Act has been given;
,
(d) in paragraph (k), for the words from “an authorisation” to the end substitute
—
(i) an authorisation under Part 3 of the Investigatory Powers Act 2016, Part 2 of this Act or Part 3 of the Police Act 1997, or
(ii) a warrant under Chapter 2 of Part 6 of the Investigatory Powers Act 2016;
,
(e) in paragraph (l) after “authorisation” insert “ or warrant ”, and
(f) in paragraph (n) after “(h)” insert “ , (ha) ”.
(6) In section 68(8) of the Act of 2000 (meaning of “relevant Commissioner”) for the words from “Interception” to the end substitute “ Investigatory Powers Commissioner or any other Judicial Commissioner or the Investigatory Powers Commissioner for Northern Ireland ”.
244 Oversight by Information Commission in relation to Part 4
The Information Commission must audit compliance with requirements or restrictions imposed by virtue of Part 4 in relation to the integrity, security or destruction of data retained by virtue of that Part.
(1) There is to continue to be a Technical Advisory Board consisting of such number of persons appointed by the Secretary of State as the Secretary of State may by regulations provide.
(2) The regulations providing for the membership of the Technical Advisory Board must also make provision which is calculated to ensure—
(a) that the membership of the Board includes persons likely effectively to represent the interests of persons on whom obligations may be imposed by virtue of retention notices under Part 4, national security notices under section 252 or technical capability notices under section 253,
(b) that the membership of the Board includes persons likely effectively to represent the interests of persons entitled to apply for warrants under Part 2, 5, 6 or 7 or authorisations under Part 3,
(c) that such other persons (if any) as the Secretary of State considers appropriate may be appointed to be members of the Board, and
(d) that the Board is so constituted as to produce a balance between the representation of the interests mentioned in paragraph (a) and the representation of those mentioned in paragraph (b).
(3) Regulations under this section may also make provision about quorum and the filling of vacancies.
(1) The Investigatory Powers Commissioner must ensure that there is a Technology Advisory Panel to provide advice to the Investigatory Powers Commissioner, the Secretary of State and the Scottish Ministers about—
(a) the impact of changing technology on the exercise of investigatory powers whose exercise is subject to review by the Commissioner, and
(b) the availability and development of techniques to use such powers while minimising interference with privacy.
(2) The Technology Advisory Panel must provide advice to the Investigatory Powers Commissioner about such matters falling within subsection (1)(a) or (b) as the Commissioner may direct.
(3) Subject to this, the Panel may provide advice to the Investigatory Powers Commissioner about such matters falling within subsection (1)(a) or (b) as it considers appropriate (whether or not requested to do so).
(4) The Panel may provide advice to the Secretary of State or the Scottish Ministers about such matters falling within subsection (1)(a) or (b) as it considers appropriate (whether or not requested to do so) but such advice to the Scottish Ministers may only relate to matters for which the Scottish Ministers are responsible.
(5) The Panel must, as soon as reasonably practicable after the end of each calendar year, make a report to the Investigatory Powers Commissioner about the carrying out of the functions of the Panel.
(6) The Panel must, at the same time, send a copy of the report to the Secretary of State and (so far as relating to matters for which the Scottish Ministers are responsible) the Scottish Ministers.
(1) The Investigatory Powers Commissioner must appoint such number of persons as members of the Technology Advisory Panel as the Commissioner considers necessary for the carrying out of the functions of the Panel.
(2) Subject as follows, each member of the Panel holds and vacates office in accordance with the member's terms and conditions of appointment.
(3) A member of the Panel must not act in a way which the member considers to be contrary to the public interest or prejudicial to—
(a) national security,
(b) the prevention or detection of serious crime, or
(c) the economic well-being of the United Kingdom.
(4) A member of the Panel must, in particular, ensure that the member does not—
(a) jeopardise the success of an intelligence or security operation or a law enforcement operation,
(b) compromise the safety or security of those involved, or
(c) unduly impede the operational effectiveness of an intelligence service, a police force, a government department or Her Majesty's forces.
(5) Section 235(2) and (7) (information powers) apply to a member of the Panel as they apply to a Judicial Commissioner.
(1) The Secretary of State must ensure that arrangements are in force for securing that telecommunications operators and postal operators receive an appropriate contribution in respect of such of their relevant costs as the Secretary of State considers appropriate.
(2) In subsection (1) “relevant costs” means costs incurred, or likely to be incurred, by telecommunications operators and postal operators in complying with this Act.
(3) The arrangements may provide for payment of a contribution to be subject to terms and conditions determined by the Secretary of State.
(4) Such terms and conditions may, in particular, include a condition on the operator concerned to comply with any audit that may reasonably be required to monitor the claim for costs.
(5) The arrangements may provide for the Secretary of State to determine—
(a) the scope and extent of the arrangements, and
(b) the appropriate level of contribution which should be made in each case.
(6) Different levels of contribution may apply for different cases or descriptions of case but the appropriate contribution must never be nil.
(7) A retention notice under Part 4 given to a telecommunications operator or a postal operator, or a national security notice under section 252 given to a telecommunications operator, must specify the level or levels of contribution which the Secretary of State has determined should be made in respect of the costs incurred, or likely to be incurred, by the operator as a result of the notice in complying with that Part or (as the case may be) with the national security notice.
(8) For the purpose of complying with this section the Secretary of State may make, or arrange for the making of, payments out of money provided by Parliament.
(1) The Secretary of State may—
(a) develop, provide, maintain or improve, or
(b) enter into financial or other arrangements with any person for the development, provision, maintenance or improvement of,
such apparatus, systems or other facilities or services as the Secretary of State considers appropriate for enabling or otherwise facilitating compliance by the Secretary of State, another public authority or any other person with this Act.
(2) Arrangements falling within subsection (1)(b) may, in particular, include arrangements consisting of the giving of financial assistance by the Secretary of State.
(3) Such financial assistance—
(a) may, in particular, be given by way of—
(i) grant,
(ii) loan,
(iii) guarantee or indemnity,
(iv) investment, or
(v) incurring expenditure for the benefit of the person assisted, and
(b) may be given subject to terms and conditions determined by the Secretary of State.
(4) Terms and conditions imposed by virtue of subsection (3)(b) may include terms and conditions as to repayment with or without interest.
251 Amendments of the Intelligence Services Act 1994
(1) The Intelligence Services Act 1994 is amended as follows.
(2) In section 3 (the Government Communications Headquarters)—
(a) in subsection (1)(a), after “monitor” insert “ , make use of ”, and
(b) in the words following subsection (1)(b)(ii), for the words from “or to any other organisation” to the end substitute “ or, in such cases as it considers appropriate, to other organisations or persons, or to the general public, in the United Kingdom or elsewhere. ”
(3) In section 5 (warrants: general)—
(a) in subsection (2), omit “, subject to subsection (3) below,”,
(b) omit subsection (3), and
(c) in subsection (3A), after “1989” insert “ , or on the application of the Intelligence Service or GCHQ for the purposes of the exercise of their functions by virtue of section 1(2)(c) or 3(2)(c), ”.
(1) The Secretary of State may give any telecommunications operator in the United Kingdom a national security notice under this section if—
(a) the Secretary of State considers that the notice is necessary in the interests of national security,
(b) the Secretary of State considers that the conduct required by the notice is proportionate to what is sought to be achieved by that conduct, and
(c) the decision to give the notice has been approved by a Judicial Commissioner.
(2) A “national security notice” is a notice requiring the operator to take such specified steps as the Secretary of State considers necessary in the interests of national security.
(3) A national security notice may, in particular, require the operator to whom it is given—
(a) to carry out any conduct, including the provision of services or facilities, for the purpose of—
(i) facilitating anything done by an intelligence service under any enactment other than this Act, or
(ii) dealing with an emergency (within the meaning of Part 1 of the Civil Contingencies Act 2004);
(b) to provide services or facilities for the purpose of assisting an intelligence service to carry out its functions more securely or more effectively.
(4) In a case where—
(a) a national security notice would require the taking of any steps, and
(b) in the absence of such a notice requiring the taking of those steps, the taking of those steps would be lawful only if a warrant or authorisation under a relevant enactment had been obtained,
the notice may require the taking of those steps only if such a warrant or authorisation has been obtained.
(5) But the Secretary of State may not give any telecommunications operator a national security notice the main purpose of which is to require the operator to do something for which a warrant or authorisation under a relevant enactment is required.
(6) In this section “relevant enactment” means—
(a) this Act;
(b) the Intelligence Services Act 1994;
(c) the Regulation of Investigatory Powers Act 2000;
(d) the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11).
(7) A national security notice must specify such period as appears to the Secretary of State to be reasonable as the period within which the steps specified in the notice are to be taken.
(8) Conduct required by a national security notice is to be treated as lawful for all purposes (to the extent that it would not otherwise be so treated).
(9) Sections 254 to 258 contain further provision about national security notices.
(1) The Secretary of State may give a relevant operator a technical capability notice under this section if—
(a) the Secretary of State considers that the notice is necessary for securing that the operator or another relevant operator has the capability to provide any assistance which such operator may be required to provide in relation to any relevant authorisation,
(b) the Secretary of State considers that the conduct required by the notice is proportionate to what is sought to be achieved by that conduct, and
(c) the decision to give the notice has been approved by a Judicial Commissioner.
(2) A “technical capability notice” is a notice—
(a) imposing on the relevant operator (to whom the notice is given) any applicable obligations specified in the notice, and
(b) requiring the person to take all the steps specified in the notice for the purpose of complying with those obligations.
(3) In this section—
“applicable obligation”, in relation to a relevant operator of a particular description, means an obligation specified by the Secretary of State in regulations as an obligation that may be imposed on relevant operators, or on relevant operators of that description;
“relevant authorisation” means—
any warrant issued under Part 2, 5 or 6, or
any authorisation or notice given under Part 3;
“relevant operator” means—
a postal operator,
a telecommunications operator, or
a person who is proposing to become a postal operator or a telecommunications operator.
(4) Regulations under this section may specify an obligation that may be imposed on any relevant operators only if the Secretary of State considers it is reasonable to do so for the purpose of securing—
(a) that it is (and remains) practicable to impose requirements on those relevant operators to provide assistance in relation to relevant authorisations, and
(b) that it is (and remains) practicable for those relevant operators to comply with those requirements.
(5) The obligations that may be specified in regulations under this section include, among other things—
(a) obligations to provide facilities or services of a specified description;
(b) obligations relating to apparatus owned or operated by a relevant operator;
(c) obligations relating to the removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data;
(d) obligations relating to the security of any postal or telecommunications services provided by a relevant operator;
(e) obligations relating to the handling or disclosure of any information.
(6) Before making any regulations under this section, the Secretary of State must consult the following persons—
(a) the Technical Advisory Board,
(b) persons appearing to the Secretary of State to be likely to be subject to any obligations specified in the regulations,
(c) persons representing persons falling within paragraph (b), and
(d) persons with statutory functions in relation to persons falling within that paragraph.
(7) A technical capability notice—
(a) must specify such period as appears to the Secretary of State to be reasonable as the period within which the steps specified in the notice are to be taken, and
(b) may specify different periods in relation to different steps.
(8) A technical capability notice may be given to persons outside the United Kingdom (and may require things to be done, or not to be done, outside the United Kingdom).
(9) Sections 254 to 258 contain further provision about technical capability notices.
(1) In this section “relevant notice” means—
(a) a national security notice under section 252, or
(b) a technical capability notice under section 253.
