Authorisation of surveillance and human intelligence sources
Section 27: Lawful surveillance etc
188.This section provides that all conduct defined in section 26 will be lawful, provided it is carried out in accordance with the authorisation to which it relates. Authorised conduct may cover any action taken either in the UK or abroad.
189.Furthermore, there will be no civil liability arising out of conduct that is incidental to the authorised conduct. However, this is only the case where the incidental conduct should not have been separately authorised either under this Act or under existing legislation.
Section 28, 29 and 30: Authorisation of directed surveillance; Authorisation of covert human intelligence sources; and Persons entitled to grant authorisations under sections 28 and 29
190.These sections deal with the scheme of authorisations for directed surveillance and the conduct and use of covert human intelligence sources.
191.Section 30 provides that the persons entitled to grant such authorisations will be such persons within the relevant public authorities that are designated by order of the Secretary of State. In this respect, the relevant public authorities are specified in Parts I and II of Schedule 1. Subsections (5) and (7) allow the Secretary of State to add, remove, or move public authorities between Parts I and II of the Schedule. Adding authorities to the Schedule and moving an authority from Part II to Part I of the Schedule is subject to affirmative resolution.
192.Subsection (2) provides that where an authorisation for directed surveillance or the use or conduct of a covert human intelligence source is combined with a Secretary of State authorisation for intrusive surveillance, the combined authorisation must be issued by the Secretary of State.
193.Police and Customs authorisations may only be granted on an application from within the force or authority in question (see section 33(1) and (2)).
194.Section 28 and 29 provide that authorisations cannot be granted unless specific criteria are satisfied, namely, that the person granting the authorisation believes that:
the authorisation is necessary on specific grounds; and
the authorised activity is proportionate to what is sought to be achieved by it.
195.The specific grounds are that the authorisation is necessary:
in the interests of national security;
for the purpose of preventing or detecting crime or preventing disorder;
in the interests of the economic well-being of the UK;
in the interests of public safety;
for the purpose of protecting public health;
for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
for other purposes which may be specified by order of the Secretary of State.
196.In addition, there are two further criteria in relation to covert human intelligence sources: namely that specific arrangements exist to ensure that, amongst other things, the source is independently managed and supervised, that records are kept of the use made of the source, that the source’s identity is protected from those who do not need to know it, and that arrangements also exist to satisfy such other requirements as may be imposed by order made by the Secretary of State. The responsibility for the management and supervision of a source falls to specified individuals within the organisation benefiting from the use of the source. As there may be cases where a source carries out activities for more than one organisation, it is provided that only one organisation will be identified as having responsibility for each requirement in relation to such arrangements and record-keeping.
197.Section 29(7) provides that the Secretary of State may prohibit, by order, certain conduct/uses of covert sources altogether and enables him, in other specific cases, to impose additional requirements which must be satisfied before an authorisation may be granted.
198.Subsection (3) of section 30 provides that the Secretary of State may impose, by order, restrictions on the types of authorisations granted and on the circumstances or purpose for which such authorisations may be granted.
199.Sections 28(4) and 29(4) set out the conduct that is authorised by the authorisation. Broadly speaking, it covers any conduct that occurs whilst carrying out the specified surveillance or is comprised in the activities involving the specified conduct or use of a covert human intelligence source, provided it is carried out or takes place in the manner and for the purposes described.
Section 31: Orders under section 30 for Northern Ireland
200.Section 31 provides for the Office of the First Minister and Deputy First Minister, to be able to make an order specifying which authorities, with devolved functions in Northern Ireland, can lawfully authorise directed surveillance and the conduct and the use of covert human intelligence sources.