(2) In deciding whether to approve a decision to give a relevant notice, a Judicial Commissioner must review the Secretary of State's conclusions as to the following matters—
(a) whether the notice is necessary as mentioned in section 252(1)(a) or (as the case may be) section 253(1)(a), and
(b) whether the conduct that would be required by the notice is proportionate to what is sought to be achieved by that conduct.
(3) In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an application for judicial review, and
(b) consider the matters referred to in subsection (2) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).
(4) Where a Judicial Commissioner refuses to approve a decision to give a relevant notice, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.
(5) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to give a relevant notice, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to give the notice.
255 Further provision about notices under section 252 or 253
(1) In this section “relevant notice” means—
(a) a national security notice under section 252, or
(b) a technical capability notice under section 253.
(2) Before giving a relevant notice to a person, the Secretary of State must consult that person.
(3) Before giving a relevant notice, the Secretary of State must, among other matters, take into account—
(a) the likely benefits of the notice,
(b) the likely number of users (if known) of any postal or telecommunications service to which the notice relates,
(c) the technical feasibility of complying with the notice,
(d) the likely cost of complying with the notice, and
(e) any other effect of the notice on the person (or description of person) to whom it relates.
(4) In the case of a technical capability notice that would impose any obligations relating to the removal by a person of electronic protection applied by or on behalf of that person to any communications or data, in complying with subsection (3) the Secretary of State must in particular take into account the technical feasibility, and likely cost, of complying with those obligations.
(5) A relevant notice must be in writing.
(5A) A relevant notice ceases to have effect at the end of the relevant period unless before the end of that period—
(a) it is varied in accordance with section 256(4)(c) or (5)(c) so as to impose further requirements on the person to whom the notice was given,
(b) it is renewed (see section 256A), or
(c) it is revoked or otherwise ceases to have effect (see section 256).
(5B) In subsection (5A) the “relevant period” means the period of two years beginning with—
(a) in the case of a relevant notice that has not been varied as mentioned in subsection (5A)(a) or renewed, the day on which the notice was given, or
(b) in the case of a relevant notice that has been so varied or renewed, the day after the day at the end of which the relevant notice would have ceased to have effect if it had not been so varied or renewed.
(6) A technical capability notice may be given to a person outside the United Kingdom in any of the following ways (as well as by electronic or other means of giving a notice)—
(a) by delivering it to the person's principal office within the United Kingdom or, if the person has no such office in the United Kingdom, to any place in the United Kingdom where the person carries on business or conducts activities;
(b) if the person has specified an address in the United Kingdom as one at which the person, or someone on the person's behalf, will accept documents of the same description as a notice, by delivering it to that address.
(7) The Secretary of State may by regulations make further provision about the giving of relevant notices.
(8) A person to whom a relevant notice is given, or any person employed or engaged for the purposes of that person's business, must not disclose the existence or contents of the notice to any other person without the permission of the Secretary of State.
(9) A person to whom a relevant notice is given must comply with the notice.
(10) The duty imposed by subsection (8) or (9), or by section 257(3A), is enforceable—
(a) in relation to a person in the United Kingdom, and
(b) so far as relating to a technical capability notice within subsection (11), in relation to a person outside the United Kingdom,
by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief.
(11) A technical capability notice is within this subsection if it relates to any of the following—
(a) a targeted interception warrant or mutual assistance warrant under Chapter 1 of Part 2;
(b) a bulk interception warrant;
(c) an authorisation or notice given under Part 3.
(12) Subsection (9) applies to a person to whom a national security notice is given despite any other duty imposed on the person by or under Part 1, or Chapter 1 of Part 2, of the Communications Act 2003.
(1) In this section “relevant notice” means—
(a) a national security notice under section 252, or
(b) a technical capability notice under section 253.
(2) The Secretary of State must keep each relevant notice under review.
(3) The Secretary of State may—
(a) vary a relevant notice;
(b) revoke a relevant notice (whether wholly or in part).
(4) The Secretary of State may vary a national security notice given to a person only if—
(a) the Secretary of State considers that the variation is necessary in the interests of national security,
(b) the Secretary of State considers that the conduct required by the notice as varied is proportionate to what is sought to be achieved by that conduct, and
(c) if the variation would impose further requirements on the person, the decision to vary the notice has been approved by a Judicial Commissioner (but see subsection (6)).
(5) The Secretary of State may vary a technical capability notice given to a person only if—
(a) the Secretary of State considers that the variation is necessary for securing that the person has the capability to provide any assistance which the person may be required to provide in relation to any relevant authorisation (within the meaning of section 253),
(b) the Secretary of State considers that the conduct required by the notice as varied is proportionate to what is sought to be achieved by that conduct, and
(c) if the variation would impose further requirements on the person, the decision to vary the notice has been approved by a Judicial Commissioner (but see subsection (6)).
(6) The condition in subsection (4)(c) or (as the case may be) subsection (5)(c) does not apply in the case of a variation to which section 257(10) applies.
(7) If the Secretary of State varies or revokes a relevant notice given to any person, the Secretary of State must give that person notice of the variation or revocation.
(8) Section 254 (approval of notices by Judicial Commissioners) applies in relation to a decision to vary a relevant notice (other than a decision to which section 257(10) applies) as it applies in relation to a decision to give a relevant notice, but as if—
(a) the reference in section 254(2)(a) to the notice were to the variation, and
(b) the reference in section 254(2)(b) to the notice were to the notice as varied.
(9) Subsections (2) to (4) and (7) of section 255 apply in relation to varying or revoking a relevant notice as they apply in relation to giving a relevant notice (and in the application of section 255(3) and (4) in relation to varying a relevant notice, references to the notice are to be read as references to the notice as varied).
(10) Subsections (5) and (6) of section 255 apply to any notice of the variation or revocation of a relevant notice as they apply to a relevant notice.
(11) The fact that a relevant notice has been revoked in relation to a particular person (or description of persons) does not prevent the giving of another relevant notice of the same kind in relation to the same person (or description of persons).
(12) Any reference in this section or section 255(8) to (12) to a notice given under section 252 or 253 includes a reference to such a notice as varied under this section.
(1) If the renewal conditions are met, a relevant notice may be renewed, at any time during the renewal period, by a notice given by the Secretary of State.
(2) The renewal conditions for a national security notice given under section 252 are that—
(a) the Secretary of State considers that the notice is still necessary in the interests of national security,
(b) the Secretary of State considers that the conduct required by the notice is still proportionate to what is sought to be achieved by that conduct, and
(c) the decision to renew the notice has been approved by a Judicial Commissioner.
(3) The renewal conditions for a technical capability notice given under section 253 are that—
(a) the Secretary of State considers that the notice is still necessary for securing that the relevant operator has the capability to provide any assistance which the operator may be required to provide in relation to any relevant authorisation,
(b) the Secretary of State considers that the conduct required by the notice is still proportionate to what is sought to be achieved by that conduct, and
(c) the decision to renew the notice has been approved by a Judicial Commissioner.
(4) The renewal period means the period of 30 days ending with the day at the end of which the relevant notice would otherwise cease to have effect.
(5) If the Secretary of State renews a relevant notice given to any person, the Secretary of State must give that person notice in writing of the renewal.
(6) Sections 254, 255(2) to (4) and (7) and 257 apply in relation to the renewal of a relevant notice as they apply in relation to the giving of a relevant notice.
(7) Section 255(6) applies to any notice of the renewal of a technical capability notice as it applies to a technical capability notice.
(8) In this section—
“relevant authorisation” has the meaning given by section 253;
“relevant notice” means—
a national security notice under section 252, or
a technical capability notice under section 253;
“relevant operator” has the meaning given by section 253.
(1) A person who is given a notice under section 252 or 253 may, within such period or circumstances as may be provided for by regulations made by the Secretary of State, refer the notice back to the Secretary of State.
(2) Such a reference may be in relation to the whole of a notice or any aspect of it.
(3) Where a person who is given a notice under section 252 or 253 refers the notice under subsection (1)—
(a) there is no requirement for the person to comply with the notice, so far as referred, and
(b) subsection (3A) applies to the person,
until the Secretary of State has reviewed the notice in accordance with subsection (4).
(3A) Where this subsection applies to a person, the person must not make any relevant changes to telecommunications or postal services, or telecommunication systems, to which obligations imposed by the notice given under section 252 or 253 relate.
(3B) In subsection (3A) “relevant change” means a change that, if implemented, would have a negative effect on the capability of the person to provide any assistance which the person may be required to provide in relation to any warrant, authorisation or notice issued or given under this Act.
(4) The Secretary of State must , before the end of the review period, review any notice so far as referred to the Secretary of State under subsection (1) (and accordingly decide what action to take under subsection (9)).
(4A) In subsection (4) “the review period” means—
(a) such period as may be provided for by regulations made by the Secretary of State, or
(b) if that period is extended by the Secretary of State in accordance with the regulations (see subsection (13)), such extended period.
(5) Before deciding the review, the Secretary of State must consult—
(a) the Technical Advisory Board, and
(b) a Judicial Commissioner.
(6) The Board must consider the technical requirements and the financial consequences, for the person who has made the reference, of the notice so far as referred.
(7) The Commissioner must consider whether the notice so far as referred is proportionate.
(8) The Board and the Commissioner must—
(a) give the person concerned and the Secretary of State the opportunity to provide evidence, or make representations, to them before reaching their conclusions, and
(b) report their conclusions to—
(i) the person, and
(ii) the Secretary of State.
(8A) The Commissioner may give a direction to the person concerned or the Secretary of State specifying the period within which the person or the Secretary of State (as the case may be) may provide evidence, or make representations, in accordance with subsection (8)(a).
(8B) If the Commissioner gives such a direction to the person or the Secretary of State, the Board and the Commissioner are not required to take into account any evidence provided, or representations made, by the person or the Secretary of State (as the case may be) after the end of that period.
(9) The Secretary of State must, after considering the conclusions of the Board and the Commissioner but before the end of the relevant period, decide whether to—
(a) vary or revoke the notice under section 256, or
(b) give a notice under this section to the person confirming its effect.
(10) But the Secretary of State may vary the notice, or give a notice under subsection (9)(b) confirming its effect, only if the Secretary of State's decision to do so has been approved by the Investigatory Powers Commissioner.
(10A) In subsection (9) “the relevant period” means—
(a) such period as may be provided for by regulations made by the Secretary of State, or
(b) if that period is extended by the Secretary of State in accordance with the regulations (see subsection (14)), such extended period.
(11) Subsections (5) to (8) of section 255 apply in relation to a notice under subsection (9)(b) above as they apply in relation to a notice under section 252 or 253.
(12) Any reference in this section or section 258 to a notice under section 252 or 253 includes such a notice as varied under section 256, but only so far as the variation is concerned.
But it does not include a notice varied as mentioned in subsection (9)(a) above.
(13) Regulations under subsection (4A)(a) may include provision enabling any period provided for by the regulations to be extended by the Secretary of State where the extension is agreed by the Secretary of State, the person concerned and a Judicial Commissioner.
(14) Regulations under subsection (10A)(a) may include provision enabling any period provided for by the regulations to be extended by the Secretary of State—
(a) where the Secretary of State considers that there are exceptional circumstances that justify the extension, or
(b) in any other circumstances specified in the regulations.
(15) Where regulations under subsection (10A)(a) include provision mentioned in subsection (14), the regulations must also include provision requiring the Secretary of State to notify a Judicial Commissioner and the person concerned of the duration of any extended period.
258 Approval of notices following review under section 257
(1) In this section “relevant notice” means—
(a) a national security notice under section 252, or
(b) a technical capability notice under section 253.
(2) In deciding whether to approve a decision to vary a relevant notice as mentioned in section 257(9)(a), or to give a notice under section 257(9)(b) confirming the effect of a relevant notice, the Investigatory Powers Commissioner must review the Secretary of State's conclusions as to the following matters—
(a) whether the relevant notice as varied or confirmed is necessary as mentioned in section 252(1)(a) or (as the case may be) section 253(1)(a), and
(b) whether the conduct required by the relevant notice, as varied or confirmed, is proportionate to what is sought to be achieved by that conduct.
(3) In doing so, the Investigatory Powers Commissioner must—
(a) apply the same principles as would be applied by a court on an application for judicial review, and
(b) consider the matters referred to in subsection (2) with a sufficient degree of care as to ensure that the Investigatory Powers Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).
(4) Where the Investigatory Powers Commissioner refuses to approve a decision to vary a relevant notice as mentioned in section 257(9)(a), or to give a notice under section 257(9)(b) confirming the effect of a relevant notice, the Investigatory Powers Commissioner must give the Secretary of State written reasons for the refusal.
258A Notification of proposed changes to telecommunications services etc
(1) The Secretary of State may give a relevant operator a notice in writing under this section requiring the operator to notify the Secretary of State of any proposals of the operator to make any relevant changes specified in the notice.
(2) In this section “relevant change” means a change—
(a) to a service or system within subsection (3), and
(b) that is specified in regulations made by the Secretary of State as a change that may be included in a notice given under this section.
(3) The following are within this subsection—
(a) telecommunications services offered or provided by the operator;
(b) telecommunication systems controlled or provided by the operator;
(c) postal services provided by the operator.
(4) Regulations under subsection (2) may in particular specify changes by reference to the impact of the changes on the capability of a relevant operator to provide any assistance which the operator may be required to provide in relation to any warrant, authorisation or notice issued or given under this Act.
(5) The Secretary of State may give a relevant operator a notice under this section only if the Secretary of State considers that—
(a) the notice is necessary for maintaining the capability of the relevant operator to provide any assistance which the operator may be required to provide in relation to any warrant, authorisation or notice issued or given under this Act, and
(b) the conduct required by the notice is proportionate to what is sought to be achieved by that conduct.
(6) Before giving a notice under this section, the Secretary of State must among other matters take into account—
(a) the likely benefits of the notice,
(b) the likely number of users (if known) of any postal or telecommunications service to which the notice relates,
(c) the likely cost of complying with the notice, and
(d) any other effect of the notice on the operator to whom it relates.
(7) Before giving a notice under this section to a relevant operator, the Secretary of State must consult that operator.
(8) A relevant operator to whom a notice is given under this section, or any person employed or engaged for the purposes of that relevant operator’s business, must not disclose the existence or contents of the notice to any other person without the permission of the Secretary of State.
(9) A relevant operator to whom a notice is given under this section must comply with the notice a reasonable time before making any relevant changes to which the notice relates.
(10) The duty imposed by subsection (8) or (9) is enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief.
(11) In this section “relevant operator” means—
(a) a postal operator,
(b) a telecommunications operator, or
(c) a person who is proposing to become a postal operator or a telecommunications operator,
who meets the condition in subsection (12).
(12) The condition in this subsection is that the operator or person provides (or has provided) assistance in relation to any warrant, authorisation or notice issued or given under this Act.
258B Variation and revocation of notices given under section 258A
(1) In this section—
“relevant notice” means a notice given under section 258A;
“relevant operator” has the same meaning as in that section.
(2) The Secretary of State may—
(a) vary a relevant notice;
(b) revoke a relevant notice (whether wholly or in part).
(3) The Secretary of State may vary a relevant notice only if the Secretary of State considers that—
(a) the variation is necessary for maintaining the capability of the relevant operator to provide any assistance which the operator may be required to provide in relation to any warrant, authorisation or notice issued or given under this Act, and
(b) the conduct required by the notice, as varied, is proportionate to what is sought to be achieved by that conduct.
(4) If the Secretary of State varies or revokes a relevant notice given to any relevant operator, the Secretary of State must give that relevant operator notice in writing of the variation or revocation.
(5) The fact that a relevant notice has been revoked in relation to a particular relevant operator does not prevent the giving of another relevant notice of the same kind in relation to the same relevant operator.
(6) Subsections (6) and (7) of section 258A apply in relation to varying or revoking a relevant notice as they apply in relation to giving a relevant notice.
(7) Any reference in this section or section 258A(8) or (9) to a notice given under section 258A includes a reference to such a notice as varied under this section.
259 Amendments of the Wireless Telegraphy Act 2006
(1) The Wireless Telegraphy Act 2006 is amended as follows.
(2) Section 48 (interception and disclosure of messages) is amended as follows.
(3) In subsection (1), for “otherwise than under the authority of a designated person” substitute “ without lawful authority ”.
(4) After subsection (3) insert—
(3A) A person does not commit an offence under this section consisting in any conduct if the conduct—
(a) constitutes an offence under section 3(1) of the Investigatory Powers Act 2016 (offence of unlawful interception), or
(b) would do so in the absence of any lawful authority (within the meaning of section 6 of that Act).
(5) Omit subsection (5).
(6) Omit section 49 (interception authorities).
(7) In consequence of the repeal made by subsection (6)—
(a) in sections 50(5) and 119(2)(a), for “49” substitute “ 48 ”;
(b) in section 121(2), omit paragraph (b).
(1) The Secretary of State must, within the period of 6 months beginning with the end of the initial period, prepare a report on the operation of this Act.
(2) In subsection (1) “the initial period” is the period of 5 years and 6 months beginning with the day on which this Act is passed.
(3) In preparing the report under subsection (1), the Secretary of State must, in particular, take account of any report on the operation of this Act made by a Select Committee of either House of Parliament (whether acting alone or jointly).
(4) The Secretary of State must—
(a) publish the report prepared under subsection (1), and
(b) lay a copy of it before Parliament.
(1) The definitions in this section have effect for the purposes of this Act.
Communication
(2) “Communication”, in relation to a telecommunications operator, telecommunications service or telecommunication system, includes—
(a) anything comprising speech, music, sounds, visual images or data of any description, and
(b) signals serving either for the impartation of anything between persons, between a person and a thing or between things or for the actuation or control of any apparatus.
Entity data
(3) “Entity data” means any data which—
(a) is about—
(i) an entity,
(ii) an association between a telecommunications service and an entity, or
(iii) an association between any part of a telecommunication system and an entity,
(b) consists of, or includes, data which identifies or describes the entity (whether or not by reference to the entity's location), and
(c) is not events data.
Events data
(4) “Events data” means any data which identifies or describes an event (whether or not by reference to its location) on, in or by means of a telecommunication system where the event consists of one or more entities engaging in a specific activity at a specific time.
Communications data
(5) “Communications data”, in relation to a telecommunications operator, telecommunications service or telecommunication system, means entity data or events data—
(a) which is (or is to be or is capable of being) held or obtained by, or on behalf of, a telecommunications operator and—
(i) is about an entity to which a telecommunications service is provided and relates to the provision of the service,
(ii) is comprised in, included as part of, attached to or logically associated with a communication (whether by the sender or otherwise) for the purposes of a telecommunication system by means of which the communication is being or may be transmitted, or
(iii) does not fall within sub-paragraph (i) or (ii) but does relate to the use of a telecommunications service or a telecommunication system,
(b) which is available directly from a telecommunication system and falls within sub-paragraph (ii) of paragraph (a), or
(c) which—
(i) is (or is to be or is capable of being) held or obtained by, or on behalf of, a telecommunications operator,
(ii) is about the architecture of a telecommunication system, and
(iii) is not about a specific person,
but (subject to subsection (5A)) does not include any content of a communication or anything which, in the absence of subsection (6)(b), would be content of a communication.
(5A) In subsection (5) the words after paragraph (c) do not apply to relevant subscriber data.
(5B) In subsection (5A) “relevant subscriber data” means entity data, other than data comprised in a recording of speech, which—
(a) constitutes any or all of the content of a communication made for the purpose of initiating or maintaining an entity’s access to a telecommunications service, and
(b) is about an entity to which that telecommunications service is (or is to be) provided.
Content of a communication
(6) “Content”, in relation to a communication and a telecommunications operator, telecommunications service or telecommunication system, means any element of the communication, or any data attached to or logically associated with the communication, which reveals anything of what might reasonably be considered to be the meaning (if any) of the communication, but—
(a) any meaning arising from the fact of the communication or from any data relating to the transmission of the communication is to be disregarded, and
(b) anything which is systems data is not content.
Other definitions
(7) “Entity” means a person or thing.
(8) “Public telecommunications service” means any telecommunications service which is offered or provided to the public, or a substantial section of the public, in any one or more parts of the United Kingdom.
(9) “Public telecommunication system” means a telecommunication system located in the United Kingdom—
(a) by means of which any public telecommunications service is provided, or
(b) which consists of parts of any other telecommunication system by means of which any such service is provided.
(10) “Telecommunications operator” means a person who—
(a) offers or provides a telecommunications service to persons in the United Kingdom, ...
(b) controls or provides a telecommunication system which is (wholly or partly)—
(i) in the United Kingdom, or
(ii) controlled from the United Kingdom, or
(c) controls or provides a telecommunication system which—
(i) is not (wholly or partly) in, or controlled from, the United Kingdom, and
(ii) is used by another person to offer or provide a telecommunications service to persons in the United Kingdom.
(11) “Telecommunications service” means any service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by the person providing the service).
(12) For the purposes of subsection (11), the cases in which a service is to be taken to consist in the provision of access to, and of facilities for making use of, a telecommunication system include any case where a service consists in or includes facilitating the creation, management or storage of communications transmitted, or that may be transmitted, by means of such a system.
(13) “Telecommunication system” means a system (including the apparatus comprised in it) that exists (whether wholly or partly in the United Kingdom or elsewhere) for the purpose of facilitating the transmission of communications by any means involving the use of electrical or electromagnetic energy.
(14) “Private telecommunication system” means any telecommunication system which—
(a) is not a public telecommunication system,
(b) is attached, directly or indirectly, to a public telecommunication system (whether or not for the purposes of the communication in question), and
(c) includes apparatus which is both located in the United Kingdom and used (with or without other apparatus) for making the attachment to that public telecommunication system.
(1) The definitions in this section have effect for the purposes of this Act.
Communication
(2) “Communication”, in relation to a postal operator or postal service (but not in the definition of “postal service” in this section), includes anything transmitted by a postal service.
Communications data
(3) “Communications data”, in relation to a postal operator or postal service, means—
(a) postal data comprised in, included as part of, attached to or logically associated with a communication (whether by the sender or otherwise) for the purposes of a postal service by means of which it is being or may be transmitted,
(b) information about the use made by any person of a postal service (but excluding any content of a communication (apart from information within paragraph (a)), or
(c) information not within paragraph (a) or (b) that is (or is to be or is capable of being) held or obtained by or on behalf of a person providing a postal service, is about those to whom the service is provided by that person and relates to the service so provided.
Postal data
(4) “Postal data” means data which—
(a) identifies, or purports to identify, any person, apparatus or location to or from which a communication is or may be transmitted,
(b) identifies or selects, or purports to identify or select, apparatus through which, or by means of which, a communication is or may be transmitted,
(c) identifies, or purports to identify, the time at which an event relating to a communication occurs, or
(d) identifies the data or other data as data comprised in, included as part of, attached to or logically associated with a particular communication.
For the purposes of this definition “data”, in relation to a postal item, includes anything written on the outside of the item.
Other definitions
(5) “Postal item” means—
(a) any letter, postcard or other such thing in writing as may be used by the sender for imparting information to the recipient, or
(b) any packet or parcel.
(6) “Postal operator” means a person providing a postal service to persons in the United Kingdom.
(7) “Postal service” means a service that—
(a) consists in the following, or in any one or more of them, namely, the collection, sorting, conveyance, distribution and delivery (whether in the United Kingdom or elsewhere) of postal items, and
(b) has as its main purpose, or one of its main purposes, to make available, or to facilitate, a means of transmission from place to place of postal items containing communications.
(8) “Public postal service” means a postal service that is offered or provided to the public, or a substantial section of the public, in any one or more parts of the United Kingdom.
(1) In this Act—
“apparatus” includes any equipment, machinery or device (whether physical or logical) and any wire or cable,
“civil proceedings” means any proceedings in or before any court or tribunal that are not criminal proceedings,
“crime” means conduct which—
constitutes one or more criminal offences, or
is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom, would constitute one or more criminal offences,
“criminal proceedings” includes proceedings before a court in respect of a service offence within the meaning of the Armed Forces Act 2006 (and references to criminal prosecutions are to be read accordingly),
“data” includes data which is not electronic data and any information (whether or not electronic),
“Deputy Investigatory Powers Commissioner” means a person appointed under section 227(6A) (and the expression is also to be read in accordance with section 227(13)(b)),
“destroy”, in relation to electronic data, means delete the data in such a way as to make access to the data impossible (and related expressions are to be read accordingly),
“enactment” means an enactment whenever passed or made; and includes—
an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978,
an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament,
an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales, and
an enactment contained in, or in an instrument made under, Northern Ireland legislation,
“enhanced affirmative procedure” is to be read in accordance with section 268,
“functions” includes powers and duties,
“GCHQ” has the same meaning as in the Intelligence Services Act 1994,
“head”, in relation to an intelligence service, means—
in relation to the Security Service, the Director-General,
in relation to the Secret Intelligence Service, the Chief, and
in relation to GCHQ, the Director,
“Her Majesty's forces” has the same meaning as in the Armed Forces Act 2006,
“identifying data” has the meaning given by subsection (2),
“intelligence service” means the Security Service, the Secret Intelligence Service or GCHQ,
“the Investigatory Powers Commissioner” means the person appointed under section 227(1)(a) (and the expression is also to be read in accordance with section 227(13)(b)),
“the Investigatory Powers Tribunal” means the tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000,
“items subject to legal privilege”—
in relation to England and Wales, has the same meaning as in the Police and Criminal Evidence Act 1984 (see section 10 of that Act),
in relation to Scotland, means—
communications between a professional legal adviser and the adviser's client, or
communications made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings,
which would, by virtue of any rule of law relating to the confidentiality of communications, be protected in legal proceedings from disclosure, and
in relation to Northern Ireland, has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (see Article 12 of that Order),
“Judicial Commissioner” means a person appointed under section 227(1)(a) or (b) (and the expression is therefore to be read in accordance with section 227(13)(a)),
“legal proceedings” means—
civil or criminal proceedings in or before a court or tribunal, or
proceedings before an officer in respect of a service offence within the meaning of the Armed Forces Act 2006,
“modify” includes amend, repeal or revoke (and related expressions are to be read accordingly),
“person holding office under the Crown” includes any servant of the Crown and any member of Her Majesty's forces,
“premises” includes any land, movable structure, vehicle, vessel, aircraft or hovercraft (and “set of premises” is to be read accordingly),
“primary legislation” means—
an Act of Parliament,
an Act of the Scottish Parliament,
a Measure or Act of the National Assembly for Wales, or
Northern Ireland legislation,
“public authority” means a public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal,
“serious crime” means crime where—
the offence, or one of the offences, which is or would be constituted by the conduct concerned is an offence for which a person who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of 3 years or more, or
the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose,
“source of journalistic information” means an individual who provides material intending the recipient to use it for the purposes of journalism or knowing that it is likely to be so used,
“specified”, in relation to an authorisation, warrant, notice or regulations, means specified or described in the authorisation, warrant, notice or (as the case may be) regulations (and “specify” is to be read accordingly),
“statutory”, in relation to any function, means conferred by virtue of this Act or any other enactment,
“subordinate legislation” means—
subordinate legislation within the meaning of the Interpretation Act 1978, or
an instrument made under an Act of the Scottish Parliament, Northern Ireland legislation or a Measure or Act of the National Assembly for Wales,
“systems data” has the meaning given by subsection (4),
“the Technical Advisory Board” means the Board provided for by section 245,
“the Technology Advisory Panel” means the panel established in accordance with section 246(1),
“tri-service serious crime unit” means the unit described in section 375(1A) of the Armed Forces Act 2006,
“working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.
(2) In this Act “identifying data” means—
(a) data which may be used to identify, or assist in identifying, any person, apparatus, system or service,
(b) data which may be used to identify, or assist in identifying, any event, or
(c) data which may be used to identify, or assist in identifying, the location of any person, event or thing.
(3) For the purposes of subsection (2), the reference to data which may be used to identify, or assist in identifying, any event includes—
(a) data relating to the fact of the event;
(b) data relating to the type, method or pattern of event;
(c) data relating to the time or duration of the event.
(4) In this Act “systems data” means any data that enables or facilitates, or identifies or describes anything connected with enabling or facilitating, the functioning of any of the following—
(a) a postal service;
(b) a telecommunication system (including any apparatus forming part of the system);
(c) any telecommunications service provided by means of a telecommunication system;
(d) a relevant system (including any apparatus forming part of the system);
(e) any service provided by means of a relevant system.
(5) For the purposes of subsection (4), a system is a “relevant system” if any communications or other information are held on or by means of the system.
(6) For the purposes of this Act detecting crime or serious crime is to be taken to include—
(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime or (as the case may be) serious crime was committed, and
(b) the apprehension of the person by whom any crime or (as the case may be) serious crime was committed.
(7) References in this Act to the examination of material obtained under a warrant are references to the material being read, looked at or listened to by the persons to whom it becomes available as a result of the warrant.
264 General definitions: “journalistic material” etc.
(1) The definitions in this section have effect for the purposes of this Act.
Journalistic material
(2) “Journalistic material” means material created or acquired for the purposes of journalism.
(3) For the purposes of this section, where—
(a) a person (“R”) receives material from another person (“S”), and
(b) S intends R to use the material for the purposes of journalism,
R is to be taken to have acquired it for those purposes.
Accordingly, a communication sent by S to R containing such material is to be regarded as a communication containing journalistic material.
(4) For the purposes of determining whether a communication contains material acquired for the purposes of journalism, it does not matter whether the material has been acquired for those purposes by the sender or recipient of the communication or by some other person.
(5) For the purposes of this section—
(a) material is not to be regarded as created or acquired for the purposes of journalism if it is created or acquired with the intention of furthering a criminal purpose, and
(b) material which a person intends to be used to further such a purpose is not to be regarded as intended to be used for the purposes of journalism.
Confidential journalistic material
(6) “Confidential journalistic material” means—
(a) in the case of material contained in a communication, journalistic material which the sender of the communication—
(i) holds in confidence, or
(ii) intends the recipient, or intended recipient, of the communication to hold in confidence;
(b) in any other case, journalistic material which a person holds in confidence.
(7) A person holds material in confidence for the purposes of this section if—
(a) the person holds it subject to an express or implied undertaking to hold it in confidence, or
(b) the person holds it subject to a restriction on disclosure or an obligation of secrecy contained in an enactment.
In this Act, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.
Expression | Provision
Apparatus | Section 263(1)
Bulk equipment interference warrant | Section 176(1)
Bulk interception warrant | Section 136(1)
Civil proceedings | Section 263(1)
Communication | Sections 261(2) and 262(2)
Communications data | Sections 261(5) and 262(3)
Confidential journalistic material | Section 264(6) and (7)
Content of a communication (in relation to a telecommunications operator, telecommunications service or telecommunication system) | Section 261(6)
Crime | Section 263(1)
Criminal proceedings | Section 263(1)
Criminal prosecution | Section 263(1)
Data | Section 263(1)
Deputy Investigatory Powers Commissioner | Section 263(1)
Destroy (in relation to electronic data) and related expressions | Section 263(1)
Detecting crime or serious crime | Section 263(6)
Enactment | Section 263(1)
Enhanced affirmative procedure | Section 263(1)
Entity | Section 261(7)
Entity data | Section 261(3)
Events data | Section 261(4)
Examination (in relation to material obtained under a warrant) | Section 263(7)
Functions | Section 263(1)
GCHQ | Section 263(1)
Head (in relation to an intelligence service) | Section 263(1)
Her Majesty's forces | Section 263(1)
Identifying data | Section 263(2) and (3)
Intelligence service | Section 263(1)
Interception of communication (postal service) | Sections 4(7) and 5
Interception of communication (telecommunication system) | Sections 4(1) to (6) and 5(1)
Interception of communication in the United Kingdom | Section 4(8)
Internet connection record | Section 62(7)
Investigatory Powers Commissioner | Section 263(1)
Investigatory Powers Tribunal | Section 263(1)
Items subject to legal privilege | Section 263(1)
Journalistic material | Section 264(2) to (5)
Judicial Commissioner | Section 263(1)
Judicial Commissioners | Section 227(7)
Lawful authority (in relation to interception of communication) | Section 6
Legal proceedings | Section 263(1)
Modify (and related expressions) | Section 263(1)
Person holding office under the Crown | Section 263(1)
Postal data | Section 262(4)
Postal item | Section 262(5)
Postal item in course of transmission by postal service | Section 4(7)
Postal operator | Section 262(6)
Postal service | Section 262(7)
Premises | Section 263(1)
Primary legislation | Section 263(1)
Private telecommunication system | Section 261(14)
Public authority | Section 263(1)
Public postal service | Section 262(8)
Public telecommunications service | Section 261(8)
Public telecommunication system | Section 261(9)
Serious crime | Section 263(1) (and paragraph 6 of Schedule 9)
Source of journalistic information | Section 263(1)
Specified and specify (in relation to an authorisation, warrant, notice or regulations) | Section 263(1)
Statutory (in relation to any function) | Section 263(1)
Subordinate legislation | Section 263(1)
Systems data | Section 263(4) and (5)
Technical Advisory Board | Section 263(1)
Technology Advisory Panel | Section 263(1)
Telecommunications operator | Section 261(10)
Telecommunications service | Section 261(11) and (12)
Telecommunication system | Section 261(13)
Working day | Section 263(1)
(1) This section applies if an offence under this Act is committed by a body corporate or a Scottish partnership.
(2) If the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a) a senior officer of the body corporate or Scottish partnership, or
(b) a person purporting to act in such a capacity,
the senior officer or person (as well as the body corporate or partnership) is guilty of the offence and liable to be proceeded against and punished accordingly.
(3) In this section—
“director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate,
“senior officer” means—
in relation to a body corporate, a director, manager, secretary or other similar officer of the body corporate, and
in relation to a Scottish partnership, a partner in the partnership.
(1) Any power of the Secretary of State or the Treasury to make regulations under this Act—
(a) is exercisable by statutory instrument,
(b) may be exercised so as to make different provision for different purposes or different areas, and
(c) includes power to make supplementary, incidental, consequential, transitional, transitory or saving provision.
(2) See sections 72(3) and 73(6) for the procedure for a statutory instrument containing regulations under section 71 to which section 72 applies or (as the case may be) regulations under section 73(4) to which section 73(5) applies (enhanced affirmative procedure).
(3) A statutory instrument containing regulations under—
(a) section 12(4) or 271(2) which amend or repeal any provision of primary legislation,
(b) section 46(2),
(c) section 52(5),
(d) section 83,
(e) section 90(1) , (5A)(a) or (11A)(a),
(ea) section 202A,
(f) section 239,
(g) section 240(3),
(h) section 245,
(i) section 253,
(j) section 257(1) , (4A)(a) or (10A)(a), ...
(ja) section 258A(2), or
(k) paragraph 33 of Schedule 8,
may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(4) A statutory instrument containing—
(a) regulations under section 12(4) or 271(2) to which subsection (3) does not apply,
(b) regulations under section 65(5), or
(c) regulations under paragraph 2(1)(b) of Schedule 5,
is (if a draft of the instrument has not been laid before, and approved by a resolution of, each House of Parliament) subject to annulment in pursuance of a resolution of either House of Parliament.
(5) A statutory instrument containing—
(a) regulations under section 10(3),
(aa) regulations under section 12(5B),
(b) regulations under section 52(3),
(c) regulations under section 58(8)(a),
(d) regulations under section 71 to which section 72 does not apply,
(e) regulations under section 73(4) to which section 73(5) does not apply,
(f) regulations under section 133(6)(a), or
(g) regulations under section 255(7),
is subject to annulment in pursuance of a resolution of either House of Parliament.
(6) A statutory instrument containing regulations under paragraph 4 of Schedule 5 is subject to annulment in pursuance of a resolution of the House of Commons.
(7) See paragraphs 4(4) and 5(5) of Schedule 7 for the procedure for a statutory instrument containing regulations about the coming into force of a code of practice under that Schedule or of any revisions to such a code of practice (affirmative procedure or, in the case of the coming into force of revisions, a choice between that procedure and laying before Parliament after being made).
(8) A statutory instrument containing regulations which are subject to a particular parliamentary procedure under this Act may also include regulations which are subject to a different or no parliamentary procedure under this Act (but this subsection does not apply to regulations mentioned in subsection (2), (4), (6) or (7)).
(9) A statutory instrument which, by virtue of subsection (8), contains regulations which are subject to different parliamentary procedures, or one or more parliamentary procedure and no parliamentary procedure, is subject to whichever procedure is the higher procedure; and the order is as follows (the highest first)—
(a) the procedure set out in subsection (3) (the affirmative procedure),
(b) the procedure set out in subsection (5) above (the negative procedure),
(c) no procedure.
(10) Provision is not prevented from being included in regulations made under this Act merely because the provision could have been included in other regulations made under this Act which would have been subject to a different or no parliamentary procedure.
(1) For the purposes of regulations under section 71 to which section 72 applies and regulations under section 73(4) to which section 73(5) applies, the enhanced affirmative procedure is as follows.
(2) Subsection (3) applies if—
(a) the Secretary of State has consulted under section 72(2) or (as the case may be) 73(5) in relation to making such regulations,
(b) a period of at least 12 weeks, beginning with the day on which any such consultation first began, has elapsed, and
(c) the Secretary of State considers it appropriate to proceed with making such regulations.
(3) The Secretary of State must lay before Parliament—
(a) draft regulations, and
(b) a document which explains the regulations.
(4) The Secretary of State may make regulations in the terms of the draft regulations laid under subsection (3) if, after the end of the 40-day period, the draft regulations are approved by a resolution of each House of Parliament.
(5) But subsections (6) to (9) apply instead of subsection (4) if—
(a) either House of Parliament so resolves within the 30-day period, or
(b) a committee of either House charged with reporting on the draft regulations so recommends within the 30-day period and the House to which the recommendation is made does not by resolution reject the recommendation within that period.
(6) The Secretary of State must have regard to—
(a) any representations,
(b) any resolution of either House of Parliament, and
(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations,
made during the 60-day period with regard to the draft regulations.
(7) If after the end of the 60-day period the draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the draft regulations.
(8) If after the end of the 60-day period the Secretary of State wishes to proceed with the draft regulations but with material changes, the Secretary of State may lay before Parliament—
(a) revised draft regulations, and
(b) a statement giving a summary of the changes proposed.
(9) If the revised draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the revised draft regulations.
(10) For the purposes of this section regulations are made in the terms of draft regulations or revised draft regulations if they contain no material changes to the provisions of the draft, or revised draft, regulations.
(11) References in this section to the “30-day”, “40-day” and “60-day” periods in relation to any draft regulations are to the periods of 30, 40 and 60 days beginning with the day on which the draft regulations were laid before Parliament; and, for this purpose, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.
There is to be paid out of money provided by Parliament—
(a) any expenditure incurred by a Minister of the Crown or government department by virtue of this Act, and
(b) any increase attributable to this Act in the sums payable by virtue of any other Act out of money so provided.
(1) Schedule 9 (which contains transitional, transitory and saving provision including a general saving for lawful conduct) has effect.
(2) The Secretary of State may by regulations make such transitional, transitory or saving provision as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act.
(1) Schedule 10 (which contains minor and consequential provision) has effect.
(2) The Secretary of State may by regulations make such provision as the Secretary of State considers appropriate in consequence of this Act.
(3) The power to make regulations under subsection (2) may, in particular, be exercised by modifying any provision made by or under an enactment.
(4) In subsection (3) “enactment” does not include any primary legislation passed or made after the end of the Session in which this Act is passed.
(1) Subject to subsections (2) and (3), this Act comes into force on such day as the Secretary of State may by regulations appoint; and different days may be appointed for different purposes.
(2) Sections 260 to 269, 270(2), 271(2) to (4) and this section come into force on the day on which this Act is passed.
(3) Sections 227 and 228 come into force at the end of the period of two months beginning with the day on which this Act is passed.
(4) Subject to subsections (5) to (7), this Act extends to England and Wales, Scotland and Northern Ireland.
(5) An amendment, repeal or revocation made by this Act of an enactment has the same extent within the United Kingdom as the enactment amended, repealed or revoked.
(6) Her Majesty may by Order in Council provide for any of the provisions of this Act to extend, with or without modifications, to the Isle of Man or any of the British overseas territories.
(7) Any power under an Act to extend any provision of that Act by Order in Council to any of the Channel Islands may be exercised so as to extend there (with or without modifications) any amendment or repeal of that provision which is made by or under this Act.
(8) This Act may be cited as the Investigatory Powers Act 2016.
Section 7
Part 1 Monetary penalty notices
Payment of monetary penalties
1 (1) A monetary penalty imposed by a monetary penalty notice must be paid to the Commissioner within the period specified in the notice.
(2) The period specified under sub-paragraph (1) must not be less than 28 days beginning with the day after the day on which the notice is served.
(3) Any sum received by the Commissioner by virtue of a monetary penalty notice must be paid into the Consolidated Fund.
Contents of monetary penalty notices
2 A monetary penalty notice must, in particular—
(a) state the name and address of the person on whom it is to be served,
(b) provide details of the notice of intent served on that person (see paragraph 4),
(c) state whether the Commissioner has received written representations in accordance with that notice of intent,
(d) state the grounds on which the Commissioner serves the monetary penalty notice,
(e) state the grounds on which the Commissioner decided the amount of the monetary penalty imposed by the monetary penalty notice,
(f) state the details of how the monetary penalty is to be paid,
(g) provide details of the person's rights of appeal under paragraph 8 in respect of the monetary penalty notice,
(h) provide details of the Commissioner's rights of enforcement under paragraph 9 in respect of the monetary penalty notice.
Enforcement obligations
3 (1) The Commissioner may include an enforcement obligation, or enforcement obligations, in a monetary penalty notice if the Commissioner considers that the interception to which the notice relates is continuing.
(2) Each of the following is an enforcement obligation—
(a) a requirement on the person on whom the notice is served to cease the interception on a specified day or within a specified period;
(b) (where appropriate for achieving such a cessation) a requirement on the person to take specified steps within a specified period, or to refrain from taking specified steps after the end of a specified period.
(3) An enforcement obligation may not have effect before the end of the period of 7 days beginning with the day after the day on which the notice is served.
(4) Where an enforcement obligation is included in a monetary penalty notice under this paragraph, the notice must state what the obligation is and the grounds for including it.
Consultation requirements before service of monetary penalty notices
4 (1) The Commissioner must proceed in accordance with sub-paragraphs (2) to (7) before serving a monetary penalty notice on a person.
(2) The Commissioner must serve a notice of intent on the person.
(3) A notice of intent is a notice that the Commissioner proposes to serve a monetary penalty notice on the person.
(4) A notice of intent served on a person must, in particular—
(a) state the name and address of the person,
(b) state the grounds on which the Commissioner proposes to serve the monetary penalty notice,
(c) provide an indication of the amount of the monetary penalty that the Commissioner proposes to impose and the Commissioner's grounds for deciding that amount,
(d) state whether the monetary penalty notice is to include any enforcement obligation and, if so, what the obligation is and the grounds for including it,
(e) state the date on which the Commissioner proposes to serve the monetary penalty notice,
(f) inform the person that the person may make written representations in relation to the Commissioner's proposal within a period specified in the notice, and
(g) inform the person that the person may, within a period specified in the notice, request an oral hearing before the Commissioner in order to make representations of the kind mentioned in sub-paragraph (6)(b).
(5) No period specified as mentioned in sub-paragraph (4)(f) or (g) may be less than 21 days beginning with the day after the day on which the notice is served.
(6) Where the person has requested an oral hearing within the period specified for the purpose in the notice—
(a) the Commissioner must arrange such a hearing, and
(b) the person may make representations at the hearing about—
(i) any matter falling within section 7(3)(c), or
(ii) any other matter relating to the Commissioner's proposal which, by virtue of section 56, the person would be unable to raise on an appeal under paragraph 8.
(7) The Commissioner must consider any representations which have been made by the person in accordance with the notice or sub-paragraph (6).
(8) If the Commissioner decides not to serve a monetary penalty notice on a person as a result of any representations which have been made by the person in accordance with a notice of intent or sub-paragraph (6), the Commissioner must inform the person of that fact.
5 (1) The Commissioner may not vary a notice of intent except as set out in sub-paragraph (2).
(2) The Commissioner may vary a notice of intent by extending the period mentioned in paragraph 4(4)(f) or (g).
(3) Sub-paragraph (1) does not prevent the Commissioner from serving a new notice of intent instead of varying such a notice.
(4) The Commissioner may cancel a notice of intent.
(5) A variation or cancellation of a notice of intent is effected by serving on the person on whom the notice was served a notice setting out the variation or cancellation.
6 (1) The Commissioner must not serve a monetary penalty notice on a person in respect of an interception if any notice of intent in respect of that interception was served on the person more than 3 months earlier.
(2) But the Commissioner may serve a monetary penalty notice on a person where the service of the notice would otherwise be prevented by sub-paragraph (1) if the Commissioner—
(a) considers it reasonable to do so, and
(b) includes the reasons for doing so in the monetary penalty notice.
Variation or cancellation of monetary penalty notices
7 (1) The Commissioner may vary or cancel a monetary penalty notice.
(2) But the Commissioner may not vary a monetary penalty notice in a way that is detrimental to the person on whom it was served (whether by increasing the amount of the monetary penalty, by reducing the period specified in the notice as the period within which the penalty must be paid, by imposing a new enforcement obligation or making an existing enforcement obligation effective earlier or otherwise more onerous, or otherwise).
(3) The Commissioner must—
(a) in the case of a variation which reduces the amount of a monetary penalty, repay any excess already paid in accordance with the notice, and
(b) in the case of a cancellation, repay any amount already paid in accordance with the notice.
(4) A variation or cancellation of a monetary penalty notice is effected by serving on the person on whom the monetary penalty notice was served a notice setting out the variation or cancellation.
(5) The Commissioner may not serve another monetary penalty notice on a person in respect of an interception if the Commissioner has cancelled a previous notice served on the person in respect of the same interception.
(6) If the Commissioner refuses a request by a person to vary or cancel a monetary penalty notice which has been served on the person, the Commissioner must inform the person of that fact.
Appeals in relation to monetary penalty notices
8 (1) A person on whom a monetary penalty notice is served may appeal to the First-tier Tribunal against—
(a) the monetary penalty notice or any provision of it, or
(b) any refusal of a request by the person to serve a notice of variation or cancellation in relation to the monetary penalty notice.
(2) Where there is an appeal under sub-paragraph (1)(a) in relation to a monetary penalty notice or any provision of it, any requirement in the notice or (as the case may be) provision which does not relate to the imposition of an enforcement obligation need not be complied with until the appeal is withdrawn or finally determined.
(3) Sub-paragraphs (4) to (6) apply in relation to an appeal under sub-paragraph (1)(a).
(4) The First-tier Tribunal must allow the appeal or substitute such other monetary penalty notice as could have been served by the Commissioner if the Tribunal considers—
(a) that the notice to which the appeal relates is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that the Commissioner ought to have exercised the discretion differently.
(5) In any other case, the First-tier Tribunal must dismiss the appeal.
(6) The First-tier Tribunal may review any determination of fact on which the notice was based.
(7) Sub-paragraphs (8) to (10) apply in relation to an appeal under sub-paragraph (1)(b).
(8) The First-tier Tribunal must direct the Commissioner to serve, on such terms as the Tribunal considers appropriate, a notice of variation or cancellation in relation to the monetary penalty notice if the Tribunal considers that the monetary penalty notice ought to be varied or cancelled on those terms.
(9) In any other case, the First-tier Tribunal must dismiss the appeal.
(10) The First-tier Tribunal may review any determination of fact on which the refusal to serve the notice of variation or cancellation was based.
Enforcement of monetary penalty notices
9 (1) This paragraph applies in relation to any penalty payable to the Commissioner by virtue of a monetary penalty notice.
(2) In England and Wales or Northern Ireland, the penalty is recoverable—
(a) if the county court in England and Wales or a county court in Northern Ireland so orders, as if it were payable under an order of that court, and
(b) if the High Court so orders, as if it were payable under an order of that court.
(3) In Scotland, the penalty is recoverable as if it were payable under an extract registered decree arbitral bearing a warrant for execution issued by the sheriff for any sheriffdom in Scotland.
10 (1) A person on whom a monetary penalty notice containing an enforcement obligation is served must comply with the obligation.
(2) The duty imposed by sub-paragraph (1) is enforceable by civil proceedings by the Commissioner for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief.
Guidance
11 (1) The Commissioner must prepare and issue guidance on how the Commissioner proposes to exercise the Commissioner's functions under section 7 and this Schedule.
(2) The guidance must, in particular, deal with—
(a) the manner in which the Commissioner is to deal with claims of a description specified in the guidance which may give rise to grounds for serving a monetary penalty notice,
(b) the circumstances in which the Commissioner would consider it appropriate to serve a monetary penalty notice,
(c) how the Commissioner will determine the amount of the penalty, and
(d) the circumstances in which the Commissioner would consider it appropriate to impose an enforcement obligation.
(3) The Commissioner may alter or replace the guidance.
(4) If the guidance is altered or replaced, the Commissioner must issue the altered or replacement guidance.
(5) The Commissioner must arrange for the publication, in such form and manner as the Commissioner considers appropriate, of any guidance issued under this paragraph.
Interpretation of Part 1
12 In this Part of this Schedule—
“address” means—
in the case of a registered company, the address of its registered office,
in the case of a person (other than a registered company) carrying on a business, the address of the person's principal place of business in the United Kingdom, and
in any other case, the person's last known address;
“the Commissioner” means the Investigatory Powers Commissioner;
“enforcement obligation” has the meaning given by paragraph 3(2);
“monetary penalty notice” means a monetary penalty notice under section 7;
“notice” means notice in writing;
“notice of intent” has the meaning given by paragraph 4(3);
“registered company” means a company registered under the enactments relating to companies for the time being in force in the United Kingdom.
Part 2 Information provisions
Information notices
13 (1) The Commissioner may by notice (an “information notice”) request any person on whom the Commissioner is considering whether to serve a Part 1 notice of intent or a Part 1 monetary penalty notice to provide such information as the Commissioner reasonably requires for the purpose of deciding whether to serve it.
(2) Where the Commissioner requests that documents be produced, the Commissioner may take copies of, or extracts from, any document so produced.
(3) An information notice must—
(a) specify or describe the information to be provided,
(b) specify the manner in which, and the period within which, the information is to be provided,
(c) state that the Commissioner considers that the information is information which the Commissioner reasonably requires for the purpose of deciding whether to serve a Part 1 notice of intent or (as the case may be) a Part 1 monetary penalty notice,
(d) state the Commissioner's grounds for this view, and
(e) provide details of the rights of appeal under paragraph 15 in respect of the information notice.
(4) For the purposes of sub-paragraph (3)(b)—
(a) specifying the manner in which the information is to be provided may include specifying the form in which it is to be provided, and
(b) the specified period within which the information is to be provided must not be less than 28 days beginning with the day after the day on which the information notice is served.
14 (1) The Commissioner may not vary an information notice except as set out in sub-paragraph (2).
(2) The Commissioner may vary an information notice by extending the period within which the information is to be provided if the person on whom the notice is served appeals under paragraph 15 in relation to the notice.
(3) Sub-paragraph (1) does not prevent the Commissioner from serving a new information notice instead of varying such a notice.
(4) The Commissioner may cancel an information notice.
(5) A variation or cancellation of an information notice is effected by serving on the person on whom the notice was served a notice setting out the variation or cancellation.
Appeals in relation to information notices
15 (1) A person on whom an information notice is served may appeal to the First-tier Tribunal against—
(a) the information notice or any provision of it, or
(b) any refusal of a request by the person to serve a notice of variation or cancellation in relation to the information notice.
(2) Subject to paragraph 14(2), an appeal under this paragraph does not affect the need to comply with the information notice while the appeal has not been withdrawn or finally determined.
(3) Sub-paragraphs (4) to (6) apply in relation to an appeal under sub-paragraph (1)(a).
(4) The First-tier Tribunal must allow the appeal or substitute such other information notice as could have been served by the Commissioner if the Tribunal considers—
(a) that the notice to which the appeal relates is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that the Commissioner ought to have exercised the discretion differently.
(5) In any other case, the First-tier Tribunal must dismiss the appeal.
(6) The First-tier Tribunal may review any determination of fact on which the notice was based.
(7) Sub-paragraphs (8) to (10) apply in relation to an appeal under sub-paragraph (1)(b).
(8) The First-tier Tribunal must direct the Commissioner to issue, on such terms as the Tribunal considers appropriate, a notice of variation or cancellation in relation to the information notice if the Tribunal considers that the information notice ought to be varied or cancelled on those terms.
(9) In any other case, the First-tier Tribunal must dismiss the appeal.
(10) The First-tier Tribunal may review any determination of fact on which the refusal to serve the notice of variation or cancellation was based.
Enforcement of information notices
16 (1) The Commissioner may serve a Part 2 monetary penalty notice on a person if the person—
(a) without reasonable excuse fails to comply with an information notice, or
(b) knowingly or recklessly gives any information which is false in a material particular in response to an information notice.
(2) A Part 2 monetary penalty notice is a notice requiring the person on whom it is served to pay to the Commissioner a monetary penalty of an amount determined by the Commissioner and specified in the notice.
(3) The amount of a monetary penalty determined by the Commissioner under this paragraph may be—
(a) a fixed amount,
(b) an amount calculated by reference to a daily rate, or
(c) a fixed amount and an amount calculated by reference to a daily rate.
(4) But the total amount payable must not exceed £10,000.
(5) In the case of an amount calculated by reference to a daily rate—
(a) no account is to be taken of the day on which the Part 2 monetary penalty notice is served or any day before that day, and
(b) the Part 2 monetary penalty notice must specify—
(i) the day on which the amount first starts to accumulate and the circumstances in which it is to cease to accumulate, and
(ii) the period or periods within which the amount, or any part or parts so far accumulated, must be paid to the Commissioner.
Any period falling within paragraph (b)(ii) must not be less than 28 days beginning with the day after the day on which the notice is served.
17 (1) Part 1 of this Schedule applies in relation to a Part 2 monetary penalty notice and the penalty that relates to that notice as it applies in relation to a Part 1 monetary penalty notice and the penalty that relates to that notice.
(2) The provisions in Part 1 of this Schedule so far as relating to enforcement obligations do not apply in relation to a Part 2 monetary penalty notice.
(3) Paragraph 4 has effect in relation to a Part 2 monetary penalty notice as if in sub-paragraph (6)(b) the reference to making representations about matters falling within sub-paragraph (6)(b)(i) or (ii) were a reference to making representations about matters falling within sub-paragraph (6)(b)(ii) only.
(4) Paragraph 6 has effect in relation to a Part 2 monetary penalty notice as if the references in sub-paragraph (1) to an interception were references to conduct falling within paragraph 16(1)(a) or (b).
(5) Paragraph 7(5) has effect in relation to a Part 2 monetary penalty notice as if the references to an interception were references to conduct falling within paragraph 16(1)(a) or (b).
Technical assistance for the Commissioner
18 (1) OFCOM must comply with any reasonable request made by the Commissioner, in connection with the Commissioner's functions under section 7 and this Schedule, for advice on technical and similar matters relating to electronic communications.
(2) For this purpose, the Commissioner may disclose to OFCOM any information obtained by the Commissioner under this Schedule.
(3) In this paragraph “OFCOM” means the Office of Communications established by section 1 of the Office of Communications Act 2002.
Interpretation of Part 2
19 In this Part of this Schedule—
“the Commissioner” means the Investigatory Powers Commissioner;
“enforcement obligation” has the meaning given by paragraph 3(2);
“information” includes documents; and any reference to providing or giving information includes a reference to producing a document;
“information notice” has the meaning given by paragraph 13(1);
“notice” means notice in writing;
“Part 1 monetary penalty notice” means a monetary penalty notice under section 7;
“Part 1 notice of intent” means a notice of intent (within the meaning of paragraph 4(3)) relating to a Part 1 monetary penalty notice;
“Part 2 monetary penalty notice” means a monetary penalty notice under paragraph 16.
Section 12(1)
Health and Safety at Work etc. Act 1974
Criminal Justice Act 1987
2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Consumer Protection Act 1987
3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Environmental Protection Act 1990
Social Security Administration Act 1992
5 In section 109B of the Social Security Administration Act 1992 (power to require information)—
(a) in subsection (2A) omit paragraph (j),
(b) in subsection (2E) for the words from “for” to the end of the subsection substitute “ so as to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator. ”,
(c) omit subsection (2F), and
(d) in subsection (7)—
(i) after the definition of “bank” insert—
“communications data” has the same meaning as in the Investigatory Powers Act 2016 (see sections 261 and 262 of that Act);
,
(ii) after the definition of “insurer” insert—
“postal operator” has the same meaning as in the Investigatory Powers Act 2016 (see section 262 of that Act);
, and
(iii) for the definition of “telecommunications service” substitute—
“telecommunications operator” has the same meaning as in the Investigatory Powers Act 2016 (see section 261 of that Act).
6 In section 109C of the Social Security Administration Act 1992 (powers of entry) for subsection (6) substitute—
(6) Subsections (2E) and (5) of section 109B apply for the purposes of this section as they apply for the purposes of that section.
Social Security Administration (Northern Ireland) Act 1992
7 In section 103B of the Social Security Administration (Northern Ireland) Act 1992 (power to require information)—
(a) in subsection (2A) omit paragraph (i),
(b) in subsection (2E) for the words from “for” to the end of the subsection substitute “ so as to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator. ”,
(c) omit subsection (2F), and
(d) in subsection (7)—
(i) after the definition of “bank” insert—
“communications data” has the same meaning as in the Investigatory Powers Act 2016 (see sections 261 and 262 of that Act);
,
(ii) after the definition of “insurer” insert—
“postal operator” has the same meaning as in the Investigatory Powers Act 2016 (see section 262 of that Act);
, and
(iii) for the definition of “telecommunications service” substitute—
“telecommunications operator” has the same meaning as in the Investigatory Powers Act 2016 (see section 261 of that Act).
8 In section 103C of the Social Security Administration (Northern Ireland) Act 1992 (powers of entry) for subsection (6) substitute—
(6) Subsections (2E) and (5) of section 103B apply for the purposes of this section as they apply for the purposes of that section.
Financial Services and Markets Act 2000
9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Finance Act 2008
10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014 (S.I. 2014/899)
11 In regulation 4 of the Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014 (power to require information from persons who provide telecommunications services etc.)—
(a) omit sub-paragraph (f) of paragraph (3),
(b) in sub-paragraph (g) of that paragraph for “(f)” substitute “ (e) ”,
(c) omit paragraphs (6) and (7),
(d) after paragraph (10) insert—
(10A) Nothing in this regulation is to be read as enabling a person to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.
, and
(e) in paragraph (11)—
(i) after the definition of “bank” insert—
“communications data” has the same meaning as in the Investigatory Powers Act 2016 (see sections 261 and 262 of that Act);
,
(ii) after the definition of “family” insert—
“postal operator” has the same meaning as in the Investigatory Powers Act 2016 (see section 262 of that Act);
, and
(iii) for the definition of “telecommunications service” substitute—
“telecommunications operator” has the same meaning as in the Investigatory Powers Act 2016 (see section 261 of that Act).
Section 56
Introductory
1 This Schedule contains—
(a) exceptions to the exclusion by section 56(1) of certain matters from legal proceedings, and
(b) limitations on those exceptions where that exclusion will still apply.
Disclosures of lawfully intercepted communications
2 (1) Section 56(1)(a) does not prohibit the disclosure of any content of a communication, or any secondary data obtained from a communication, if the interception of that communication was lawful by virtue of any of the following provisions—
(a) sections 6(1)(c) and 44 to 52;
(b) sections 1(5)(c), 3 and 4 of the Regulation of Investigatory Powers Act 2000;
(c) section 1(2)(b) and (3) of the Interception of Communications Act 1985.
(2) Where any disclosure is proposed to be, or has been, made on the grounds that it is authorised by sub-paragraph (1), section 56(1) does not prohibit the doing of anything in, or for the purposes of, so much of any proceedings as relates to the question whether that disclosure is or was so authorised.
Disclosures of convictions for certain offences
3 Section 56(1)(b) does not prohibit the doing of anything that discloses any conduct of a person for which that person has been convicted of—
(a) an offence under section 3(1), 43(7), 59 or 155,
(b) an offence under section 1(1) or (2), 11(7) or 19 of the Regulation of Investigatory Powers Act 2000, or
(c) an offence under section 1 of the Interception of Communications Act 1985.
Proceedings before the Investigatory Powers Tribunal etc.
4 Section 56(1) does not apply in relation to—
(a) any proceedings before the Investigatory Powers Tribunal,
(b) any proceedings on an appeal under section 67A of the Regulation of Investigatory Powers Act 2000 (appeal against decisions of the Tribunal etc.), or
(c) any proceedings arising out of such an appeal.
Proceedings before Special Immigration Appeals Commission
5 (1) Section 56(1) does not apply in relation to—
(a) any proceedings before the Special Immigration Appeals Commission, or
(b) any proceedings arising out of proceedings before that Commission.
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) the appellant or (as the case may be) applicant to the Special Immigration Appeals Commission, or
(b) any person who—
(i) represents that appellant or applicant for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of appointment under section 6 of the Special Immigration Appeals Commission Act 1997.
Proceedings before Proscribed Organisations Appeal Commission
6 (1) Section 56(1) does not apply in relation to—
(a) any proceedings before the Proscribed Organisations Appeal Commission, or
(b) any proceedings arising out of proceedings before that Commission.
(2) But sub-paragraph (1) does not permit the disclosure of anything to any of the following—
(a) the applicant to the Commission;
(b) the organisation concerned (if different);
(c) any person designated under paragraph 6 of Schedule 3 to the Terrorism Act 2000 to conduct the proceedings on behalf of that organisation;
(d) any person who—
(i) represents that appellant or that organisation for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of an appointment under paragraph 7 of that Schedule.
Closed material proceedings
7 (1) Section 56(1) does not apply in relation to any section 6 proceedings within the meaning given by section 14(1) of the Justice and Security Act 2013 (certain civil proceedings in which closed material applications may be made).
(2) But sub-paragraph (1) does not permit a prohibited section 6 disclosure.
(3) In the case of section 6 proceedings where the only relevant person is the Secretary of State, a “prohibited section 6 disclosure” means a disclosure of anything to—
(a) any person, other than the Secretary of State, who is or was a party to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of appointment as a special advocate.
(4) In the case of section 6 proceedings where the Secretary of State is not the only relevant person, or is not a relevant person but is a party to the proceedings, a “prohibited section 6 disclosure” means a disclosure of anything to—
(a) any person, other than the relevant person concerned or the Secretary of State, who is or was a party to the proceedings, or
(b) any person who—
(i) represents a person within paragraph (a) for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of appointment as a special advocate.
(5) In this paragraph “relevant person”, in relation to section 6 proceedings, has the meaning given by section 14(1) of the Justice and Security Act 2013.
TPIM proceedings
8 (1) Section 56(1) does not apply in relation to—
(a) any TPIM proceedings, or
(b) any proceedings arising out of any TPIM proceedings.
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) any person, other than the Secretary of State, who is or was a party to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of appointment as a special advocate under Schedule 4 to the Terrorism Prevention and Investigation Measures Act 2011.
(3) In this paragraph “TPIM proceedings” has the same meaning as in the Terrorism Prevention and Investigation Measures Act 2011.
Proceedings under Part 2 of the National Security Act 2023
8A (1) Section 56(1) does not apply in relation to—
(a) any proceedings which are relevant proceedings within the meaning of Part 2 of the National Security Act 2023 (see section 62(1) of that Act), or
(b) any proceedings arising out of any proceedings within paragraph (a).
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) any person, other than the Secretary of State, who is or was a party to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of an appointment as a special advocate under Schedule 10 to the National Security Act 2023.
TEO proceedings
9 (1) Section 56(1) does not apply in relation to—
(a) any TEO proceedings, or
(b) any proceedings arising out of any TEO proceedings.
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) any person, other than the Secretary of State, who is or was a party to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of appointment as a special advocate under Schedule 3 to the Counter-Terrorism and Security Act 2015.
(3) In this paragraph “TEO proceedings” has the meaning given by paragraph 1 of Schedule 3 to the Counter-Terrorism and Security Act 2015 (temporary exclusion orders: proceedings).
Sanctions proceedings
9A (1) Section 56(1) does not apply in relation to any proceedings—
(a) on an application under section 38 of the Sanctions and Anti-Money Laundering Act 2018 (court review of decisions), or
(b) on a claim arising from any matter to which such an application relates,
or any proceedings arising out of such proceedings.
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) any person, other than the Secretary of State or the Treasury (as the case may be), who is or was a party to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of appointment as a special advocate.
Proceedings relating to freezing of terrorist assets etc.
10 (1) Section 56(1) does not apply in relation to—
(a) any financial restrictions proceedings, or
(b) any proceedings arising out of such proceedings.
(2) In this paragraph “financial restrictions proceedings” has the meaning given by section 65 of the Counter-Terrorism Act 2008.
11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12 But paragraph 10 does not permit the disclosure of anything to—
(a) any person, other than the Treasury, who is or was a party to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of appointment as a special advocate.
Proceedings relating to release of prisoners etc in England and Wales
12A (1) Section 56(1) does not apply in relation to—
(a) any proceedings before the Parole Board, or
(b) any proceedings arising out of such proceedings.
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) any person, other than the Secretary of State, who is or was a party to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of appointment as a special advocate.
Proceedings relating to release of prisoners etc. in Northern Ireland
13 (1) Section 56(1) does not apply in relation to—
(a) any proceedings before—
(i) the Parole Commissioners for Northern Ireland, or
(ii) any Sentence Review Commissioners appointed under section 1 of the Northern Ireland (Sentences) Act 1998, or
(b) any proceedings arising out of such proceedings.
(2) But sub-paragraph (1) does not permit the disclosure of anything to—
(a) any person, other than the Secretary of State, who is or was a party to the proceedings, or
(b) any person who—
(i) represents such a person for the purposes of the proceedings, and
(ii) does so otherwise than by virtue of appointment as a special advocate.
Employment or industrial tribunal proceedings
14 (1) Section 56(1) does not apply in relation to any proceedings before an employment tribunal where the applicant, or the applicant's representatives, are excluded for all or part of the proceedings pursuant to—
(a) a direction to the tribunal by virtue of section 10(5)(b) or (c) of the Employment Tribunals Act 1996 (exclusion from Crown employment proceedings by direction of Minister in interests of national security), or
(b) a determination of the tribunal by virtue of section 10(6) of that Act (determination by tribunal in interests of national security).
(2) Section 56(1) does not apply in relation to any proceedings before an industrial tribunal in Northern Ireland where the applicant, or the applicant's representatives, are excluded for all or part of the proceedings pursuant to—
(a) a direction to the tribunal by virtue of Article 12(5)(b) or (c) of the Industrial Tribunals (Northern Ireland) Order 1996 (S.I. 1996/1921 (N.I. 18)) (exclusion from Crown employment proceedings by direction of Minister in interests of national security), or
(b) a determination of the tribunal by virtue of Article 12(6) of that Order (determination by tribunal in interests of national security).
(3) Section 56(1) does not apply in relation to any proceedings arising out of proceedings within sub-paragraph (1) or (2).
15 But paragraph 14 does not permit the disclosure of anything to—
(a) the person who is or was the applicant in the proceedings before the employment or industrial tribunal, or
(b) any person who—
(i) represents that person for the purposes of any proceedings within paragraph 14, and
(ii) does so otherwise than by virtue of appointment as a special advocate.
Proceedings relating to dismissal for certain offences
16 Section 56(1) does not prohibit anything done in, for the purposes of, or in connection with, so much of any legal proceedings as relates to the fairness or unfairness of a dismissal on the following grounds—
(a) any conduct constituting an offence under section 3(1), 43(7), 59 or 155;
(b) any conduct taking place before the coming into force of this paragraph and constituting—
(i) an offence under section 1(1) or (2), 11(7) or 19 of the Regulation of Investigatory Powers Act 2000, or
(ii) an offence under section 1 of the Interception of Communications Act 1985.
Proceedings on appeals relating to claims of discrimination in Northern Ireland
17 (1) Section 56(1) does not apply in relation to any proceedings on an appeal under Article 80(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (S.I. 1998/3162 (N.I. 21)) where—
(a) the appeal relates to a claim of discrimination in contravention of Part 3 of that Order (employment cases) and to a certificate of the Secretary of State that the act concerned was justified for the purpose of safeguarding national security, and
(b) a party to the appeal, or the party's representatives, are excluded for all or part of the proceedings by virtue of section 91(4)(b) of the Northern Ireland Act 1998.
(2) Section 56(1) does not apply in relation to any proceedings arising out of proceedings within sub-paragraph (1).
18 But paragraph 17 does not permit the disclosure of anything to—
(a) any person who is or was excluded from all or part of the proceedings mentioned in paragraph 17(1), or
(b) any person who—
(i) represents such a person for the purposes of any proceedings within paragraph 17, and
(ii) does so otherwise than by virtue of appointment as a special advocate.
Civil proceedings for enforcement of duty to assist with implementation of warrants
19 Section 56(1) does not apply in relation to any civil proceedings under section 43(8) of this Act or section 11(8) of the Regulation of Investigatory Powers Act 2000 (enforcement of duty of operators to assist with implementation of warrants).
Proceedings for certain offences
20 (1) Section 56(1) does not apply in relation to any proceedings for a relevant offence.
(2) “Relevant offence” means—
(a) an offence under any provision of this Act;
(b) an offence under section 1 of the Interception of Communications Act 1985;
(c) an offence under any provision of the Regulation of Investigatory Powers Act 2000;
(d) an offence under section 47 or 48 of the Wireless Telegraphy Act 2006;
(e) an offence under section 83 or 84 of the Postal Services Act 2000;
(f) an offence under section 4 of the Official Secrets Act 1989 relating to any such information, document or article as is mentioned in subsection (3)(a) or (c) of that section;
(g) an offence under section 1 or 2 of the Official Secrets Act 1911 relating to any sketch, plan, model, article, note, document or information which—
(i) incorporates, or relates to, the content of any intercepted communication or any secondary data obtained from a communication, or
(ii) tends to suggest that any interception-related conduct has or may have occurred or may be going to occur;
(h) an offence of perjury committed in the course of any relevant proceedings;
(ha) an offence under section 1 or 3 of the National Security Act 2023 relating to any information, document or other article which, or an offence under section 12 of that Act relating to any asset which—
(i) incorporates, or relates to, the content of any intercepted communication or any secondary data obtained from a communication, or
(ii) tends to suggest that any interception-related conduct has or may have occurred or may be going to occur;
(hb) an offence under section 18 of the National Security Act 2023 in relation to an offence falling within paragraph (ha);
(i) an offence of attempting or conspiring to commit an offence falling within any of paragraphs (a) to (ha);
(j) an offence under Part 2 of the Serious Crime Act 2007 in relation to an offence falling within any of those paragraphs;
(k) an offence of aiding, abetting, counselling or procuring the commission of an offence falling within any of those paragraphs;
(l) contempt of court committed in the course of, or in relation to, any relevant proceedings.
(3) In this paragraph—
“intercepted communication” and “interception-related conduct” have the same meaning as in section 56;
“relevant proceedings” means any proceedings mentioned in paragraphs 4 to 19.
Disclosures to prosecutors and judges
21 (1) Nothing in section 56(1) prohibits—
(a) a disclosure to a person (“P”) conducting a criminal prosecution that is made for the purpose only of enabling P to determine what is required of P by P's duty to secure the fairness of the prosecution, or
(b) a disclosure to a relevant judge in a case in which the judge has ordered the disclosure to be made to the judge alone.
(2) A relevant judge may order a disclosure under sub-paragraph (1)(b) only if the judge considers that the exceptional circumstances of the case make the disclosure essential in the interests of justice.
(3) Where in any criminal proceedings—
(a) a relevant judge orders a disclosure under sub-paragraph (1)(b), and
(b) in consequence of that disclosure, the judge considers that there are exceptional circumstances requiring the judge to make a direction under this sub-paragraph,
the judge may direct the person conducting the prosecution to make for the purposes of the proceedings any admission of fact which the judge considers essential in the interests of justice.
(4) But nothing in any direction under sub-paragraph (3) may authorise or require anything to be done in contravention of section 56(1).
(5) In this paragraph “relevant judge” 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) in relation to proceedings before the Court Martial, the judge advocate for those proceedings, or
(d) any person holding a judicial office that entitles the person to exercise the jurisdiction of a judge falling within paragraph (a) or (b).
Disclosures to inquiries and inquests
22 (1) Nothing in section 56(1) prohibits—
(a) a disclosure to the panel of an inquiry held under the Inquiries Act 2005, or
(b) a disclosure to a person appointed as legal adviser to such an inquiry,
where, in the course of the inquiry, the panel has ordered the disclosure to be made to the panel alone or (as the case may be) to the panel and any person appointed as legal adviser to the inquiry.
(2) The panel of an inquiry may order a disclosure under sub-paragraph (1) only if it considers that the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference.
(3) Any reference in this paragraph to a person appointed as legal adviser to an inquiry is a reference to a person appointed as solicitor or counsel to the inquiry.
23 (1) Section 56(1) does not apply in relation to any restricted proceedings of an inquiry held under the Inquiries Act 2005.
(2) Proceedings of an inquiry held under that Act are “restricted proceedings” for the purposes of this paragraph if restrictions imposed under section 19 of that Act are in force prohibiting attendance at the proceedings by any person who is not—
(a) a member of the panel of the inquiry,
(b) a person appointed as legal adviser to the inquiry,
(c) a person who is a relevant party to the proceedings,
(d) a person representing such a person for the purposes of the proceedings, or
(e) a person performing functions necessary for the proper functioning of the proceedings.
(3) But sub-paragraph (1) does not permit any disclosure which has not been made in accordance with paragraph 22(1).
(4) In this paragraph “relevant party”, in relation to any proceedings of an inquiry, means—
(a) any person making a disclosure to the panel of the inquiry, or to a person appointed as legal adviser to the inquiry, in accordance with paragraph 22(1);
(b) any person giving evidence to the inquiry in circumstances where, in the absence of sub-paragraph (1), the prohibition imposed by section 56(1) would be breached;
(c) any person whose conduct is the interception-related conduct (within the meaning of section 56) to which the disclosure or evidence relates (whether or not that conduct has in fact occurred);
(d) any other person to whom the subject-matter of the disclosure or evidence has been lawfully disclosed in accordance with section 58.
(5) Any reference in this paragraph to a person appointed as legal adviser to an inquiry is to be read in accordance with paragraph 22(3).
24 (1) Nothing in section 56(1) prohibits—
(a) a disclosure to a person (the “nominated person”) nominated under paragraph 3(1) of Schedule 10 to the Coroners and Justice Act 2009 (investigation by judge or former judge) to conduct an investigation into a person's death, or
(b) a disclosure to a person appointed as legal adviser to an inquest forming part of an investigation conducted by the nominated person,
where, in the course of the investigation, the nominated person has ordered the disclosure to be made to the nominated person alone or (as the case may be) to the nominated person and any person appointed as legal adviser to the inquest.
(2) The nominated person may order a disclosure under sub-paragraph (1) only if the person considers that the exceptional circumstances of the case make the disclosure essential in the interests of justice.
(3) In a case where a person who is not a nominated person is or has been conducting an investigation under Part 1 of the Coroners and Justice Act 2009 into a person's death, nothing in section 56(1) prohibits—
(a) a disclosure to the person that there is intercepted material in existence which is, or may be, relevant to the investigation;
(b) a disclosure to a person appointed as legal adviser to an inquest forming part of the investigation which is made for the purposes of determining—
(i) whether any intercepted material is, or may be, relevant to the investigation, and
(ii) if so, whether it is necessary for the material to be disclosed to the person conducting the investigation.
(4) In sub-paragraph (3) “intercepted material” means—
(a) any content of an intercepted communication (within the meaning of section 56), or
(b) any secondary data obtained from a communication.
(5) Any reference in this paragraph to a person appointed as legal adviser to an inquest is a reference to a person appointed as solicitor or counsel to the inquest.
25 (1) Nothing in section 56(1) prohibits—
(a) a disclosure to a relevant coroner conducting an NI investigation or inquest, or
(b) a disclosure to a qualified person—
(i) appointed as legal adviser to an inquest conducted by the coroner, or
(ii) employed under section 11(3) of the Coroners Act (Northern Ireland) 1959 (c. 15) (“the 1959 Act”) by a relevant coroner to assist the coroner in an investigation conducted by the coroner,
where, in the course of the investigation or inquest, the relevant coroner (“C”) has ordered the disclosure to be made to C alone or (as the case may be) to C and any qualified person appointed or employed by C as mentioned in paragraph (b).
(2) A relevant coroner may order a disclosure under sub-paragraph (1) only if the coroner considers that the exceptional circumstances of the case make the disclosure essential in the interests of justice.
(3) In a case where a coroner (“C”) conducting, or who has been conducting, an NI investigation or inquest is not a relevant coroner, nothing in section 56(1) prohibits—
(a) a disclosure to C that there is intercepted material in existence which is, or may be, relevant to the investigation or inquest;
(b) a disclosure to a qualified person appointed by C as legal adviser to the inquest or employed by C under section 11(3) of the 1959 Act to assist C in the investigation, which is made for the purposes of determining—
(i) whether any intercepted material is, or may be, relevant to the investigation, and
(ii) if so, whether it is necessary for the material to be disclosed to the person conducting the investigation.
(4) In sub-paragraph (3) “intercepted material” means—
(a) any content of an intercepted communication (within the meaning of section 56), or
(b) any secondary data obtained from a communication.
(5) In this paragraph—
“the 1959 Act” has the meaning given by sub-paragraph (1);
“coroner” means a coroner appointed under section 2 of the 1959 Act;
“NI investigation or inquest” means an investigation under section 11(1) of the 1959 Act or an inquest under section 13 or 14 of that Act;
“qualified person” means a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland);
“relevant coroner” means a coroner who is a judge of the High Court or of a county court in Northern Ireland.
26 (1) Nothing in section 56(1) prohibits—
(a) a disclosure to a relevant person conducting an inquiry under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (2016 asp 2) (“IFASDA 2016”), or
(b) a disclosure to a qualified person appointed under section 24 of that Act to assist a relevant person in the inquiry,
where, in the course of the inquiry, the person conducting the inquiry has ordered the disclosure to be made to that person alone or (as the case may be) to that person and any qualified person appointed to assist a relevant person in the inquiry.
(2) A relevant person may order a disclosure under sub-paragraph (1) only if the person considers that the exceptional circumstances of the case make the disclosure essential in the interests of justice.
(3) Nothing in section 56(1) prohibits—
(a) a disclosure to a relevant person conducting an inquiry under IFASDA 2016, or
(b) a disclosure to a qualified person appointed under section 24 of that Act to assist a relevant person in the inquiry,
that there is intercepted material in existence which is, or may be, relevant to the inquiry.
(4) In sub-paragraph (3) “intercepted material” means—
(a) any content of an intercepted communication (within the meaning of section 56), or
(b) any secondary data obtained from a communication.
(5) In this paragraph “relevant person” means—
(a) a sheriff principal,
(b) a temporary sheriff principal, or
(c) a sheriff or part-time sheriff (but not a summary sheriff or part-time summary sheriff) designated as a specialist under section 37(1) or (3) of IFASDA 2016.
(6) In this paragraph “qualified person” means an advocate or solicitor; and “advocate” and “solicitor” have the same meaning as in IFASDA 2016 (see section 40 of that Act).